and by the express terms and In the Matter of DAYTON S. MORGAN AND

It is then stated that a sale Mandamus-discretion of inferior courts not con-
ed property was made under the
he amount due your petitioner
decree and order of sale, as and for
*** fee, *** having been regularly
od determined, the said purchaser
paid to the clerk of the circuit
and for and in payment of the
petitioner for his attorney's fee,
mount so as aforesaid ascertained

1. A writ of mandamus may be used to require an
tion and pending before it for determination, but
inferior court to decide a matter within its jurisdic-
not to control the decision.

to be due to your petitioner
The petition then states that upon
of the money it was deposited in
of the court, and that, although de-
trict judge holding the circuit
d to sign an order for its pay-
m, but that the sum of $500,
was retained, although it was then
y of the court and "absolutely
ally the property of your peti-

various orders and decrees
bts of the petitioner depend
to the petition; but upon the
ants of the petitioner as to
defect, a rule was entered on
to show cause why the writ
not be issued. To this rule a
made from which it appears
that it has never been adjudged
er was the owner of the money
contrary it does appear that
December, 1884, the petitioner
oser in court, being $1,039.42,
by the clerk," and thereupon
" "that there be paid to said
sery out of said funds the
4
but the court declined to
an of the rest of the fund

[174]

U. S., [bk. L. ed. 165]; Ex pa

ON petition for a writ of mandamusse suff-ing, 94, 5, 41, 103, 24, 26, 1. 10.137.

ciently appear in the opinion of the court.
Mr. Edward Robey, for petitioners.
Messrs. W. H. Calkins, A. L. Osborn and
A. C. Harris, for respondents, contra.

Mr. Chief Justice Waite delivered the opin-
ion of the court:

This is an application for a writ of mandamus requiring the Circuit Court of the United States for the District of Indiana to amend a judgment entered January 20, 1883, in a cause wherein the relators were plaintiffs and Frederick Eggers defendant, "so as to conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial of said cause.'

The suit was ejectment to recover the possession of "all of the north part of lot 2, in sec. 36, T. 38, N. R. 10 W. of the second principal meridian, which lies west of the track of the Lake Shore and Michigan Southern Railroad and

If a clerk in performing the ministerial a of recording a judgment has committed an ror, the court may on motion at the proper tir correct it, or it may do so in a proper case up its own suggestion without waiting for the pa ties. Here the plaintiffs, believing that t judgment as recorded did not conform to t finding, moved the court to amend it in th particular. This motion the court entertaine but, being of the opinion that the judgme had been correctly recorded, refused the amen ment which was asked. In this the court act judicially, and its judgment on the motion c no more be reviewed by mandamus than th which was originally entered in the cause. The writ is denied with costs. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. Cited.-116 U. S., 402.

north of a line parallel with the north line of EAST ALABAMA RAILWAY COMPANY said lot 2, and 753 feet south therefrom."

The judgment entry, which includes the only

finding in the case, is as follows:

Piff. in Err.,

v.

"And the court, having heard the evidence JOHN DOE, ex dem. DANIEL W. VISSCHE

and being fully advised, finds for the plaint-
iffs, and orders and adjudges that they are en-
titled to and shall have and recover of defend-
ant the possession of so much of said lot two
(2) as lies south of the south line of lot number
one (1), as indicated by a fence constructed and
maintained by the defendant as and on said
south line, said fence running from the state
line easterly to Lake Michigan, and assessing
the damages at $1 and costs taxed at $, which
the plaintiffs shall recover of defendant. All
of which is finally ordered, adjudged and

creed."

ET AL.

(See S. C. Reporter's ed., 340-355.)

Railroads-sale of right of way void if pu chaser has not the franchise-ejectment—estop pel.

*Various owners of lands in Alabama granted to railroad corporation of that State" and its assigns in 1860, a right of way through the lands to mak and run a railroad, the corporation having a frau de-chise to do so and to take tolls; and it obtained a lik right, as to other land, by statutory proceeding. I graded a part of the line. V., a judgment credito of the corporation, in 1867 levied an execution of iff deeded it to him, and he took possession of the the right of way, and it was sold to V., and the sher road-bed. In 1870 he contracted with another rail road corporation to complete the grading of the paid, to transfer to it all his title to the franchise line of road for so much per mile, and, on beins right of way and property of the old corporation He completed the work, and was not paid in full but gave possession of the road in 1871 to the cor poration, and its franchises and road and property passed in 1880 to another corporation, the defend ant, against whom V. brought an action of eject ment to recover the road-bed: Held,

After this entry the petitioner moved the court to amend and reform the judgment so that it would "conform to the complaint in said court and to the finding or verdict"; but the court, on full consideration, decided that the finding and judgment were not separate and distinct, and that the meaning was clear. The entry was to be construed as finding and adjudging that the plaintiffs were only entitled to recover the possession of so much of the premises sued for as lies south of the fence indicated. For this reason the motion was denied.

It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U. S., 350 [bk. 24, L. ed., 195]; Ex parte R. Co., 101 U. S., 720 [bk. 25, L. ed., 875]; Ex parte Burtis, 103 0.5, 238 [bk. 26, L. ed.,392]. Here a judgment has been rendered and entered of record by the circuit court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarily by the clerk as the ministerial officer of the court, but his recording is, in legal effect, the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Lor

(1) The right of way could not be sold on execu tion or otherwise to a purchaser who did not own the franchise.

(2) There was nothing in the contract to estop

the defendant from disputing the right of V. to re-
cover in ejectment, on the strength of his title.
[No. 207.]

(3) V could not recover.

Submitted Mar. 20, 1885. Decided Apr. 13, 1885.

IN ERROR to the Circuit Court of the Unit

ed States for the Middle District of Alabama.

The history and facts appear in the opinion of the court.

Messrs. Edward Patterson and Harry C. Semple, for plaintiff in error.

Messrs. Samuel P. Rice and John M. Chilton, for defendants in error.

Mr. Justice Blatchford delivered the opinion of the court:

* Head notes by Mr. Justice BLATCHFORD.

Vember, 1880, the defendants in error | Mary F. McLemore, for and in consideration of
an action of ejectment in the Circuit the sum of one dollar to her in hand paid, at
Chambers County, Alabama, against and before the sealing and delivery of these
Laams Railway Company, to recov- presents, the receipt whereof is hereby acknowl-
described in the complaint as fol-edged, doth give, grant, bargain and sell unto
A cerain tract or parcel of land, being the said railroad company and their successors
ad bed of the railroad formerly known and assigns, the right of way over which to
and the East Alabama and Cincinnati pass at all times by themselves, directors, offi-
Lafayette to the county line of cers, agents, hirelings and servants, in any
ether with all the land contigu-manner they may thing proper, and particular-
tad mad-bed, on each side thereof, to ly for the purpose of running, erecting and es-
of seventy-five feet from the cen- tablishing thereon a railroad with requisite
railroad being now known and number of tracks; and to this end the limit of
East Alabama Railway, with the said right of way shall extend in width fifty
taste in the County of Cham- feet on each side of the slope stake of the right
Lafayette is in Chambers of way of the said railroad when completed, and
Lee County lies south of Cham- to extend in length through the whole tract
was duly removed by the com- of land owned and claimed by said Mary F.
the Circuit Court of the United McLemore, and known as the north half of
MELe District of Alabama. It section 22, township 22, of range 26, situated,
before a jury in December, 1881, on lying and being in Chambers County, adjoining
that the Company had been in ad- lands of James F. Dowdell, Evan G. Richards
of the premises for more than and Nolan J. Wright, and running in such di-
before the bringing of the suit, and rection through said tract of land as the said
ermanent and valuable improve- Opelika and Oxford Railroad Company, by
* Futog a railroad thereon; and on their engineers, shall think best suited for the
ty. The jury found for the purpose of locating and establishing their works;
for all the property described in the and connected with the said right of way, the
and assessed their damages at said company shall have the right to cut down
there was a judgment according- and remove all such trees, underwood and
pacy brings a writ of error. growth and timber on each side of said road as
exceptions sets forth all the evi- would, by falling on or striking the same, in-
case. The following are all the jure the rails or other parts of said road, to-
sdful to state: The Lafayette gether with all and singular the rights, mem-
Company was incorporated by bers and appurtenances to the said strip, tract
of Alabama February 7, 1848, or parcel of land being, belonging or in any
a railroad from Lafayette to inter- wise appertaining, and more especially the
et with the Montgomery and right of way over the same; to have and to hold
Patroad at some suitable point the same unto the said Opelika and Oxford R. R.
Cand West Point. By an Company, their successors and assigns, to their
Act of April 9, 1854, the Com- own proper use, benefit and behoof forever, in
terized to extend its road be- fee simple; upon condition, and it is expressly
e in the direction of the Ten- understood, that should the said railroad con-
ad to connect the same with any templated as aforesaid be not established on and
or being built, or to be built, so along said strip, parcel or tract of land described
with some point on the Ten- in the above and foregoing indenture, then said
By an amendatory Act of January indenture is to be wholly null and void and of
was changed to the Opelika no effect; and the Mary F. McLemore her heirs
Raad Company, and it was au- and assigns, will warrant and defend the title
its road with the Alabama thereof unto the Opelika and Oxford Railroad
Raver Railroad at or near Oxford, Company, their successors and assigns, against
The companies were succes- the claims of all persons whatsoever. In wit-
In 1961 one Richards was ness whereof the said Mary F. McLemore hath
The Opelika and Oxford hereunto set her hand and seal the day and
red the right of way through the year first above written.
prprietors of the soil from a
omery and West Point Rail-
s northerly from Opelika,
Lafayette, by deeds from all
ve in one case). The deeds,
description of the land through
i was to pass, were all in the
!wing one:

"Mary F. McLemore." As to the excepted case, which related to a section of land one mile square in Chambers County, through which the road-bed sued for runs, in that county, the Company caused the same character of rights and right of way through that section of land as was conveyed by the deeds referred to to be condemned for hay? Milemore to Opelika and Oxford sessed was finally paid to the owner. In 1860 its use under statute authority, and the sum as

R. R. Co.

Ciambers County:

re made this 31st day of Aurear of our Lord one thousand end and exty, between Mary Mcfram bers County, of the one part, - as an Oxford R. R. Company, at part, witnesseth: That the said

the Company employed engineers who laid out
and staked off the full right of way conveyed
through all of the lands and cut out the width
through woods; and it made contracts with con-
tractors for the grading and culverting of a rail
road along the right of way, who built for it a
great deal of such grading and culverting; and
all the work done was done on the right of way

[343]

[344]

[345]

thus staked out, but no other work was done | cuit Court for said county, on the 8th day
on it except such culverting and grading, and
this was not continuous through the whole line
in Chambers County sued for, but there were
several intervals where no work of grading and
culverting was done; and the Company was in
the undisturbed possession of the whole of the
right of way.

The Company became embarrassed for want
of means during the war, and ceased, before
July, 1861, to do any work on the line, leaving
it incomplete as to grading and culverting, and
no work was done by it afterwards on the
line. Richards, as late as 1863, removed, at a
small expense to himself individually, some
logs which had lodged in one of the culverts,
to save the culvert and grading from injury;
and he looked over the work from time to time.
No meeting of the directors or stockholders
was held after July, 1861, and no corporate act
was done by either after that date. The Com-
pany was without means to prosecute the
building of the road any further.

One Lockett and the firm of D. W. & J. G. Visscher were contractors, to whom the Company was indebted for work on the line. Lockett recovered one judgment and the Visschers another against the Company, October 26, 1866, in a court of the State, by service of process on Richards, as president, the former for $14,457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers County, November 7, 1866, and levied on that day, according to the return on each writ, on a house and lot, and also on "the right of way to the Opelika and Oxford Railroad, so far as the right of way has been obtained, and all the appurtenances belonging to said Railroad Company, from Lafayette to the edge of Lee County, and also the surveying instruments belonging to said Company." The plaintiff's attorney stopped proceedings on those executions on the 12th of April, 1867. A second execution was issued on each judgment to said sheriff, May 8, 1867, and levied on that day, under the Lockett execution, according to the return thereon, on a house and lot, and also on "the right of way to the Opelika and Oxford Railroad, so far as the right of way has been obtained, to the edge of Lee County, and also all the surveying instruments belonging to said Company"; and under the other execution, according to the return thereon, on the same property, omitting the words "the right of way has been obtained, to." After a sale the sheriff executed the following deed to the purchasers:

66

'This indenture, made and entered into this 3d day of June, 1807, between R. J. Kellam, sheriff of the County of Chambers, in the State of Alabama, of the one part, and D. W. & J. G. Visscher and A. L. Woodward, of the other part, witnesseth: That whereas on the 26th day of October, 1866, a judgment was duly rendered in the Circuit Court for the County of Chambers, in the State aforesaid, at the fall terin of the said Court, for the sum of $12,383 and costs, in favor of Abner M. Lockett, and one in favor of D. W. & J. G. Visscher for $14,457.21, and against the Opelika and Oxford Railroad Company, on which said judgments there was issued by the clerk of the Cir

May, 1867, certain writs of fieri facias in favo of said Abner M. Lockett and D. W. & J. C Visscher and against the said Railroad Com pany, directed to any sheriff of the State o Alabama, whereby such sheriff was directe to levy of the estate, &c., of said Railroad Com pany, and make the said sum of $26,751.04 besides costs, and which said writ was, on the St day of May, 1867, placed in the hands of the sai R. J. Kellam, as sheriff of said County o Chambers, for the purpose of its levy and exe cution; and whereas said R. J. Kellam, as sher iff as aforesaid, after the said writ had com into his hands and while the same was in ful force, did, on the 8th day of May, 1867, levy the same on the following tract or lot of land as the property of the said Railroad Company to wit: the right of way to Opelika and Oxford Railroad Company, so far as the right of way has been obtained, from Lafayette to the lin of Lee County, and all the appurtenance from Lafayette to the line of Lee County, lying and being in said County of Chambers; and where as the said R. J. Kellam, as sheriff as aforesaid after having duly advertised the said tract of land or railroad-bed for sale in the mode pre scribed by law, did, in accordance with said advertisement, on the 3d day of June, 1867, a the court house, in the Town of Lafayette, proceed to sell the same under and by virtue of said writ of fieri facias, and the said D. W & J. G. Visscher and A. L. Woodward, having bid for the said land or railroad-bed, then and there selling as aforesaid, the sum of $500, and it being the highest and best bid that could then and there be got for the same, he, the said sheriff, did therefore sell and cry off the tract of land or railroad-bed, to the said D. W. & J. G. Visscher and A. L. Woodward. Now, therefore, in consideration of the premises, the said party of the first part, as sheriff of the said County of Chambers, has and does hereby bargain and sell, aliene and convey unto said Ď. W. & J. G. Visscher and A. L. Woodward, the said tract of land or railroad-bed, to wit: the right to the Opelika and Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee County, and all the appurtenances belonging to said road from Lafayette to the line of Lee County, to have and to hold the aforesaid premises and land, together with all and singular [its] appurte nances thereunto belonging, to the said Opelika and Oxford Railroad Company and to their heirs and assigns, forever. And said party of the first part, as sheriff as aforesaid, does cov enant with the said party of the second part that he, as sheriff as aforesaid, will warrant the title of said to said party of the second part so far only as he by virtue of his office is authorized to do; but it is expressly understood that said R. J. Kellam, sheriff, is in no event to be individually liable for anything herein contained.

"In testimony whereof, the said party of the first part has signed, sealed and delivered this deed on the day it bears date.

"Robert J. Kellam,

"Sheriff of Chambers County, Alabama." After the sheriff's sale Richards abandoned or turned over to the purchasers the line of culverting or grading as far as he could do so,

he exercised no further authority over miles in length, at present unfinished, its entire :: Opelika and Oxford Railroad Com- franchises and privileges held and acquired, a further claim to On the 6th together with the right of way, road-bed, road, 17 D. W. and. G. Visscher en-*** and all its ways and rights of way," etc. ten ontract with the Eufaula, The plaintiff in error became a corporation, → Orford and Guntersville Railroad under the laws of Alabama, on the 28th of May, which was signed on behalf of that 1880, and on the 13th of July, 1880, Livingston one Pennington, as its president, and Irvin conveyed to it the property so deeded ized and acted on by it. Its to them by the same description. maferwards changed to the East Ala- At the trial, the plaintiffs offered in evidence Cincinnati Railroad Company. transcripts of the proceedings as to the said anies were one and the same cor- judgments, executions, levies, sale and sheriff's ered by Alabama to build a deed. The defendant objected to each of them Eufaula to Guntersville via Ope" as illegal and irrelevant evidence, and also bedard In the fall, before the con- cause they tended to show the sale under exetered into, D. W. Visscher was in-cution and conveyance by the sheriff, of an easeFennington to see him as to whether ment alone, not the subject of an ejectment." Company could not arrange to The court overruled each of the objections and for its line Visscher's grading and allowed each of the transcripts to be read in from said junction to Lafayette. evidence, and the defendant excepted separately Visscher he could build by to each of the rulings. Visher's line, but would like to and they agreed that the Visschers to work completing the grading, and 's company would furnish the pay for the work as it progressed. began with the verbal underthe written contract should be and it went on till that contract was and then under the contract till the peted it to Lafayette, over the or line described in the deeds the company accepted it as done he contract, about May 3, 1871. of the contract it was agreed ers should "form, prepare and Caring and grubbing, grading, telework, cattle-guards, road and tracklaying, including switches, ts, three warehouses, three with fixtures complete, including of materials and all other and necessary to complete y the running of trains, except als which go into the superthe road," from Opelika, or two ref, as the Company should e, for a distance of twenty beyond Lafayette. The conterms of compensation, and the completion of the twenty ment of the amount of the DW Visscher should transfer to the and title vested in him to of way or other property Pertaining to the said road, nization known as the OpeTRR The Visschers were amant due to them for the mr the contract, and claimed that te them more than $100,000.

After the close of the testimony the court charged the jury that if they believed from the evidence that the Company before named entered into the written contract with the Visschers, and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Visschers did perform it so far as permitted by the Corporation to do so, and the Corporation_failed to make the full payments due to the Visschers under the contract, the Corporation and all persons claiming under it were estopped from setting up any title in the premises sued for adverse to the Visschers, and their possession under the contract was not ad verse.

The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant that it was only an easement and not the subject of a levy and sale under execution, was not well founded.

To each of these charges the defendant excepted. There were exceptions to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned.

The right which the Opelika and Oxford Company obtained under the deeds from McLemore and others (and the right obtained by condemnation is set forth as of the same character) was described in the deeds as "the right of way over which to pass at all times, by themselves, directors, officers, agents, hirelings and servants, in any manner they may think proper, and particularly for the purpose of rune of sale made in a suit for the ning, erecting and establishing thereon a raila mortgage made by the East road with requisite number of tracks"; and it and Cincinnati Railroad Company, was provided that "to this end the limit of and Richard Irving, Jr., said right of way shall extend in width fifty received from the proper officer feet on each side of the slope stake of the right Vanad April, 1960, a deed of the " entire of way of the said railroad when completed, and py of, or belonging to, the East to extend in length through the whole tract of Lista in: (bernnati Railroad Company, land owned and claimed" by the grantor, describ17 poses, and all and singular ing it," and running in such direction through antennad of said Company, extending said tract of land" as the Company, by its ente duala dia jama, to Guntersville, Ala-gineers, should think best suited for the purpose aut two hundred and twenty of locating and establishing its works. The

[349]

[350]