statute of Missouri, have its effect; and, if of a | merit superior to the patent, have the same effect it would have in a court of equity, and prevail over the patent. Finley v. Williams, et al. 9 Cranch, 164; McArthur v. Browder, 4 Wheat. 488. If the preceding views be correct, the general and first four special errors are well assigned. As to the fifth special error. There is no such thing known to the law or in the practice of the law in the courts of Missouri, as those pleas peculiar to an executor or administrator growing out of the matter of assets. In Missouri no execution issues against an executor or administrator sued as such, unless specially sued for a devastavit, or on his bond as such. All demands, no matter of what dignity, are presented to the court having cognizance over the administration of estates, by whom they are classed; and at the annual settlements of the administrators or executors, that portion of the assets which consists of money is apportioned among the creditors: and thus and not otherwise are demands, whether by simple contract, by specialty or by judgment, against an estate, collected. For all defaults on the part of an executor or administrator, a suggestion of a devastavit is made and tried in the court having cognizance of the administration of estates, or the bond of the executor or administrator is put in suit. Judgments predicated on the false pleading of the executor or administrator, as technically understood in the laws of England, are unknown to the law or in its practice in Missouri. See Revised Code of Missouri of 1835, title Administration. Mr. Coxe, for the defendant in error: The decision of the Circuit Court is to be considered correct, until its incorrectness is made to appear. This was so held by this court in the case of Carroll v. Peake, 1 Peters, 23. Have the plaintiffs in error shown that there was error in the decision of the Circuit | Court? It was a question on the legal title of the parties in the cause, and this question alone was decided by the court. The equitable claims of those who alleged they were justly entitled to the land under Robertson, could not be taken into consideration in the action on the law side of the Circuit Court. The chancery powers of the court could have been invoked by the defendants in another form than in a defense to an action of ejectment. The grant and patent are evidence in a court of law of the matters recited in them. The grant, legally and fully executed, was com446*] petent evidence of the matters set forth in it; and as none other was necessary, it was in effect conclusive. The United States v. Arredondo et al. 6 Peters, 724. No facts behind the grant can be investigated. 11 Wheat. 580. A patent is evidence in a court of law of the regularity of all the previous steps to it. 5 Wheat. 293; 7 Wheat. 151. The court are bound to presume the acts of commissioners intrusted by laws of Congress to inquire into claims to lands, regular, and the decisions of these commissioners are in courts of law binding and effectual. This principle was decided in the case of Ross v. Barland, 1 Peters, 668. The defendant in error supported his claim to the land by a patent issued by the proper authority. The patent was granted on the facts stated in the records of the land-office and those records are evidence of the proceedings stated in them. They are conclusive evidence. This was fully decided by this court in the case of Galt v. Galloway et al. 4 Peters, 342. This court then said, "As the records of the land-office are of great importance to the country, and are kept under the official sanction of the government, their contents must always be considered, and they are always received in courts of justice as evidence of the facts stated." The commissioner of the land-office was empowered by the act of Congress to investigate the facts connected with every application for land, in consequence of the injuries sustained by the earthquake; and he was to adjudge to the person entitled, after such investigation, the land to be granted by the United States. In this case, Robertson was in full life when the land was granted and patented to him, and he conveyed it to those under whom by regular conveyances the defendant in error holds. a court of law nothing more was necessary than the exhibition of such a legal title. In Nor could the plaintiffs in error derive any right to maintain their title under the provisions of the law of Missouri of 1835. That law can have no operation on the system established by the United States for the sale of their public lands, and the granting of titles thereto. Against trespassers, the law of Missouri may have full effect; and a holder of land in Missouri under a pre-emption right, New Madrid location, or entry with the register, might maintain an ejectment. But this law could give no right to an ejectment under an inchoate right in the courts of the United States against a patent issued by the proper officer authorized by the act of Congress to grant a patent. The States of the United States cannot make by their statutes any titles or claims to lands by certificates of entry which are inferior to a patent, of equal dignity with a patent. 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. *Byrne died, and Margaret [*447 Byrne, his executrix, was admitted as a Codefendant. 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. 1 Peters, 23. The executors of Morgan Byrne had no interest in the land by virtue of their let ters 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, Jun., dated June 17th, 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 20th May, 1809, from John Robertson, Jun., to Edward Robertson, Sen., for 750 arpents 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 arpents 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 17th 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 exceed ing 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 448*] the tract 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. before stated, the patent to John Robertson, Jun., 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, 5 Wheat. 293; 7 Wheat. 157, 6 Peters, 724, 727, 728, 342, and, of course, that the certificate of survey returned by the recorder was in the name of John Robertson, Jun. 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. As 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, Jun., 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 principle meridian. "St. Louis, Oct. 8th, 1818. Morgan Byrne." *Which is founded on the following [*449 certificate of location: "No. 448. "St. Louis, Office of the Recorder of "Land Titles, September, 1818. of } "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 the 17th 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, Jun., 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 representa 449 tive 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 clairn; but the same evidence (being extra cts from the records of the recorder's office) show that the location certificate was granted to John Robertson, Jun. They are as follows: Madrid, (present) state of Missouri, under the Act of Congress of 17th of February, 1815. A list of relinquishments of lands materially injured by earthquakes, in the late County of New John Robertson, Jr. arpens. 750 Prairie. Big Quan’ty Where Warr. or ord. of Survey. Notice to the recorder claimed. situated. Cult. &c. survey. cer, 1126. for 200 arpens, By U. S. Com'rs Inh’n. Poss'n, with the This evidence, taken in connection deeds to Edward Robertson, and those from him and others to Byrne, it is insisted, estab450*] lish *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, 242 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, Jun., 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 second, 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, Jun., 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 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. 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 think so. In that there were conflicting patents; the younger being founded on an appro priation 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 [*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 eject- |as the legal representative of John Robertson, ment 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 M'Cunie against the same, the judgments are also affirmed. Mr. Justice M'Lean 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, Jun., which states that he had deposited in the general land of fice a certificate numbered 192, 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, Jun. is confirmed in his claim for 640 acres of land, being survey No. 2,810, and section 32, of township 50, north, in range 15, west of the 5th principal meridian line," etc. The patent bears date of 17th June, 1820. On the 16th November, 1830, the patentee conveyed the land to Augustus H. Evans. And on the 7th 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, Jun., for 640 acres of land in the Big Prairie, near New Madrid. The entire interest in this right was conveyed by John Robertson, Jun., to Edward Robertson, Sen., the 29th May, 1829. On the 30th October, 1813, Edward Robert son, Sen., conveyed 300 arpents of this tract of 452] land to Morgan Byrne. And the 11th of September, 1816, he conveyed to Byrne 250 arpents more of the same tract. On the 29th October, 1816, Robertson conveyed to William Shelby 250 arpents of the same tract. And on the 2d December, 1816, Shelby conveyed to Levi Grimes; and on the 26th February, 1817, Grimes conveyed to Morgan Byrne. By these conveyances Byrne became vested with the entire original right of John Robertson, Jun., to the tract of land, as above stated. Under the Act of Congress of the 17th 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 640, which he was authorized to locate on any land of the United States; and on such location being made, the land relinquished became absolutely vested in the United States. Under this law Byrne relinquished to the United States the 640 acres in the Big Prairie, Jun., 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 the 17th 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 the 8th of 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, and is a suffi-[*453 cient 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 shows, by deeds of conveyance from John Robertson, Jun., 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, Jun., 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, Jun., 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, Jun., 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; 454*] and it is equally clear 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 valdity 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 on from necessi- [*455 ty 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. |