Sims v. Mobile, J. & K. C. R. R.

SIMPSON, J. This was a statutory action of ejectment, by the appellants against the appellee, to recover [236] the laud described in the complaint, which will be sqt out in the statement of this case by the reporter. The plaintiffs offered in evidence a copy, from the “American State Papers,” of the report of the land commissioners, “founded on grants from the French, British, or Spanish governments,” which merely showed Forbes & Co. to be the original claimants of “600 arpens” from the Spanish government; “date of claim, 17th April, 1807;” “where sustained, Choctaw Point;” “surveyed April 14, 1807,” etc. Admitting that this paper can be considered evidence under section 1813 of the Civil Code of 1896, there is nothing in the description to identify the land therein mentioned as the same as that sued for. They next offered a certified copy of a patent from the United States government, issued to John Forbes & Co., “bearing date 21st December, 1904,” of section 37, township 4, range 1 west, reciting that the certificate from the Montgomery land office had been deposited; but it does not show when the certificate was issued, which is equally defective as to description. The proceedings in chancery, in the case of Innerarity v. Forbes and Campbell, by which certain lands were sold,sometimes described as Choctaw Point, again as section 37, and then by boundaries not corresponding -with those set out in the complaint, are equally defective. It may be said, also, in regard to these chancery proceedings, that as to third parties they are. not evidence of the facts therein recited, to wit, that the parties therein named were really the parties who composed the firm of John Forbes & Co., etc.- — 2 Black on Judgments, §’§ 600, 604; Taylor, Adm'r, v. Means, 73 Ala. 468; First national Bank v. Pullen, 129 Ala. 638, 642, 29 South. 685. Deeds were then offered, but none of them described the land as set out in the complaint, and there was no [237] testimony identifying the land. Certain maps were excluded, which are subject to the same objection, and those admitted to not indicate the same land as that described in the complaint. The fourth assignment of error complains of the exclusion of a deed to plaintiff executed by Charles K. Holt as register in chancery. This deed was dated more than 50 years after the decree, and in addition the decree did not direct the register or any one else to make a deed. It simply barred the equity of redemption, and ordered the purchaser to be let into possession. The deed ivas properly excluded, for the above reasons, and also by reason of the fact that the deed was not made to the purchaser at the sale, hut the register undertook to decide who were the lawful heirs of the purchaser, and made a deed to them. After so long a time, and a change in the person who occupied the office of register, even if a deed had been ordered it could only he executed by order of the court after a judicial determination of the question as to who were the heirs of the purchaser. 17 Am. & Eng. Ency. Law - (2d Ed.) pp. 1030, 1031. Other irregularities might be pointed out, but sufficient has been said to show that the plaintiff failed to make out a prima facie case, and the defendant was entitled to the general charge as given. That being the case, it is unnecessary to consider objections raised to evidence offered by the defendant. The judgment of the court is affirmed. Tyson, C. J., and Dowdell and McO-lellan, JJ., concur.