quent legislation concerning this board is relevant here except the extension of its existence, which was at first limited, and the legislation of 1863 and 1865, which in continuing the board expressly ratified and confirmed all its official action. theretofore had under the act of 1857. Laws 1863 p. 283; Laws 1865 p. 669. Section 7 authorized each railroad company after the completion of twenty continuous miles, and after the Governor had certified to the Secretary of the Interior such completion, "then and not before" to sell sixty sections of land included in any continuous twenty miles, and so on until its entire completion and the acceptance of the same by the board of control herein provided, when and not before, it might sell the remainder. Section 11 is as follows: "Should either of said railroad companies fail to accept said lands on the terms of this act, within sixty days, or fail to make the survey and maps by the first day of December next, or fail to construct its entire line of road or any part thereof, in the time and manner required, in such case said board of control shall have the power, and it is hereby made their duty, to declare said lands, so far as they have not been sold in good faith, forfeited to the State, and said board of control are hereby required to confer said lands upon some other competent party, under the general regulations and restrictions of this act." Section 12 declares that "All of said railroad companies shall at all times and in all matters, be subject to the laws of this State, and to such rules and regulations as may from time to time be enacted and provided by the Legislature of the State of Michigan, in regard to the management and disposition of the said lands, not inconsistent with the provisions of this act, and the Act of Congress making said grant of land to this State, and they shall be entitled to all the immunities and privileges conferred by said laws: Provided, that nothing herein contained shall be so construed as to relinquish the right of the State to any specific tax imposed upon any railroad company within this State." At this time the Detroit & Milwaukee Railway Company 45 MICH.-30. was subject to a tax of one per cent. on its capital stock paid in, in lieu of all other taxes. By section 20, a tax was levied of one per cent. on the cost of each road and of its equipments and appurtenances, and provision was made for an additional tax of not more than two per cent. on gross earnings, but the Detroit & Milwaukee and Port Huron & Milwaukee Railway Companies were to be allowed a diminution of the two per cent. tax in proportion to their diminished share of lands as compared with other companies. This was because these roads ran through a part of the State containing a smaller amount of unsold lands. The Detroit & Milwaukee Railway Company on the 11th of April 1857, and within the 60 days specified, filed a document adopted by the directors and signed by the president and secretary under the corporate seal, accepting all of the act of 1857 except section 12, which was declared to be in contravention of its charter, and section 20, which provided for taxation. Against these there was also a protest, and distinct refusal of assent. On the 26th of August, 1857, the Board of Control declared by resolution that the company had not in accordance with the statute accepted the grant and agreed to the provisions of the act, and had filed no such acceptance in the office of the Secretary of State; and thereupon declared the lands forfeited to, and revested in the State. The directors of the company never thereafter made any other resolution of acceptance, and the company never applied to the Governor or the Board to accept their road as built in accordance with the act, and no certificate was ever filed on behalf of the corporation by the Governor with the Secretary of the Interior to that effect. There was never any corporate action thereafter asserting or claiming any rights under the grant. The only claim by complainants that is supposed to make a difference is under certain amendatory acts of the legisla ture passed in 1859 and 1863, and the further claim that by the act of 1857 a title was vested in the railroad companies. in the shape of fee-simple only, forfeitable on condition subsequent, and that such forfeiture could only be declared judicially. The law of 1859 contained two sections. The first purported to amend section 7 of the act of 1857, by changing "sixty" to "one hundred and twenty" as the number of sections to be earned by each twenty miles of road. The second section limited taxation to 1 per cent. on capital stock paid in. There was nothing in this amendment which was designed to change any other part of the act of 1857. It did not repeal the section which required an assent to be filed in 60 days by the companies named in the act, and could only apply to companies that had, or should, become subject to its provisions. If designed-as it may have been in fact, although no court can so declare as matter of law-to conciliate particular companies, it could only do so as an inducement to future conduct, and not as a retrospective removal of disabilities. The Board of Control might perhaps find it easier to secure the building of some of the designated roads. But the Legislature could not and did not attempt to reach any company without a lawful acceptance by its directors and officers. It is also to be noticed that this statute of 1859 did not change section 12 of the statute of 1857 which the Detroit & Milwaukee Railway Company had made their principal ground of refusal, as bringing the chartered rights of the company further under legislative control than they were willing to place them. The law of 1863 (Laws 1863, p. 284) provided that such of the railroad companies mentioned in the act of 1857 as had finished twenty miles of road should have the full time allowed by the acts of Congress to finish their lines, and all forfeitures incurred by such companies under the laws of this State were thereby waived. Special provision was made for some particular roads. The original act had declared forfeitures unless twenty miles should be finished in each year, and unless the whole roads should be finished in seven years. Roads in the Upper Peninsula, and some particular roads, were made subject to special provisions. The Act of Congress gave ten years for completing the road, and made no provision for less than the whole, except that land was only earned in twenty-mile sections. It is quite plain that the object of the act of 1863 was merely to aid such companies as had accepted the conditions. of the act of 1857, but had delayed finishing their roads. So far as the claim is concerned that these companies without acceptance obtained titles in fee, we think it has no legal basis. We have held and we have no doubt that such companies as accepted the statute, obtained thereby rights which could not be destroyed except by their own neglect. Johnson v. Ballou 28 Mich. 379; Att'y Genl. v. Lake Superior Ship Canal Co.32 Mich. 233. But the title of the State was itself subject to some conditions before a complete and absolute right could exist in any of these lands except the first 120 sections, and the State never transferred to any of the railroad companies the right to any lands not to be earned by building their roads. Under the Act of Congress the State could not sell any of these lands until the Governor had certified to the Secretary of the Interior that the appropriate twenty miles had been completed. While, therefore, the State could, as we have held in the cases cited, make such disposition in such manner as it saw fit of the lands granted, it could only be for the purposes and on the conditions prescribed by Congress. These conditions are all distinctly embodied in the statute of 1857. Not only did the State, as it was bound to do, impose these conditions, but it refused to allow any company to take the lands at all without a distinct and express act of acceptance. This acceptance was the only act whereby any of these companies was brought into contract relations with the State at all. The law did not assume to force the grant upon any company, and the contract could not bind either party until both assented to the same agreements and conditions. There is no occasion to discuss the other questions raised on a different theory. It is enough for our present purposes to say that common-law rules cannot override statutes, and that the State, while acting within the Constitution, can impose its own conditions on its own grants. We think no title vested in the Railway Company, and that the bill was properly dismissed. The decree must be affirmed with costs. MARSTON, C. J. and GRAVES, J. concurred. COOLEY, J. did not sit in this case. 45 469 106 260 HENRY B. ATWOOD ET AL. V. MARTHA E. BEARSS. Record of execution sale as notice to subsequent purchaser. Putting the sheriff's certificate of a sale on execution upon record is constructive notice to subsequent purchasers: Act 123 of 1875. One who bids in lands under an execution therefor becomes a "pur- Abandonment of a sale on execution because of an error in the notice A sheriff serving an execution is not bound to search for personal prop- The amount for which property has been sold may be put in evidence as tending to show its value. Where an execution purchaser of land has recorded the certificate of sale in advance of any conveyance from the debtor to other persons, he is |
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