The following principles must be regarded as settled, alike by the decisions of the Supreme Court of the United States, and by the decisions of this court:
First, that by the act of Congress, approved in June, 1856, granting alternate sections of land to the State, to aid in the construction of railroads, a title to the lands granted vested in the State and .its appointee, subject to be devested on the failure to perform a condition subsequent.
Second, that this condition being reserved for the benefit of the United States, and the right to claim the- forfeiture resting in it, the failure of the grantee to perform the con-' dition does not, ipso facto, re-vest title in the United States; and until that government takes some action, judicial or legislative, by which it declares the forfeiture, the title remains in the grantee.
Third, that under the grant of Congress, the several railroad corporations, in whose favor the legislature conferred and appointed this congressional bounty, had each the power and authority to sell and make valid titles to the lands so secured to it, for a space of twenty continuous miles, being one hundred and twenty sections, without first taking any steps whatever towards the construction of its road.
Fourth, that this absolute, unconditional right of sale does not extend beyond the first section of twenty continuous *415miles; and before'any sale can be made beyond that first section, certain progress must be made in tbe construction of the road, and proof made of it, 'which it is admitted have not been done in this case. — Schulenberg v. Harriman, 21 Wall. 44; Swann v. Lindsey, 70 Ala. 507; Swann v. Miller, 82 Ala. 530.
We judicially know that the government of the United States has taken no action declaring a forfeiture of the lands it had granted, which Alabama subsequently appointed to the Tennessee and Coosa Rivers Railroad Company.
In 1879, the appellee corporation sold the lands in controversy to Mathis, who took possession, and he and his subvendee have been in the undisturbed possession ever since. The title of the corporation is none other than that conferred by the grant referred to above. The present suit is a bill filed by the railroad corporation to enforce its alleged lien as a vendor, and to recover the purchase-money. The defense relied on is the complainant’s want of title, and want of authority to sell.
We think it clear that, if the land in controversy lies within the first twenty continuous miles, the defense attempted is worthless. On the other hand, if it lies beyond the first twenty miles, then the railroad corporation had no power to make the sale, and can convey no title. The case would then stand in the category of a sale of public lands by a private person without title, and the defense would be good. There is neither averment nor proof in the record, whether the land does or does not lie within the first section of twenty continuous miles.
On whom does the burden rest of showing whether the land does, or does not, lie within the section the corporation was authorized to sell? We think on Mathis, the purchaser. He acquired possession under his purchase, and has had peaceable and undisturbed enjoyment ever since, — eight years, or more. Being in possession, he can not defend except for fraud, or, at least, by showing that he bought nothing, and never can get title. This he failed to do. — Cullum v. Br. Bank, 4 Ala. 21; McLemore v. Mabson, 20 Ala. 137; Magee v. McMillan, 30 Ala. 420; Kelly v. Allen, 34 Ala. 663; Hickson v. Lingold, 47 Ala. 449; Blanks v. Walker, 54 Ala. 117; Hughes v. Hatchett, 55 Ala. 539; Wyatt v. Garlington, 56 Ala. 576; Tobin v. Bell, 61 Ala. 125; Houston v. Hilton, 67 Ala, 374.
Affirmed.