delivered the opinion of the court.
This is а writ of error to the Circuit Court of the United States for the District of Nebraska.
The defendant in error brought in that court a suit in the nature of an action of ejectment to recover several tracts or parcels of land then in the possession of the plaintiffs in error. The case was first tried before a jury, and the verdict afterr wards sеt aside. By a written agreement of the parties, it was then submitted to the court without a jury. That court made a general finding in favor of the plaintiff, Sherwood, and certain special findings, and upon both- of these rendered a judg *79 ment for him, for all the land claimed in. his petition. A bill of exceptions was taken, which related to the introduction оf evidence and the findings of the court. On this bill of exceptions and the special findings of fact the plaintiffs here assign two principal errors.
The first one of these, which affects all the land embraced in the suit, has reference to the introduction and effect of a decree in chancery, rendered in the Circuit Court of the United. States for the District of Nebraska, April 9, 1883, in which Sherwood was complainant and the Sauntee Land and Ferry Company' was defendant. The plaintiff in the action of ejectment, having given evidence which he asserted showed title to all. the land in controversy in the Sauntee Land and Ferry Company, introduced the record of this suit in chanсery to establish a transfer of the title by means of the proceedings in that suit from that company to himself. The bill of complaint set out that this company, while owner of the land,' had made a verbal agreement with ■'William A. Gwyer that the latter should take, have, and hold the real estate mentioned, as his own property, and as considеration for the same should pay off, settle, and discharge the indebtedness of the- company.
The decree of the court established the fact that Sherwood had acquired the interest of Gwyer in the property, whereby he became the equitable owner of it all, and that he was entitled to have a conveyance of the legal title from- the Sauntee Land and Ferry Company. ■ The decree then proceeded in the following language:
“ It is further ordered and decreed that the respondent, the Sauntee Land and Ferry Company, shall, within twenty days after the entry of this decree, execute, acknowledge, prove, and record, in the manner provided by law, a good and sufficient deed of conveyance to the complainant of all said real estate, to vest the entire legal title thereof in the respondent, and to deliver said deed of conveyance so. executed, acknowledged, proved, and recorded to the complainant.
“ It is further ordered and decreed that in case said respondent shall fail, neglect, or refuse to make, execute, acknowledge, prove, record, and deliver to the complainant such deed of *80 conveyance within the time hereinbefore fixed, then, and in that case, this decree shall stand and be a good, sufficiеnt, and complete conveyance from the respondent, the Sauntee Land and Ferry Company, to the complainant, Willis M. Sherwood, of all the right, title,, and estate of said respondent in and to said real estate, and shall be taken and held as good, complete, -and perfect a deed of conveyancе as would be the deed of conveyance hereinbefore specified. And that the respondent, and all persons claiming through, from, or under it, be, and they are hereby, perpetually barred, restrained, and enjoined from asserting any right, title, ownership, or interest in or to said real estate adversely to the complainant, -and from in any manner interfering with the peaceable and quiet possession of complainant in and of the same.”
No conveyance was ever made under this decree by that company, and it is objected that for this reason Sherwood did not acquire by that proceeding the stfict legal title, but only obtained an equitable оne, and the quieting of that title as against the Sauntee Land and Ferry Company. Section 429 of the Code of Nebraska is, however, relied upon by Sherwood’s counsel as giving to the decree in his favor in the chancery suit the effect of an actual conveyance of the title. That section is as follows :
“ When any judgment or decrеe shall be rendered for a conveyance, release, or acquittance in any court of this State, and the party or parties against whom the judgment or decree shall be rendered do not comply therewith within the time mentioned in said judgment • or decree, such judgment or decrée shall have the same operation аnd effect, and be as available, as if the conveyance, release, or acquittance had been executed conformable to such judgment or decree.”
. We are of opinion that if this section of the code be valid, it was "'the intention of the makers of it that a judgment and decree, such as the one before us, should have the same effect, ■where' the parties directed to make • the conveyanqe fail to comply with the order, as it would, have had if they had ■ complied, in regard to the transfer of title from them to the party, to whom they were bound to convey by the decree.' The *81 language of this section of the code hardly admits of any other' construction. When the party decreed to make the conveyance does not comply therewith within the time mentioned in the judgment or decree, such judgment or decree shall have the same effect and operation and be as available as ■ if the conveyance had been executed. The operation or effect here meant was the transfer of title, and it could not have been made any clearer if it had .said that it should have the effect of transferring the title from the party who fails to convey to the one to whom it ought to be conveyed. This must have been the meaning in the minds of the legislators.
It was undoubtedly the ancient and usual course in such a proceeding to compel the party who should convey to perform the decree of the court by fine and imprisonment for refusing to do so. But inasmuch as this was a troublesome and expensive mode of compelling the transfer, and the party • might not be within reach of -the process of the court so that he could be ¡attached, it has long been the practice of many of the States, under statutes enacted for that purpose, to attain this object, either by the appointment of a special commissioner who should convey in the name of the party ordered to convey, or by statutеs similar to the one under consideration by which the judgment or decree of the court was made to stand as such conveyance on the failure of the party ordered to convey.
The validity of these statutes has never been questioned, so far as we know, though long in existence in nearly all the States of the Union. There cаn be no doubt of their efficacy in transferring the title, in the courts of the States which have enacted them, nor do we see any reason why the courts of the United States may not use this mode of effecting that which is clearly within their power.
The question of the mode of transferring real estate is one peculiarly within the .jurisdiction of the legislative power of the State in which the land.Hies. As this court has repeatedly said, the mode of conveyance is subject to the control of the legislature of the State; and as the case in hand goes úpon the proposition that the title had passed from the government
*82
of- the United States and was, in controversy .between private citizens, there can be no valid objection, to this mode of enforcing the contract for conveyance between them according to the law of Nebraska.
United States
v.
Crosby,
The plaintiff, in order to sustain his right of action in this suit, offered in evidence, first, a certificate of the register of the land office at Omaha, Nebraska, of the date of August 14th, 1857, of the location by John Joseph Wright of a military land warrant upon the southwest. quarter of the southwest quarter of section twenty-erdit, and the west half of the northwest quarter of section thirty-three, in township thirteen North of Eange ten East, containing one hundred and twenty acres. He also offered the assignment of th island and the certificate to the Sauntee Land and Ferry Company. Another certificate of the receiver at Omaha, of the same date, was also offered, acknowledging the payment of $45.50 for the purchase of lot number one of quarter section number thirty-three, in Township number. thirteen North of Eange ten East, containing thirty-six acres and forty-hundredths, and an assignment thereof to the same company.
To both of these certificates and assignments the defendants objected, on the ground that they were immaterial, and did not purport to be a conveyance of-'said lands,-and that title could, not be shown in this action of ejectment by a certificate of a register or receiver. In its findings, the court, upon this subjeсt, finds specially, that by virtue of these certificates “ the said Wright became seized in- fee of the said "lands, and that by his deed of conveyance thereof the same passed to the Sauntee Land. and Ferry Company.”
*83 It has been repeatedly, decided by this court, that such certificates of the officers of the land depаrtment do not convey the legal title of the land to the holder of the certificate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in the courts of the United States such certificates are not sufficient to authorize a recovery in. an action of ejectment. The ground of these decisions is, that in these courts, a recovery in ejectment can only be had upon the strict legal- title; that this class of certificates presupposes the existence of the title in the United States at the time they were-given; and that something more is necessary to show that this legal title was ever divested from the United States by a patent or otherwise. The decisions on this subject are quite numerous, and the principle on which they rest has been frequently, asserted and maintained with uniformity.
In the case of
Bagnell
v.
Broderick,
Fenn
v.
Holmes,
The case of
Hooper
v.
Scheimer,
The defendants in error rely upon § 411 of the hi ebraska Code of Civil Procedure, which is analogous in its provisions to the statute of Arkansas referred to in the case of Hooper v. Scheimer. That section is as follows: “ The usual duplicate receipt of the reсeiver of any land office, or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver,, that the books of his office show the, sale of a tract of land to a' certain individual, is proof of title equivalent to a patent, against all but the holder of an actual patеnt.” But, whatever effect may be given to this statute in the courts of the State of Nebraska, it is obvious that, in the Circuit Court of the United States, it cannot be received as establishing the legal title in the holder of such certificate. "Where the question is one of a derivation of title from the United States, it is plain that this class of evidence implies that the title remains in the United States. The certificate is given'for the purpose of vesting in the receiver of' it an equitable right to demand ' the patent of the government after such further proceedings as the laws of the United States and the course of business in the departments may require.
*85 The Circuit Court cannot presume that a patent has been issued to the party to whom such certificate was issued, or to. any one to whom he may have transferred it. The- fact of the issue of a patent is a matter of record in the Land Department of the United States, and a copy of that record may be so easily obtained by application at the proper office, that no necessity exists for the acceptance in an action at law of the receipt of a register or receiver as a substitute for the patent. If it never issued it is obvious that the legal title remains in the United States, and, according to the well-settled principles of the action.of ejeсtment, the plaintiff cannot be entitled to recover in the action at law.
To receive this evidence, and to give to it the effect of proving a legal title in the holder of such a receipt, because the statute of the State proposes to give to it such an effect, is to violate the principle assеrted in Bagnell v. Broderick, that it is for the United States to fix the dignity and characcer of the evidences of title which issue from the government. And it is also in violation of the other principle settled by the cited decisions, that in the courts of the United States a recovery in ejectment can be had alone upon the strict legal title, and that the courts of law do not enforce in that manner the equitable title evidenced by these certificates.
There was error, therefore, in the decision of the court admitting these certificates from the land officé as evidence of title; and in the finding that there was such evidence of title in the plaintiff as justified the recovery. The judgment of the court on the facts found in regard to. the remainder of the land is correct. It must, however, be reversed for the error in regard to the one hundred and fifty-six acres and forty-hundredths included in'the two certificates of the land office. It is, therefore,
Remanded, with instructions to render judgment against the plaintiff for the one hv/nd/red and fifty-si/x acres a/ndforty-hwndredths, and in his frnor for the remainder of the land.