LeBeau v. Armitage
47 Mo. 138
Mo.
1870
Check Treatment
Currier, Judge,

delivered the opinion of the court.

This case turns Upon the question whether, prior to the issue of a patent, a title by confirmation, under the act of Congress of March 3, 1807 (2 U. S. Stat. 440-1), is sufficient to support or defend against an action of ejectment, the legal title being in the opposite party.

According to repeated decisions, the legal title to confirmed lands remained in the United States until the government issued its patent. (Carman v. Johnson, 20 Mo. 108; Burgess v. Gray, 16 How. 48; Hooper v. Scheimer, 23 How. 235.) The confirmation, therefore, could vest in the confirmee nothing more than an equitable title, and that is not sufficient at common law to maintain ejectment. (Adams’ Eject. 43.)

The statute of 1845 (R. C. 1845, p. 440, § 2) expressly en'acted that ejectment might be maintained upon a confirmation under the laws of Congress; but that provision has since been repealed. It does not appear in any subsequent revision of the statutes, and is not now in force. The case is therefore left subject to the principles and rules of the common law. That *140being so, the defendant’s equitable title, acquired under the confirmation given in evidence, constituted no defense to the suit, not having been pleaded or in any way set up as an equitable bar to the action. (Carman v. Johnson, ubi supra.) If the defendant could avail himself of his supposed equities he should plead them, and give his antagonist an opportunity, to respond to that form of defense.

The judgment will be reversed and the cause remanded.

The other judges concur.