WINEMAN v. GASTRELL, 53 F. 697

LOCKE, District Judge, (after stating the facts.) The two questions upon which a decision of this cause must turn are; First, whether the state by the act of March 3, 1.852, conveyed title to the 35,000 acres of land therein granted to the board of Homochitto commissioners; and, secondly, if so, had the chancery court of Adams county jurisdiction of the parties and matter at issue in the suit of Aiken against that board, so as to give validity to the sale made under its decree.

In regard to the first question, the language used in the granting act is all that could be required to declare a grant in praesenti, and to declare it anything less would require other grounds than are found in the expressions of the act. Legislative grants have not been infrequent in either our national or state legislation, and have many times received judicial construction, and wherever such language as was used in this act has been found, with no further modifying or limiting clause, it has been held to be a present grant, conveying title upon the final identification of the land granted. In Rutherford v.

Greene’s Heirs, 2 Wheat. 196, it was contended that the absence of the words “are hereby” defeated the grant as a present conveyance; but it was held otherwise. In this act such words were used. In Lessieur v.

Price, 12 How. 72, in speaking of the grant of four sections of land to the state of Missouri by the' act of 6th of March, 1820, to be subsequently located, the supreme court says it was a present grant, wanting identity to make it perfect, and the legislature was vested with full power to select and locate the land, and the act vested a title in the state of Missouri of four sections, and the selection made gave precision to the title, and attached it to the land so selected. In Fremont v. U.

S., 17 How. 542, the difference between a con-' cession with conditions precedent and a grant in which a title passed is plainly shown, and the general principle of justice and municipal law was declared to be that such a grant as was under consideration in the case of Rutherford v. Greene’s Heirs for a certain quantity of land by the government, to be afterwards surveyed and laid off, vests in the grantee a present and immediate interest. In Schulenberg v. Harriman, 21 Wall. 60, the court says: “That the act of congress passed a present interest in the hands designated there can be no doubt.

The language used imparts a present grant, and admits of no other meaning. The language of the first

section is ‘that there be, and is hereby, granted’ the lands specified.” In Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. Rep. 336, where land had been granted to the state of Kansas for the use and benéfit of the St. Joseph & Denver Railroad, and a provision made for the manner in which patents to the railroad company might be issued by the secretary of the interior upon the certificate of the governor of Kansas that any

section of the road had been completed, the grant was held to be one in praesenti to the state, and that it attached and became complete as soon as the route of the road was definitely determined, although no patent or evidence of title ever passed to the state, but was to pass directly to the railroad company upon certificate, as in this case. Upon that question the court says: “This is only a mode of divesting the state of her trust character, and of passing the legal title held by her to the party for whose benefit the grant was made.

The legal title under the grant goes to the state, but the equitable right vests in the company.” These are but a few of the numerous cases where this same principle is announced. Railroad Co. v. Smith, 9 Wall. 95; Leavenworth, etc., R. Co. v. U. S., 92 U. S. 733; French v. Fyan, 93 U. S. 169; Martin v. Marks, 97 U. S. 345.

We consider that this was a present grant, the commissioners taking the legal title to convey to any one instrumental in carrying out the purposes of improving the Homochitto river, and it only required the designation of the person so entitled by payment or appropriation by order of said commissioners, and an identification of the land, to make it perfect. It is plainly declared in words in Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U.

S. 497, as it is held in numerous other cases, that legislative grants do not require such identification of the thing granted at the time of the grant as is required by conveyances at common law, hut whenever there exist rules or directions by which subsequent identification may be haxl, the inchoate or imperfect title dates from the passage of the act;, to attach whenever such identification can be made. St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 5,11 Sup. Ct. Rep. 389; Wright v. Roseberry, 121 U. S. 500, 7 Sup. Ct. Rep. 985; Grinnell v. Railroad Co., 103 U. S. 742; Van Wyck v. Knevals, supra.

It has been strongly urged in behalf of appellant that the title did not pass from the state until the provisions of ihe act providing for' granting certificates and patents had been complied with, and that such construction was necessary for the protection of the public, and the preservation of the integrity of the office of the land department of the state; that there should be evidence of sale in that office before such grant could he considered perfected, and the land identified, and segregated from the public domain.

The argument certainly possesses cogency of reasoning, and, were it a new question, never considered by the supreme court, it might be accepted; but, in view of ihe decision of that court in Railroad Co. v. Smith and Van Wyck v. Knevals, supra, we do not consider that that view of the law can he accepted. In Railroad Co. v. Smith the question was whether the selection of the swamp lands by the secretary of the interior, and issuing a patent therefor, as was provided for in the second

section of the swamp-land grant of September 28,1850, was necessary to convey title. In that act the language had been much more plain and direct than in Ibis, it being that the secretary of the interior should make out an accurate list of the lands, and cause a patent to be issued to the state, “and on that patent the fee simple to said lands sh,all vest in said state;” hut, notwithstanding this positive declaration that the fee shall vest on that title, the supreme court held that such patent was not necessary to determine the rights of the state.

The court says: “The right of the state did not depend on his action, but on the act of congress; and, though the states might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out a list of these lands, the light of the states to them could not be defeated by that delay.” In French v.

Fyan, supra, although the grant to the railroad company under which plaintiff held had been made by act of 1852, and the land certified under that grant to the company in 1854, and the patent of the secretary of the interior to the state under the swampland grant was not issued until 3857, yet it was held that the swampland grant of 1850 conveyed title. In Van Wyck v.

Knevals, where the title was between a claimant who alleged title under a railroad grant and one who had purchased from the land office, and paid full price for the land before the notice of the designation of the line of the road had been received at that office, and had received his patent, it was held that, notwithstanding there had been no notice of the withdrawal of the land received, and he had purchased in good faith, yet the title had passed out of the United States by the grant, and his patent was invalid.

The language of the act under which that case arose was peculiar in its construction, and would appear to demand the construction claimed in this case, namely, that no title passed, but remained in the United States until the patent issued. It was that the lands granted “shall inure to the benefit of the said company as follows: When the governor of the state of Kansas shall certify that any

section of ten consecutive miles of said road is completed in good, substantial, and workmanlike manner, then the secretary of the interior shall issue to the said company,” etc.

This language would seem to be much more explicit in declaring the intention of congress to retain title until the issuance of the patents, but the supreme court says the grant “passes the title as fully as though the sections had then been capable of identification.” We have failed to find any case where the land has been capable of any reasonable selection or identification by survey, description as to quantity or quality, or location, in which it has been held that the title did not pass until patent issued. In this case there appears to have been but 35,723 acres of swamp land in the Homochitto swamp.

Of this, 35,000 were covered by the grant. Probably it was the intention of the legislature to grant the entire body of land for the purpose proposed, but there were 723 acres more than were contemplated. In view of that state of facts, it would seem perfectly competent for the swamp-land office of Mississippi to have preserved its integrity and protected the public by recognizing the grant as haring attached to 35,000 acres of this land, and so limited its right of disposal.

The reason for the general rule that no title can pass by any grant in favor of a railroad until the route has been finally determined, and a map designating it filed with the secretary of the interior, where a comparatively small amount, otherwise undescribed and unlocated, is to be selected from the vast body of public land, would not appear to be required in this case, where the land has been described and located, and can very readily be determined by limiting any sale to the small surplus found answering the same description.

The act of March 5, 1850, originally organizing the board of commissioners, gave them full authority to do and perform all such acts as would tend to the improvement of the navigation of the river in their discretion. Unquestionably this gave them power to incur debts by employing labor or making contracts, and to provide for their payment. This was not only a privilege, but a duty. The second

section of the act of March 3,1852, under consideration, provided that they were authorized and empowered to sell and dispose of any of said lands for the purposes mentioned in the act, and issue certificates specifying the number of acre's such purchaser or grantee might, be entitled to by description, They were therefore authorized to sell or grant in payment for services rendered any such of the entire grant as they and the purchaser or grantee might agree upon, and upon such sale or grant it must be considered that such land was identified, and the grant from the state became complete.

It is true that certificates and patents were to issue; but the legal title having passed by the grant to the commissioners, and their grantee becoming equitably entitled to a certificate and patent, his right could not be defeated by their refusing the one, and, consequently, the secretary of state withholding the other.

There can be no question but wbat it was the intention of the legislature making the grant to enable the commissioners to grant, convey by sale, or dispose of, said lands in any way to accomplish the purposes of the grant; and whether the powers of a court of equity could be invoked to compel such commissioners to so use these lands as to satisfy such indebtedness as had arisen in their carrying out the purposes for which the lands were granted, and whether the action of the chancery court in making sale of such lands, and thereby identifying them, could take the place of a conveyance by the commissioners and their grantee, is the remaining question.

We consider this to have been a t rust fund held for a certain purpose, and the commissioners acting in the capacity of trustees. The supreme court, in Van Wyck v. Knevals, supra, speaks of the trust character of the state when occupying a similar position, and the only difference is that while in that ease the beneficiary of the trust, was named as the railroad company, in this case the cestui (pie trust must be considered as any one who, by the paying of money or contributing valuable aid or assistance in carrying out, the purpose of the grant, became entitled to the benefit of it.

The commissioners had accepted this grant for the purpose of compensating, either directly, by grant of land, or indirectly, by paying the price for which the land was sold, those rendering beneficial aid towards that purpose. An element, of trust will always give jurisdiction in equity.

Had any one, with the co-operation of the commissioners, selected any of this land and paid for it, we think there can be no question but what he could have resorted to a court, of equity to compel an issuing of the certificate and patent, or have the want thereof supplied by its decree; and the ground of the suit, as alleged by Aiken’s bill, would seem to stand upon the same foundation. He alleged an indebtedness of the board of commissioners, incurred directly in carrying out the purpose of the grant, and for which it, would, appear that the trust might be held.

If the court, as a court of equity to which application was made, had jurisdiction to hear and determine the questions there put in issue, the re-examination of them is beyond our proAince, whether their determination was correct or othenvise. The doctrine of the courts of tins country is firmly established that if the court in Avhich the proceedings took place had jurisdiction to render the judgment AA'hieh it rendered, no error in its proceedings which did not affect, the jurisdiction will render the proceedings void; nor can such errors be considered when the judgment is brought collaterally into question.

The court in which these proceedings were had was a court of general jurisdiction, and every presumption must be made in favor of the validity of its proceeding not inconsistent with the record. If the commissioners neglected, declined, or refused to make a grant of land, or otherwise provide for the payment of debts which they had incurred in executing the trust which they had accepted, we consider that the complainant was authorized to apply to a court of equity to compel such action, and, in event of continued refusal, perform what was found to be the duty of the commissioners by an agency of its own.

This was done, and a commissioner appointed, and empowered to dispose of so much of this land as was found necessary to pay the amount which the trust fund was found indebted to the complainant in that court. The land had been identified in the grant by character and location, and, could it have been properly assumed or appeared that there was but the amount granted that would answer the description, we consider that the grant would have been perfect and complete at that time.

As it was, it appears from the list certified under seal of the secretary of state of swamp lands on the Homochitto river, and those which had been conveyed by the state, that there was not at the time when the sale was ordered the number of acres granted remaining unsold. It does not appear that any further selection or identification would be necessary to complete and pei feet the title given by the grant. If so, the selecting for sale, and selling under the orders of the court, any lands fully answering to the description, would, in our opinion, be sufficient.

If the chancery court of Adams county had jurisdiction, (which we find it had,) no objections can be made to its proceedings, judgments, or decrees, no matter what may have been the final result, or how wasteful, as it is claimed, of the fund. No other disposition of any of the land had been made by the state previous to the selection by the commissioner appointed by the court, at which time we consider the terms of the grant had been sufficiently complied with to perfect the title; and a selling and disposing of the land so selected was but the enforcement of an ordinary equitable power.

Such is shown to be the law and practice of courts of equity in Mississippi. Gibbs v. Green, 54 Miss. 610. It is strongly urged by appellant that he is a purchaser for value without notice, and his title should therefore prevail.

The conclusion at which we have arrived is that the grant from the state was a grant in praesenti, completed and perfected by selection and sale; that the grant, judicial sale, and due recording of the deed of the court commissioner was sufficient to put the purchaser upon notice There has been no question of insufficiency of title in complainant subsequent to the sale, and, when once that is established, that determines the question.

There was no appeal from the finding of the court below of an amount due the respondent for taxes paid by him, and that decree in'his favor will stand, with interest, and in all things the decree o; the court below is affirmed, with costs, and the cause remanded for further proceedings to be taken in accordance with this opinion.