*1 COURT, .'SUPREME 436’ Mоrgan Bagnell of Plain the Executors Carey George W. Broderick, in error, vs. in Defendant tiffs error. against in thé in him Circuit instituted exhibited, had action in error
The plaintiff conducing from the that United States, Missouri, prove patent evidence of to. the been im- in claimed the ejectment, error, defendant the in the plaintiff the to the land government and that title granted the of .United the properly of States for action at the the United part that in law him. Held, patent inwas caji against If hold the the those claim to is conclusive. land patent lands the public is the then side of the Circuit Court mistake, proper equity that it issued hy show investigate is the the in remedy equitiés parties. and bill forum; Chancery proper emanating dignity from the effect to declare the of titles Congress sole has the power legislation government the of the' in reference to the whole public United States; legal Until evidence of to be the conclusive the superior lands patent declares grantee, thg and he government; which to the in the the is passes issues fee ,it ejectment. the to recover is entitled "possession dating in aid of'a the giving in evidence entry special The practice in Ten- is in some of the states, date the fаmiliar especially from the entry, .of title aid of the no evidence of come in and'is can Yet the only nessee. to a for the same land. standing when alone, opposed on judgment of the Circuit Court and it lies that proper, presumption to show the contrary. error plaintiff conflicting out of land the .title to the passed When objection a state be no Courts of practice adopted there can patents, right, legislature form of Courts the better- remedy effect , may prescribe. state authorising states to laws pass purchasers doubt entertairfed power No ejectment actions of United States certificates of from the upon prosecute the lands but it that is denied the states have purchased; trespassers' purchase, Congress dignity .a certificates 'to declare purchase equal patent. any power them such effect. /give alone .can error to the Circuit Court of States for District IN United’ ofMissouri.. for tract was an action of land ejectment This of. in-the.state W. instituted Broderick by George against, Bágnell, defendant, tenant and in the possession; progress landlord, was made cause, Byrne,, co-defendant, and he his executors were substituted. dying, at the same time instituted ejectment.were Other actions Broderick, W! for said parts "tract-in the possession of George MfCunie, and of executors of Sampson; Morgan Byrne in the same manner co-defendants in the cases. verdict, became A the Circuit conformity Court, opinion having been given cases, each for 10th of plaintiff April, writs error to prosecuted Supreme Court; defendants bills of been sealed the Court. exceptions The bills of show exceptions the trial these cases the from, read below plaintiff copy Robertson, States to John Jr. June, 1820, dated 17th for the in the above which, tract land statements, reciting mentioned T$RM, 1839.
[Bagnell et al. vs. Broderick.] Jr. general office certi- .deposited ficate, Louis, numbered titles at St. recorder Mis- ; souri of ah act whereby pursuance Congress appeared act 1815, entitled, “An relief of passed February, *2 Madrid, inhabitants tory, the late of New in the Missouri of terri- comity Robertson, the said John earthquakes,’.’ suffered Jr. his 640 land, being confirmed in claim for acres of 2810, north, 15 of and section west 5th township range 5.0 and to John Robert- ;' meridian the principal granted and United son, Jr. a deed from fee, in the tract of land described above. Also November,' dated 16th Robertson, Evans, John Jr. to H. Augustus fee, the the in 1830,. same tract however, against land to said conveying cf Evans a deed' warranty. Also expressly stipulating, Broderick, the plaintiff from' low, H. Evans to W. be- the Augustus George June, 1830, error, now defendant in dated 7th conveying fee, proved tract of land to the Broderick in and same said posses- at below; sion of the the of the defendants commencement premises by the his testimony. suits and hére closed respectively, read in error, That below, now plaintiffs .defendants for the a of titles to the recorder of notice transcript' land office of the States at of the re- Louis, St. taken from records states that he claims .corder, Robertson, Jr., given John of inhabitation 750 Prairie, ground land of arpens Big December, 1803, and with and cultivation, to and 20th prior the consent officer. of proper .Spanish of commissioners Also a board of had before copy proceedings from minutes of on land the taken claims, on the July, and titles adjusting for proceedings ascertaining hoard John Robert-- and son, of claims to on the claim lands, which shows that board Prairie, granted Jr. Big for 750 of land in the arpens of Robertson, transcript Also opi- John of land. Jr.-200 arрens States at nion, of .United and of titles ¡der of recO land report .the with act of St. Congress connexion S15,which, í Louis, November, made 1st for -the “An act 1816, entitled, confirmation 29th,April, state Louis- district certain claims land the western shows 2 this act,) sec. of iana, that bertson, Missouri,” (see and in territory Ror claim the confirmation of 200 arpens, parcel Jr; . Prairie, made .the the Big for land in 750 arpens acres, and this to 640 aforesaid, board was extended of Commissioners aAlso deed to him. acres, accordingly 640 confirmed quantity, Robertson, May, dated 29th Sr. Robertson, from'John toJr. Edward to' the said 1S09, land Edward conveying arpens said 750 arpens 330 conveyance Robertson, in fee in same ; Sr. reciting- how; and specifying and of the said had been surveyed, 750 arpens- said Ed- authorizing and residue, off manner of laying'' government ward Robertson and receive apply fpr to. ; cove- name for authorities, in his 'own proper nanting the title to warrant heirs, behalf himself 2,.o 2 COURT, 438 a!, vs. [Bagnell et the vendor. Also under, all through, against persons claiming Sr, dated 30th Robertson, Morgan Byrne, a' deed from Edward fee, 300 (cid:127)October, 181-3, arpens to the said Byrne, .conveying , Robertson, Jr. right out' of of land .tract head Prairie, bounding part conveyed, (cid:127)situated аnd the'Big covenanting him- 750 above described parcel arpens title all claims and his heirs to self warrant defend whatever, toSr. Robertson, a deed from Edward .Also to the said 1816, conveying 11th September, dated Robertson, Jr. of John head'right .fee 250 arpens part Prairie, containing covenant arpens, Big situated 7.50 all claims heirs, .against for himself and warrant whatever. Robertson, Sr. to William' Shelby, óf deed Edward a-copy Also said in fee. two Shelby conveying 29th October,J816, -dated same, hundred head arpens bounding parcel Jr., de-.. arpens óf John (and parcel above t.he covenant of containing from general Also scribed,). copy, cember, 1816, of yarranty. .warrant]". Grimes, Levi' dat3d -2d De- of deed William Shelby .in.fee"the to the said Grimes arpens conveying covenant, containing a of- described, above general land next *3 ' Also a deed 26th from Grimes '.to dated Morgan Byrne, Levi 1817, the 200 to the said in'fee February, of arpens conveying next a described, land above containing special warranty. The defendants an extract in evidence from re- also-produced land titles of in Office recorder of gistry relinquishments, of Louis-, United States at quake,s, shows acres, ás of materially lands earth- injured St.. 1815; under the 17th February,. оf óf which Congress act Robertson,. John Jr. for confirmation aforesaid to that.the 640 situated-in the Prairie, was Big relinquishedby Morgan Byrne, Robertson, Jr., legal representative of John such.relin- location certificate No: 448 quishmént the issued. of dated copy Also of September,-1818, certificate United, 448, issued recorder of land of titles at numbered^ Louis., which certifies that tract of acres of land St. 640 situated the formity Big earthquakes, Prairie that in materially injured by Was con with the act previsions of of 17th Congress February, .of 1815,:the Robertson, Jr., said that he (reciting appears from John States, office,.recorder hooks his of land titles of United he of the' to- locate owner,) legal his 640 representatives, " -land, Also, lands, acres &c. of the Copy .of Qcto 8th foregoing of-location, made under' certificate 1818,.which ber, shows represent that acres, John Robertson, Jr., of- 640 of land,, ative and located entered virtue location, commonly of. called New certificate of certificate, titles-of the Madrid State's recorder of United issuedby land at St. Louis, 1818, 448, dated so September, numbered township range yest 50-north,: to includerise.QtiQn'NQ-.32., 15 of. 439
JANUARY TERM, [JBágiiell'et vs. al. Brodeñcfc.] ip meridian, same arid (the premises herb disputе;) principal 5th testimony, closed defendants below their evidence, of copy read notice by below then plaintiff .330 Jr., arpens, of claim for Robertson, on- proceedings John land claims, oh Ofcommissioners'of 24th same had before board 1811,which show'that- 15th John Robert- 1806, and March, son, of March, August, 330' situated in claim for arpens, Jr': filed á notice of district section act"of the second of Madrid, New under Congress Of 330 of 1805, survey, arpens, by plat of accompanied q Robertson, Jr., (as at of request one Story, Joseph recites,Claimed the -same as as the who, of-' part purports,) his virtue act of section Con- right, by settlement second 1805; that the commissioners 24th gress, of'March, hoard March, arpens, l‘5th Ari- 1806, grant to -on-the claimant 1811, entirely, saying ought .the gust,. be claim- not-to reject claim Also-,a recorder opinion, granted. transcript and,report Louis, November, 1815, titles at St. madelst States, .ofland which, of United act,of Congress April, 1816, connexion 28th. shows, to, Robertson, .the for 330 referred Claim before was confirmed and 330 him, granted. arpens, Also, or his arpens .to accordingly -in John Robertson, favour of of location Jr. copy certificate 1818, 18th and num- legal representatives; dated Septembеr, 447,-issued States, bered of land-titles United .recorder tract arperis at St. ated on lake St. certifies land Louis, situ- Marie., materially injured earthquakes, had been arid that in conformity with provisions"of Congress,-, the'actof Jr., the said John February; reciting- offiee, he titles the books his appears recorder to be States, the-Owner, was en- or-his. representatives, titled to locate 330 &c. arpens Of evidence, extract defendants below read then an. re- of recorder gistry land titles -relinquishments, office the'united at Louis, materially.injured by earth- St. of 17th February,'181.5, the'act of quakes/ shows'that the confirmation Congress to, John aforesaid, of Ro- arpens bertson, Jr., Tanner, ás James was,relinquished by -legal- repre-. sentative, and- the location certificate, srich relinquishment that on Also, issued. recorder a. titles *4 the' his office aforesaid, in books'of that from.entries made New issued, -,No. the certificates certificate -location Madrid location 447, Tanriet, to James one Jacoby, for- certificate was. delivered was Byrne; of locatiori No. delivered Morgan proved value that the in each was the premises dispute in three closed, evidence was all the given thousand dollаrs: causes. the below, made, the the case moved CduTt Upon the defendants as follows: instruct jury location, made New by That or "Madrid entry SfJRREME al. vs. et
[Bagnell his Byrne-in name, as given cases, own. in evidence these is proof title to of sons and is legal land; a sufficient defence all against per- who do not show better same land. a 2. That the of which has been patent,- copy in evidence given vest, did plaintiff, not in- the patentee any legal right to the land in question than he had thereof, before date as' against same defendants'claiming adversely n title. 3. That after the before patent, Morgan Byrne title to question, land- sufficient enable him pro- or secute issuing defend an action of therefor: And that the ejectment of the’ not could divest that 4., That if the believe of which jury copy been offered Morgan Byrne, issued on the location made plaintiff, and shown in evidence on part defendants n these is not such title cases'; will-avail against location. the Court refused: to All instructions which refusal excep- tions taken. were Mr. Allen Beverly argument submitted for the printed plaintiffs in’error. The are,-besides errors assigned four; general’assignment, an- the"refusal of Court to swering respectively the four in- : аnd a fifth, structions tors that the prayed judgment against execu- whereas, was de Byrne, bonis should have propriis, de bonis testatoris. It three cases, from the appears testimony that Morgan was Byrne, and testator the owner of- the-land New landlord Madrid,-which that he by earthquakes; injured applied obtained the of location No. his land certificate relinquishing NewMadrid, which- certificate issued by iirliéu States, and located in his tract of land in dis- name own in virtue of his 44S; upon certificate pute, p,atenf this certificate .issued, and on issued to J'ohú Ro- .bertson, Jr., owned once person land in’New. Madrid, relinquished that from John Byrne -and under whom Byrne claimed .láncL That the derives title plaintiff, in dispute, .land Jr., Robertson, deed's executed since the issue of .the these, owner, actions patent; of éjectment instituted of the landlocated ’as recover possession- aforesaid by Byrne. question is, whether such case and on such á statement- facts, Jr. the or W. patentee, George Broderick, his can recover the locator assignee, Morgan. the- error, land, contend that representatives. plaintiffs.in and his the. folio patentee assignee cannot; rely wing- :' grounds 'l. The title of sufficient maintain an ae Morgаil *5 TERM,
[Bagnell et al. vs. Broderick.] tion of See Code ejectment. Missouri', Revised of of 1825, page sec. .343, 2d, force, at commencement of these suits.* And Re vised Code of Missouri, -1S35, 234, 1, 2, sec. page of'same.† at trial force That whatever maintain, to sufficient must be sufficient to defend an action of -a This is ejectment. corollary from the -first If ground. these two taken, well the first points special error is (cid:127) well assigned. 3. That the is in this not, and on this statement of
facts,,the “better title” contemplated acts of by-the re- assembly ferred to. As to the first cannot point, argument elucidate the words of the law. Its evident, first, -meaning rule of construction. is not construe that which needs no construction.. to the As second The.corí-ectness of point. this is necessarily im- in .the plied of the law. It is language á spirit sequence from the first. If the title such enable him to would maintain an action of and recover possession, it ejectment would be * “ claiming Sec. 2. Be it further lands or enacted, tenements, any person virtue' by right, register with New Madrid receiver, con any pre-emption entry firmation of commissioners of land for the claims, or territory Missouri, board by exceeding league the recorder of Or concession onе titles, land not or set by square, by by right, right, right tlement where such or or concession been confirmed by Congress: or or act of aforesaid, commissioners recorder or aforesaid, where the any deed, or warrant, held confirmed or entry, survey, aforesaid; grant, French or or order warrant, any survey, tenth Spanish prior day eight one hundred and four, thousand March, surveyed by proper authority, governments, according under the French or usages and recorded custom- and Spanish although not be actual or if the country, person may possession; since, “havebeen same shall United States, actually surveyed, by tenth authority eight or one thousand hundred March, four, officer, and. day French under any proper governments, to the eight said tenth one thousand Spanish prior day March, actions of or. shall, and ejectment hundred and or four, person may maintain suqh jurisdiction trespass, against having having not thereof, a better title: and in any all actions of any person be ejectment, jury where a verdict shall found shall also plaintiff, damages rendering find for the mesne the time of the verdict: up profits, Provided, however,That mesne shall not recovered for time profits, any commence prior knowledge shall ment unless the defendant suit, prove plaintiff hi coming knowledge and then the time of such claim; from the defendant.” only “ ejectment Sec. 1. action maintained in all cases when may plaintiff † legally entitled of the premises. possession ejectment also be where “Sec. 2. action maintained all cases may plaintiff not claims un- any thereto, possession premises, person der or virtue of, First, register receiver of An office of with States, or general office or, commissioner thereof; Second, right A laws of the under the States; pre-emption or, Third, . Madrid A New location; or, Fourth, the laws of A confirmation tho United or, States; grant, or or Fifth, A warrant, au- Spanish surveyed by French order survey, proper according governments, usages under the and recorded to the thority Spanish Fiench eighteen tenth to the hundred and March, four.” day country, prior 9. To entitle it shall be-sufficient for him to recover, show, at that, “Sec. plaintiff commencement the action the the time defendant possession pre- declared, had such claimed, thereof, as is plaintiff possession mises act to be sufficient to maintain action.” .this
[Bagnell et dl. vs. not to
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115.
[Bagttellet vs.Broderick.]. who was in and made the location,.or Jr., interested Robertson, who interest therein, nó was no to it, and wffiohad party previously sold and conveyed him, under whom .'claimed thus relinquished, and in virtue of which relinquishment Byrne n tnade location ? then both to Seeing have those evidences of the law to recognised by- be sufficient to or defend maintain- ejectment, justness title of Robertson, Jr., be exa- must mined. On this examination it will be found that Robertson, Jr., shows no title better Byrne’s; this, than Broderick, the failing assignee Robertson, Jr., cannot recover against, tenant and of Byrne. representatives There, Mis-, has been no Court adjudication by Supreme what soun, the administrators meant words title.” .In the “better case of G-uerno, of Janis-rw. Miss. Rep; “what shall be considered a says, better the act.does not define. does not mean that surely It shall bare possession defendant' sobe considered. We understand then that .the meaning that, the act is, when the plaintiff producfes confirmation of thfe land to himself, he has his case, and will be out recover unless the defendant show a in all c.ah What *7 cases, or indeed what would be a better title in need not be now decided.” or are-legal equitable, on that predicated distinction known- Titles the; m former states of many the Union between law and equity. subjects.of'examination in law, Courts of and the .latter in Courts states, In those equity. of which is one, Missouri legal titles are the law, of. in subject equitable' in examination Courts Courts of a title equity, be or legal equitable; is, that whether whe- it ther be in a or Courtof law the.subject equity: éxamination the foundation of a in proceeding one- ot the other depends the on statute of the state where the the situated in which tribunal is or had, examination 212. 2 is 3 Wheat. proceeding ««.Campbell, Robinson for Wheeleret Society propagation vs. al. gospel In Missouri the Gallis.105. title of is the Morgan Byrne subject examination, and foundation a-of in a Court of proceeding isIt on which'an the law Mis- law.- a.title ejectment, ais legal defended, be or and is proceeding, may souri maintained title, and will be considered in the legal- so Courts therefore States, United to the decision in Robinson Conformably ««.-Camp- bell, 3 is Wheat. Si2.' There then before the Court these cases error, (cid:127)a title in both and defendant in plaintiffs inquiry recurs has the title;. higher has not which again which. title, оf evidence of superior but which in species point justness . shows that should What right Byrne, been said prevail. already sp.me Madrid, relinquished owned the land New who to.the has more just superior United'States.-and located words; better, title, other to the land than. right, in sold Madrid, who Robertson,.Jr., in New original .owner claimed Robertson, whom Sr., Byrne Edward vs¡-
[Bagnelt et al. Brodérick.] no no interest in .same, relinquishment, agency land located and no right patent. by Byrne land relinquished, words, Byrne’s In other issuing anterior to domain was severed from the dispute act consent of the United States, and himby appropriated with consideration and valuable States, good him purchased an with the acquired him in' exchange' from the. . it United States. -He for' gave United States. his—the of the location United States From the becamé moment act of it at the date of patent. Cóngress, no title "to See title and that title Feb. sec. 2. The proviso Courts of law of Mis- to institute in the was souri these, as enabled submitted, it is whether under of ejectment; action .an. of John it can be said the title circumstances than. the.title of whether Jr.,' is'better Byrne: Rbbertson, Jr., for land they the United States to issuing of, to whom it can disposed prevail against Byrne, had previously laws, was so disposition-being recognised by disposed, Our as a-title on which maintain an ejectment. 'of Missouri in gradations be made actions of an ejectment statute examination requites title, or the various evidences into successive . two the same persons claiming in a contest between to'land the law 'or evidences are recognised by whenever those gradations as legal titles, or on which maintained titles, ejectment may not This is all that is-insisted in these 'cases. It is or defended. asked maintain to look behind first to title, or defend an on an nor equitable the ejectment as to the regularity steps but ascertain the issue of the to. ending the-last patent; who-had the legal, right, right ejectment prior in error con- maintained defended. might plaintiffs .feel their be a fident that on such examination legal will be found right to. is it' examinable a Court of right; being legal, prior n sufficientto law, is maiiitain the-foundation a legal proceeding, is more and, time, or defend an action of ejectment; being.prior in law and must powerful right, preváil against’ But- error, defendant time. which, legal, though posterior if it said should be that'the patent *8 equitable this making an statute of equitable title',.yet-the Missouri that Avbich Law, a and it dignity title examinable in Court of giving or defended on authorizes action of to be maintained an ejectment n are it,_the States, bound to it the same give Courts of to it by and when find the effect ascribed dignity; they possessing (cid:127) Missouri, it the give the laws in like patent of over to. preference Courts of Tennessee Court Supreme this and the the founded thosé Courts, elder junior folloAving patent over, elder on an an founded a junior patent entry. Pqlk’s Wendall, lessee'-as. 9 Cranch, 87. States; The decision of the a Court of the United Supreme is a title its date, and whose conclusive all those against TERM,- 1839. '445 n et al. vs. [Bagnell emanation, its' 7 Wheat. previous not commence do rights anterior to the commencing rights that there'may implies Is there to the date right, commencing cases, these anterior right, anterior, Is this gives The location the patent?. ?', law The statute Mis- Court of in a examinable fight anterior souri so, contest examinable; it so whenever makes this location, anterior and an between arises whe- construction must of-the right, or an equitable ther a legal have, if of and, a merit Missouri, effect; superior its statute of patent, prevail have in a it would .Court equity same effect have the al., 9 Ctanch, vs. et Finley the' over Williams patent. Brоwder, Wheat. McArthur vs. and first four correct, the general special If views preceding assigned. are well .errors known to no such' thing error. There As to fifth special law in' Courts or law in practice out of or administrator growing. executor to an peculiar those pleas no, execution issues Missouri In matter of assets.- unless sued such, sued as specially or administrator executor demands, no of what matter as such.- All devastavit, or on bond over,the-ad- having cognizance to the Court are dignity, ministration of presented at the classed.; are they whom annual estates, by executors, or portion settlements the administrators among creditors: apportioned assets which consists money, demands, simple whether con- are thus and not otherwise For estate or tract, judgment, against by specialty collected.. administrator, or a. of an part suggestion all defaults executor in the Court having cognizance of a is made tried devastavit estates, dr the bond of the executor or ad- of the administration false ministrator is in suit. Judgments predicated put plead- as- understood in in administrator, technically executor ing the law or are practice laws of unknown England, in.its n Missouri. title Adminis- See-Revised Code Missouri tration. Coxe for the defendant The decision the error.— correct, Circuit Court is to be considered until -This was so held Court is made
its incorrectness in the in. error -shown that appear. 23. Have Peake, 1,Peters, plaintiffs case Carroll vs. Circuit there was error in decision title of the question It parties Court? on-the the Court. The cause, alone was decided question and this alleged justly claims those who were equitable they to. Robertson; land under could be taken into consideration pot chancery powers- action on the law side of the Circuit Court. in another could invoked the défehdants' have than in a.defence to an action of ejebtment. form mat-* of law the -The in Court grant patent tprs executed, recited in them. The and fully grant, legally P XIII.—2 Vox.. *9 SUPREME COURT. 446 et_al. vs.
[Bagnell it; set forth the matters and as none other (cid:127)corqpefent in. The effect conclusive.” was was.in necessary,,it United-States. facts Peters, et No behind the al., 724. can be grant 6. Arredondo 5SÓ. A Wheat. evidence in investigated. Court of 1.1 n Wheat; all to 5 law regularity previous' steps it. . 151. The Court bound Congress are acts com presume Wheat. claims, ,of intrusted laws into inquire missioners to in by and of these are, decisions commissioners lands, rеgular; and This of law was binding effectual. decided principle Courts cage Peters, BarlUnd, Ross vs. the error defendant in his the lahd supported by patent claimt0 issued facts was by .The.pátent proper authority... granted office, stated the records of those.records are stated evidence of in "them. They conclusive proceedings are. This was decided evidence.' in-the fully case of Galt by this-.Court others, 4 Galloway Peters, vs. 342. This Court said, then “As the. records of the lahd officeare of.great importance-to country, are kept official’sanction and- contents must in Courts their government, under considered, always they .received always evidence of the facts of.justice, stated:” The commissioner of land- officewas empowered act- Congress investigate facts connected with every application land, for consequence injuries earthquake; sustained he entitled, after such adjudge person investiga tion, land to be granted United States. In Ro was in full life wheii the land granted bertson patented he him; ances the defendant in it to conveyed those under Whom by regular convey holds. In Court-of .error more nothing law than the exhibition such a necessary maintain, Nor cоuld the derive plaintiffs any.right error their title under the law of Missouri provisions, of 1835. That law have no operation system. can established” United lands, for sale of and the granting of titles their Against law of trespassers, Missouri have thereto. full may effect; and a holder of land in Missouri under a pre-emption right, New ejectment. Madrid with the register, maintain might this law could no ejectment But under an incohate rjghtin the Courts United States, against patent officer authorized proper issued grant act by. Congress, states States cannot make patent. statutes their titles or claims to lands by certificates of entry are inferior to k equal-dignity with patent. Justice
Mr. delivered the opinion of the Court. Catron This was an action of ejectment by.Broderick against Bagnell, a section of land lying county, Howard Missouri; Peter and Luke Byrne were admitted to come in and defend, following-circumstances. to be Byrne claimed owner of-the and he was first admitted co-defendant with Bagnell. ,1839. TERM. vs.
[Bagnell et al. Broderick.] as a was admitted executrix, died, and Margaret Byrne, co-defendant. and Luke Byrne, died-; and Peter she Then *10 were admitted. Byrne, will of Morgan the last executors-of and the land recover is, that plaintiff below The judgment Mor- exeсutors Byrne, and L. and P. costs, Bagnell against Carey Byrne. gan Peter costs for error, judgment for assigned It that.the de hot testatoris, .and have de Luke should been bonis and bonis propriis. ...... The that the is, judgment the.Circuit presumption, to show con- in error and it lies on the plaintiffs pro.pér, trary. in- no Morgan Byrne Peters, 23. The executors.'of but testamentary, letters virtue óf their the' land cbuld. by terest' no testator. On their interest the will of have an well and to come.in been permitted could they properly-have ground defend presume we thereforej this ground, executors. On character in eject- and, like other were admitted,; they defendant^ was recovery^ proper; to show ment, having’failed de bonis propriis. followed necessarily judgment costs and from virtue of .the claimed'by Brbderick The .plaintiff (cid:127) and 17th, 1820 June Robertson,-Jr., States, to John dated United to himself, and others proved due form deeds in Robertson from suit; and here at in possession Carey commencement case. rested his the defend- Morgan Byrne, title had show that the better To from a deed dated May, ants produced and.fifty arpens- seven hundred Robertson, Sr., for Jr., to Edward the district of New Ma- Prairie Big-- township, land lying au- and which Cox; of Sheckler and drid, adjoining lands deed the govern- from . ard Robertson procure thorized Ed a. claimed title conveyances Morgan Byrne ment. different By and undéí Edward Robertson. arpens through Madrid, in the state of-Mis- of New land lies in county The December, To earthquakes was souri, and injured 18.11. Congress Who suffered calamity, relieve inhabitants whose that those 1815; February, providing the act of 17th passed authorised locate injured,-should' had. been-'materially the Missouri terri- of the lands in on quantity any the same acrés; done, on which being casé not exceeding but tory, £40 the, States. to the United should revert to the land injured n Missouri was titles for the territory The'recorder land made- “ act, benefit of the who was to-the ascertain entitled the judge, claim; extent;”- to-what evidences-of and examination was directed to issue founded, he which, for if compensation well issued, and a having a certificate to the claimant. This certificate office, surveyor general’s of location been filed in the notice was directed to survey, on application surveyor 'claimant-the selected, the office the recorder land and return a plat the tract titles, land designating á in writing, notice together with vs.
[Bagnell et al. Broderick.] located; and the ñame whose of the claimant on behalf location and had been and notice it survey made; which plat duty the recorder to trans required record in his office: and he allowed, claim report mit together to the office; commissioner deliver general of the case, circumstances stating claimant he was tract for the designated. a-patent to. notice of location the- general the"claimant with surveyor is-no office part acted; evidence which the general but .the issued certificate of re surveyor, plat lumed to the him recorder’s office, reported the .general land office. deemed, until United States was the land never appropriated were titles survey claims, ments returned, many there -and the reason that perfect govern from incipient, emanating provincial of France Spain, others the land district subject where the -claims to be Madrid were New. So, located. entry. there were and salt excluded lead springs mines Then, be in a again, the notice form incon entry might *11 sistent with .the cases' laws of the all no United-States: survey could be it. If to no conformity objection in. it was the to conform duty the election Surveyor existed made certificate claimant, .the location by recorder. Still the- location of the recognised by the only .evidence government certificate appropriation plát.-and .bf Such is the surveyor. information from the- general land obtained office; As evidence form of practice office, we have been furnished With copy plat certifi ffie cates of survey founded, which the in this record which is annexed. stated, As to John Robertson, before is' Jr. deemed we must presume have-been issued regularly; and that all the usual been taken before incipient steps Peters, perfected. 728. 727, Wheat. 724. 293. Wheat. 157. -of And certificate of returned course; survey by the recorder; .was Robertson, Jr. The name John merged location which- the survey founded; certificate on virtue, so that no second could made of the certificate. survey Thus stands the below. title of the plaintiff fortified The defendant there a notice of me relied éntryfiled'witn upon “ surveyor general sentative these aSthe words: Morgan Byrne, fepre-' John Robertson, forty six hundred and Jr.', enters acres land, virtue of a certificate, New issued re- Madrid corder of land titles St. Missouri, Louis, and dated territory 1818, manner, September, the- tb' 448, following in- numberеd wit, to include section 50, No. north base 32, No. in township line; Nó. range west of meridian. principal, fifth “ Byrne.” Morgan St. Louis, Qth, Oct. 44» TERM, l'88k vs. [Bagnell et al. following location r.
Which is founded “ No. 448. " Land Louis, Titles, St. Recorder of Officeof " September, 1818. six and forty a tract of hundred acres of I certify " Madrid, situate, the officeto. be Big Prairie, 'comity .New appears, John this owned Robertson, hooks of Jr., from thé has and that in earthquakes''; materially injured conformity act the- 17th. Congress, provisions February, or his Robertson, Jr., the said John legal representatives, is 18Í5, land,, to locate six acres of forty hundred sale of which territory of. public lands Cer’e, law. Vide ext’d. authorised Com’is '“ Frederick BatésN This, obviously foundation- ,a Robertson, ; ; Jr. fact admitted is insisted that Byrne but'it ; the better title the recorder’s certificate that it issued him. fact the notice of John Jr. “legal representative ;” and that with the filed surveyor general, vested Byrne a title a character on which he could have maintained an .of eject- Broderick-; that, ment consequently, devisees could successfully corild, defend That they if. entry, themselves.. thebetter must be admitted. record, There is evidence .in show tending made the the New relinquishment claim; Madrid but the evidence, extracts (being records of the recorder’s show that office,) certificate was granted Robert : Jr. son, as follows They Ross’n, Warr. ord. of Quan’ty Where Opinions of the Survey.’ the recorder. Notice Inli’n, survey.. claimed. situated: recorder^. Cult. &c. Ü. S. Corn’s By *12 Big 750 Granted 6^0 200 Jr. arpens, Robertson, Johft Prairie. acres £. arpens. cer. 1126.- A list injured relinquishments late materially the by earthquakes, county (present) Congress New state Madrid, the of 17th February, ac.t 1815.' Claimants general of- Relinquishment by whom, and cert. Quantity.
Loc’n Situation. record. remarks. John Robert- Big 448 640 acres. Prairie. Byrne, representative, son, Jr. evidence, This taken in with the deeds to connexion Edward Ro- bertson, and those from him others insisted, and is. esta- 2p2 57
[Bagual! al. vs. et latter; that this to have been the blish the equity- and Court, the defendants in the Circuit available for can be made equity Missouri, provides, the act of the legislature' force “ Newa bé Madrid action of enactment may that an maintained'on location.” act, iffthe is, the referred first, that location the Our opinion titles; the and certificate of recorder plat returned'to this deemed the first laws of the United because, by the is. hadnopower, land,and the legislature Missouri the appropriation depiare notice of filed with it made the attempt, had laws contrary an of the to the the surveyor, general appropriatioh made and been certified The survéy having United States. Jr., and had no title that Robertson, recorder name óf in, of'course,"those-claim- case; would sustain an ejectment themselves on the evi- defend under him-cannot ting successfully they adduced. dence location had- and certificate But plat secondly, suppose name of Morgan to the in.the and returned been recorder title, in opposition set as the better up and that-it been Byrne,; to still, ejectment; behalf plaintiff adduced.on the better have been of opinion we are would action, that all of this purposes for. presume' Weare bound previous steps himself to the notwithstanding Jr., to Robertson,- entitle taken it, obtain he had the superior .that claim, ; and having -ihe set up by Byrne obtained wit, the known to- title,, fee,) best (to patent, Robertson-had 'Court, of law. to declare effect dignity the sole Congress power whole States; legislation emanating titles lands, de- reference government,'in the'federal title; óf legal the superior conclusive'-evidence clares which, -thepatent, is in the government, its fee issuance, until -the to recover possession he grantee; passes ejectment; the true owner have been show devisees can him to If Byrne’s earth- injured by. land, off Relinquished of quakes,and take arpens because" mis- to John that, Jr.,-by the patent issued forum, tis proper side Circuit Court ; then offthe equity the equities par- investigate tó remédy, proper Rill. .and 1815; act of tip -virtue existed ties. But whether and if of'the any equity so, parties by it was whether between "adjudged, op have formed no titles; we .questions recorder understood, pot irititnating any. wish to be opinion, pf Barland, Peters, case Ross We referred have been vs. case; we involving principles as an adjudication the younger were conflicting patents; do In that there so. not.think specific founded on appropriation The Court date "seniorpatent. than land officeof earlier , , in evidence held that given could junior-patent the entry *13 TERM, [Bagneil et al. vs'. Broderick.]. one so as to the elder connexion as patent; overreach evidence a in aid special practice entry patent, and giving the date title' from
dating entry, some familia* states, Tennessee; can especially yet only title; nó come in and is еvidenciaof such title aid standing -a for the land. alone, when Where the opposed-to patent has in the case adopted by right, out of the United States as it by conflicting patents, passed in 6 Peters, there can be no to the objection practice the Courts of Mississippi effect.to the form legislature or Courts of the remedy state may prescribe. Nor,4o we the states to laws power pass authorizing doubt to prosecute actions purchasers of. certificates of upon ejectment, lands purchase, against trespassers on the but we states have purchased; deny any power to declare certificates purchase equal with a dignity patent. them such givé alone can effeet.-- Congress' Por the several reasons stated, we have no doubt the judgment of the Circuit Cóurt and order"it to correct.;, affirmed. the cases of (cid:127)In Sampson Broderick, and M'Cunie agairist -(cid:127) the same, the are. álso affirmed.'- judgments Mr. Justice M‘Lea’n' dissented. Being decision of opposed, in this I will I state, to can, induced, shortly I grounds..of dissent. rffy am do from the peculiar circumstances the case. To.sustain his action of ejectment, patent the’.Circuit plaintiff, Court, states gаve John Jr.; which n that he deposited general land officé certificate “ one numbered and -ninety-two, hundred of the recorder land titles at St. Louis, Missouri; that; in whereby.it of an appears pursuance .act Congress, passed-17 February, 1815, entitled, act for the relief inhabitants of the Madrid, in county'of late New Missouri territory, suffered the said by earthquakes, Robertson, Jr., is confirmed in his claim six hundred forty acres 2,810, and section thirty-two, of .of north,- township fifty, in range fifteen, west the fifth principal of. line,” meridian the &c. The patent June, bears 17th 1820. On date November, 1830, 16th the land patentee conveyed Au gustus-H. Evans. And on the June, 7th 1831, Evans conveyed Broderick, the lessor of the plaintiff. -The defendants first gave confirmation of a Spanish evidenee.a claim for settlement and .cultivation to John Robertson, Jr,, for six hundred forty acres of Prairie, near New Big Madrid. The- entire interest in this conveyed by Robertson, Jr., to -Edward Robertson-,Sr., the 29th May, On the October, 1813, Edward Robertson, Sr.,-conveyed of this three hundred tract arpens .And Morgan'Byrne.
[Bagnellet al. vs. Broderick.] two 1816, he hundred Byrne- 11th óf September, conveyed *14 October, 1816, On the 29th more'of the same tract. and fifty arpens hundred and fifty arpens William conveyed Shelby Robertson two 1816, con- December, tract. . Shelby the same And 2d Grimes Grimes; February, 1817, to Levi and on the 26th veyed . to Morgan fconyeyed Byrne. with the entire ori- these vested conveyances became By Byrne as above Robertson, Jr., ginal right stated. John tract February, 1815, the act of of the Congress any person Under Madrid, land within of New in. the Missouri county owning territory, which had. been earthquakes, injured by the same to the and receive certificate United relinquish therefor, acres, not to exceed six hundred specifying quantity to locate on- land of any which he forty, authorized States; made, such the land relin- being location on became the United States. absolutely quished vested.in this daw relinquished the six Byrne acres Under Prairie, forty Big legal hundred tive nally. representa- Robertson,-Jr., who was the claimant of John of record origi- , The is a of the certificate issued following cppy of location this relinquishment:— 448. St. land titles. Louis, No. Officeof the Recorder September,. a tract six of land situate, I acres certify forty . hundred Prairie, Madrid, of New. which county appears Big Robertson, Jr., officeto John this’ be .owned by books of materially been with the injured by conformity earthquakes; and 1815, .the act 17tlF Congress provisions February, Robertson, Jr., representatives,.is or his legal said John land on six acres of forty hundred loeate .sale which is authorised law. Missouri, territory - [Signed.] Bates. Frederick . October; 1818, 8th of made the Arid’on Byrne’ following, location:—. “ as the of John- legal Morgan enters representative acres, land', six hundred virtue of a New Jr., Madrid forty .and the-terri- issued the recorder of land titles for certificate Louis, Í818, and dated St. and num- September-, tory manner,,to wit: No. to include section the-following bered baseline, No.- néíth township fifty, range thirty-two, of the fifth here the west meridian.?’' And rincipal -fifteen closed;. defendants facts, that counsel Court to state On moved defendant’s Madrid'location, or New by. instruct jury, land.;; name, title to the proof own TERM, 1839.
[Bagnell et al. vs. do all who not show a persons defence against a sufficient and is if the believe the jury land. That the same better patent, in evidence by. plaintiff,- has been given which .copy-of by Morgan Byrne, location made not issued title wili avail location.. 1825, which in force code of when .revised Missouri a New Madrid commenced, provides this action ejectment against sustain an action of a title on shall be not having any person Ro- show, conveyance deeds of defendant’s clear title to the Jr., that full bertson, Morgan Byrne land,' sаid that he Madrid; relinquished near New 640 acres of land States, and located to the United the act of Congress of under the section of the the He owner land legal representative controversy. now Robertson, Jr., was' land, as the By the United States. virtue could relinquish only person made, itsof of this relinquishment, consideration the same him authorised to.locate he.received *15 had been which number acres óf the- any part .of for sale. offered pf claimant It the New that under the-law Madrid appears n him on the by had to public a claimed show the land confirmation claimant, and show the name of the first records in. relinquish it derivative to himself, title' before he was permitted to Jr., establishing instance, in the government. And present the record was. title, produced confirmee original an fact; and then -Byrne by proved, exhibition deeds,- his mises,- all his pré-' that Robertson had parted in this It was and that was his legal representative. he made,'and that the relinquishment capacity con- land in And he made the "locationof issued. samé character. of the troversy, or his Byrpe there can no In view doubt that this cáse that there is possession assignee the title land. And has ejectment this' action-of title shown the-fact .under the lessor plaintiff, pos- commenced obtain rthe- session. Robertson, Jr., It im- that the was issued to appears relin- as in 1809 he all his interest properly; conveyed Before, shadow he not a quished. the emanation of title, of patént' to the land in And dispute. -either equitable- legal, him, must obtained pre- been fraudulently have fif The evidence sentafior the certificate made by Byrne. of location is established by this is too clear to It point controverted. deeds records con- form, in the most executed solemn is as tain the The fraud irresistible highest verity. inference as aré the facts which it is inferred. cléar is equally- The it proof title is irrefragable; Byrne’s [Bagnell et al. vs.
that Robertson had no title the land, until he fraudulently ob- tained the patent.' no he Haying right, shadow could obtain the in his own no And other than fraudulent means. name no Court which could feel itself'authorised to look behind the patent, could hesitate to pronounce title of Byrne against valid cover, patentee, has sought to his fraud this legal instrument. And the question here whether, under arises, the Missouri statute, the Circuit Court ought not instructed the jury, ‘that have under better the deeds and records evidence, given was the- Byrne’s title. I cannot doubt that this instructiоn should have been given. The statute makes the location a title for the purposes action ejectment. And it bé a title, if .good which to an bring 'ejectment, it must be effectualin the defenceof equally action. Thistitle, the declares, statute shall prevail against any person who has not the better title. this, And what of a title better kind it is a Surely prevail facts and circumstances of the case to' ought that to against which it is opposed. It is better title must urged mean better title'than others title title class; that it can never be considered a but And against patent. why not be may considered bettér patent? The title set in the defence derives its up validity laws -United as the entirely patent. question then is, same declare that a two, better title of both from the .originating ? statute of Missouri does sovereignty more nothing than of law do may Court action ejectment, what no one doubts would be competent chancery do. It legislature not the do this? does not And'may originate of state which is to under-any pretence sovereignty, operate against but it ; gives from the United States a Court law, pow- ers in the action which in some other ejectment, states are exer- cised a Court This only by chancery. always rule and in states which- have Pennsylvania, no Court of chancery. *16 location,is an Technically, Rut, out .inchoate of this rule titles a new of equity grew of the up, of by practice class the the this rule is Kentucky.. Courts not in with conformity And a Court of established long principles.of equity. entries, the doctrine is As of notice conflicting between utterly be a one, The must entry embracing all the by discarded. law, or a requisites be subsequent may substantial made .'entry the locator land, on the same have though knowledge full the first entry. the an It anomaly history equity jurisdiction. This forms to is, Court authorizes .a to that which equity itself, effect strictly legal right. this out of acted
Principles system -have bben growing peculiar TERM, 1839. [Bagnéll et al os. the Courts of the United States; necessity, by but on from have not they as to equitable appropriate jurisdiction been an regarded cases.
' n acted Kentucky upon .legal the Courts entries as Had titles, rules, or virtue of by own under statutory provisions, Whether their States would have United' same adopted, the mode Courts the Tennessee,, the junior In under' .patent a of proceeding, .state elder an under overreach the first flicting will junior con- would be the exercise This,'in Kentucky, .eptry. Missouri, In under it statute, equitablе jurisdiction. would be at examinable law. This, the location. said, the Ken- merges It is but, true; .patent issued, is system through where tucky individual who was not fraud, it; mistake. á. right will equity Court of compelling control’ patentee, has the better right. convey'to person him to law this protect better right. not Court why And may and considering as the nature be investigated fully, right may rights of, statute, as a Court law.as safely-in under the Missouri Court,' But is this, not a question chancery. It of. evidence property-adopted a'fule policy; course of and our whole adjudications requires state of There therefore no more violation us of principle it. regard to. - law, at then title of result' examining Byrne equity. in is modes; in both as.the title must substantially which it has -béen fraud, be attempted be protected overreached and subverted. case, I of this have never seen a judging than act the dbtainment of patent by fraud Robert- grosser of. he had every eleven after ; years conveyed vestige son land, as the consideration to the relinquished which was in controversy. the location made but argument Byrné was stated in It the title. That Robertson-had subsequently perfect no step took This' is an argument against executed returned. which authorized location was the cеrtificate By record. “ the on sale which located is authorized be required authorized-by .sold, law’to except no land And law.” of the United the officers States. The loca- surveyed has been tion in a, section, designated its number, question had been and which course surveyed. range, township, inserted name was agreeably As Robertson’s record, claimant on used, being the'original he of New the forms practise he enabled an imposition relinquished, tract Was Madrid office, general commissioner fraud obtain n the patent. may is a well as. priñciple, investigated It settled fraud I chancery; am at if strongly law inclined think well *17 456 vs¿
[Bagnell et al. Broderick.] been this-fraud.had before the Court brought and -jury, independent viti-, statute of must have they determined that it the patent. ate'd at titles, one look these two Can any Byrne having been a purchase, relinquishment, obtained fair and location; and that Robertson by fraudulently of in-deciding the- obtaining patent, and hesitate ' the better title. And it appears me that the of Missouri in providing statute on which such a location shall be a an action of ejectment may sustained, covers the whole case; and enables the Court and jury determine which is the better-title. : Irvine, In thé of Sims’ lessee vs. case Dallas 457, this Court “ where the Pennsylvania, consideration s^iy, survey, though has been paid,' unaccompanied by gives,a legal right of which is entry, ejectment.” sufficient Why have they been ad such whether judged from defect'of right; chancery pow? ers; or for reasons of Or is not policy justice' now material. The once become an established legal right, and having as itself, such, with incorporated 'it property'and tenures; remains a notwithstanding new legal right any of judicial powers, .distribution and must'be regarded by common Courts of the la.w United States, in as rule Pennsylvania, decision. in the case Ross vs. Doe on the demise And Barland et al. Peters, 664, this Court it is say,' plaintiff “for.the argued.that Court erred that the deciding state- .elder not grant should prevail' ' the action of ejectment.” .in this-case was question-in between claimant under a patent one -United claimed the of donation same land under a certificate, given by- commissioners. question was same, in-the case under identically principle; consideration. “ decided, Court And this where established practice of states, the Courts actions Courts particular ejectment look and examine the grant, progressive' stages of the title beyond from its form the state consummation'; until its incipient will practice of cases decided under same,- in'these states: and law States United regard tho'se Supreme rules deci- the sion in they to from,such states, cases brought-up provided that in so doing,- "the suffer statute provisions do'liot act Congress,'of violated. Under the March 1803, such be; were to. offered for sale only had not .authorized ,the sections of law, previous appropriated certificates' right, A -the granted pursuance commissioners thereof. there- fore, to a tract land derived particular donation certifícate, tinder, given law, superior anyone who- pqr-- chasedthe same land at the public sales.” .This was'the rulé in the State of ejectment cases in Mississippi, from whence this cause was'brought. 1828; decision was This one cited from Dallas was given
JANUARY TERM, 1839.
[BagnelLet al. vs. in 1799; and the rule laid down in these eases has not been *18 questioned any other adjudication this Court. Other deci- sions to might referred of the same but import, it is deemed to be unnecessary. will, however, I a notice case decided at the present term, which, my judgment, has a principle, strong application the ques- tion under consideration. a statute оf is By Kentucky provided “ any person both the and legal title, that. possession land, institute a may suit against a any person up claim setting/ if the thereto; and shall be able establish his complainant title to land, such and to which creates an the defendant shall be decreed to- thereto, release his claim costs,” pay &c. Now is complainant here a statute or in a equity, of'proceeding Court of chan- rule ; cery which, in-the case of Clark vs. Smith has been very properly n recognized as a rule in this Court. proceeding Now the statute of Missouri created legal right, or rule of pro- ceeding can action of And if the ejectment. statute Kentucky the rule this Court, proceeding chancery, why'may not Missouri statute do the same at thing law.. In state Illinois, statute, a certificate register of. the land office good preme of an entry United’ States is amade which, title on to sustain an action of-ejectment: the Su- Court of that rule, has since settled the long state a title may be held fraudulent- against patent.wrongfully good obtained. In ly a similar law, sate of-Alabama there it has received, state, the same of that con- Supreme struction. idea,- if a can law authorising state action of pass . aon that if ejectment Under patent wrongfully register, certificate this certificate, should be held the better any'circumstances against issued would endanger .public lands; is so novel and so that I must notice it. Had not such unfounded an ar- I that' been should have gument advanced, so supposed things, two as this wholly disconnected could premiss never be conclusion associated in mind of one. How is the public lands the establishment endangerel by of this- ' ... -rule?- / from as the emanate the'federal as well go- The. or chancery through vernment. Now if issued mistake fraud doubts that Court no wrongfully, may one pro- holder;, such, tect of the certificate right, state law, Illinois and this done at matter. says, may be whole it is U this, If there be riot danger only lands' modern the. danger, states discovery: guard effectually but them or restrict must abolish their Courts of under all. chancery, patentee. circumstances If thé from-questioning their state Courts own citizens cannot between cases try'these be tried? under their own All who claim laws, they where are patentee. the same rights Vol. Q Kill. —3
[Bagnellet al. vs. Broderick.^ with Mr. Justice opinion Justice concurred Mr. M‘Kinlet M‘Lean, the, heard on the record transcript came- This cause of Mis- district Cоurt of the Circuit .whereof, it is counsel. On consideration this Court that souri, argued by adjudged by the said judgment ordered Circuit Court costs. be, and the hereby, cause affirmed in this NOTE, recorder of land Officeof titles. No. Louis, March St. act of Congress,passed pursuance certify* .1 certificate, issued 1815, a of February, day this *19 Robertson, Jr., his legal or representa- of John in favour office land; acres of forty tives, hundred' for six herewith, and made, plat appears his Robertson, Jr., legal representatives,'is said John to'said tract, containing, according six the said for 32, No. land, section township acres forty .hundred 15 west 5th No. range 50, principal of base . No. north line— meridian; 2,810. survey, NO. of Frederick‘Bates. NO.,15, the Base line, 50, Range North West No. Township fifth meridian. principal Surveyors’ Office,S't.Louis. Np. 15, 1820. January No. 32, tha/bsection I certify township Róbertson, Jr. line, of the base 50, north No. range 15, Section 32. meridian, the 5th principal west of lo- October, 1818, .day cated for Jr., his 'or legal representa- 448, tives, virtue No. issued by the Sepíember, dated. Robert-, Missouri of or, for the said John territory,to recorder son, of the 17th in titles Jr., six forty for hundred acres representatives, act of provisions Congress conformity for the relief of sufferers .February, by earthquakes late of New Rectos; county Wm.. Madrid. Bates, Frederick of land titles the Missouri Esq., Recorder To Territory.