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 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 Dallas, 457, this court say, "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 poli. cy 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, ex dem. Barland et al., 1 Peters, 664, this court say, "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 principles 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 regard 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 made in 1799; [*457 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 in. stitute 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," etc. 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 premiss and conclusion could never be associated in the mind of anyone. How is 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 chan cery 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. 458*] *Mr. Justice M'Kinley concurred in opinion with Mr. Justice M'Lean. 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 pursance of the Act of Congress, passed the 17th day of February, 1815, a location certificate, No. 448, issued from this office in favor of John Robertson, 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 fifth principal meridian. No. of survey, 2810. Frederick Bates. "Township No. 50, North of the Base line, Range No. 15, West fifth principal meridian. 79 50 No. 448. John Robertson, Jr. Section 32. 640. "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 the 8th day of October, 1818, for John Robertson, 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 the 17th 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." *RICHARD RAYNALL KEENE (*459 V. WARREN WHITTAKER et al. Practice. A case cannot be brought by writ of error from a circuit court of the United States, upon an agreed statement of facts. clerk of the Circuit Court to which any writ of erThe rules of the Supreme Court require that the ror shall be directed, may make return of the same by annexing a true copy of the record and of all the proceedings in the cause, under his hand and the seal of the court. The court will not, according to the thirty-first rule, hear any cause without a complete copy of the record having been brought up. HIS case come up from the Circuit Court of of Louisiana. In that court a statement of the case had been made by the plaintiff, and the counsel for the defendants, upon which the court gave a judgment for the defendants. The plaintiff petitioned the Circuit Court for a writ of error to the Supreme Court, and the same was allowed. The record as sent up from the Circuit Court contained nothing but the agreed statement of facts, the judgment of the Circuit Court on these facts, and the petition of the defendant for a writ of error, together with an allowance of it by the Circuit Court in Decemmer, 1838. The case was submitted to the court without argument. Mr. Justice Wayne delivered the opinion of the court: This case has been brought to this court on an agreed statement of facts, without any of the proceedings in the court below being in the record. It cannot appear, therefore, that this court has jurisdiction of the case; which is essential before it can give its judgment in any cause. We refer also to the eleventh and thirty-first rules of this court. The eleventh is as follows: "It is ordered by this court that the clerk of the court to which any writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand, and the seal of the court." The thirty-first rule is: "No cause will here. after be heard until a complete record, containing in itself, without references, aliunde, all the papers, exhibits, depositions, and other proceedings, which are necessary to the hearing, shall be filed. The court orders this case to be dismissed. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana; and it appearing upon an inspection of the papers filed in the case that it has been brought here upon an agreed statement of facts, without any of the proceedings in the court below being in the record. Whereupon it is adjudged and ordered by this court that this cause be, and the same is hereby dismissed with costs. 460*] *NATHAN CARR et al., Appellants, V. JOSEPH HOXIE, Appellee. Execution decreed by circuit court after appeal -appeal from this decree dismissed. An original decree was made in the Circuit Court of Rhode Island at June Term, 1834, and an appeal was taken to January Term, 1835, of the Supreme Court. This appeal was dismissed at Jannary Term, 1837, on the motion of the counsel for the appellees, without an examination or decision on the merits of the cause. At the November Term of the Circuit Court, the defendants prayed and were allowed a second appeal to the Supreme Court; which appeal had not been yet entered on the docket of the Supreme Court. The Circuit Court afterwards proceeded to order execution of the decree of 1834, and the defendant appealed to the Supreme Court from this decree. Held, that this appeal from the decree, of the Circuit Court ordering the execution of the original decree is not a supersedeas to further proceedings in the Circuit Court to execute the original decree, and that the Circuit Court is at liberty to use its discretion to proceed to execute the original decree. Held, also, that the decree of execution is not a final decree in done in the absence of the counsel for the ap- It is claimed that if an appeal is dismissed for any other cause than a decision on the merits, it is not a final dismissal; another appeal may be prosecuted. The case stands as if no appeal had been taken. The right to appeal is not lost by the action of the Čircuit Court in allowing the first appeal. Has it been lost by the action of this court in dismissing the first appeal? Unquestionably, according to the rules of this court, but with no decision on the merits of the controversy in the cause. The parties have a right to the judgment of this court on the merits, and the act of Congress gives them five years, in which they may claim that judgment on an appeal. If on the first appeal, from accident, or from any other cause, no such decision was obtained, they have 8118N appeal from the Circuit Court of the tained the penalty which is imposed for the the contemplation of the act of Congress, from which an appeal lies. ON the the District of Rhode failure to prosecute their appeal, by the pay. Island. In the Circuit Court for the District of Rhode Island, at June Term, 1834, in the case of Joseph Hoxie against Nathan Carr and others, a decree was rendered for the complainant, on a bill of equity filed in that court. From this decree the defendants appealed to the Supreme Court of the United States to January Term, 1835. At January Term, 1837, on motion of Mr. Green, of counsel for the appellees, the appeal was dismissed; and & certificate thereof having been sent to the Circuit Court, that court proceeded, at November Term, 1837, to order and decree the execution and decree made at the June Term 1836. The court decreed a sale of the property according to its decree of 1836, and that the proceeds thereof should be brought into the registry, to be paid and applied as ordered in and by the original decree. From this decree the defendants prayed for an appeal to the Supreme Court, which was allowed. The record brought up on this appeal contained no part of the proceedings on the original bill, in which there was a decree in 1834. It presented nothing but the proceedings of the Circuit Court of Rhode Island, in November, 1837, and the decree of the Supreme Court of the United States dismissing the appeal, and the decree of the Circuit Court in the original suit, at June Term, 1834, with the decree of the court on the 5th day of November, 1837, ordering the execution of the same. The proceedings in the original bill were not again brought up to the Supreme Court by a second appeal in that case. The case was argued by Mr. Tillinghast for the appellants, and by Mr. Coxe for the appellee. Mr. Tillinghast stated that the only question now before the court was whether this appeal could be sustained. ment of the costs. This is the whole penalty; and to go beyond it is to defeat the purpose and object of the provision of the law relative to appeals. Mr. Coxe, for the appellees, contended: 1. That it is not a case in which the party can appeal. 2. That in this last decree there is no error. 3. That the former proceedings are not, and cannot be now reviewed. There are no authorities on the question whether a second appeal can be taken after a dismission in the first appeal, unless it be the case of The Lessor of Wright v. De Klyne, 1 Peters's C. C. R. 199. In that case it was decided that the dismission of a bill in chancery is not conclusive against the complainant in a court of law. In Duval v. Stump's Executors, in this court, the appeal was dismissed, the appeal not having been taken by all the parties. The proceedings were afterwards amended, and the case was brought up and decided. In the case before the court, the appeal from the Circuit Court was regularly taken, and a judgment of dismission was entered. This was a final determination of the case. To allow a second appeal would be to allow a party to profit by his own negligence. To the appellees this is doing great injustice, and keeps undecided questions which ought to have been settled on the first appeal. A fair construction of the act of Congress is to allow a party five years in which he may prosecute an appeal; and having used that privilege, the permission given by the law has been fully used, and is at an end. There is no provision for a second appeal. *In the case before the court, the ap- [*462 peal has been entered on the order of the Circuit Court for proceedings on the original decree. It is alleged that a second appeal has been taken in the original case, but this has not been prosecuted. The proceedings in that case The appeal in the original case was dismissed have not been brought up. There are, then, 461*] on the motion of the counsel for the two appeals in this same controversy. This appellee at the January Term, 1837. This was cannot be allowed. Mr. Justice Story delivered the opinion of the court: This is an appeal from a decree in equity of the Circuit Court for the District of Rhode Island, made in a case where the appellant was the original defendant. The facts, so far as they are now before us upon the present record and appeal, are briefly these: The original decree was made at the June Term of the Circuit Court, 1834, and at the same term an appeal was taken therefrom to the Supreme Court. The appeal was entered at January Term, 1835, of the Supreme Court, and was dismissed for want of due prosecution, at January Term, 1837. At the November Term of the Circuit Court, 1837, a petition was filed by the original appellant, praying for a new and second appeal from the original decree; which was granted by the court, upon bonds being given according to law. At the same term, the original plaintiff prayed for further proceedings to enforce the original decree, whereupon a supplemental decree was passed by the court for a sale of the premises in controversy, pursuant to the original decree; and from this last decree the original appellant also claimed an ap peal, which was granted by the court upon his giving bonds, and the case now comes before us solely upon this last appeal, the record and proceedings in the original suit not having as yet been brought up and filed in the court, in pursuance of the second appeal from the original decree already referred to. The question, therefore, whether this second appeal lies to this court, after the dismissal of the former ap peal, is not now before us; and can only arise when the original proceedings shall come before us, upon a due prosecution and entry of the second appeal. The only question now before us is whether this second appeal is, under the circumstances, a supersedeas to all further proceedings in the Circuit Court to execute the original decree. If it is, then the appeal from the supplemental decree of sale is maintainable; otherwise, it ought to be dismissed. Upon full consideration, we are of opinion that it is no supersedeas; that the Circuit Court is at full liberty, in its discretion, to proceed to execute the original decree, if it shall deem it advisable, and that the supplemental decree of and decreed by this court, that this appeal be, and the same is hereby dismissed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions that the said court may, in its discretion, proceed to execute the original decree, if it shall deem it advisable. *THOMAS O. BURTON, Appellant, [*464 V. WILLIAM L. SMITH et al., Appellees. Lien of judgment in Virginia-reversionary in terest as assets in hands of heir. Under the laws of Virginia in relation to lands of which the debtor has an actual seisin, although makes a judgment or lien on the lands of the debtthere is no statute in Virginia which expressly or, yet during the existence of the right of the plaintiff to take out an elegit, the lien of the judgment is universally acknowledged. All the authorities, ancient and modern, agree in this proposition-that a reversion after an estate for life is assets, or, as some of the books express to the bond of the ancestor, binding heirs and it, quasi assets, in the hands of the heir, in regard that in such case the plaintiff may take judgment of it, quando acciderit. Upon principle, it would the heir which was liable as assets to the bond debt of the ancestor, must be bound by a judgment obtained against the ancestor in his lifetime. that a reversion after an estate for life is bound by There is a current of authorities going to prove a judgment obtained against the ancestor, from whom it immediately descended. seem to be clear that whatever estate descended to tate about decreeing a sale of an interest because So far from its being proper for a court to hesiIt is reversionary, the character of the interest affords a strong reason for such a decree. For although in regard to property in present actual possession, the elegit, although tardy in its operation, yet is in some degree an effective remedy, inasmuch as the creditor will by that means annually the case of a dry reversion, if the outstanding life receive something towards his debt; whereas, in estate should continue during half a century, the creditor might look on in hopeless despondency, without the possibility of receiving a cent from that source, except through the interposition of a court of equity in decreeing a sale. It is the very nature and essence of a lien that no matter into whose hands the property goes, it passes cum onere. If this were not the case, it would cease to be a lien. sale is but a decree in execution of the original APPEAL from the Circuit Court of the United decree, and not a final decree in the contemplation of the acts of Congress, from which an appeal like that now before us lies. It must, therefore, be dismissed with costs. But, in order to guard against any misapprehension, it is proper to add that this dismissal is in no sense to be construed to prevent the original proceedings and decree from being brought be fore this court upon the second appeal taken thereto in the Circuit Court, for full consideration, whether it lies or not. States for the Eastern District of Virginia. The case, as stated in the opinion of the court, was as follows: "In the month of June, 1827, Smith and Kennedy obtained a judgment in the Circuit Court against Reuben Burton for $1,348.75, with interest from the 14th of October, 1823, and costs. On this judgment an elegit was issued, on the 31st of December, 1827. On the 12th of August, in the same year, Reuben Burton, by deed conveyed his real estate to certain trustees, in trust, to sell the same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included. 463*] *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 Rhode Island, and was argued by counsel; on These last-mentioned creditors, the appelconsideration whereof, it is the opinion of this lees, never assented to, or accepted anything court that the supplemental decree of sale, in under the trust deed. Burton having died, the execution of the original decree, in this case, is only trustee who accepted the trust, on the 21st but an execution of the original decree, and of December, 1829, sold, under the deed, all not a final decree from which an appeal lies to the estate, both real and personal, conveyed by this court. Whereupon it is ordered, adjudged | it; and at that sale, Sarah Burton, by her agent, purchased, at the price of $1,000, the interest of Reuben Burton, that is, two fifth parts of a certain tract of land called Springfield supposed to contain about five hundred acres, and also his interest in certain coal pits on the same tract. The character of Reuben Burton's interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after an estate for life. And 465*] the character of his interest in the coal pits, as appears from an agreement in the rec-only because of the high character of the auord, was this: The heirs of Daniel Burton, of whom Reuben Burton was one, were to have, during the widow's life, the right of occupying, sing, and working the coal pits, and the right and power of sinking shafts, and searching for coal on any part of the land, except the yard, etc., paying to the widow, during her life, the yearly sum of $200, for her dower interest. The same agreement will show his interest in a mineral spring included in the decree. After the death of Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, in September, 1834, filed their bill to enforce the lien created by their judgment; making, amongst others, Sarah Burton, a defendant, as purchaser of the interest of Reuben Burton before described, in the Springfield tract of land and coal pits. She answered, saying that the property conveyed to her was not purchased for her own benefit, but for the benefit of her son Thomas O. Burton, the appellant. She insisted, in her answer, that the appellees had no right to enforce their judgment, as more than five years had elapsed since the death of Reuben Burton. She denied that the judgment created any lien on the property purchased by her, which was valid against her. She insisted that the appellees were entitled to no relief in equity, and that, at all events, a sale should not be decreed. An amended bill was thereupon filed, making Thomas O. Burton a defendant. He filed an answer, insisting on the grounds taken by Sarah Burton. The cause coming on to be heard, the court held the reversionary interest of Reuben Burton in the Springfield tract of land, and his interest in the right of occupying and working the coal pits thereon, and also his interest in the mineral spring thereon, with the twentyfive acres of land adjoining thereto, liable to the appellees' judgment; and decreed a moiety of Reuben Burton's interest to be sold. From this decree an appeal was taken. The case was submitted to the court on printed arguments by Mr. Lyons for the appellant, and by Mr. Robinson for the appellees. The argument of Mr. Lyons was as follows: The appellant insists that the decree of the Circuit Court is erroneous, and ought to be reversed. 1st. Because the judgment in favor of the appellees against Reuben Burton gave no lien upon the interest or share of Reuben Burton in the Springfield coal property, which was purchased by Sarah Burton for the appellant, and which, by the decree of the Circuit Court was adjudged to be sold. By the common law a judgment conferred no lien upon lands. That lien is the result entirely of the power to extend the lands, and is therefore a statutory power conferred by the 466*] act commonly called the statute of Westminster. This position is known to be familiar to the court; but if authority is desired for it, it may be found in the opinion of Lord Hardwicke, in the case of Stileman v. Ashdown, 2 Atkyns' Reports, 608, and every subsequent decision upon that subject; and especially in the opinion of the late Chief Justice of the United States, in the case of The Bank of the United States v. Winston et al., 2 Brockenbrough's Reports, 252, which is quoted not thority, and the just weight which will be attached to it, but because of the distinct and emphatic manner in which the position is laid down, and the rights of the party claiming under the judgment are, in a court of equity, limited and confined to the right and power conferred by the judgment. The first inquiry, then, is, could the appellees have extended the interest before mentioned of Reuben Burton in the Springfield coal lands? It is submitted that they could not. It will be perceived by the court that the entire tract of land upon which the Springfield pits are, with the houses, etc., constituted the mansion establishment of Daniel Burton, the father of Reuben, who died intestate, leaving a widow, Sarah Burton, and several children. Until dower was assigned the widow she had the right to retain the mansion establishment and to derive her maintenance from it. While it remained in that condition, therefore, it is assumed that no elegit could be levied upon it; because if an elegit issue against one child, so might one issue against each child; and thus the whole would be taken and put into the possession of the creditors, and the widow expelled, and kept out, until by her writ she was restored. The children could not lawfully expel the widow; the creditors of the children, standing in their place, could not of course do it. If all could not do it, surely one could not. The lands in the hands of the widow before assignment of dower, could not, therefore, be taken under an elegit. No assignment of dower has taken place, unless the court shall regard the agreement entered into by Mrs. Burton and her children (exhibited by defendants) as such assignment. Is the condition of the appellees aided by that paper? It is submitted that so far from it, the condition is made worse. If that agreement had not been entered into, any creditor of Reuben Burton might have filed his bill against the widow and heirs, and compelled an assignment of dower, which being made he might have levied his elegit upon the share of Reuben Burton; but this agreement deprives the appellees of that power, because it is founded upon a good as well as valuable consideration-was entered into before any right existed in the appelleesand assigns to the widow, for her dower, the entire tract of land, except the mineral spring, with twenty-five acres, and the right to work the coal mines, and charges them with an annuity of two hundred dollars per annum to the widow. The rights of the appellees, in respect to this property, are manifestly less than if the agreement had not been entered into. Could Reuben Burton's interest in the coal mines and spring, with the twenty-five acres, have been taken under an elegit, after the execution of the said agreement? It is [*467 respect fully submitted that it could not. By |