The plaintiff in error had exhibited, in an action instituted
against him in the Circuit Court of Missouri, evidence conducing to
prove that a patent from the United States, under which the
plaintiff in the ejectment, the defendant in error, claimed the
land, had been improperly granted by the government of the United
States, and that the title to the land was in him.
Held
that in an action at law, the patent from the United States for
part of the public lands is conclusive. If those who claim to hold
the land against the patent can show that it issued by mistake,
then the equity side of the circuit court is the proper forum, and
a bill in chancery is the proper remedy to investigate the equities
of the parties.
Congress has the sole power to declare the dignity and effect of
titles emanating from the United States, and the whole legislation
of the government in reference to the public lands declares the
patent to be the superior and conclusive evidence of legal title.
Until it issues, the fee is in the government, which by the patent
passes to the grantee, and he is entitled to recover the possession
in ejectment.
The practice of giving in evidence a special entry in aid of a
patent and dating the legal title from the date of the entry is
familiar in some of the states, and especially in Tennessee. Yet
the entry can only come in aid of the legal title, and is no
evidence of such title standing alone when opposed to a patent for
the same land.
The presumption is that the judgment of the circuit court is
proper, and it lies on the plaintiff in error to show the
contrary.
When the title to the public land has passed out of the United
States by conflicting patents, there can be no objection to the
practice adopted by the courts of a state to give effect to the
better right, in any form of remedy the legislature or courts of
the state may prescribe.
No doubt is entertained of the power of the states to pass 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 it is denied that the
states have any power to declare certificates of purchase of equal
dignity with a patent. Congress alone can give them such
effect.
This was an action of ejectment for a tract of land in the State
of Missouri instituted by George W. Broderick against Bagnell, the
defendant, the tenant in possession, and in the progress of the
cause, Morgan Byrne, the landlord, was made co-defendant, and he
dying, his executors were substituted.
Other actions of ejectment were at the same time instituted by
George W. Broderick for parts of the said tract in the possession
of McCunie and of Sampson, and the executors of Morgan Byrne became
in the same manner co-defendants in the cases. A verdict in
conformity to the opinion of the circuit court having been given
for the plaintiff in each of the cases on 10 April, 1838, the
defendants prosecuted writs of error to the Supreme Court, bills of
exceptions having been sealed by the court.
The bills of exceptions show that on the trial of these cases,
the plaintiff below read in evidence a copy of the patent from the
United States to John Robertson, Jr., dated 17 June, 1820, for the
tract of land mentioned in the above statements, which, reciting
that
Page 38 U. S. 437
John Robertson, Jr., had deposited in the General Land Office a
certificate, numbered 192, of the Recorder of Land Titles at St.
Louis, Missouri, whereby it appeared 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. was confirmed in his claim for 640 acres of land,
being survey No. 2810, and section 32, township 50 north, and range
15 west of 5th principal meridian, and the United States granted to
John Robertson, Jr., in fee, the tract of land described above.
Also a deed from John Robertson, Jr., to Augustus H. Evans, dated
11 November, 1830, conveying the same tract of land to the said
Evans in fee, expressly stipulating, however, against any warranty.
Also a deed from Augustus H. Evans to George W. Broderick, the
plaintiff below, now defendant in error, dated 7 June, 1830,
conveying the same tract of land to the said Broderick in fee, and
proved possession of the premises by the defendants below, at the
commencement of the suits respectively, and here closed his
testimony.
That the defendants below, now plaintiffs in error, read in
evidence a transcript of a notice to the recorder of land title for
the United States at St. Louis, taken from the records of the
office of the recorder, given by John Robertson, Jr., which states
that he claims 750 arpens of land in the Big Prairie on the ground
of inhabitation and cultivation prior to and on 20 December, 1803,
by and with the consent of the proper Spanish officer.
Also copy of proceedings had before the board of commissioners
on land claims, on 11 July, 1811, taken from the minutes of the
proceedings of the board for ascertaining and adjusting the titles
and claims to lands, which shows that on the claim of John
Robertson, Jr., for 750 arpens of land in the Big Prairie, the
board granted to John Robertson, Jr., 200 arpens of land. Also a
transcript of opinion, and report of the recorder of land titles of
the United States at St. Louis, made 1 November, 1815, which, in
connection with Act of Congress of 29 April, 1816, entitled, "An
act for the confirmation of certain claims of land in the Western
District of the State of Louisiana and in the Territory of
Missouri" (
see sec. 2 of this act), shows that the
confirmation of 200 arpens, parcel of the claim of John Robertson,
Jr., for 750 arpens of land in the Big Prairie, made by the board
of commissioners aforesaid, was extended to 640 acres, and this
quantity, 640 acres, was accordingly confirmed to him. Also a deed
from John Robertson, Jr., to Edward Robertson, Sr. dated 29 May,
1809, conveying the said 750 arpens of land to the said Edward
Robertson, Sr., in fee; reciting in same conveyance that 330 arpens
of the said 750 arpens had been surveyed, and how, and specifying
the manner of laying off the residue, and authorizing the said
Edward Robertson to apply for and receive from government or the
proper authorities, a patent in his own name for same, and
covenanting on behalf of himself and his heirs, to warrant the
title
Page 38 U. S. 438
against all persons claiming under, through, or by the vendor.
Also a deed from Edward Robertson, Sr., to Morgan Byrne, dated 30
October, 1813, conveying to the said Byrne in fee 300 arpens of
land out of a tract of land the head right of John Robertson, Jr.,
situated and being in the Big Prairie, bounding the part conveyed,
parcel of the 750 arpens above described, and covenanting for
himself and his heirs to warrant and defend the title against all
claims whatever. Also a deed from Edward Robertson, Sr., to Morgan
Byrne, dated 11 September, 1816, conveying to the said Byrne in fee
250 arpens of land, part of the head right of John Robertson, Jr.,
of 750 arpens, situated in the Big Prairie, and containing a
covenant for himself and heirs to warrant the title against all
claims whatever. Also a copy of deed from Edward Robertson, Sr., to
William Shelby, dated 29 October, 1816, conveying to the said
Shelby in fee two hundred arpens of land bounding the same, parcel
of the head right of John Robertson, Jr. (and parcel of the 750
arpens above described), and containing a covenant of general
warranty. Also a copy of deed from William Shelby to Levi Grimes,
dated 2 December, 1816, conveying to the said Grimes in fee the 200
arpens of land next above described and containing a covenant of
general warranty.
Also a deed from Levi Grimes to Morgan Byrne, dated 26 February,
1817, conveying to the said Byrne in fee the 200 arpens of land
next above described, and containing a special warranty.
The defendants also produced in evidence an extract from
registry of relinquishments, in office of recorder of land titles
for the United States at St. Louis, of lands materially injured by
earthquakes, under the Act of Congress of 17 February, 1815, which
shows that the confirmation aforesaid to John Robertson, Jr., for
640 acres, situated in the Big Prairie, was relinquished by Morgan
Byrne, as the legal representative of John Robertson, Jr., and on
such relinquishment the location certificate No. 448 issued.
Also a copy of certificate of location, dated September, 1818,
and numbered 448, issued by Recorder of Land Titles of United
States at St. Louis, which certifies that a tract of 640 acres of
land situated in the Big Prairie was materially injured by
earthquakes, and that in conformity with the provisions of the Act
of Congress of 17 February, 1815, the said John Robertson, Jr.
(reciting that he appears from the books of his office, recorder of
land titles of United States, to be the owner) or his legal
representatives was entitled to locate 640 acres of land on any of
the public lands, &c. Also a copy of the location under the
foregoing certificate of location, made 8 October, 1818, which
shows that Morgan Byrne, as the legal representative of John
Robertson, Jr., entered and located 640 acres of land by virtue of
the certificate of location, commonly called a New Madrid
certificate, issued by the recorder of land titles of the United
States at St. Louis, dated September, 1818, and numbered 448, so as
to include section No. 32, township 50 north, range 15 west of
Page 38 U. S. 439
5th principal meridian (the same premises in dispute), and here
the defendants below closed their testimony.
The plaintiff below then read in evidence a copy of notice by
John Robertson, Jr., of claim for 330 arpens and proceedings on
same had before the board of commissioners of land claims on 24
March, 1806, and 15 August, 1811, which show that John Robertson,
Jr., filed a notice of claim for 330 arpens, situated in the
District of New Madrid, under the second section of the Act of
Congress of March, 1805, accompanied by a plat of survey of 330
arpens, made by one Joseph Story at request of John Robertson, Jr.
(as the same purports), who, as the survey recites, claimed the
same as part of his settlement right, by virtue of the second
section of the Act of Congress of March, 1805; that the board of
commissioners on 24 March, 1806, grant to claimant 750 arpens, and
on 15 August, 1811, reject the claim entirely, saying the claim
ought not to be granted. Also a transcript of opinion and report of
the Recorder of Land Titles of United States at St. Louis made 1
November, 1815, which, in connection with the Act of Congress of 29
April, 1816, before referred to, shows that the claim of John
Robertson for 330 arpens was confirmed to him, and 330 arpens
accordingly granted. Also a copy of certificate of location in
favor of John Robertson, Jr., or his legal representatives, dated
18 September, 1818, and numbered 447, issued by the Recorder of
Land titles of the United States at St. Louis which certifies that
a tract of 330 arpens of land situated on Lake St. Marie had been
materially injured by earthquakes, and that in conformity with the
provisions of the Act of Congress of 17 February, 1815, the said
John Robertson, Jr., reciting that he appears from the books of his
office, recorder of land titles of the United States, to be the
owner, or his legal representatives, was entitled to locate 330
arpens of land, &c.
The defendants below then read in evidence an extract from
registry of relinquishments in the office of Recorder of Land
titles of the United States at St. Louis of lands materially
injured by earthquakes under the Act of Congress of 17 February,
1815, which shows that the confirmation aforesaid, of 330 arpens to
John Robertson, Jr., was relinquished by James Tanner, as his legal
representative, and that on such relinquishment the location
certificate, No. 447, issued. Also a certificate of the recorder of
land titles aforesaid that from entries made in the books of his
office of New Madrid location certificates issued, the certificate
of location No. 447 was delivered to one Jacoby, for James Tanner,
and certificate of location No. 448, was delivered to Morgan Byrne,
and proved that the premises in dispute in each case was of the
value of three thousand dollars, which closed and was all the
evidence given in the causes.
Upon the case made, the defendants below moved the court to
instruct the jury as follows:
"1. That the entry or New Madrid location made by Morgan
Page 38 U. S. 440
Byrne in his own name, as given in evidence in these cases, is
proof of legal title to the land and is a sufficient defense
against all persons who do not show a better legal title to the
same land."
"2. That the patent, a copy of which has been given in evidence
by the plaintiff, did not vest in the patentee any better legal
right to the land in question than he had before the date thereof
as against the defendants claiming the same land adversely by other
title."
"3. That after the entry and before the patent, Morgan Byrne had
a legal title to the land in question sufficient to enable him to
prosecute or defend an action of ejectment therefor, and that the
issuing of the patent could not divest that title."
"4. That if the jury believe the patent, a copy of which has
been offered in evidence by the plaintiff, issued on the location
made by Morgan Byrne, and shown in evidence on the part of the
defendants in these cases, the patent is not such title as will
avail against the location."
All which instructions the court refused, to which refusal
exceptions were taken.
Page 38 U. S. 446
MR. JUSTICE CATRON delivered the opinion of the Court.
This was 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.
Page 38 U. S. 447
Byrne died, and Margaret Byrne, his executrix, was admitted as a
co-defendant. Then she died, and Peter Byrne and Luke Byrne,
executors of the last will of Morgan Byrne, were admitted.
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 Luke Byrne should have been
de bonis testatoris,
and not
de bonis propriis.
The presumption is that the judgment of the circuit court is
proper, and it lies on the plaintiffs in error to show the
contrary.
26 U. S. 1 Pet.
23. The executors of Morgan Byrne had no interest in the land by
virtue of their letters testamentary, but could well have an
interest by the will of their testator. On no other ground could
they properly have been permitted to come in and defend in the
character of executors. On this ground, therefore, we presume they
were admitted, and like other defendants in ejectment, having
failed to show the better title, the recovery was proper, and costs
necessarily followed the judgment de bonis propriis.
The plaintiff Broderick claimed by virtue of a patent from the
United States to John Robertson, Jr., dated June 17, 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 20 May, 1809, from John Robertson,
Jr., to Edward Robertson, Sr., for seven hundred and fifty arpens
of land lying in Big Prairie township in the District of New
Madrid, adjoining the lands of Sheckler and Cox, and which deed
authorized Edward Robertson to procure a patent from the
government. By different conveyances, Morgan Byrne claimed title to
the 750 arpens through and under Edward Robertson.
The land lies in the County of New Madrid in the State of
Missouri, and was injured by the earthquakes of December, 1811. To
relieve the inhabitants who had suffered by this calamity, Congress
passed the act of 17 February, 1815, providing that those whose
lands had been materially injured should be authorized to locate
the same quantity on any of the public lands in the Missouri
Territory, but not exceeding in any case 640 acres, 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 examination 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 a notice in
writing, designating the tract
Page 38 U. S. 448
located, and the name of the claimant on whose behalf the
location and survey had been made; which plat and notice it was the
duty of the recorder to record in his office; and he was required
to transmit a report of the claim as allowed, together with the
location by survey to the Commissioner of the General Land Office
and deliver to the claimant a certificate stating the circumstances
of the case and that he was entitled to a patent for the tract
designated. The notice of location made by the claimant with the
Surveyor General is no part of the evidence on which the General
Land Office acted, but the patent issued on the plat and
certificate of the surveyor, returned to the recorder's office, and
which was by him reported to the General Land Office.
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 the claimant, having the location certificate from the
recorder. Still the only evidence of the location recognized by the
government as an appropriation was the plat and certificate of 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 the 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 steps had been taken
before the title was perfected.
18 U. S. 5 Wheat.
293;
20 U. S. 7
Wheat. 157;
31 U. S. 6 Pet.
724,
31 U. S.
727-728;
31 U. S. 342.
And of course that the certificate of survey returned by the
recorder was in the name of John Robertson, Jr. The patent merged
the location certificate on which the survey was founded, so that
no second survey could be made by virtue of the certificate. Thus
fortified stands the title of the plaintiff below.
The defendant there relied upon a notice of entry filed with the
Surveyor General in these words:
"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, 1818, and
numbered 448, in the following manner, to-wit, to include section
No. 32, in township No. 50, north of the base line, range No. 15,
west of the fifth principal meridian."
"St. Louis, Oct. 8, 1818 MORGAN BYRNE"
Page 38 U. S. 449
Which is founded on the following certificate of location:
"
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 owned by John Robertson, Jr.,
has been materially injured by earthquakes, and that in conformity
with the provisions of the act of Congress, of 17 February, 1815,
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 the Territory of Missouri, the sale of which is
authorized by law.
Vide Com'rs Cer'e, No. 1126,
ext'd."
"FREDERICK BATES"
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 could
if the entry be the better title must be admitted.
There is evidence in this record tending to show that Morgan
Byrne made the relinquishment of the New Madrid claim, but the same
evidence (being extracts from the records of the recorder's office)
shows that the location certificate was granted to John Robertson,
Jr. They are as follows:
image:a
"A list of relinquishments of lands materially injured by
earthquakes, in the late County of New Madrid (present) State of
Missouri, under the act of Congress of 17 February 1815."
image:b
This evidence, taken in connection with the deeds to Edward
Robertson and those from him and others to Byrne, it is insisted,
establishes
Page 38 U. S. 450
the better equity to have been in the latter, and that this
equity can be made available for the defendants in the circuit
court by force of the act of the Legislature of Missouri which
provides that an action of enactment may be maintained on "a New
Madrid location."
Our opinion is first, that the location referred to in the act
is 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 had no power, had it made the attempt, to declare the
notice of location filed with the Surveyor General an appropriation
contrary to the laws of the United States. The survey having been
made and certified to the recorder in the name of John Robertson,
Jr., Byrne had no title that would sustain an ejectment in any
case, and of course those claiming 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. We are 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 the 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 federal government in reference to the public lands declares
the patent the superior and conclusive evidence of 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 of land, relinquished because injured by
earthquakes, and that the patent issued to John Robertson, Jr., by
mistake; then the equity side of the circuit court is the proper
forum, and a bill the proper remedy to investigate the equities of
the parties. But whether any equity existed in virtue of the act of
1815, and if so whether it was adjudged between the parties by the
Recorder of Land Titles, are questions on which we have formed no
opinion, and wish to be understood as not intimating any.
We have been referred to the case of
Ross
v. Barland, 1 Pet. 662, as an adjudication
involving the principles in this case; we do not think so. In that,
there were conflicting patents, the younger being founded on an
appropriation of the specific land by an entry in the land office
of earlier date than the senior patent. The Court held that the
entry and junior patent could be given in evidence in
Page 38 U. S. 451
connection as one title, so as to overreach the elder patent.
The practice of giving in evidence a special entry in aid of a
patent and dating the legal title from the date of the entry is
familiar in some of the states and especially in Tennessee; yet the
entry can only come in aid of a legal title, and is no evidence of
such title standing alone, when opposed to a patent for the same
land. Where the title has passed out of the United States by
conflicting patents, as it had in the case in 6 Peters, there can
be no objection to the practice adopted by the courts of
Mississippi to give effect to the better right in any form of
remedy the legislature or courts of the state may prescribe.
Nor do we doubt the power of the states to pass 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 give them such effect.
For the several reasons stated, we have no doubt the judgment of
the circuit court was correct, and order it to be
Affirmed.
In the cases of
Sampson against Broderick and
McCunie against the Same, the judgments are also
Affirmed.
MR. JUSTICE McLEAN dissented.
Being opposed to the decision of the Court in this case, I will
state as shortly as I can the grounds of my 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 Office 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 17 June, 1820. On 16 November,
1830, the patentee conveyed the land to Augustus H. Evans. And on 7
June, 1831, Evans conveyed to Broderick, the lessor of the
plaintiff.
The defendants first gave in evidence 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., 29 May, 1829.
On 30 October, 1813, Edward Robertson, Sr., conveyed three
hundred arpens of this tract of land to Morgan Byrne. And
Page 38 U. S. 452
11 September, 1816, he conveyed to Byrne two hundred and fifty
arpens more of the same tract. On 29 October, 1816, Robertson
conveyed to William Shelby two hundred and fifty arpens of the same
tract. And on 2 December, 1816, Shelby conveyed to Levi Grimes, and
on 26 February, 1817, Grimes conveyed to Morgan Byrne.
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 17 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's being made, the land
relinquished became absolutely vested in the United States.
Under this law, 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 copy 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 owned by John Robertson, Jr.,
has been materially injured by earthquakes, and that in conformity
with the provisions of the Act of Congress of 17 February, 1815,
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 the Territory of Missouri, the sale of which is
authorized by law."
"[Signed] FREDERICK BATES"
And on 8 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, 1818, and
numbered 448, in the following manner, to-wit: to include section
No. thirty-two, in township No. fifty, north of the base line,
range No. fifteen west of the fifth principal 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,
Page 38 U. S. 453
and is a sufficient defense against all persons who do not show
a better legal title to the same land. That if the jury believe the
patent, a copy of which has been given in evidence by plaintiff,
issued on the location made by Morgan Byrne, the patent is not such
title as will avail against the location.
The revised code 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 authorized him to locate the same
number of acres of any part of the public land which had been
offered for sale.
It appears that under the law of 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
premises 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 same character.
In this view of the case, there can be no doubt that Byrne 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
the 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 patent must have been fraudulently obtained by him on the
presentation of 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 are the facts from which it is
inferred.
The proof of Byrne's title is irrefragable, and it is equally
clear
Page 38 U. S. 454
that Robertson had no title to the land, until he fraudulently
obtained the patent. Having no shadow of right, he could obtain the
patent in his own name by no other than fraudulent means. And no
court which could feel itself authorized to look behind the patent
could hesitate to pronounce the title of Byrne valid against the
patentee, who has sought to cover his fraud by this legal
instrument.
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 be a good title on which to
bring an ejectment, it must be equally effectual in the defense 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
better title against the patent?
The title set up in the defense 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 pretense 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. But 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 been
acted
Page 38 U. S. 455
on from necessity, by the courts of the United States; but they
have not been regarded as appropriate to an equitable jurisdiction
in other cases.
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 entry. 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 issued
through a 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 rule 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 than
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
been attempted to be overreached and subverted.
Judging from the evidence of this case, I have never seen a
grosser act of fraud than the obtainment 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 Byrne 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 practice an imposition
and fraud on the Commissioner of the General Land Office and obtain
the patent.
It is a well settled principle that fraud may be investigated as
well at law as in chancery, and I am strongly inclined to think
if
Page 38 U. S. 456
this fraud had been brought before the court and jury
independent of the statute of Missouri, they must have determined
that it vitiated the patent.
Can anyone 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 the case of
Sims' Lessee v.
Irvine, 3 Dall. 457, this Court said
"In Pennsylvania, where the consideration has been paid, a
survey, though unaccompanied by a patent gives a legal right of
entry, which is sufficient in ejectment."
Why they have been adjudged to give such right, whether from a
defect of chancery powers or for other reasons of policy or
justice, is not now material. The right once having become an
established legal right, and having incorporated itself as such
with property and tenures, it remains a legal right notwithstanding
any new distribution of judicial powers, and must be regarded by
the common law courts of the United States in Pennsylvania as a
rule of decision.
And in the case of
Ross v. Doe on the Demise
of Barland, 1 Pet. 664, this Court said "for the
plaintiff, it is argued that the state 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 regards those rules of decision in cases
brought up from such states, provided that in so doing they do not
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
certificate given under that law is superior to the title of anyone
who purchased the same land at the public sales."
This was the rule 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
Page 38 U. S. 457
made in 1799; and the rule laid down in these cases has not been
questioned by any other adjudication of this Court. Other decisions
might be referred to of the same import, but it is deemed to be
unnecessary.
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 institute 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
v. 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 State 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 authorizing 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 premise and conclusion could
never be associated in the mind of anyone.
How are the public lands endangered 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 certificate 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
not only a 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 the 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.
Page 38 U. S. 458
MR. JUSTICE McKINLEY concurred in opinion with MR. JUSTICE
McLEAN.
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"
"I certify, that in pursuance of the Act of Congress passed 17
February, 1815, a location certificate, No. 448, issued from this
office in favor of John Roberson, 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
of 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."
image:c
"Surveyors' Office, St. Louis"
"January 15, 1820"
"I certify that section No. 32, in township No. 50, north of the
base line, range No. 15, west of the 5th principal meridian, was
located on 8 October, 1818, for John Roberson, Jr., or his legal
representatives, by virtue of No. 448, dated September, 1818,
issued by the Recorder of Land Titles for the Missouri Territory,
to said John Robertson, Jr., or his legal representatives, for six
hundred and forty acres of land, in conformity with the provisions
of the Act of Congress of 17 February, 1815, for the relief of
sufferers by earthquakes in the late County of New Madrid."
"WM. RECTOR"
"To Frederick Bates, Esq., Recorder of Land Titles for the
Missouri Territory."
