Lead Opinion
delivered the opinion of the Court.
This wаs an action of ejectment by.Broderick against Bagnell, for a section of land lying in Howard county, Missouri; and Peter and Luke Byrne were admitted to come in • and defend, under the following-circumstances. - Morgan Byrne claimed to be the owner of-the land, and he was first admitted a co-defendant with Bagnell.
The judgment below is, that the plaintiff recover the land and costs, against Carey Bagnell and P. and L. Byrne, executors of Morgan Byrne.
It is assigned for error, that.the judgment for costs against Peter and Lukе Byrne, should have been de bonis testatoris, .and hot de bonis propriis. ...
... ■The presumption, is, that the judgment of the.Circuit Court is pro.pér, and it lies on the plaintiffs in error to show the contrary.
The .plaintiff Brbderick claimed'by virtue of a patent from .the United States, to John Robertson,-Jr., dated June 17th, 1820 • and deeds in due form from Robertson and others to himself, proved Carey in possession at the commencement of the suit; and here rested his case.
To show that the better title had been in Morgan Byrne, the defendants produced a deed dated 20th May, 1809, from John Robertson, Jr., to Edward Robertson, Sr., for seven hundred and.fifty arpensof land lying in Big-- Prairie township, in the district of New Madrid, adjoining the lands of Sheckler and Cox; and which deed authorized Ed . ard Robertson to procure a. patent from the government. By different conveyances Morgan Byrne claimed title to the 750 arpens through and undéí Edward Robertson.
The land lies in the county of New Madrid, in the state of-Missouri, and was injured by the earthquakes of December, 18.11. To relieve the inhabitants Who had suffered by this calamity, Congress passed the act of 17th February, 1815; providing that those whose lands had. been-'materially injured,-should' be authorised to locate the same quantity on any of the public lands in the Missouri territory, but not exceeding in any casé £40 acrés; on which being done, the, title to the land injured should revert to the United States.
■ The'recorder of land titles for the territory of Missouri was made-the judge, “ to ascertain who was entitled to-the benefit of the act, and to-what extent;”- on the exаmination of the evidences-of claim; as compensation for which, if well founded, he was directed to issue a certificate to the claimant. This certificate having issued, and a notice of location having been filed in the surveyor general’s office, on application of the 'claimant-the surveyor was directed to survey, the land selected, and to return a plat to the office of the recorder of land titles, together with á notice in writing, designating the tract
The United States never deemed, the land appropriated until the survey was returned, for the reason that there were many titles -and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New. Madrid -claims were subject to be located. • So, there were lead mines and salt springs excluded from entry. Then, again, the notice of entry might be in a form inconsistent with .the laws of the United-States: in all which cases' no survey could be made in. conformity to it. . If no such objection existed it was the duty of the Surveyor to conform to the election made by thе claimant, having .the location certificate from the recorder. Still the- only .evidence of the location recognised by the government as an appropriation was the plát.-and certificate .bf the surveyor. Such is the information obtained from the- general land office; As evidence of the form of location, and practice of the office, we have been furnished With a copy of ffie plat and certificates of survey on which the patent in this record is founded, and which is annexed. As before stated, the patent, to John Robertson, Jr. is' deemed to have-been issued regularly; and we must presume that all the usual incipient stеps had been taken before the title was perfected.
The defendant there relied upon a notice of éntryfiled'witn me surveyor general in these words: “ Morgan Byrne, aS the legal fepre-' sentative of John Robertson, Jr.', enters six hundred and forty acres of land, by virtue of a New Madrid certificate, issued by the recorder of land titles for the territory оf Missouri, and dated St. Louis, September, 1818, and numbered 448, in- the- following manner, tb' wit, to include section No. 32, in township No. 50, north of the base line; range Nó. 15, west of the fifth principal, meridian.
“ St. Louis, Oct. Qth, 1818. Morgan Byrne.”
“ No. 448.
" St. Louis, Office of the Recorder of Land Titles,
" September, 1818.
" I certify that a tract of six hundred and forty acres of land, situate, Big Prairie, in the 'comity of .New Madrid, which appears, from thé hooks of this office to. be owned by John Robertson, Jr., has been materially injured by earthquakes''; and that in conformity with the provisions of the act of Congress, of the- 17th. February, 18Í5, the said John Robertson, Jr., or his legal representatives, is entitled to locate six hundred and forty acres of land,, on any of the public lands of thе territory of. Missouri, the sale of which is authorised by law. Vide Com’is Cer’e, No. 1126, ext’d.
'“ Frederick BatésN
This, is obviously the foundation- of the survey and patent to John Robertson, Jr. ; , a fact admitted ; but'it is insisted that Byrne had the better title to the recorder’s certificate ; that it issued to him. in fact as the “legal representative of John Robertson, Jr. ;” and that the notice of entry filed with the surveyor general, vested in Byrne a title .of a character on which he could have maintained an ejectment against Broderick-; and that, consequently, his devisees could successfully defend themselves.. That they corild, if. the entry, be ■the better title, must be admitted. '
There is evidence .in this record, tending to show that Morgan Byrnе made the relinquishment of the New Madrid claim; but the same evidence, (being extracts from the records of the recorder’s office,) show that the location certificate was granted to John Robertson, Jr. They are as follows:
Warr. or ord. of survey.. Survey.’ Notice to the recorder. Quan’ty claimed. Where situated: Ross’n, Inli’n, Cult. &c. Opinions of the recorder^.
By Ü. S. Corn’s for 200 arpens, cer. 1126.-Johft Robertson, Jr. 750 arpens. Big Prairie. Granted 6^0 acres £.
A list of relinquishments of lands materially injured by earthquakes, in the late county of New Madrid, (present) state of Missouri, under the ac.t of Congress of 17th February, 1815.'
Loc’n cert. Claimants of-record. Quantity. Situation. Relinquishment by whom, and general remarks.
448 John Robertson, Jr. 640 acres. Big Prairie. Mоrgan Byrne, legal representative,
. This evidence, taken in connexion with the deeds to Edward Robertson, and those from him and others to Byrne, it is. insisted, esta
Our opinion is, first, that the location referred to in the act, iff the plat and certificate of survey returned'to the recorder of land titles; because, by the laws of the United States, this is. deemed the first appropriation of the land,and the legislature of Missouri hadnopower, had it made the attempt, to depiare the notice of location filed with the surveyor, general an appropriatioh contrary to the laws of the United States. The survéy having been made and certified to the recorder in the name óf John Robertson, Jr., Byrne had no title that would sustain an ejectment in, any case; and of'course, "those -claim-ting under him- cannot successfully defend themselves on the evidence they adduced.
But secondly, suppose the plat and certificate of location had-been made and returned to the recorder in.the name of Morgan Byrne,; and that-it had been set up as the better title, in opposition to the patent adduced.on behalf of the plaintiff in ejectment; still, we are of opinion the patent would have been the better legal title. Weare bound to presume' for. the purposes of this action, that all previous steps had been taken by John Robertson,- Jr., to entitle himself to the patent, and .that he had the superior right to obtain it, notwithstanding -ihe claim, set up by Byrne ; and having obtained the patent, Robertson-had the best title,, (to wit, the fee,) known to-a 'Court, of law.
Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the'fеderal government,'in reference to the public lands, declares the patent the superior and conclusive'-evidence óf legal title; until its issuance, the fee is in the government, which, by -the patent, passes to the grantee; and he is entitled to recover -the possession in ejectment;
If Byrne’s devisees can show him to have been the true owner of the 750 arpens off land, Relinquished because" injured by. earthquakes,and that, the patent issued to John Robertson, Jr.,-by mistake ; then the equity side off the Circuit Court tis the proper forum, .and a Rill. the. proper remédy, tó investigate the equities of the parties. But whether any equity existed tip -virtue of'the act of 1815; and if so, whеther it was "adjudged, between the parties by the recorder of land titles; are .questions op which we have formed no opinion, and wish to be understood, as pot irititnating any.
We have been referred to the case pf Ross vs. Barland,
Nor,4o we doubt the power of the states to pаss laws authorizing purchasers of lands from the United States, to prosecute actions of. ejectment, upon certificates of purchase, against trespassers on the lands purchased; but we deny that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress' alone can givé them such effeet.--
Por the several reasons stated, we have no doubt the judgment of the Circuit Cóurt was correct.;, and order"it to be affirmed.
•In the cases of Sampson against Broderick, and M'Cunie agairist the same, the judgments are. álso affirmed.'- • -
Dissenting Opinion
dissented.
Being opposed, to the decision of the Court in this case, I will state, as shortly as I can, the grounds..of rffy dissent. I am induced, to do this from the peculiar circumstances of the case.
To.sustain his action of ejectment, the plaintiff, in the’.Circuit Court, gave in evidence a patent to John Robertson, Jr.; which states “ that he had deposited in the ■ general land officé a certificate numbered one hundred and -ninety-two, of the recorder of land titles at St. Louis, Missouri; whereby.it appears that; in pursuance of an .act of Congress, passed-17 February, 1815, entitled, an act for the relief of the inhabitants of the late county'of New Madrid, in the Missouri territory, who suffered by earthquakes, the said John Robertson, Jr., is confirmed in his claim for six hundred and forty acres .of land, being survey No. 2,810, and section thirty-two, of township fifty, north,- in range fifteen, west of. the fifth principal meridian line,” &c. The patent bears date 17th June, 1820. On the 16th November, 1830, the patentee conveyed the land to Augustus-H. Evans. And on the 7th June, 1831, Evans conveyed to Broderick, the lessor of the plaintiff.
-The defendants first gave in evidenee.a confirmation of a Spanish claim for settlement and .cultivation to John Robertson, Jr,, for six hundred and forty acres of land in the Big Prairie, near New Madrid. The- entire interest in this right was conveyed by John Robertson, Jr., to -Edward Robertson-, Sr., the 29th May, 1829.
On the 30th October, 1813, Edward Robertson, Sr.,-conveyed three hundred arpens of this tract of land to Morgan'Byrne. .And
By these conveyances Byrne became vested with the entire original right of John Robertson, Jr., to the tract of land, as above stated.
Under the act of Congress of the 17th February, 1815, any person owning land within the county of New Madrid, in. the Missouri territory, which had. been injured by earthquakes, had the right to relinquish the same to the United States, and receive a certificate therefor, specifying the quantity of acres, not to exceed six hundred and forty, which he was authorized to locate on- any land of the United States; and on such location being made, the land relinquished became absolutely vested.in the United States.
Under this daw Byrne relinquished to the United States the six hundred and forty acres in the Big Prairie, as the legal representative of John Robertson,-Jr., who was the claimant of record originally. , The following is a cppy of the certificate of location issued on this relinquishment:—
No. 448. St. Louis, Office of the Recorder of land titles.
September,. 1818.
. I certify that a tract of six hundred and forty acres of land situate, Big Prairie, in the county of New. Madrid, which appears from the books of this’ office to be .ownеd by John Robertson, Jr., has been materially injured by earthquakes; and that in conformity with the provisions of .the act of Congress of the 17tlF February, 1815, the said John Robertson, Jr., or his legal representatives,.is entitled to loeate six hundred and forty acres of land on any of the public lands of the territory of Missouri, the .sale of which is authorised by law.
[Signed.] - Frederick Bates.
. Arid’on the. 8th of October; 1818, Byrne’ made the following, location: — . .
“ Morgan Byrne, as the legal representative of John- Robertson, Jr., enters six hundred .and forty acres, of land', by virtue of a New Madrid certificate issued by the recorder of land titles for the- territory of Missouri, and dated St. Louis, September-, Í818, and numbered 448, in the-following manner,, to wit: to include sеction No. thirty-two, in township No.- fifty, néíth of the baseline, range No. -fifteen west of the fifth rincipal meridian.?’' And here the evidence of the defendants closed;.
On this state of facts, the defendant’s counsel moved the Court to • instruct the jury, that the entry or New Madrid'location, made by. Morgan Byrne in his own name, is proof of a legal title to the land.;;
- The .revised codе of Missouri of 1825, which was in force when this action was commenced, provides that a New Madrid location shall be a title on which to sustain an action of ejectment against any person not having a better title.
The defendant’s show, by deeds of conveyance from John Robertson, Jr., that Morgan Byrne had a full and clear title to the 640 acres of land near New Madrid; that he relinquished said land,' under the act of Congress of 1815, to the United States, and located the section of land now in controversy. He being the owner of the land, as the legal representative of John Robertson, Jr., was' the only person who could relinquish it to the United States. By virtue of this relinquishment, and in consideration of its having been made, he.received the certificate which authorised him to.locate the same number .of acres óf any part of the- public land which had been offered for sale.
It appears that under the-law pf 1815, the New Madrid claimant had to show a confirmation of the land claimed ■ by him on the public records in. the name of the first claimant, and to show a derivative title' to himself, before he was permitted to relinquish it to the government. And in the present instance, John Robertson, Jr., being the original confirmee of the title, the record was. produced establishing the fact; • and -Byrne then proved, by an exhibition of his deeds,- that Robertson had parted with all his right in the pré-' mises,- and that he was his legal representative. It was in this capacity that the relinquishment was made,'and the certificate of location was issued. And he made the "location of the land in controversy, in the samé character.
In this view of the cáse there can be no doubt that Byrpe or his assignee has the title to the land. And that there is possession .under this' title is shown by the-fact that the action-of ejectment was commenced by the lessor of the plaintiff, to obtain rthe- possession.
' It appears that the patent was issued to John Robertson, Jr., improperly; as in 1809 he conveyed all his interest in the land relinquished. Before, the emanation of the patent, he had not a shadow of title, -either equitable- or legal, to the land in dispute. And the patént' must have been fraudulently obtained by him, on the presentafior fif the certificate of location made by Byrne. The evidence on this point is too clear to be controverted. It is established by deeds executed in the most solemn form, and by records which contain the highest verity. The inference of the fraud is as irresistible as aré the facts from which it is inferred.
The proof of Byrne’s title is irrefragable; and it is equally- cléar
And the question here arises, whether, under the Missouri statute, the Circuit Court ought not to have instructed the jury, ‘that under the deeds and records given in evidence, Byrne’s was the- better title. I cannot doubt that this instruction should have been given.
The statute makes the location a legal title for the purposes of the action of ejectment. And if it bé a .good title, on which to bring an 'ejectment, it must be equally effectual in the defence of such an action. ■This title, the statute declares, shall prevail against any person who has not the better title.
And what kind of a title is this, better title. Surely it is a title that under the facts and circumstances of the case ought to' prevail against that to which it is opposed.
It is urged that this better title must mean a better title'than others of the. same class; but that it can never be considered a better title against a patent. And why may it not be considered a bettér title against the patent?
The title set up in the defence derives its validity from laws of the -United States, as entirely as the patent. The question then is, which is the better title of the two, both .originating from the same sovereignty ? The statute of Missouri does nothing more than declare that a Court of law may do in an action of ejectment, what no one doubts would be competent for a Court of chancery to do.
And'may not the legislature do this? It does not originate a title, under-any pretence of state sovereignty, which is to operate against a patent from the United States ; but it gives to a Court of law, powers in the action of ejectment, which in some other states are exercised only by a Court of chancery. This has always been the rule in Pennsylvania, and in other states which- have no Court of chancery.
Technically, a location, is an .inchoate legal title. Rut, out of this class of titles a new rule of equity grew up, by the practice of the Courts of Kentucky.. And this rule is not in conformity with the long established principles.of a Court of equity.
As between conflicting entries, the doctrine of notice is utterly discarded. The entry must be a legal one, by embracing all the substantial requisites of the law, or a subsequent .'entry may be made on the same land, though the locator have full knowledge of the first entry.
This forms an anomaly in the history of equity jurisdiction. It authorizes .a Court of equity to give effect to that which is, in itself, strictly a legal right.
Principles growing out of this peculiar system -have bben acted
■ ' Had the Courts of Kentucky acted upon entries as .legal titles, Whether under their own rules, or by virtue of statutory provisions, the Courts of the United' States would have adopted, the same mode of proceeding, In the .state of Tennessee,, a junior .patent under' the first entry will overreach an elder patent, under a junior conflicting .eptry. This,'in Kentucky, would be the exercise of an equitable jurisdiction. In Missouri, under the statute, it would be examinable at law.
It is said, the patent merges the location. This, under the Kentucky system is true; but, where the .patent has been issuеd, through á. mistake. or fraud, to an individual who was not entitled to it; a Court of equity will control’ the right of the patentee, by compelling him to convey'to the person who has the better right.
And why may not a Court of law protect this better right. The right may be investigated as fully, and considering the nature of the rights under the Missouri statute, as safely-in a Court of, law.as in a Court of chancery. But this, with the Court,' is not a question of policy; It is a'fule of. evidence and of property-adopted by the state of Missouri, and our whole course of adjudications requires us to. regard it. There is therefore no more violation of principle in examining the title of Byrne at law, then in equity. The - result' is substantially the same in both modes; as.the title of Byrne must be protected from the fraud, by which it has -béen attempted to be overreached and subverted.
judging from the evidence of this case, I have never seen a grosser act of. fraud than the dbtainment of this patent by Robertson ; eleven years after he had conveyed every vestige of right in the land, which was relinquished as the consideration to the United States for the location in controversy.
It was stated in the argument that Byrné made the location, but took no step subsequently to perfect the title. . That Robertson-had the survey executed and returned. This' is an argument against the record. By the certificate which authorized the location it was required to be located on land, “ the sale of which is authorized by law.” And no land is authorized-by law’to be .sold, except such as has been surveyed by the officers of the United States. - The location in question was made on a, section, designated by its number, township, and range, and which of course had been surveyed.
' As Robertson’s name was inserted in the location agreeably to the forms used, he being the'original claimant on record, of the New Madrid tract relinquished, he Was enabled to practise an imposition and fraud on the commissioner of the general land office, and obtain the patent. ■
It is a well settled priñciple, thаt fraud may be investigated as. well at law as in chancery; and I am strongly inclined to think if
Can any one look at these two titles, that of Byrne having been obtained by a fair purchase, relinquishment, and location; and that of Robertson by fraudulently obtaining the- patent, and hesitate in-deciding which is the better title. ' And it appears to me that the statute of Missouri in providing that such a location shall be a title, on which an action of ejectment may be sustained, covers the whole case; and enables the Court and jury to determine which is the better-title.
In thé : case of Sims’ lessee vs. Irvine,
• And in the case of Ross vs. Doe on the demise of Barland et al. 1 Peters, 664, this Court say,' “for.the plaintiff it is argued.that the stаte- Court erred in deciding that the .elder grant should not prevail' .in the action of ejectment.” '
The question-in this-case was between a claimant under a patent of the -United States, and one who claimed the same land under a donation certificate, given by- commissioners. The question was identically the same, in principle; as in-the case under consideration.
And this Court decided, “ where by the established practice of Courts in particular states, the Courts in actions of ejectment look beyond the grant, and examine the progressive' stages of the title from its incipient state until its consummation'; such a practice will form the law of cases decided under the same,- in'these states: and the Supreme Court of the United States regard tho'se rules of decision in cases brought- up from,such states, provided that in so doing,they do'liot suffer "the provisions of any statute of the United States to be violated. Under the act of Congress,'of March 3, 1803, such lands only were .authorized to. be; offered for sale as had not been appropriated by ,the previous sections of the law, and certificates' granted by -the commissioners in pursuance thereof. A right, therefore, to a particular tract of land derived from a donation certifícate, given tinder, that law, is superior to the title of anyone whо- pqr-■chased the same land at the public sales.” .This was'the rulé in ejectment cases in the State of Mississippi, from whence this cause was'brought. . '
This decision was given in 1828; the one cited from Dallas was
I will, however, notice a case decided at the present term, which, in my judgment, in principle, has a strong application to the question under consideration. By a statute of Kentucky it is provided that. “ any person having both the legal title, and possession of land, may institutе a suit against any other person setting/ up a claim thereto; and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to- release his claim thereto, and to pay the complainant his costs,” &c. Now here is a statute which creates an equity, or rule of'proceeding in a Court of chancery ; which, in-the case of Clark vs. Smith has been very properly ■recognized as a rule of proceeding in this Court.
Now the statute of Missouri created a legal right, or rule of proceeding in the action of ejectment. And if the Kentucky statute can give the rule of proceeding to this Court, in chancery, why'may not the Missouri statute do the same thing at law..
In the state of Illinois, by statute, a certificate of. the register of the land office of the United’ States of an entry of land, is made a good title on which, to sustain an action of-ejectment: and the Supreme Court of that state has long since settled the rule, that such a title may be held good against a patent.wrongfully or fraudulently obtained. In the sate of-Alabama there is a similar law, and it has received, by the Supreme Court of that state, the same construction.
. The idea,- that if a state can pass a law authorising an action of ejectment on a certificate of the register, and that if this certificate, Under any'circumstances should be held the better title, against a patent wrongfully issued would endanger the .public lands; is so novel and so unfounded that I must notice it. Had not such an argument been advanced, I should have supposed that' two things, so wholly disconnected as this premiss and conclusion could never be associated in the mind of any one. •
How is the public lands endangerel by the establishment of this--rule?- ' / - ...
' The. certificate as well as the patent emanate from the'federal government. Now if the patent through mistake or fraud has been issued wrongfully, no one doubts that a Court of chancery may protect the right, in such, a case, of the cеrtificate holder;, ■. The state of Illinois says, this may be done at law, and this is the whole matter. If there be danger to the public lands' in this, it is riot only U modern discovery: but to guard effectually against the danger, the. states must abolish their Courts of chancery, or restrict them under all. circumstances from-questioning thé right of the patentee. If the state Courts cannot try'these cases between their own citizens and under their own laws, where are they to be tried? All who claim under a patent are entitled to the same rights as the patentee.
Concurrence Opinion
concurred in opinion with Mr. Justice M‘Lean,
This cause came- on to be heard on the, transcript of the record from the Circuit Court of the United States for the district of Missouri, and was argued by counsel. On consideration .whereof, it is ordered and adjudged by this Court that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.
NOTE,
No. 192. Office of the recorder of land titles.
St. Louis, March 9, 1820.
.1 certify* that in pursuance of the. act of Congress, passed the 17th day of February, 1815, a location certificate, No. 448, issued from this office in favour of John Robertson, Jr., or his legal representatives, for six hundred' and forty acres of land; that a location has been made, as appears by the plat of survey herewith, and that the said John Robertson, Jr., or his legal representatives,'is entitled to a patent for the said tract, containing, according to'said location, six .hundred and forty acres оf land, being section No. 32, in township No. 50, north of base line — range No. 15 west of 5th . principal meridian; NO. of survey, 2,810. Frederick‘Bates.
Township No. 50, North of the Base line, Range NO., 15, West fifth principal meridian. '
79 50
Np. 448.
John Róbertson, Jr.
Section 32.
640.
Surveyors’ Office, S't. Louis.
January 15, 1820.
I certify tha/b section No. 32, in township No. 50, north of the base line, range No. 15, west of the 5th principal meridian, was located on the 8th .day of October, 1818, for John Robertson, Jr., 'or his legal representatives, by virtue of No. 448, dated. Sepíember, 1818, issued by the recorder of land titles for the Missouri territory,to said John Robert-, son, Jr., or, his legal representatives, for six hundred and forty acres of land, in conformity with the provisions of the act of Congress of the 17th .February, 1815, for the relief of sufferers by earthquakes in the late county of New Madrid. Wm.. Rectos;
To Frederick Bates, Esq., Recorder of land titles for the Missouri Territory. .