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statute of Missouri, have its effect; and, if of a | authority. The patent was granted on the merit superior to the patent, have the same ef facts stated in the records of the land-office fect it would have in a court of equity, and and those records are evidence of the proceed. prevail over the patent. Finley v. Williams, ings stated in them. They are conclusive eviet al. 9 Cranch, 164; McArthur v. Browder, 4 dence. This was fully decided by this court Wheat. 488.

in the case of Galt v. Galloway et al. 4 Peters, If the preceding views be correct, the gen. 342. This court then said, “As the records eral and first four special errors are well as of the land-office are of great importance to the signed.

country, and are kept under the official sancAs to the fifth special error. There is no tion of the government, their contents must alsuch thing known to the law or in the practice ways be considered, and they are always reof the law in the courts of Missouri, as those ceived in courts of justice as evidence of the pleas peculiar to an executor or administrator facts stated.” growing out of the matter of assets. In Mig The commissioner of the land office was emsouri no execution issues against an executor or powered by the act of Congress to investigate administrator sued as such, unless specially the facts connected with every application for sued for a devastavit, or on his bond as such. land, in consequence of the injuries sustained All demands, no matter of what dignity, are by the earthquake; and he was to adjudge to presented to the court having cognizance over the person entitled, after such investigation, the administration of estates, by whom they the land to be granted by the United States. are classed; and at the annual settlements of In this case, Robertson was in full life when the administrators or executors, that portion of the land was granted and patented to him, and the assets which consists of money is appor- he conveyed it to those under whom by regular tioned among the creditors: and thus and not conveyances the defendant in error holds. In otherwise are demands, whether by simple con a court of law nothing more was necessary than tract, by specialty or by judgment, against an the exhibition of such a legal title. estate, collected. For all defaults on the part of Nor could the plaintiffs in error derive any an executor or administrator, a suggestion of a right to maintain their title under the providevastavit is made and tried in the court having sions of the law of Missouri of 1835. That law cognizance of the administration of estates, or can have no operation on the system established the bond of the executor or administrator is by the United States for the sale of their pubput in suit. Judgments predicated on the lic lands, and the granting of titles thereto. false pleading of the executor or administrator, Against trespassers, the law of Missouri may as technically understood in the laws of En- have full effect; and a holder of land in Misgland, are unknown to the law or in its practice souri under a pre-emption right, New Madrid in Missouri. See Revised Code of Missouri of location, or entry with the register, might 1835, title Administration,

maintain an ejectment. But this law could Mr. Coxe, for the defendant in error:

give no right to an ejectment under an inchoate The decision of the Circuit Court is to be right in the courts of the United States against considered correct, until its incorrectness is a patent issued by the proper officer authorized made to appear. This was so held by this by the act of Congress to grant a patent. The court in the case of Carroll v. Peake, 1 Peters, States of the United States cannot make by 23. Have the plaintiffs in error shown that their statutes any titles or claims to lands by there was error in the decision of the Circuit certificates of entry which are inferior to a Court? It was a question on the legal title of patent, of equal dignity with a patent. the parties in the cause, and this question alone was decided by the court. The equitable Mr. Justice Catron delivered the opinion of claims of those who alleged they were justly the court: entitled to the land under Robertson, could not This was an action of ejectment by Broderick be taken into consideration in the action on the against Bagnell, for a section of land lying in law side of the Circuit Court. The chancery Howard County, Missouri; and Peter and Luke powers of the court could have been invoked | Byrne were admitted to come in and defend, by the defendants in another form than in a under the following circumstances: Morgan defense to an action of ejectment.

Byrne claimed to be the owner of the land, The grant and patent are evidence in a court and he was first admitted a co-defendant with of law of the matters recited in them. The Bagnell. *Byrne died, and Margaret (*447 grant, legally and fully executed, was com- Byrne, his executrix, was admitted as a co446*] petent *evidence of the matters set defendant. Then she died, and Peter Byrne forth in it; and as none other was necessary, it and Luke Byrne, executors of the last will of was in effect conclusive. The United States Morgan Byrne, were admitted. v. Arredondo et al. 6 Peters, 724. No facts The judgment below is that the plaintiff rebehind the grant can be investigated. 11 Wheat. cover the land and costs, against Carey Bag580. A patent is evidence in a court of law nell and P. and L. Byrne, executors of Morgan of the regularity of all the previous steps to Byrne. it. 6 Wheat. 293; 7 Wheat. 151. The court It is assigned for error that the judgment for are bound to presume the acts of commissioners costs against Peter and Luke Byrne, should intrusted by laws of Congress to inquire into have been de bonis testatoris, and not de bonis claims to lands, regular, and the decisions of propriis. these commissioners are in courts of law bind The presumption is that the judgment of the ing and effectual. This principle was decided Circuit Court is proper, and it lies on the in the case of Ross v. Barland, i Peters, 668. plaintiff's in error to show the contrary. 1

The defendant in error supported his claim | Peters, 23. The executors of Morgan Byrne had to the land by a patent issued by the proper | no interest in the land by virtue of their let

case.

ters testamentary, but could well have an in- claims, perfect and incipient, emanating from terest by the will of their testator. On no oth the provincial governments of France and er ground could they properly have been per- Spain, and others from the United States, in mitted to come in and defend in the character the land district where the New Madrid claims of executors. On this ground, therefore, we were subject to be located. So there were lead presume they were admitted; and, like other mines and salt springs excluded from entry. defendants in ejectment, having failed to show Then, again, the notice of entry might be in the better title, the recovery was proper; and a form inconsistent with the laws of the Unit. costs necessarily followed the judgment de bonis ed States: in all which cases no survey could propriis.

be made in conformity to it. If no such obThe plaintiff Broderick claimed by virtue of jection existed, it was the duty of the surveyor a patent from the United States to John Rob- to conform to the election made by the claim. ertson, Jun., dated June 17th, 1820; and deeds ant, having the location certificate from the in due form from Robertson and others to him. recorder. Still the only evidence of the locaself, proved Carey in possession at the com- tion recognized by the government as an appromencement of the suit; and here rested his priation was the plat and certificate of the sur

veyor. Such is the information obtained from To show that the better title had been in the general land office. As evidence of the form Morgan Byrne, the defendants produced a deed of location, and practice of the office, we have dated 20th May, 1809, from John Robertson, been furnished with a copy of the plat and cerJun., to Edward Robertson, Sen., for 750 tificates of survey on which the patent in this arpents of land lying in Big Prairie township, record is founded, and which is annexed. As in the district of New Madrid, adjoining the before stated, the patent to John Robertson, lands of Sheckler and Cox; and which deed Jun., is deemed to have been issued regularly, authorized Edward Robertson to procure a pat- and we must presume that all the usual incipent from the government. By different con- ient steps had been taken before the title was veyances Morgan Byrne claimed title to the 750 perfected, 5 Wheat. 293; 7 Wheat. 157, 8 arpents through and under Edward Robertson. Peters, 724, 727, 728, 342, and, of course, that

The land lies in the County of New Madrid, the certificate of survey returned by the rein the State of Missouri, and was injured by corder was in the name of John Robertson, Jun. the earthquakes of December, 1811. To relieve The patent merged the location certificate on the inhabitants who had suffered by this calam- which the survey was founded, so that no secity, Congress passed the Act of 17th February, ond survey could be made by virtue of the cer1815; providing that those whose lands had tificate. Thus fortified stands the title of the been materially injured, should be authorized plaintiff below. to locate the same quantity on any of the public The defendant there relied upon a notice of lands in the Missouri territory, but not exceed - entry filed with the surveyor-general in these ing in any case 640 acres; on which being done, words: "Morgan Byrne, as the legal represen. the title to the land injured should revert to tative of John Robertson, Jun., enters six hun. the United States.

dred and forty acres of land, by virtue of a New The recorder of land titles for the territory Madrid certificate, issued by the recorder of of Missouri was made the judge, "to ascertain land titles for the territory of Missouri, and who was entitled to the benefit of the act, and dated St. Louis, September, 1818, and numbered to what extent;" on the examination of the 448, in the following, manner, to wit, to in. evidences of claim; as compensation for which, clude section No. 32, in township No. 50, north if well founded, he was directed to issue a cer of the base line, range No. 15, west of the fifth tificate to the claimant. This certificate hav- principle meridian. ing issued, and a notice of location having been “St. Louis, Oct. 8th, 1818. filed in the surveyor-general's office, on appli.

Morgan Byrne." cation of the claimant the surveyor was di- *Which is founded on the following (*449 rected to survey the land selected, and to return certificate of location: a plat to the office of the recorder of land titles,

"No. 448. together with a notice in writing, designating “St. Louis, Office of the Recorder of 448') the tract *located, and the name of the

“Land Titles, September, 1818. claimant on whose behalf the location and sur. "I certify that a tract of six hundred and vey had been made; which plat and notice it forty acres of land, situate, Big Prairie, in the was the duty of the recorder to record in his County of New Madrid, which appears, from office; and he was required to transmit a re- the books of this office, to be owned by John port of the claim as allowed, together with the Robertson, Jr., has been materially injured by location by survey to the commissioner of the earthquakes; and that in conformity with the general land office; and deliver to the claimant provisions of the Act of Congress of the 17th i certificate stating the circumstances of the February, 1815, the said John Robertson, Jr., case, and that he was entitled to a patent for or his legal representatives, is entitled to locate the tract designated. The notice of location six hundred and forty acres of land, on any of made by the claimant with the surveyor-general the public lands of the territory of Missouri, is no part of the evidence on which the general the sale of which is authorized by law. Vide land office acted; but the patent issued on the Com’rs, Cer'e No. 1126, ext'd. plat and certificate of the surveyor, returned to

Frederick Bates." the recorder's office, and which was by him re- This is obviously the foundation of the surported to the general land office.

vey and patent to John Robertson, Jun., a fact The United States never deemed the land ap- admitted, but it is insisted that Byrne had the propriated until the survey was returned, for better title to the recorder's certificate; that the reason that there were many titles and l it issued to him in fact as the “legal representa:

of}

448

Loo'n cert.

cer. 1126.

for 200 arpens, By U.S. Com're

Bon, Jr.
Job Robert-

record.
Claimants of

840 acres.

Quantity.

John Robertson, Jr.

tive of John Robertson, Jr.;" and that the had it made the attempt, to declare the notice notice of entry filed with the surveyor-general of location filed with the surveyor-general an vested in Byrne a title of a character on which appropriation contrary to the laws of the Unit. he could have maintained an ejectment against ed States. The survey having been made and Broderick; and that, consequently, his devisees certified to the recorder in the name of John could successfully defend themselves. That Robertson, Jun., Byrne had no title that would they could, if the entry be the better title, must sustain an ejectment in any case; and, of be admitted.

course, those claiming under him cannot sucThere is evidence in this record tending to cessfully defend themselves on the vidence show that Morgan Byrne made the relinquish they adduced. ment of the New Madrid clairn; but the same But second, suppose the plat and certificate evidence (being extra cts from the records of the of location had been made and returned to the recorder's office) show that the location certifio recorder in the name of Morgan Byrne, and cate was granted to John Robertson, Jun. that it had been set up as the better title in opThey are as follows:

position to the patent adduced on behalf of the plaintiff in ejectment; still, we are of opinion the patent would have been the better legal ti. tle. We are bound to presume for the purposes of this action that all previous steps had been taken by John Robertson, Jun., to entitle him. self 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 arpents of land relinquished because injured by earthquakes, and that the patent issued to John Robertson, Jun., 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.

survey.
Warr. or ord. of Survey. Notice to the recorder claimed. situated, Cult. &c.

Quan'ty
W bere

Big Prairie.

Situation.

Madrid, (present) state of Missouri, under the Act of Congress of 17th of February, 1815.
A list of relinquishments of lånds materially injured by earthquakes, in the late County of New

750 arpens. Prairie.

Big

Norgan Byrne, legal representative

marks. Relinquishment by whom, and general re

We have been referred to the case of Ross v. Barland, 1 Peters, 662, as an adjudication involving the principles in this case; we do not

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 pat. ent. The court held that the entry and junior patent could be given in evidence *in 1*451

connection as one title, so as to overreach the This evidence, taken in connection with the elder patent. The practice of giving in evideeds to Edward Robertson, and those from dence a special entry in aid of a patent, and him and others to Byrne, it is insisted, estab- dating the legal title from the date of the en450*] lish *the better equity to have been in try, is familiar in some of the States, and es. the latter; and that this equity can be made pecially in Tennessee; yet the entry can only available for the defendants in the Circuit come in aid of a legal title, and is no evidence Court, by force of the act of the Legislature of of such title standing alone, when opposed to a Missouri, which provides, that an action of en patent for the same land. Where the title has actment may be maintained on "a New Madrid passed out of the United States by conflicting location."

patents, as it had in the case in 6 Peters, there Our opinion is, first, that the location re. can be no objection to the practice adopted by ferred to in the act is the plat and certificate of the courts of Mississippi to give effect to the survey returned to the recorder of land titles; better right, in any form of remedy the Legisbecause, by the laws of the United States, this lature or courts of the State may prescribe. is deemed the first appropriation of the land, Nor do we doubt the power of the States to and the Legislature of Missouri had no power, 'pass laws authorizing purchasers of lands from 242

Peters 13.

Inb'n,
Pose'n,

think so.

acres E,
Granted 640

recorder.
Opinions of the

the United States to prosecute actions of eject- as the legal representative of John Robertson, ment upon certificates of purchase against tres-Jun., who was the claimant of record origin. passers on the lands purchased, but we deny ally. The following is a copy of the certifithat the States have any power to declare cer- cate of location issued on this relinquishment: tificates of purchase of equal dignity with a “No. 448. St. Louis, Office of the Recorder patent. Congress alone can give them such of Land Titles.

September, 1818. effect.

“I certify that a tract of six hundred and For the several reasons stated, we have no forty acres of land, situate, Big Prairie, in the doubt the judgment of the Circuit Court was County of New Madrid, which appears from correct, and order it to be affirmed.

the books of this office to be owned by Jolin In the cases of Sampson against Broderick, Robertson, Jr., has been materially injured by and M'Cunie against the same, the judgments earthquakes; and that in conformity with the are also affirmed.

provisions of the Act of Congress of the 17th

February, 1815, the said John Robertson, Jr., Mr. Justice M'Lean dissented.

or his legal representatives, is entitled to loBeing opposed to the decision of the court in cate six hundred and forty acres of land on any this case, I will state, as shortly as I can, the of the public lands of the territory of Missouri, grounds of my dissent. I am induced to do the sale of which is authorized by law.” this from the peculiar circumstances of the case. [Signed.)

"Frederick Bates." To sustain his action of ejectment, the plain- And on the 8th of October, 1818, Byrne tiff, in the Circuit Court, gave in evidence a made the following location: patent to John Robertson, Jun., which states “Morgan Byrne, as the legal representative *that he had deposited in the general land of- of John Robertson, Jr., enters six hundred and fice a certificate numbered 192, of the recorder forty acres of land, by virtue of a New Madrid of land titles at St. Louis, Missouri; whereby certificate issued by the recorder of land titles it appears that, in pursuance of an Act of Con- for the territory of Missouri, and dated St. gress, passed 17 February, 1815, entitled, "An Louis, September, 1818, and numbered 448, in Act for the relief of the inhabitants of the late the following manner, to wit: to include secCounty of New Madrid, in the Missouri terri; tion No. thirty-two, in township No. fifty, tory, who suffered by earthquakes," the said north of the base liné, range No. fifteen west of John Robertson, Jun. is confirmed in his claim the fifth principal meridian.” And here the for 640 acres of land, being survey No. 2,810, evidence of the defendants closed. and section 32, of township

50, north, in range On this state of facts, the defendant's coun. 15, west of the 5th principal meridian line," sel moved the court to instruct the jury that etc. The patent bears date of 17th June, 1820. the entry or New Madrid location, 'made by On the 16th November, 1830, the patentee Morgan Byrne in his own name, is proof of a conveyed the land to Augustus H. Evans. And legal title to the land, *and is a suffi-[*453 on the 7th June, 1831, Evans conveyed to Brod cient defense against all persons who do not erick, the lessor of the plaintiff.

show a better legal title to the same land. The defendants first gave in evidence a con: That if the jury believe the patent, a copy of firmation of a Spanish claim for settlement and which has been given in evidence by piaintiff

, cultivation to John Robertson, Jun., for 640 | issued on the location made by Morgan Byrne, acres of land in the Big Prairie, near New the patent is not such title as will avail Madrid. The entire interest in this right was against the location. conveyed by John Robertson, Jun., to Edward The revised code of Missouri of 1625, which Robertson, Sen., the 29th May, 1829.

was in force when this action was commenced, On the 30th October, 1813, Edward Robert provides that a New Madrid location shall be son, Sen., conveyed 300 arpents of this tract of a title on which to sustain an action of eject452*) land to Morgan Byrne. And the 11th ment against any person not having a better of September, 1816, he conveyed to Byrne 250 title. arpents more of the same tract. On the 29th The defendant shows, by deeds of convey. October, 1816, Robertson conveyed to William ance from John Robertson, Jun., that Morgan Shelby 250 arpents of the same tract. And on Byrne had a full and clear title to the 640 the 22 December, 1816, Shelby conveyed to acres of land near New Madrid; that he relinLevi Grimes; and on the 26th February, 1817, quished said land, under the Act of Congress Grimes conveyed to Morgan Byrne.

of 1815, to the United States, and located the By these conveyances Byrne became vested section of land now in controversy. He being with the entire original ght of John Robert- the owner of the land, as the legal representason, Jun., to the tract of land, as above stated. tive of John Robertson, Jun., was the only per

Under the Act of Congress of the 17th Feb-son who could relinquish it to the United ruary, 1815, any person owning land within States. By virtue of this relinquishment, and the County of New Madrid, in the Missouri in consideration of its having been made, he territory, which had been injured by earth- received the certificate which authorized him quakes, had the right to relinquish the same to to locate the same number of acres of any part the United States, and receive a certificate of the public land which had been offered for therefor, specifying the quantity of acres, not sale. to exceed 640, which he was authorized to lo- It appears that under the law of 1815, the cate on any land of the United States; and on New Madrid claimant had to show a confirmasuch location being made, the land relin- tion of the land claimed by him on the public quished became absolutely vested in the United records in the name of the first claimant, and States.

to show a derivative title to himself, before he Under this law Byrne relinquished to the was permitted to relinquish it to the governUnited States the 640 acres in the Big Prairie,' ment. And in the present instance, John

Robertson, Jun., being the original confirmee And may not the Legislature do this! It of the title, the record was produced estab- does not originate a title under any pretense lishing the fact; and Byrne then proved by an of State sovereignty, which is to operate oxhibition of his deeds that Robertson had against a patent from the United States; but parted with all his right in the premises, and it gives to a court of law, powers in the action that he was his legal representative. It was of ejectment, which in some other States are in this capacity that the relinquishment was exercised only by a court of chancery. This made, and the certificate of location was is. has always been the rule in Pennsylvania, and sued. And he made the location of the land in other States which have no court of chan. in controversy in the same character.

cery. In this view of the case there can be no Technically, a location is an inchoate legal doubt that Byrne or his assignee has the title title. But, out of this class of titles a new to the land. And that there is possession un rule of equity grew up by the practice of the der this title is shown by the fact that the ac courts of Kentucky. And this rule is not in tion of ejectment was commenced by the less conformity with the long established principles or of the plaintiff to obtain the possession. of a court of equity.

It appears that the patent was issued to As between conflicting entries, the doctrine John Robertson, Jun., improperly; as in 1809 he of notice is utterly discarded. The entry must conveyed all his interest in the land relin- be a legal one, by embracing all the substantial quished. Before the emanation of the patent, requisites of the law, or a subsequent entry he had not a shadow of title, either equitable may be made on the same land, though the or legal, to the land in dispute. And the locator have full knowledge of the first entry. patent must have been fraudulently obtained This forms an anomaly in the history of by him on the presentation of the certiticate of equity jurisdiction. It authorizes a court of location made by Byrne. The evidence on equity to give effect to that which is, in itself, this point is too clear to be controverted. It is strictly a legal right. established by deeds executed in the most sol Principles growing out of this peculiar sys. emn form, and by records which contain the tem have been acted *on from necessi- [*455 highest verity. The inference of the fraudty by the courts of the United States, but they is as irresistible as are the facts from which have not been regarded as appropriate to an it is inferred.

equitable jurisdiction in other cases. The proof of Byrne's title is irrefragable; Had the courts of Kentucky acted upon en454*] and it is equally clear *that Robertson tries as legal titles, whether under their own had no title to the land until he fraudulently rules or by virtue of statutory rovisions, the obtained the patent. Having no shadow of courts of the United States would have adoptright, he could obtain the patent in his own ed the same mode of proceeding. In the State name by no other than fraudulent means. And of Tennessee, a junior patent under the first no court which could feel itself authorized to entry will overreach an elder patent, under a look behind the patent, could hesitate to pro junior conflicting entry. This, in Kentucky, nounce the title of Byrne valid against the would be the exercise of an equitable jurisdicpatentee, who has sought to cover his fraud tion. In Missouri, under the statute, it would by this legal instrument.

be examinable at law. And the question here arises, whether, under It is said the patent merges the location. the Missouri statute, the Circuit Court ought This, under the Kentucky system, is true; not to have instructed the jury that, under the but, where the patent has been issued through deeds and records given in evidence, Byrne's a mistake or fraud, to an individual who was was the better title. I cannot doubt that this not entitled to it, a court of equity will coninstruction should have been given.

trol the right of the patentee, by compelling The statute makes the location a legal title him to convey to the person who has the betfor the purposes of the action of ejectment. ter right. And if it be a good title on which to bring an And why may not a court of law protect this ejectment, it must be equally effectual in the better right? The right may be investigated defense of such an action. This title, the stat- as fully, and, considering the nature of the ute declares, shall prevail against any person rights under the Missouri statute, as safely, who has not the better title,

in a court of law as in a court of chancery. And what kind of a title is this better title? But this, with the court, is not a question of Surely, it is a title that under the facts and policy. It is a rule of evidence and of propcircumstances of the case, ought to prevail erty adopted by the State of Missouri, and our against that to which it is opposed.

whole course of adjudications requires us to It is urged that this better title must mean regard it. There is, therefore, no more viola. a better title than others of the same class, but tion of principle in examining the title of that it can never be considered a better title Byrne at law than in equity. The result is against a patent. And why may it not be con- substantially the same in both modes, as the sidered a better title against the patent? title of Byrne must be protected from the

The title set up in the defense derives its fraud by which it has been attempted to be valdity from laws of the United States, as en- overreached and subverted. tirely as the patent. The question then is, Judging from the evidence of this case I which is the better title of the two, both orig- have never seen a grosser act of fraud than the inating from the same sovereignty? The stat obtainment of this patent by Robertson, eleven ute of Missouri does nothing more than declare years after he had conveyed every vestige of that a court of law may do in an action of right in the land which was relinquished as ejectment what no one doubts would be com- the consideration to the United States for the petent for a court of chancery to do. location in controversy.

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