39 Mo. 536 | Mo. | 1867
Lead Opinion
delivered the opinion of the court.
It appears that James Y. O’Carroll was the original con-firmee of a tract of six hundred and forty arpents of land situated in the county of New Madrid as a settlement right confirmed under the acts of Congress. In 1805 he conveyed the land confirmed to George Ruddell, who continued to be the owner until after the passage of the act of Congress for the relief of the sufferers by earthquakes in New Madrid. In 1816, Ruddell and wife conveyed to James Tanner and Andrew P. Gillespie a tract of 550 arpents of land situate in the town of Little Prairie, county of New Madrid, lying-on the waters of the Mississippi, and further described as a part of the land originally confirmed to James Y. O’Carroll (reference being had to the records of the record office of land claims in the Missouri Territory), which had been materially injured by earthquakes, reciting the act of Congress for the relief of the sufferers and the privilege given of locating other lands in lieu of the injured land, and purporting to convey all the privileges and benefits given to the said George Ruddell by the said act of Congress ; and by deed of
These deeds were given in evidence by the defendants. The objections of the plaintiff were immaterial so far as the reasons of them are stated in the record. The defendants of course cannot raise any objection to their admissibility as evidence. That a deed was not recorded within one year made it void only as against subsequent purchasers and mortgagers from the same grant or for a valuable consideration. It was still good and valid against the grantor and his heirs, and was effectual to pass the title as between the parties — 1 Ter. Laws of Mo. 46, § 8; McCamant v. Patterson et al,, 39 Mo. 100. These deeds were sufficient in law to pass the title to the injured land to James Tanner, with the right to locate other lands in lieu thereof; they were not void on their face for uncertainty of description. The description given was capable of being made certain by extrinsic evidence ; no objection appears to have been made to them on this ground. Under the Spanish law prevailing here before the introduction of the common law, in 1816, land might have been transferred by parol and mere delivery of possession; and in Mitchell v. Parker, 10 Mo. 260, it was held that an instrument made after the passage of the act of Congress of the 17th of February, 1815, which merely gave a power coupled with an interest, was at that time effectual as an actual conveyance to enable the grantee to convey the land in his own name. These deeds not only gave a power coupled with an interest, but expressly conveyed the land. We think they were sufficient to make J ames Tanner the legal representative of O’Carroll and Ruddell in respect of the injured land.
It further appears that a certificate of location (No. 150) was issued by the Recorder in the name of James Y. O’Carroll or his legal representatives, dated November 30, 1815,
The act' of Congress of the 26th of April, 1822, required that thereafter the holders and locators of these certificates of location or warrants should be bound in locating them to conform to the sectional lines of the public surveys, and declared that all warrants should be located within one year after the passage of the act, in default whereof they were to be null and void. This certificate or warrant had been located before the passage of this act, so far as the holder had anything to do with the location. The warrant had been located and the land surveyed according to sectional lines. All the requirements of this act had been complied with. According to repeated decisions of the Supreme Court of the United States, the location was not complete, so as to operate a change of title, until the survey and plat of location had been returned to the Recorder and recorded and approved by him, and that then only the injured lands reverted to the United States, and the inchoate equitable title to the located land became vested in the locating owner of the injured lands — Bagnell v. Broderick, 18 Pet. 436; Barry v. Gamble, 8 How. (U. S.) 51; Lessieur v. Price, 12 How. (U. S.) 60. All these things had been done in this case, so that the location had become complete.
The act of 1822 applied only to the holders of warrants or certificates and to acts to be done by them. The officers of the Government are not mentioned in this section of the act, and there would appear to be no rational ground on which it can be maintained that this provision as to the limit of
The location and survey had been made in 1818, and a patent had been issued in 1827, and the certificate and patent were held to be void because the land was reserved and not subject to location; but it is at least not clear that the court meant to hold that a location actually surveyed on lands not reserved from sale, and in conformity with law, within the time limited by the act, would be null and void merely because the transcript plat had not been returned to the Recorder and recorded by him within that time. And in Hale v. Gaines, 22 How. (U. S.) 144, the application of the holder of a certificate, issued in 1818, for a location and survey, was disregarded by the Surveyor General because the lands asked for were as yet unsurveyed, and it was not located until 1838 ; but it was said that this might have been done after the public land had been surveyed into sections, and within the time limited by the act. We are of opinion that this survey and location were not void merely because the survey and plat had not been returned to the Recorder within one year after the passage of that act.
With regard to these ministerial and executive duties where no absolute limit of time, place or manner is put upon
It is a great error to suppose that two surveys may not be correctly made to cover the same land — McGill v. Somers, 15 Mo. 80. No survey could be lawfully declared null and void merely because it did not show the interferences of the surveys. Such a power would enable the Surveyor and Com- . missioner to declare all the surveys and locations void that have ever been made, on ground as futile as that the point of compass was marked on the plat with a straight line, and not with an ornamental arrow-head.
We are of opinion that these orders setting aside and annulling this survey, location and patent certificate were
The patent was issued directly to Mary McRee, as the assignee, by virtue of doraignment of title, and not to James Y. O’Carroll or his legal representatives. It assumes to have ascertained the person who was the assignee and legal representative. The power and authority of the President to issue the patent to this person, if truly ascertained, can scarcely be doubted. If it had been issued in the name of the original confirmee, or his legal representatives, it would have been left to the courts to ascertain upon judicial investigation who was the person to whom the patent had*passed the title. That may still be the subject of judicial inquiry; and a court of equity, if it were ascertained to have been granted to the wrpng person, could afford the proper relief to the right person. The act of Congress evidently contemplated that the owner of the injured land would make the location and receive the patent. It was necessarily to be issued and delivered to some person. The original grantee of the injured land was long since dead. To whom should
No other fraud is suggested than what might consist in the issuing of the patent to Mary McRee by name, and not in the name of O’Carroll or his legal representatives, or to some other person as the legal representative; and if the recitals were true, there was certainly no fraud in that. And it may be considered as settled that when a patent of this kind is produced in evidence, we are bound to presume for all the purposes of this action that all previous steps have been taken by the grantee to entitle her to the patent, and that she had the superior right to obtain it; and having obtained it, she has the best title known to a court of law, until the contrary is made to appear — Bagnell v. Broderick, 13 Pet. 450; Hooper v. Scheimer, 23 How. (U. S.) 235.
The plaintiff rested oh the patent, and there can be little doubt that it made for him a prima facie case. It was entirely competent for the defendants to show, if they could, that the patent was obtained by fraud, or was issued without
The evidence showed that the equitable title to the located land had become vested in the heir of Christian Wilt in 1841, when the location was complete. The title which the defendants claim from the heir of Wilt through a decree in chancery, and the deed of the general guardian, made in pursuance thereof, to Joseph Hertzog, and through a deed of trust given by Hertzog, must be held to have been wholly ineffectual and void, for the reasons that the heir was not made a party to the proceedings, and could not appear and answer by his general guardian only
The defendants rely upon the deed of Samuel McRee and wife, dated the 30th August, 1838, and insist that the after acquired equitable title to this location enured to the grantee in that deed, and those holding under him by way of estop-pel, or as being a deed which purported to convey the land “in fee simple absolute,” under the statutes of this State then in force (Act of 1835, § 3,); and still further, that the patent itself enured to their benefit and vested the legal benefit in them.
If this deed purports to convey the real estate in fee simple absolute, the after acquired title passes under the statute, otherwise not. There is no covenant of warranty, and no estoppel by virtue of any kind of expressed warranty. The words “ bargain, sell, release, quit-claim, and convey,” are words of release and quit-claim merely. They carry the grantor’s interest and estate in the land described, whatever it may be; they do not of themselves purport to do anything more; they do not even raise the statute covenants implied in the words “ grant, bargain and sell," nor would these covenants operate as the ancient common-law warranty to transmit a subsequently acquired title — Chauvin v. Wagner, 18 Mo. 488. There is no English authority that any other conveyance than a feoffment, fine or lease operated by way of estoppel to pass an after acquired title — Rawle on Cov., 3d ed., 408. The land is described as being a part of the tract located under a New Madrid certificate, issued to James Y. O’Carroll, or his legal representatives, and as being the same parcel of land conveyed to Pierre Chouteau, Jr., by Robert Wash as trustee of Joseph Hertzog by deed recorded. The habendum is to Pierre Chouteau, Jr., and his heirs forever. This description would seem to show very clearly that neither party contemplated any other than the inchoate title created by a location under a New Madrid certificate, whatever that might be, and not a fee simple; and that the
The statute provision would seem to be the same in principle as the doctrine laid down in these decisions of the Supreme Court of the United States proceeding upon the idea of an estoppel. It is said in Bogy v. Shoab that the statute extends to every deed which was obviously intended to convey, and. purported to convey, a fee simple absolute even without a covenant of warranty; but'that it did not reach, and ought not to apply to, a deed where the grantor expressly guards against such an inference by inserting a special warranty against himself only and those claiming under him. The statute requires that the deed should undertake to convey a fee simple absolute. The decisions go further and extend the same principle to a deed which expressly purports to convey some particular estate of which the grantor is seized or possessed, and which is affirmed in the deed with such certainty of averment as would be sufficient to bring the case within the operation of an estoppel — 11 How. (U.S.) 325; Rawle. on Cov., 3d ed., 408-87.
A similar statute in Illinois has received the same construction which is given to it in this State — Frink v. Darst, 14 Ills. 304. In Cooke v. Brogan, 5 Ark. 693, under alike statute, the after acquired title was held to pass by deeds which conveyed the lots in fee simple. This deed can have no greater force than a mere quit-claim which expressly conveys only “the right, title and interest” of the grantor, as the case was in Vallé v. Fleming, 18 Mo. 486. We conclude, therefore, that the after acquired inchoate equitable title to this location did not pass and enure to the grantee
It is insisted further that the patent enured to the grantee under this deed, and to those claiming under him, by virtue of the doctrine of relation and ex post facto operation, whereby the patent is made to relate back to the inception of the title and to enure to the owner of the inchoate equitable right — French v. Spencer, 21 How. (U. S.) 228; Ross v. Borland, 1 Pet. 664 ; Landes v. Brant, 10 How. (U. S.) 348. The equitable title under the act of Congress to .the located land had its inception when the location was made, if not before. The evidence shows that this inchoate equitable title had been transferred through intermediate conveyances’to Mary McRee, and' under the operation of this doctrine of relation the patent enured to her as the assignee and legal representative of James Y. O’Carroll, and would have enured to her in like manner even if the patent had been issued in the name of O’Carroll, or his legal representatives. The inceptive title and the absolute legal title were thus united in her. It follows that the defendants, on the evidence, had not even the equitable title which would support the action of ejectment under the statutes of this State. They were reduced to the naked possession, without the shadow of a title, and must therefore be considered, both in reference to the documentary evidences of title issued by authority of the United States and in reference to the statute of limitations, as mere intruders. Until the patent issued the legal title remained in the United States, and the statute of limitations did not begin to run against the plaintiff before the date of the patent. If the defendants had shown themselves to be the owners of the equitable title, as against the plaintiff standing on his legal title by patent, the right to the possession thus shown by virtue of the equitable title only would have been inferior to the right of possession by virtue of the absolute legal title, and the plaintiff would still have been
It has uniformly been held in this State, that a mere intruder without title was not in a position that would enable him to call in question or dispute the correctness or validity of documentary evidence of title issued by authority of the United States in pursuance of the acts of Congress. They are binding on the Government while they subsist in force, and no mere stranger or intruder can be allowed to complain — McGill v. Somers, 15 Mo. 80; Robbins v. Echler, 36 Mo. 494.
It was argued that this location and patent were void, for the reason that the land is situated within the Spanish commune or town of St. Louis, which was completely disposed of under the act of Congress of the 13th of June, 1812, and within the outboundary line required by that act to be run so as to include the whole granted and reserved premises, and that this land was therefore reserved from sale. There is no evidence in this record on which we can undertake to decide that this land was so reserved from sale. It is very possible that such outboundary line might, or might not, be so run as to include this land ; but until an official survey of such outboundary, including this land, is produced, the contrary will be presumed. The case of Glasgow v. Hortiz, 1 Black. ( U. S.) 595, has no bearing upon this question.
We have come to the conclusion that there was no error in the instruction which was given for the plaintiff; that being so, it necessarily follows that any error committed in the refusal of the defendants’ instructions must be immaterial; they will not, therefore, be particularly examined.
The judgment will be affirmed.
See R. 0. 1835, p. 294, $ 5.
Rehearing
Motion for Rehearing.
The defendant in this cause now comes and moves the court to grant a rehearing herein, and in doing so he does not propose to ask the court to review any of the questions which in the opinion given in this cause have been examined, but upon one upon which the court have pronounced no opinion, and the determination of which affects not only the land in controversy, but necessarily involves the very grave question whether — in the case of confirmations under different acts of Congress, which acts provide for the issuing of a a patent — the statute of limitations does not commence running until the patent actually emanates from the United States. There are many lots of ground in the city and its vicinity confirmed under various acts of Congress, where no patent has ever issued; and yet where actions of ejectment have been under our statute maintained, and the statute of limitations as a defence has been set up and admitted to be a good defence, we apprehend that it is certain that this judgment cannot be allowed to stand without directly reversing the cases of Cabanné v. Lindell, 12 Mo. 184, and that of Givens v. Gray, 26 Mo. 300, both decided by the Supreme Court of the State, and commencing as far back as the year 1848, as well as the cases of Bagnell v. Broderick, 13 Pet. 436; Barry v. Gamble, 3 How. 51; Lessieur v. Price, 12 How. 74, which cases in the United States Court conclusively hold that the right to the new located land passed by operation of law when the survey of newly located land was filed in the office of the Recorder of land titles, and that at the same time the title to the injured land passed to the United States, thus effecting, as the court have said, an exchange of land between the two proprietors — the United States on the one hand, and James Y. O’Carroll’s legal representatives on the other. The question becomes the more grave, because by the decision in this case no notice has been taken of it, and it will be said in the Supreme Court of the United States that the Supreme Court of the State has virtually if not directly overruled the cases of Cabanné v. Lindell and Gray v. Givens; and that -as this was a decision of the highest court of the State upon a local statute, that decision is conclusive upon the Courts of the United States.
I. The action of ejectment would lie, under our statute, (tit. Ejectment) on a New Madrid location. By all the authorities, State and Federal, the location became perfect on the return of the survey to the Recorder of land titles— See cases above cited.
II. In the decision filed in this case it is held that the return of the survey in 1841 to the Recorder was operative, and that the proceedings subsequent, to annul the patent certificate of 1841, were simply void — See opinion.
The exchange of the new location for the lands injured by earthquakes was effected in 1841. Mr. Chouteau was then in possession of the locus in quo by color of title, by recorded deeds ; and whosoever held the.title, right or claim to the new location in 1841, Mr. Chouteau held adversely to him by substantial enclosures and houses. From that day, in 1841, to the day this suit was commenced in 1862, the defendant continued in possession, a period of 20 years, open, notorious and adverse — Gray v. Givens, 26 Mo. 300, approving Lindell v. Cabanné, 12 Mo. 184; Biddle v. Mellon, 18 Mo. —; and basing the decision on the case of Bagnell v. Broderick, 13 Pet. 436; Barry v. Gamble, 3 How. 51, and Leisseur v. Price, 12 How. 60.
The constitutional question is fully considered, and the right of the State to pass laws for the limitations of actions of ejectment in such cases is distinctly affirmed. Altogether the cases of Gray v. Givens and Cabanné v. Lindell cannot stand if the case at bar be held not to furnish a defence under the statute of limitations. Gray v. Givens, 26 Mo. 300, expressly decides that in this case the statute is a complete defence.
III. The logical conclusion to be drawn from the cases is that the new location being perfected in 1841, the exchange by operation of law was concluded between the United States and the legal representatives of Jas. Y. O’Carroll, and the United States had no further interest, and the issue of the patent in 1862 was a mere form, and it related back to the day of the exchange in 1841, and passed the title to the legal representatives of Jas. Y. O’Carroll as of that day. See Landes v. Brant, 10 How., where the Supreme Court of the United States held that a patent issued to J. Clamorgan
IV. The equitable title or claim would under our statute pass by limitations as perfectly as the legal estate. Whatever equity McRee bad in 1838, when he made the deed to Chouteau for a part of the certificate, to-wit, 64 acres, passed by the deed, and McRee had the same equity then that he had in 1846, when the decree was entered. Mr. Chouteau’s possession under that deed, for twenty years adjoining the said McRee and his devisee, operates (as under the case of Biddle v. Mellon, 13 Mo.) to give Mr. Chouteau a title to everything that McRee might have conveyed. If McRee had an equity, it passed — if he or any one else had a legal estate, it passed — by force of the possession for twenty years.
We sincerely hope that a rehearing in this case may be ordered, so as to give us an opportunity of considering the questions at issue, which are of such magnitude as to demand a most thorough and exhausting examination.
delivered the opinion of the court.
A motion for a rehearing has been filed in this cause, upon the subject of the statute of limitations, which, it is supposed, had not received a full consideration in the opinion that has been delivered. This subject was by no means entirely overlooked in making up our decision of the case; but our attention was not so particularly directed to the question of the operation of the statute of limitations as to other points which were more fully dwelt upon in the argument. It had certainly escaped our notice that in the case of Gray v. Givens, 26 Mo. 291, the plaintiff had given in evidence not only the documentary evidences of a New Madrid location made, but also a patent dated in 1855, and that the court distinctly held that an adverse possession for the full period of the statute of limitations constituted a bar as against both the location and the patent. As to what weight is to be given to this precedent, or to the reasons and authorities on which it rests, as against the later decision of the Supreme Court of the United States in Fenn v. Holme, 21 How. (U. S.) 481, we shall not now express any opinion, further than to call the attention of counsel to the subject.
We have been led to entertain serious doubts, also, whether such absolute title by adverse possession, under the statute of a State, can possibly be made to prevail against a party claiming by patent from the United States within ten years before suit, as if it were a title superior to that of the sovereign.
For these reasons, and considering the great importance of a correct settlement of this question in this State, as well as the magnitude of the interests involved in this particular case, we have concluded that it would not be inconsistent with our duty in the premises to grant this motion for a rehearing on this subject of the statute of limitations, and also upon the'effect of the first decree in chancery to pass the title of the heir of Christian Wilt, on which there may be some room for doubt.
The judgmemt of affirmance will be set aside, and the cause will be set down for a rehearing on this point on the first day of next term; the other judges concurring.
Rehearing
Brief of
on Rehearing.
I. The statute of limitations began to run from the day the survey of the New Madrid location was returned to the Recorder of land titles, and the patent certificate was issued August 16,1841.
In Bagnell v. Broderick, 13. Pet. 448, and Barry v. Gamble, 8 How. 51, the Supreme Court of the United States held that the land was appropriated and severed from the public domain to satisfy the grant by the New Madrid act, when the plat and survey were returned by the Surveyor General to the Recorder of land titles — Lessieur v. Price, 12 How. 74; Cabanné v. Lindell, 12 Mo. 184. This has been a rule of property in this State from that day.
II. The exchange between James Y. O’Carroll and the United States was effected on the 16th August, 1841, when the patent certificate was ordered to be issued, and the proceedings to obtain the patent were a mere form. The patent issued on the 10th of June, 1862, to James Y. O’Carroll, or his legal representatives, whereby the title under the great seal passed in form for the located land to James Y. O’Oar-roll or his legal representatives.
III. By the doctrine of relation, the land located by a survey was exchanged in 1841 for the land injured by earthquakes ; and when the patent issued in 1862, it related to the day when by force of the acts of Congress the exchange had been effected.
In Landes v. Brant, 10 How. 372, it is held that a patent issued in 1845, a few days before suit was brought on a confirmation of 1810, the patent related back to the day of the filing of the claim in 1806 before the Recorder for confirmation. An instruction (pp. 358-9) giving the defendant the benefit of the statute of limitations was not held to be erroneous. The title of Glamorgan, in the case of Landes v. Brant, under the confirmation,,was held to be inchoate or
In Gray v. Givens, 26 Mo. 300-1, the Supreme Court of this State, following the decisions of the Supreme Court of the United States of 1837 and 1843, and of the Supreme Court of Missouri of 1848, holds that the statute of limitations runs from the day of the exchange by force of the acts of Congress, the day of the issuing of the patent certificate on the New Madrid location.
The logical conclusion to be drawn from all the cases is, that the New Madrid location being perfected in August, 1841, the exchange was finally made between the United States and the legal representatives of James Y. O’Carroll, and the United States had no further interest or title in the land, and the issue of the patent in 1862 was a mere form, and the patent consummating the exchange, as the final record of the Government, related back like an execution to the day of the attachment, and passed the title according to the act of Congress as of the day when the exchange was effected in' 1841.
IY. The equitable title or claim would under our statute pass by limitations as completely as the legal title — McNair v. Lot, 34 Mo. 285. Whatever equity McRee had in 1838, when he made the deed to P. Chouteau for the 64 acres described in his deed, he had in 1846, when his new decree was entered affirming the old decree of 1821.
In Fenn v. Holme, 21 How., the Supreme Court of the United States only held that the courts of the United States had no jurisdiction at law of inchoate or equitable titles.
In Maguire v. Tyler, 1 Black, 199, 202, the court held and exercised jurisdiction over an equitable title originating under a confirmation of 1810, as against an United States patent issued for the same land in 1852 to Louis Labeaume. This case expressly holds that the Federal courts will take jurisdiction over equitable titles emanating under acts of Congress.
V. The title passes in 1841, in this case, by force of the act of Congress of 1815.
We do not question the right of Congress to pass the title to the lands of the United States; but as to the title they vested, we hold that the courts of this State have the right to decide. When the title has passed, the forum is here, and the courts of this State can adjudicate upon them.
Glover & Shepley, for appellants.
The possession for more than twenty years since the survey was returned in 1841 to the Recorder of land titles, and before the commencement of this suit, is an effectual bar to the plaintjff’s right to recover.
Graver consequences can scarcely arise in the determination of questions affecting real estate in this State than will arise if the court shall hold decisively that the statute does not commence to run until the emanation of a patent in the case of a New Madrid location. In this county, until the last two or three years, the great majority of New Madrid locations were without a patent; while in the counties on the Missouri river there were and are now very few upon which patents have issued. So as to confirmations by the first Board of Commissioners which require patents, but on which in the great majority of instances patents have never issued ; the same principle that would prevent the statute from running in the case of a New Madrid location until a patent issued would equally apply to such cases.
2. Since 1825 ejectment would lie in the State courts in favor of a plaintiff claiming under a New Marid location, the survey of which had been so returned — Acts of 1825, pp. 234-5.
The Supreme Court of the United States recognizes the validity of the laws of Missouri giving owners of imperfect titles the right to sue in ejectment.
3. The survey having been returned in 1841, and Chou-teau having taken possession prior to that time of this land under a recorded deed, and having had possession ever since under it down to the commencement of this suit in 1862 adverse to plaintiff and those under whom he claims, the action of plaintiff is barred — Lindell v. Cabanné, 12 Mo. 184; Givens v. Gray, 26 Mo. 300; Clemens v. Runckel, 34 Mo. 41. In this last case, all the objections which the plaintiff urges against the bar of the statute are considered and overruled.
Even if he (Chouteau) had not claimed under recorded deeds, but held alone under actual possession, yet under the decisions in this State that possession, when for the length of the time mentioned in the statute, gives title of itself upon which an ejectment can be maintained — Biddle v. Mellon, 13 Mo.
The case of Givens v. Gray is admitted to be decisive of this case, unless it be overruled ; and the plaintiff holds that the case of Fenn v. Holme, 20 How. 488, is entirely antagonistic to that decision, and overruled it. This does not in the least affect this question; it is simply a question as to the form of action. That is, a claimant under a confirmation of the first Board of Commissioners, under the Recorder’s decision under the act of 1816, or holding under a New Mad
The radical defect in the plaintiff’s argument is, that he denies that there is any vesting of title until the patent issues. No decision can be found that holds any such doctrine ; on the contrary, all these decisions hold that the title passed out of the United States at the time, the survey was returned. This is expressly asserted in all these cases. In the decision in Fenn v. Holmes, at p. 488, it is declared only that because “ the patent is the superior and conclusive evidence of the legal title in the courts of the United States, the action of ejectment cannot be maintained without the patent.”
Gibson, for himself.
As to the statute of limitations:
I. The opinion already given that the plaintiff’s title was neither barred nor divested by the statutes of this State, being based upon the decisions in Fenn v. Holme and Hooper v. Scheimer, the first question that arises here is, whether the construction given to those decisions was erroneous ; for if it be correct, all further inquiry is concluded, the Supreme Court of the United States being the ultimate authority on the question, and it having, in Fenn v. Holme, had under consideration the identical title set up here by the defendant.
1. Fenn v. Holme was not decided upon any question relating to the pleadings. It was not doubted that the pleadings were in proper form, and that if the plaintiff therein could maintain any action at law, the action brought was the correct one to bring; but the court held that no action at law could be maintained by the plaintiff in that case.
In Hooper v. Scheimer, the case of Fenn v. Holme was affirmed, and the court declared that “ it is the settled doctrine of this court that no action of ejectment will lie on
The case of Gray v. Givens cannot be sustained on legal principles, and conflicts directly with a series of decisions of the Supreme Court of the United States, of this State, and of other States. This case necessarily decides either that the fee emanated from the Government before the patent issued, or that the statute of the State ran against the fee while it was still in the Government.
As to the first point, the court seems to base its decision on the cases of Bagnell v. Broderick, Barry v. Gamble, and Lessieur v. Price, and to have concluded from the language used in those cases that the legal title had passed from the Government when the return of the survey was made to the Recorder. It says there is “title and a right of action.” Fenn v. Holme and Hooper v. Scheimer exploded the construction thus given to these cases. In Barry v. Gamble, and Lessieur v. Price, the only question was, when the location become sufficiently formal and valid to operate as against conflicting claims held by third persons. No such question as herein involved was before the the court in either of those cases.
In Bagnell v. Broderick the patent prevailed against the inceptive title, although the defendant actually held the deed of the patentee for the land. After this decision, to hold that the title had passed before the patent issued was a simple blunder.
The laws of Congress, and the decisions of the Supreme Court'of the United States, which declare that the fee shall pass only by the patent, were intended, and desgined to secure uniformity in the disposition of the public domain, and to secure the land to the true owners under the Federal Government. The court says “ there is title”; but what was the nature thereof ? It certainly was not legal, and it is
It says there was a “ right of action,” but it does not say under what laws. There was a right of action under the State laws, but none under the Federal laws.
It is the settled doctrine of this court that, in a contest between a patent and an entry, the patent will prevail — 17 Mo. 81; 20 Mo. 108.
Now, when this location became complete on the return of the transcript plat of the survey to the Recorder, the title of Mrs. McRee was precisely the same as an entry. In the case of an entry, the party buys the land with his money, and has an vested equity, but no title. In the case of a New Madrid “complete location,” the locator has bought the land in an exchange, and paid for it by conveying to the Government the injured land. In either case the Government receives a valuable consideration. If the statute runs against the locator, or operates to convey his equity, it will necessarily be equally efficacious against an entry. Now, suppose A. has the senior entry and B. has the junior entry, a patent and possession. If A. brings his action on his entry he must fail; and, if he is delayed (as is often the case) for more than ten years, if the defendant is right, the statute runs against 1ns title by patent, or operates to convey his equity, which brings the legal title by enurement to it, and, in either case, he loses the land. When it is considered that the Legislature, once the power is admitted to be in it, may fix its own time within which the action must be brought, (in Wisconsin the time for non-residents is fixed at three years, and in Illinois in some cases at eighteen months), and that local political bodies are liable to be influenced by local interests, it will be seen, when this question is brought before the Supreme Court of the United States, it is not likely to receive a favorable consideration.
The compact contained in the State Constitution is not truly stated in the case of Gray v. Givens. The opinion says merely that the General Assembly cannot “interfere with the primary disposal of the soil.” It omits the very important additional provision in the compact, which is in these words, “nor with any regulation Congress may find necessary for securing the title in such soil to the bona fide purchaser.”
I here ask upon what principle it is that the plaintiff should be deprived of his fee for not bringing suit at a time when the courts had no power over it ? In Perry v. O’Hanlon, 11 Mo. 594, the court says “ the laws of the United States, under which those officers profess to act, are the laws by which the validity of those acts are judged.” The opinion of the court in Cabanné v. Lindell, 12 Mo. 186, has been totally misrepresented. The court there decided that the statute of limitations did not run until the survey was returned to the Recorder; but it did not decide, nor was the question before it, when the statute did commence to run.
Hunter v. Hemphill and Fenn v. Holme prove that but for the statute of this State no right of action existed until the patent issued, and of course no limitation could run until that time.
The principle the plaintiff contends for is this : It matters not how the fee or legal title passes, whether by act of Congress, or confirmation, or patent. Until it does pass, the rights of the person to whom it is passed cannot be barred or conveyed away or affected by State legislation, and that all questions as to who is entitled to the benefit of such fee must be determined solely by reference to the laws of Congress.
The principles established by this decisions in this State, and in the Supreme Court of the United States, are sustained by the decisions in other States.
Until the title issues the possession is under, not adverse to, the Government, and the statute does not run until the patent issued — Morris v. Thomas, 5 Birney, 79; Proprietors No. Six v. McFarland, 12 Mass. 236; Runey v. Edwards, 15 Mass. 251-295; Chiles v. Calk, 4 Bibb, 554.
II. As to the conveyance of the equitable interest by statute, relation and enurement:
1. The two questions, whether the plaintiff’s remedy is merely barred, or whether his equity is conveyed and vested in the defendant by operation of the statute of limitations, are so intimately blended together that I have considered them above as one and the same.
The reasons which prevent the bar operate with equal force against the conveyance; but there are additional and irresistible reasons why the conveyance can not be operated by the statute, and especially in a case.where there is no bar.
2. If the State were to deny a remedy to the plaintiff in its courts (which it has not done), while this would be a denial of justice, and a violation of its constitution, there might be no redress; but for it to attempt to convey away the land from a purchaser under the Government by a statute, and not upon any equitable grounds of relief,' is, in effect, a grant of the land by the State Government to the defendant without any consideration paid by him, which is a violation of the constitutional compact.
In this point the defendant sets up a conveyance by the State in opposition to a conveyance by the United States.
In Cabanné v. Lindell, it is said; “ The remedy offered by the State the claimant might use or not, at his pleasure.” Then surely the State cannot impose on him the penalty of conveying his land to another for exercising his “ pleasure.”
No question was raised in that case concerning titles emanating from the Government, and none such were determined by it. This is the entire decision: “ We are of opinion that twenty continuous years’ adverse possession of land confers upon the possessor an absolute title against all persons un-excepted by the terms of the statute.”
Now, the possession here was “ not adverse, but under the Government” — Landes v. Perkins, 12 Mo. And again the Government is excepted by the statute as much as if it were by name included in the exceptions — Ang. on Lim. 34-6; Com. v. McGowan, 4 Bibb, 64; Chiles v. Calk, 554; Com. v. Johnson, 6 Barr, 136.
III. The court has fallen into a mistake as to fundamental facts concerning the return of the survey in 1841, and as to my point in relation to the same ; which is not surprising, as the defendants’ counsel have many times stated the facts erroneously. The point which I made, and now repeat, and upon which no opinion has yet been given by the court, and which, if valid, is decisive of all questions on the statute of limitations, and which I therefore pray the court to decide, is this:
The copy or “ transcript plat ” of this survey, which was returned to the Recorder of land titles in 1841, did not show any of the interferences. A patent certificate was issued on it, and sent to the Land Department at Washington for a
Now when this “ transcript plat ” of the survey was, in 1847, remitted back to the Surveyor General’s office, where it originally started from, and was not recognized, but repudiated, by the department at Washington, was it still existing as a valid and legal return of the survey to the Recorder ? Will this court hold that the department at Washington had no power to remit such a survey, in good faith, to the Surveyor General in order that it should be made to conform to the reasonable and proper requirements of the department, and that the return is valid notwithstanding its repudiation and remission ?
If the return copy of the survey was thus made void, of course, the patent certificate No. 447, issued on it, became null.
delivered the opinion of the court.
A rehearing was granted in this case upon the question of the statute of limitations, and also upon the effect of the first decree in chancery to pass the title of the minor heir of Christian Wilt, upon a suggestion that other authorities could be produced on that subject.
The question whether the plaintiff’s action was barred by the statute of limitations has been reai-gued, on the part of the defendants, upon the same grounds that it was before. It seemed to be supposed then, as it is now, that the location alone, when made in 1841, operated as an exchange to pass the title out of the United States, and that, therefore, the statute, beginning to run from that date, would be a complete bar to the plaintiff’s action. No legal theory, no principle of law, was ever suggested, nor has been now, on which it was conceived that such a result could possibly take place.
It was said in the former opinion, that “ until the patent issued the legal title remained in the United States, and the statute of limitations did not begin to run against the plaintiff before the date of the patent.” This conclusion proceeded upon the ground that although the action given by the statute upon the equitable right only, which had passed out of the United States, might be barred, it did not follow that an action based upon the right of entry by virtue of the absolute legal title by patent would also be barred. The idea that the fiction of relation could be applied, not only to carry the legal title to the owner of the inceptive right, through the intermediate conveyances, but. also for the purpose of bringing it within the operation of the statute of limitations from the date of the -inceptive equity, had not been suggested, and had not occurred to us. The argument did not proceed upon this theory, but (as we understand it) upon the supposition that the whole title passed out of the United States by virtue of the location and exchange, and
The case of Gray v. Givens, 26 Mo. 291, had been cited as an authority to the point, that the statute began to run from the date of the location, and there being no doubt on that point, so far as the equitable title was concerned, we bad not noticed that the plaintiff, in that case, had introduced a patent dated in 1855, as well as evidence of the location made long before, and that the court had decided that the whole cause of action was barred by the statute, notwithstanding the patent. The reasons and authorities which are given in the opinion, in support of this decision, are not at all satisfactory to our minds; but, upon other grounds which we proceed to state, we have arrived at the conclusion that the decision was right.
It is well,settled that no statute of limitations of a State can run against the United States, nor affect the grantees of the Government, until the title has passed from the proprietary sovereignty. Statutes of limitation operated to bar the cause of action, not to convey title from one party to another, and they merely extinguish, the remedy by operating a bar to every kind of action ; though adverse possession for the full period of the limitation may be evidence of a fee, and equivalent to an absolute title, against all but the sovereign — 3 Greenl. Crui. Dig. tit. 31, ch. 2, § 1-4; Ang. Lim. 396 ; Biddle v. Mellon, 13 Mo. 335; 1 Greenl. Ev. § 16.
No cause of action upon a.right of entry by virtue of the legal title by patent, as such only, could exist until the patent issued. The statute gave an action in ejectment based upon the right of entry by virtue of the. equitable right created by the location. Whether that right were such an interest, or title of property, as could give the party, otherwise, a standing in a court of law, it is needless to in
But there is another principle upon which we think the statute may be made to operate here as a bar to the plaintiffs action, and that is the fiction of relation, whereby the legal title is to be considered as passing out of the United States, through the patent, at its date, but as instantly dropping back in time to the date of the location as the first act, or inception of the conveyance, to vest the title in the owner of the equity as of that date, and make it pass from him to the patentee named, through all the intermediate conveyances ; and so, that the two rights of entry, and the two causes of action, are thus by relation merged into one, and the statute may.be held to have operated upon both at once. The legal -fitleáh making this circuit necessarily runs around the period of the statuté'b’ar, and the action founded upon this new right’is -paet by the-, statute on its way, and cut off with that whicli existed before. Each one of the parties»
This possession was not adverse to- the United States, but would be considered as held under the Government (Landes v. Perkins, 12 Mo. 258); but it was adverse to the other parties, who were claiming to be the owners of this same equitable right under which the plaintiff claims, and to which the legal title was united by relation, and it was therefore adverse to both titles. The defendants, though without title, were in possession under a claim of title, and with' an expectation of obtaining the title from the United States. The possession of one with the intention to acquire a right of pre-emption has been held to work a disseisin of all but the sovereign — Clemens v. Runckel, 34 Mo. 41.
In Landes v. Brant, 10 How. (U. S.) 372, and French v. Spencer, 21 How. (U. S.) 228, the doctrine of relation was applied to the title, as between the parties and purchasers, which was made to relate back and bear date with the incep-tive right, so that the intermediate conveyances should be “covered by the legal title.” In Landes v. Brant, it was applied (independently of the act of Congress of May 20, 1856, in reference to deceased parties) where the relation carried back the title to a time when the confirmee was still living. The operation of the statute of limitations upon a title so vesting was not specially considered. An instruction had been given for the defendant, in the U. S. Circuit Court below, which might have involved this application of the fiction of relation; but it was not partiéítlárly^pxamined, and the judgment was affirmed, jjcdmuwliicli" if niiyght be inferred that the instruction was¡/í^pt('Condemi^q1á|\I>ff'he one application would seem to follow^ íogieall^%om th'é other. No reason is perceived why the legal ítitíe should riot foe con
Resort must be had to this principle in order to make the patent avail to the patentee. It is only by virtue of her equitable right as assignee of the owner of the injured land, who made the exchange and became entitled to the land located in lieu thereof as a purchaser from the Government, that she was the person entitled to receive the patent at all. If the patent had been issued to an entire stranger to this right, we suppose it would have been void for want of authority of law to make it. She must invoke this fiction, then, in order to make the patent avail to vest a valid legal title in her. It reaches her only by passing through the chain of derivative title from the first locator by relation, and in pass
It is laid down that the fiction is not to be applied to the injury of the rights of a stranger. Here no such rights intervene. It is to be applied in furtherance of justice, ut res magis valeat quam pereat; and on this principle it may have effect to some intent, and not to some other intent, as to make a deed, a lease, or an escrow, operative, but not to make it void — Butler and Baker’s case, 3 Coke, 36; Menvil’s case, 13 Coke, 21; 18 Vin. Abr. 290; 4 Kent’s Com. 454. It may have effect to overreach a right or title of later origin than the first act to which relation is had— Thompson v. Leach, 3 Lev. 284; Rutherford v. Greene, 2 Wheat. 297. It will not be applied against the real fact, where it would operate to deprive a party of his defence under the statute of limitations — Lyttleton v. Cross, 3 Barn. & Cres. 317. That would do injustice to a third person and a stranger. These defendants are strangers to the parties to this conveyance, but, of course, no injustice is done to themj and we see no reason why they are not entitled to the benefit of this defence. Nor do we find any ground on which an exception can be made in favor of the plaintiff. It is objected that no relation can be had to a trespass; but the
This is a mere fiction of law, and it goes upon reasoning that is somewhat abstruse and technical. The maxim nul-lum tempus occurrit regí is also technical in its operation. It was said in Crawley v. Wallace, that this fiction could not be applied to a better purpose than to prevent another fiction from working an injury. We know no other justice here than the justice of the law; nor do we see than any such injustice would be done to the plaintiff as should prevent us from giving the defendants the benefit of the fiction. And further, it comes in support of the former deliberate decision of this court in Gray v. Givens, 26 Mo. 291, which seems to have been rendered in accordance with the ideas which have prevailed in this State, and which is entitled to the weight of a precedént with us.
Upon these principles, the statute is made to operate a bar to the plaintiff’s action, without coming in conflict, in any manner, with the decisions of the Supreme Court of the United States as to, the effect and dignity of a patent, or with the constitutional compact that the State “ shall never interfere with the primary disposal of the soil of the United States, nor with any regulation Congress may find necessary for securing the title in such soil to the bona fide purchasers.” It contemplates that the title has passed out of the United States by virtue of the patent, and in accordance with the laws of the United States, and become vested in such purchaser;
In the former opinion in this case, the question whether the public officers had power to annul the location merely because the transcript plat did not show the interferences with other surveys, was considered in reference to the validity of the patent that had been issued. It is now insisted by the plaintiff, in reference to the defence under the statute of limitations, that the transcript plat and patent certificate were
It appears by the record that in 1847 instructions were sent to the Surveyor General to examine into “the various conflicts with said survey,” and to report his “ decision ” as to “the validity of each interference”; and it was said therein, in substance, that if any of the lands embraced within the interferences had been reserved at the date of the location, the location must yield to them, because interdicted so far by the New Madrid act; but that if such lands were not reserved, but were subject to location under the act, then “ the New Madrid claim would of course hold valid against either tract in that category.” The validity of such conflicting titles would be a matter of law and a proper subject of judicial inquiry whenever they might be produced in court. It may have been very proper that the plat should show these interferences; but it is evident that the location, as made in 1841, was not regarded by the Commissioner as wholly void, nor was the transcript plat entirely repudiated. The object seems to have been to have the plat corrected so as to show the interferences of conflicting surveys which might be valid against the location, because the lands contained in them had been reserved, or were not subject to location, and more particularly with a view to the issuing of a patent in proper form; and when the corrected plat and new patent certificate had been reported to the Commissioner in 1862, then the old plat and certificate were declared “ inoperative,” the Recorder and Surveyor General were instructed to cancel them, and the patent issued upon
We find no evidence here that these officers had ever undertaken wholly to annul this location, or to declare it void ab initio. When the old papers had been “superseded” by the new, the old ones were declared “inoperative.” The new documents do not appear to have differed from the old ones otherwise than as they showed the interferences. So far as any of these lands had been reserved, or were not subject to location, we suppose the location would be void, and the patent also; but we know no authority for saying that the location as made would therefore be wholly invalid. It might be valid as to a part of the land included and void as to the rest. So far as valid, it was a good location; and so it seems to have been considered by the Commissioner. When entries have been made or rights or titles have emanated from the Government in pursuance of law, the public officers have no power to annul them. In Penn v. Holme, 21 How. (U. S.) 481, these instructions were before the court, and the plaintiff failed to recover for the reason that the action of the Land Department had not terminated in a patent conveying the title; but it was not intimated that the location of 1841 had been annulled, or would be held to be entirely void — Groom v. Hill, 9 Mo. 320; Perry v. O’Hanlon, 11 Mo. 585; U. States v. Stone, 2 Wall. (U. S.) 525.
We must therefore conclude that this location as made in 1841, for so much of this land as had never been sold nor reserved, but was then subject to location, was valid; that it has never been annulled by the public officers, nor by any action of the Land Department; and that the statute of limitations began to run, as against the plaintiff, claiming by a right and title which had emanated from the Government,
It follows that the instruction given for the plaintiff was erroneous, and that the instructions asked for by the defendants on the subject of the statute of limitations should have been given.
There being no dispute as to the fact of the possession, and the plaintiff not desiring to have the cause remanded, the judgment will simply be reversed. The other judges concur.
