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The seal of one partner to a deed, with the was sufficient evidence that the mortgage deed assent of the copartner, will bind the firm. was duly recorded.
From these considerations we think the The judgment of the Circuit Court, not being Circuit Court did not err in receiving the mort erroneous, is affirmed with costs. gage deed in evidence; treating it as a valid instrument, as it respects the rights involved in this suit.
2. Was this mortgage duly recorded ? By *CARY BAGNELL and The Executors (*436 an Act of the Legislature of Rhode Island of Morgan Byrne, Plaintiffs in Error. passed , PAn Act to prevent fraud in the transfer of GEORGE W. BRODERICK, Defendant in personal property,” it is provided that no
Error. mortgage on personal property, except as between the parties, shall be valid; unless posses. United States patent for public lands conclusive sion accompany the deed, or it be recorded in
in an action at law-presumption in favor the office of the town clerk. In the second
of judgment of circuit court. section it is made the duty of the clerk to record such mortgages in a book kept for that The plaintiff in error bad exhibited, in an action
instituted against him in the Circuit Court of Mispurpose.
souri, evidence conducing to prove that a patent It appears from the evidence that the town from the United States, under which the plaintiff clerk kept a book in his office in which he re- in the ejectment, the defendant in error, claimed corded all mortgages of personal property; and the mand had been improperly granted by the govall other mortgages which included real estate, the land was in him. Held, that in an action at or real estate and personal, were recorded in law the patent from the United States for part of
the public lands is conclusive. If those who claim other books kept in said office, in one of which
to hold the land against the patent can show that this mortgage was recorded. And the question it issued
by mistake, then the equity side of the is, whether such a registration is sufficient Circuit Court is the proper forum; and a bill in
chancery is the proper remedy to investigate the under the statute.
equities of the parties. The object of the recording act is to give Congress has the sole power to declare the dig. notice to subsequent purchasers. The statute nity and effect of titles emanating from the United undoubtedly requires the clerk to record mort- States, and the whole legislation of the governgages for personal property only, in a book patent to be the superior and conclusive evidence kept for that purpose. This being the require of legal title. Until it issues the fee is in the govinent of the law, to which the clerk strictly grantee, 'and he'is entitled to recover the posses
ernment; which, by the patent, passes to the conformed, there could be no uncertainty in sion in ejectment. searching the record for a personal mortgage in and of a patent, and dating the legal title
The practice of giving in evidence a special entry But it seems that the statute did not express the date of the entry, is familiar in some of the ly provide in what book a mortgage like the one States, and especially in Tennessee. Yet the entry under consideration, for both real and personal can only come in and of the legal title, and is no
evidence of such title standing alone, when opposed property, should be recorded. And it appears
to a patent for the same land. that it was the usage of the office to record
The presumption is that the judgment of the such mortgages in the book which contains Circuit Court is proper, and it lies on the plaintif
in error to show the contrary. mortgages for real estate.
When the title to the public land has passed out Now, if this be insufficient, nothing short of of the United States by conflicting patents, there recording such a deed in both books could be can be no objection to the practice adopted by the
courts of a State to give effect to the better right, held a compliance with the statute.
in any form of remedy the Legislature or courts of And can this be necessary ? The conveyance the State may prescribe. of the personal and real property is so blended No doubt is entertained of the power of the
States to pass laws authorizing purchasers of lands in the mortgage as to be inseparable. To re
from the United States to prosecute actions of quire a double record would seem to be an un ejectment upon certificates of purchase, against reasonable construction of the statute, as it trespassers on the lands purchased; but it is denied cannot be necessary to effectuate its object. cates of purchase of equal dignity with a patent. Both records are kept in the same office, and Congress alone can give them such effect. by the same person; who performs the duties of the office, and must always be well ac- N error to the Circuit Court of the United quainted with its usage. Any inquiry of the States for the District of Missouri. clerk for the record of a mortgage like the one This was an action of ejectment for a tract under consideration, would as certainly lead to of land in the State of Missouri, instituted by it, under the usage, as if it were recorded in George W. Broderick against Bagnell, the deboth books.
fendant, the tenant in possession; and in the If this mortgage had been recorded in the progress of the cause, Morgan Byrne, the landbook for personal mortgages, the same strict- lord, was made co-defendant, and he dying, ness as now contended for might be urged his executors were substituted. 435*] *against such record book, as it would Other actions of ejectment were at the same not then be kept exclusively for personal mort time instituted by George W. Broderick, for gages.
parts of the said tract in the possession of We think that this mortgage has been re- M'Cunie and of Sampson; and the executors corded in a book kept, though not exclusively, of Morgan Byrne became in the same manner for the purpose of recording mortgages which co-defendants in the cases. A verdict, in conconvey real and personal property; and that it formity to the opinion of the Circuit Court, is within a fair construction of the statute. having been given for the plaintiff in each of
We think also that the Circuit Court did not the cases, on the 10th of April, 1838, the de. err in deciding that the certificate of the clerk | fendants prosecuted writs of error to the
Supreme Court; bills of exceptions having been and how; and specifying the manner of laying sealed by the court.
off the residue, and authorizing the said EdThe bills of exceptions show that on the trial ward Robertson to apply for and receive from of these cases the plaintiff below read in evi: government or the proper authorities, a patent dence a copy of the patent from the United in his own name for same; and covenanting, States to John Robertson, Jun., dated 17th on behalf of himself and his heirs, to warrant June, 1820, for the tract of land mentioned in the title "against all persons claiming (*438 the above statements, which recited that under, through, or by the vendor. Also a 437"] *John Robertson, Jun., had deposited deed from Edward Robertson, Sen., to Morgan in the general land-office a certificate numbered Byrne, dated 30th October, 1813, conveying 192, of the recorder of land titles at St. Louis, to the said Byrne, in fee, 300 arpents of land Missouri; whereby it appeared that in pursu: out of a tract of land the head right of John ance of an Act of Congress passed 17th Feb- Robertson, Jun., situated and being in the Big ruary, 1815, entitled, "An Act for the relief of Prairie, bounding the part conveyed, parcel the inhabitants of the late County of New of the 750 arpents above described; and cov. Madrid, in the Missouri territory, who suffered enanting for himself and his heirs to warrant by earthquakes," the said John Robertson, and defend the title against all claims whatJun., was confirmed in his claim for 640 acres ever. Also a deed from Edward Robertson, of land, being survey No. 2810, and section 32, Sen., to Morgan Byrne, dated 11th September, township 50 north, and range 15 west of 5th 1816, conveying to the said Byrne in fee, 250 principal meridian; and the United States arpents of land, part of the head right of granted to John Robertson, Jun., in fee, the John Robertson, Jun., of 750 arpents, situated tract of land described above. Also a deed in the Big Prairie, and containing a covenant from John Robertson, Jun., to Augustus H. for himself and heirs, to warrant the title Evans, dated 16th November, 1830, conveying against all claims whatever. Also a copy of the same tract of land to the said Evans in fee, deed from Edward Robertson, Sen., to William expressly stipulating, however, against any Shelby, dated 29th October, 1816, conveying warranty. Also a deed from Augustus H. to the said Shelby in fee two hundred arpents Evans to George W. Broderick, the plaintiff of land bounding the same, parcel of the head below, now defendant in error, dated 7th June, right of John Robertson, Jun. (and parcel of 1830, conveying the same tract of land to the the 750 arpents above described), and contain: said Broderick in fee, and proved possession of ing a covenant of general warranty. Also a the premises by the defendants below, at the copy of deed from William Shelby to Levi commencement of the suits respectively, and Grimes, dated 2d December, 1816, conveying here closed his testimony.
to the said Grimes in fee the 200 arpents of That the defendants below, now plaintiffs in land next above described, and containing a error, read in evidence a transcript of a notice covenant of general warranty. to the recorder of land titles for the United Also a deed from Levi Grimes to Morgan States at St. Louis, taken from the records of Byrne, dated 26th February, 1817, conveying the office of the recorder, given by John Rob to the said Byrne in fee the 200 arpents of land ertson, Jun., which states that he claims 750 next above described, and containing a special arpents of land in the Big Prairie, on the warranty. ground of inhabitation and cultivation, prior The defendants also produced in evidence an to and on 20th December, 1803, by and with extract from registry of relinquishments, in of. the consent of the proper Spanish officer. fice of recorder of land titles for the United
Also a copy of proceedings had before the States at St. Louis, of lands materially injured board of commissioners on land claims, on the by earthquakes, under the Act of Congress of 11th July, 1811, taken from the minutes of the 17th February, 1815; which shows that the proceedings of the board for ascertaining and confirmation aforesaid to John Robertson, adjusting the titles and claims to lands, which Jun., for 640 acres, situated in the Big Prairie, shows that on the claim of John Robertson, was relinquished by Morgan Byrne, as the legal Jun., for 750 arpents of land in the Big Prai- representative of John Robertson, Jun., and rie, the board granted to John Robertson, Jun., on such relinquishment the location certificate 200 arpents of land. Also a transcript of opin: No. 448 issued. ion, and report of the recorder of land titles of Also a copy of certificate of location, dated the United States at St. Louis, made 1st No- September, 1818, and numbered 448, issued by vember, 1815, which, in connection with the Act recorder of land titles of United States at St. oi Congress of 29th April, 1816, entitled, “An Louis, which certifies that a tract of 640 acres Act for the confirmation of certain claims of of land situated in the Big Prairie was mateland in the western district of the State of rially injured by earthquakes, and that in conLouisiana, and in the territory of Missouri” formity with the provisions of the Act of Con(see sec. 2 of this act), shows that the confirgress of 17th February, 1815, the said John mation of 200 arpents, parcel of the claim of Robertson, Jun. (reciting that he appears from John Robertson, Jun., for 750 arpents of land the books of his office, recorder of land titles in the Big Prairie, made by the board of Com of United States, to be the owner), or his legal missioners aforesaid, was extended to 640 acres, representatives, was entitled to locate 640 acres and this quantity, 640 acres, was accordingly of land on any of the public lands, etc. Also confirmed to him. Also a deed from John Rob- a copy of the location under the foregoing cer. ertson, Jun., to Edward Robertson, Sen., dated tificate of location, made 8th October, 1818, 29th May, 1809, conveying the said 750 arpents which shows that Morgan Byrne, as the legal of land to the said Edward Robertson, Sen., in representative of John Robertson, Jun., entered fee; reciting in same conveyance that 330 ar and located 640 acres of land, by virtue of pents of the said 750 arpents had been surveyed, the certificate of location, commonly called a
New Madrid certificate, issued by the recorder, name, as given in evidence in these cases, is of land titles of the United States at St. Louis, proof of legal title to the land, and is a suffi. dated September, 1818, and numbered 448, so cient defense against all persons who do not as to include section No. 32, township 50 north, show a better legal title to the same land. 439*] range 15 west of *5th principal merid- 2. That the patent, a copy of which has been ian (the same premises in dispute); and here given in evidence by the plaintiff, did not vest the defendants below closed their testimony. in the patentee any better legal right to the
The plaintiff below then read in evidence a land in question than he had before the date copy of notice by John Robertson, Jun., of thereof, as against the defendants claiming the claim for 330 arpents, and proceedings on same same land adversely by other title. had before the board of commissioners of land 3. That after the entry and before the patent, claims, on 24th March, 1806, and 15th August, Morgan Byrne had a legal title to the land in 1811, which show that John Robertson, Jun., question, sufficient to enable him to prosecute filed a notice of claim for 330 arpents, situated or defend an action of ejectment therefor; and in the district of New Madrid, under the sec- that the issuing of the patent could not devest ond section of the Act of Congress of March, that title. 1805, accompanied by a plat of survey of 330 4. That if the jury believe the patent, a copy arpents, made by one Joseph Story, at request of which has been offered in evidence by the of John Robertson, Jun. (as the same purports), plaintiff, issued on the location made by Morwho, as the survey recites, claimed the same gan Byrne, and shown in evidence on the part as part of his settlement-right, by virtue of the of the defendants in these cases, the patent second section of the Act of Congress of March, is not such title as will avail against the loca1805; that the board of commissioners, on the tion. 24th March, 1806, grant to claimant 750 ar. All which instructions the court refused; to pents, and on the 15th August, 1811, reject the which refusal exceptions were taken. claim entirely, saying the claim ought not to Mr. Beverly Allen submitted a printed argu. be granted. Also, a transcript of opinion, and ment for the plaintiffs in error. report of the recorder of land titles of United The errors assigned are, besides the general States, at St. Louis, made 1st November, 1815, assignment, four, answering respectively to the which, in connection with the Act of Congress refusal of the court to give the four instrucof 29th April, 1816, before referred to, shows tions prayed; and a fifth, that the judgment that the claim of John Robertson for 330 ar- against the executors of Byrne was de bonis pents, was confirmed to him, and 330 arpents propriis, whereas, it should have been de bonis accordingly granted. Also, a copy of certifi. testatoris. cate of location in favor of John Robertson, It appears from the testimony in the three Jun., or his legal representatives, dated 18th cases that Morgan Byrne, the landlord and tes. September, 1818, and numbered 447, issued by tator, was the owner of the land in New Madrid the recorder of land titles of the United States, which was injured by earthquakes; that he apat St. Louis, which certifies that a tract of 330 plied for and obtained the certificate of locaarpents of land situated on lake St. Marie, had tion No. 448, relinquishing his land in New been materially injured by earthquakes, and Madrid, in lieu of which this certificate issued that in conformity with the provisions of the by the United States, and was located in his Act of Congress of 17th February, 1815, the own name on the tract of land in dispute, in said John Robertson, Jun., reciting that he virtue of certificate No. 448; that upon his lo. appears from the books of his office, recorder cation, a patent certificate issued, and on this of land titles of the United States, to be the certificate a patent issued to John Robertson, owner, or his legal representatives, was entitled Jun., the same person who once owned the land to locate 330 arpents of land, etc.
in New Madrid relinquished by Byrne and unThe defendants below then read in evidence der whom Byrne claimed that land. That the an extract from registry of relinquishments, in plaintiff derives title to the land in dispute the office of recorder of land titles of the United from John Robertson, Jun., by deeds executed States at St. Louis, of lands materially injured since the issue of the patent; and being such by earthquakes, under the Act of Congress owner, instituted these actions of ejectment to of 17th February, 1815, which shows that recover the possession of the land located as the confirmation aforesaid of 330 arpents to aforesaid by Byrne. John Robertson, Jun., was relinquished by The question is, whether in such a case and James Tanner, as his legal representative, and on such a statement of facts, John Robertson, that on such relinquishment the location certifi. Jun., the patentee, or George W. Broderick, cate No. 447, issued. Also, a certificate of his assignee, can recover against Morgan Byrne, the recorder of land titles aforesaid, that from the locator of the land, or his representatives. entries made in the books of his office of New The plaintiffs in error contend that the patentee Madrid location certificates issued, the certific and his assignee cannot, and rely on the followcate of location No. 447 was delivered to one ing grounds : Jacoby, for James Tanner, and certificate of 1. The title of Morgan Byrne was sufficient location No. 448 was delivered to Morgan to maintain an action *of ejectment. [*441 Byrne, and proved that the premises in dispute See Revised Code of Missouri of 1825, page in each case, was of the value of three thou. 343, sec. 2d, in force, at commencement of these sand dollars; which closed, and was all the suits,' and Revised Code of Missouri of 1835, evidence given in the causes. Upon the case made, the defendants below
1.--"Sec. 2. Be It further enacted, that any moved the court to instruct the jury as follows: person claiming lands or tenements, 1. That the entry of New Madrid location any pre-emption right. New Madrid location, entry
with the register and receiver, contirmation by the 440*] made by Morgan *Byrne in his own board of commissioners of land claims, for the ter
page 234, 235, sec. 1, 2, and 9, in force at trial ! erty, and an evidence of right. We have, then, of same.
an indicium of ownership in Morgan Byrne, and 2. That whatever was sufficient to maintain, an indicium of ownership in John Robertson, must be sufficient to defend an action of eject- Jun.: and these indicia of ownership are conment. This is a corollary from the first ground. sidered by the laws of Missouri such evidence If these two points are well taken, the first of right as will enable either to maintain or special error is well assigned.
defend an action of ejectment. Morgan Byrne 3. That the patent is not, in this case, and on had, in this case, the possession, the right of this statement of facts, the "better title” con possession, and the right of property, which templated by the acts of Assembly referred to. together constitute a completely good title, de
As to the first point, argument cannot eluci nominated a double right jus duplicatum, or date the words of the law. Its meaning is evi- droit droit. Black Com. Vol. II., p. 199. In dent, and the first rule of construction is not to him was the juris et seisina conjunctio which construe that which needs no construction. constitute the title completely legal or a perfect
As to the second point. The correctness of title. Kent's Com. Lec. 65. this is necessarily implied in the language and It may be admitted that a patent is consid. spirit of the law. It is a sequence from the ered in law a higher species of evidence of right, first. If the title of Byrne was such as would but that can avail nothing in this case, where enable him to maintain an action of ejectment the evidence of right in the other party is suffi442*] and recover possession, it would be *ab- cient to maintain or defend the action of ejectsurd not to hold it to be sufficient to maintain ment. The words of the law are not "against that possession when recovered.
any person not having a title thereto, proved As to the third point. Here the inquiry arises by a higher species of evidence" but "against what is the meaning of the phrase "better title” any person not having a better title thereto;" in the acts of Assembly referred to? A title is that is, an indicium of ownership recognized thus defined by Lord Coke, 1 Inst. 345: by the law as evidence of a better right. It “Titulus est justa causa possidenti id quod nos- then necessarily follows that in the constructrum est." Or by Blackstone (Black. Com. tion of the words "better title" we must look Vol. II., p. 195): “It is the means whereby the not at the species of evidence of the title, but owner of lands hath the just possession of his to the justness of the title. property.”. What this justa causa or "means" On looking into the titles of these two conis, must, in all countries, depend on the law tending claimants, the patentee and the locator, of the country where the subject of the title is we find they both have the same origin: they situated. The United States v. Crosby, 7 both originate in the relinquishment made by Cranch, 115; Clark v. Graham, 6 Wheat. 567; Morgan Byrne and the certificate of location Kerr v. Devisees of Moon, 9 Wheat. 565; M'Cor No. 448; and now, which of the two has the mick et al. v. Sullivan et al. 10 Wheat. 192. better title, or more just title to the land locaThe justa causa or “means” is nothing more ted under the certificate-Morgan Byrne, whose than those indicia of ownership which are rec- land was relinquished, or John Robertson, Jun., ognized by the laws of the country as evidence who had no interest in the land relinquished; of right. Title is by descent or purchase. The Byrne, *who was interested in and made (*443 indicia of the former is heirship, of the latter the location, or Robertson, Jun., who had no any of those modes of acquiring property which interest therein, was no party to it, and who are recognized by law. The laws of Missouri, had previously sold and conveyed to him, under where lies the property in dispute, recognize whom Byrne claimed the land thus relinquished, the entry or location of land, as in this case, and in virtue of which relinquishment Byrne to be a mode of acquiring property, and an ev. made that location? Seeing, then, both to have idence of right in the locator. They also recog. those evidences of right recognized by the law nize a patent to be a mode of acquiring prop-I to be sufficient to maintain or defend an ejectritory of Missouri, or by the recorder of land titles, claim; and then only from the time of such knowl. or by concession not exceeding one league square, edge coming from the defendant.". or by settlement right, or other right, where such 1.-'Sec. 1. The action of ejectment may be right or concession has been confirmed by the com- maintained in all cases when the plaintiff is legally missioners aforesaid, or recorder aforesald, or by entitled to the possession of the premises. any act of Congre88: or where the same is held by "Sec. 2. The action of ejectment may also be deed, patent, entry, warrant or survey, being con. maintained in all cases where the plaintiff claims frmed as aforesaid; or by any French or Spanish possession of the premises, against any person pot grant, warrant, or order of survey, which prior to having a better title thereto, under or by virtue the tenth day of March, one thousand eight hundred and four, had been surveyed by proper author- First, an entry with the register and recelver of ity, under the French or Spanish governments, and any land-office of the United States, or with the recorded according to the custom and usages of the commissioner of the general land office thereof; or, country, although such person may not be in the Second, A pre-emption right under the laws of actual possession; or if the same shall have been the United States ; or, actually surveyed, by authority of United Third, A New Madrid location ; or, States, since the tenth day of March, one thousand Fourth, A confirmation made under the laws of elght hundred and four, or by any proper officer, the United States ; or, under the French or Spanish governments, prior to Fifth, A French or Spanish grant, warrant, or the said tenth day of March, one thousand eight order of survey, surveyed by proper authority un. hundred and four, such person sball, and may der the French or Spanish governments, and remaintain actions of ejectment or trespass, in any corded according to the usages of the country, pri. court having jurisdiction thereof, against any per- or to the tenth day of March, eighteen hundred son not having a better title: and in all actions of and four. ejectment, where a verdict shall be found for the “Sec. 9. To entitle the plaintiff to recover, it plaintiff, the jury sball also find damages for the shall be sufficient for him to show that, at the time mesne profits, up to the time of rendering the ver- of the commencement of the action the defendant dict: Provided, however, That mesne profits shall was in possession of the premises claimed, and that not be recovered for any time prior to the com- the plaintiff had such right to the possession therediencement of the suit, unless the plaintiff shall of as is declared by this act to be sutficient to prove that the defendant had knowledge of his maintain the action."
ment, the justness of the title of Robertson, other lands for it to the United States. From Jur., must be examined. On this examination the moment of the location it became his-the it will be found that Robertson, Jun., shows United States had no title to it at the date of no title better than Byrne's; and failing in the patent. See Act of Congress, 17 Feb. this, Broderick, the assignee of Robertson, Jun., 1815, sec. 2, proviso 2. The title was in cannot recover against the tenant and repre- Byrne, and that title was such as enabled sentatives of Byrne.
Byrne to institute in the courts of law of MisThere has been no adjudication by the Su. souri an action of ejectment; and it is submitpreme Court of Missouri, what is meant by the ted, whether under these circumstances it can words "better title." In the case of The Adbe said that the title of John Robertson, Jun., ininistrators of Janis v. Guerno, 4 Miss. Rep. is better than the title of Morgan Byrne: wheth458, the court says, “what shall be considered er a patent issuing from the United States to a better title, the act does not define. It surely John Robertson, Jun., for land they had previ. does not mean that the bare possession of the ously disposed of, can prevail against Byrne, to defendant shall be so considered. We under- whom it was so disposed, and this disposition stand, then, that the meaning of the act is, that being recognized by the laws of Missouri as a when the plaintiff produces a confirmation of title on which to maintain an ejectment. Our the land to himself, he has made out his case, statute requires that in actions of ejectment an and will be entitled to recover unless the de examination be made into the successive gradafendant can show a better title. What in all tions of title, or the various evidences of title cases, or indeed what would be a better title in to land in a con between two persons claim. any case, need not be now decided."
ing the same land, whenever those gradations Titles are legal or equitable, predicated on or evidences are recognized by the law as legal that distinction known in many of the States of titles, or titles on which an ejectment may be the Union between law and equity. The former maintained or defended. This is all that is in. are subjects of examination in courts of law, sisted on in these cases. It is not asked to and the latter in courts of equity. In those maintain or defend an ejectment on an equitaStates, of which Missouri is one, legal titles are ble title, nor to look behind the patent as to the the subject of examination in courts of law, regularity of the steps from the first to the last, equitable in courts of equity, whether a title be ending with the issue of the patent; but to aslegal or equitable; that is, whether it be the certain who had the prior legal right, that right subject of examination in a court of law or on which an ejectment might be maintained or equity; the foundation of a proceeding in one defended. The plaintiffs in error feel confi. court or the other depends on the statute of the dent that on such examination their right will State where the tribunal is situated in which be found to be a legal and prior right; being the examination or proceeding is had. Robin- legal, it is examinable in a court of law, is the son v. Campbell, 3 Wheat. 212; Society for the foundation of a legal proceeding, is sufficient Propagation of the Gospel in Foreign Parts v. to maintain or defend an action of ejectment; Wheeler et al., 2 Gallis. 105. In Missouri the and, being prior in time, is more powerful in title of Morgan Byrne is the subject of exami. law and right, and must prevail against the nation, and the foundation of a proceeding in a right of the defendant in error, which, though court of law. It is a title on which an eject legal, is posterior in time. But if it should be ment, which by the law of Missouri is a legal said that the patent is the legal title, and the proceeding, may be maintained or defended, and location an equitable title, yet the statute of is therefore a legal title, and will be so con- Missouri making this equitable title examinable sidered in the courts of the United States, in a court of law, and giving it that dignity conformably to the decision in Robinson v. which authorizes an action of ejectment to be Campbell, 3 Wheat. 212. There is then before maintained or defended on it, the courts of the the court in these cases a legal title in both United States are bound to give it the same plaintiffs and defendant in error, and the in- dignity; and when they find it possessing the quiry again recurs which has the better title; effect ascribed to it by the laws of Missouri, to not which has the higher species of evidence give to it the like preference over the patent in of title, but which in point of justness of su- this case that the courts of Tennessee and the perior right should prevail. What has al. Supreme Court of the United States, following ready been said shows that Byrne, who owned those courts, give to the junior patent founded the land in New Madrid, relinquished the on an elder entry over an elder patent founded same to the United States and made the loca-on a junior entry. Polk's Lessee v. Wendall, tion, has a more just and superior right, in 9 Cranch, 87. other words, a better title to the land located The decision of the Supreme Court of the than John Robertson, Jun., original owner of United States that a patent is a title from its the land in New Madrid, who sold the same date, and conclusive against all those whose to Edward Robertson, Sen., under whom *rights do not commence previous to [*445 444"] Byrne claimed the same, who had no its emanation (7 Wheat. 212), implies that agency in the relinquishment, no interest in the there may be rights commencing anterior to the land relinquished, and no right to the land lo- patent. Is there a right, in these cases, comcated by Byrne anterior to the issuing of the mencing anterior to the date of the patent' patent. In other words, by Byrne's act the The location was anterior, and gives a right. land in dispute was severed from the domain Is this anterior right examinable in a court of of the United States, and by him appropriated law? The statute of Missouri makes it so exwith the consent of the United States, by him aminable; and being so, whenever a contest purchased for a good and valuable consideration arises between a patent and an anterior locafrom the United States, by him acquired in an tion, this location, whether a legal or an equiexchange with the United States. He gave i table right, must, in the construction of the