The seal of one partner to a deed, with the assent of the copartner, will bind the firm.

From these considerations we think the Circuit Court did not err in receiving the mortgage 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 an Act of the Legislature of Rhode Island passed at the January session, 1834, entitled "An Act to prevent fraud in the transfer of personal property," it is provided that no mortgage on personal property, except as between the parties, shall be valid; unless possession accompany the deed, or it be recorded in the office of the town clerk. In the second section it is made the duty of the clerk to record such mortgages in a book kept for that purpose.

It appears from the evidence that the town clerk kept a book in his office in which he recorded all mortgages of personal property; and all other mortgages which included real estate, or real estate and personal, were recorded in other books kept in said office, in one of which this mortgage was recorded. And the question is, whether such a registration is sufficient under the statute.

The object of the recording act is to give notice to subsequent purchasers. The statute undoubtedly requires the clerk to record mortgages for personal property only, in a book kept for that purpose. This being the requirement of the law, to which the clerk strictly conformed, there could be no uncertainty in searching the record for a personal mortgage. But it seems that the statute did not expressly provide in what book a mortgage like the one under consideration, for both real and personal property, should be recorded. And it appears that it was the usage of the office to record such mortgages in the book which contains mortgages for real estate.

Now, if this be insufficient, nothing short of recording such a deed in both books could be held a compliance with the statute.

And can this be necessary? The conveyance of the personal and real property is so blended in the mortgage as to be inseparable. To require a double record would seem to be an unreasonable construction of the statute, as it cannot be necessary to effectuate its object. Both records are kept in the same office, and by the same person; who performs the duties of the office, and must always be well acquainted with its usage. Any inquiry of the clerk for the record of a mortgage like the one under consideration, would as certainly lead to it, under the usage, as if it were recorded in both books.

If this mortgage had been recorded in the book for personal mortgages, the same strictness as now contended for might be urged 435*] against such record book, as it would not then be kept exclusively for personal mortgages.

We think that this mortgage has been recorded in a book kept, though not exclusively, for the purpose of recording mortgages which convey real and personal property; and that it is within a fair construction of the statute.

We think also that the Circuit Court did not err in deciding that the certificate of the clerk

United States patent for public lands conclusive in an action at law-presumption in favor of judgment of circuit court.

The plaintiff in error had exhibited, in an action Instituted against him in the Circuit Court of Missouri, evidence conducing to prove that a patent from the United States, under which the plaintiff in the ejectment, the defendant in error, claimed the land, had been improperly granted by the government of the United States, and that the title to the land was in him. Held, that in an action at law the patent from the United States for part of the public lands is conclusive. If those who claim to hold the land against the patent can show that it issued by mistake, then the equity side of the Circuit Court is the proper forum; and a bill in chancery is the proper remedy to investigate the equities of the parties.

Congress has the sole power to declare the dig nity and effect of titles emanating from the United States, and the whole legislation of the government in reference to the public lands declares the patent to be the superior and conclusive evidence of legal title. Until it issues the fee is in the govgrantee, and he is entitled to recover the possesernment; which, by the patent, passes to the sion in ejectment.

In aid of a patent, and dating the legal title from The practice of giving in evidence a special entry the date of the entry, is familiar in some of the States, and especially in Tennessee. Yet the entry can only come in aid of the legal title, and is no to a patent for the same land. evidence of such title standing alone, when opposed

The presumption is that the judgment of the Circuit Court is proper, and it lies on the plaintiff in error to show the contrary.

When the title to the public land has passed out of the United States by conflicting patents, there can be no objection to the practice adopted by the courts of a State to give effect to the better right, in any form of remedy the Legislature or courts of the State may prescribe.

No doubt is entertained of the power of the States to pass laws authorizing purchasers of lands from the United States to prosecute actions of ejectment upon certificates of purchase, against trespassers on the lands purchased; but it is denied cates of purchase of equal dignity with a patent. that the States have any power to declare certifiCongress alone can give them such effect.

IN to the Court of the United

States for the District of Missouri. This was an action of ejectment for a tract of land in the State of Missouri, instituted by George W. Broderick against Bagnell, the defendant, the tenant in possession; and in the progress of the cause, Morgan Byrne, the landlord, was made co-defendant, and he dying, his executors were substituted.

Other actions of ejectment were at the same time instituted by George W. Broderick, for parts of the said tract in the possession of M'Cunie and of Sampson; and the executors of Morgan Byrne became in the same manner co-defendants in the cases. A verdict, in conformity to the opinion of the Circuit Court, having been given for the plaintiff in each of the cases, on the 10th of April, 1838, the defendants prosecuted writs of error to the

New Madrid certificate, issued by the recorder of land titles of the United States at St. Louis, dated September, 1818, and numbered 448, so as to include section No. 32, township 50 north, 439*] range 15 west of *5th principal meridian (the same premises in dispute); and here the defendants below closed their testimony. The plaintiff below then read in evidence a copy of notice by John Robertson, Jun., of claim for 330 arpents, and proceedings on same had before the board of commissioners of land claims, on 24th March, 1806, and 15th August, 1811, which show that John Robertson, Jun., filed a notice of claim for 330 arpents, situated in the district of New Madrid, under the second section of the Act of Congress of March, 1805, accompanied by a plat of survey of 330 arpents, made by one Joseph Story, at request of John Robertson, Jun. (as the same purports), who, as the survey recites, claimed the same as part of his settlement-right, by virtue of the second section of the Act of Congress of March, 1805; that the board of commissioners, on the 24th March, 1806, grant to claimant 750 arpents, and on the 15th August, 1811, reject the claim entirely, saying the claim ought not to be granted. Also, a transcript of opinion, and report of the recorder of land titles of United States, at St. Louis, made 1st November, 1815, which, in connection with the Act of Congress of 29th April, 1816, before referred to, shows that the claim of John Robertson for 330 arpents, was confirmed to him, and 330 arpents accordingly granted. Also, a copy of certificate of location in favor of John Robertson, Jun., or his legal representatives, dated 18th September, 1818, and numbered 447, issued by the recorder of land titles of the United States, at St. Louis, which certifies that a tract of 330 arpents of land situated on lake St. Marie, had been materially injured by earthquakes, and that in conformity with the provisions of the Act of Congress of 17th February, 1815, the said John Robertson, Jun., reciting that he appears from the books of his office, recorder of land titles of the United States, to be the owner, or his legal representatives, was entitled to locate 330 arpents of land, etc.

The defendants below then read in evidence an extract from registry of relinquishments, in the office of recorder of land titles of the United States at St. Louis, of lands materially injured by earthquakes, under the Act of Congress of 17th February, 1815, which shows that the confirmation aforesaid of 330 arpents to John Robertson, Jun., was relinquished by James Tanner, as his legal representative, and that on such relinquishment the location certificate No. 447, issued. Also, a certificate of the recorder of land titles aforesaid, that from entries made in the books of his office of New Madrid location certificates issued, the certificate of location No. 447 was delivered to one Jacoby, for James Tanner, and certificate of location No. 448 was delivered to Morgan Byrne, and proved that the premises in dispute in each case, was of the value of three thousand dollars; which closed, and was all the evidence given in the causes.

Upon the case made, the defendants below moved the court to instruct the jury as follows: 1. That the entry of New Madrid location 440*] made by Morgan Byrne in his own

name, as given in evidence in these cases, is proof of legal title to the land, and is a sufficient defense against all persons who do not show a better legal title to the same land.

2. That the patent, a copy of which has been given in evidence by the plaintiff, did not vest in the patentee any better legal right to the land in question than he had before the date thereof, as against the defendants claiming the same land adversely by other title.

3. That after the entry and before the patent, Morgan Byrne had a legal title to the land in question, sufficient to enable him to prosecute or defend an action of ejectment therefor; and that the issuing of the patent could not devest that title.

4. That if the jury believe the patent, a copy of which has been offered in evidence by the plaintiff, issued on the location made by Morgan Byrne, and shown in evidence on the part of the defendants in these cases, the patent is not such title as will avail against the location.

All which instructions the court refused; to which refusal exceptions were taken. Mr. Beverly Allen submitted a printed argument for the plaintiffs in error.

The errors assigned are, besides the general assignment, four, answering respectively to the refusal of the court to give the four instructions prayed; and a fifth, that the judgment against the executors of Byrne was de bonis propriis, whereas, it should have been de bonis testatoris.

It appears from the testimony in the three cases that Morgan Byrne, the landlord and testator, was the owner of the land in New Madrid which was injured by earthquakes; that he applied for and obtained the certificate of location No. 448, relinquishing his land in New Madrid, in lieu of which this certificate issued by the United States, and was located in his own name on the tract of land in dispute, in virtue of certificate No. 448; that upon his location, a patent certificate issued, and on this certificate a patent issued to John Robertson, Jun., the same person who once owned the land in New Madrid relinquished by Byrne and under whom Byrne claimed that land. That the plaintiff derives title to the land in dispute from John Robertson, Jun., by deeds executed since the issue of the patent; and being such owner, instituted these actions of ejectment to recover the possession of the land located as aforesaid by Byrne.

The question is, whether in such a case and on such a statement of facts, John Robertson, Jun., the patentee, or George W. Broderick, his assignee, can recover against Morgan Byrne, the locator of the land, or his representatives. The plaintiffs in error contend that the patentee and his assignee cannot, and rely on the following grounds:

1. The title of Morgan Byrne was sufficient to maintain an action of ejectment. [*441 See Revised Code of Missouri of 1825, page 343, sec. 2d, in force, at commencement of these suits, and Revised Code of Missouri of 1835,

1.-"Sec. 2. Be it further enacted, that any person claiming lands or tenements, by virtue of any pre-emption right. New Madrid location, entry with the register and receiver, confirmation by the board of commissioners of land claims, for the ter

page 234, 235, sec. 1, 2, and 9, in force at trial of same.1

2. That whatever was sufficient to maintain, must be sufficient to defend an action of ejectment. This is a corollary from the first ground. If these two points are well taken, the first special error is well assigned.

3. That the patent is not, in this case, and on this statement of facts, the "better title" contemplated by the acts of Assembly referred to. As to the first point, argument cannot elucidate the words of the law. Its meaning is evident, and the first rule of construction is not to construe that which needs no construction.

As to the second point. The correctness of this is necessarily implied in the language and spirit of the law. It is a sequence from the first. If the title of Byrne was such as would enable him to maintain an action of ejectment 442*] and recover possession, it would be absurd not to hold it to be sufficient to maintain that possession when recovered.

As to the third point. Here the inquiry arises what is the meaning of the phrase "better title" in the acts of Assembly referred to? A title is thus defined by Lord Coke, 1 Inst. 345: "Titulus est justa causa possidenti id quod nostrum est." Or by Blackstone (Black. Com. Vol. II., p. 195): "It is the means whereby the owner of lands hath the just possession of his property." What this justa causa or "means" is, must, in all countries, depend on the law of the country where the subject of the title is situated. The United States v. Crosby, 7 Cranch, 115; Clark v. Graham, 6 Wheat. 567; Kerr v. Devisees of Moon, 9 Wheat. 565; M'Cormick et al. v. Sullivan et al. 10 Wheat. 192. The justa causa or "means" is nothing more than those indicia of ownership which are recognized by the laws of the country as evidence of right. Title is by descent or purchase. The indicia of the former is heirship, of the latter any of those modes of acquiring property which are recognized by law. The laws of Missouri, where lies the property in dispute, recognize the entry or location of land, as in this case, to be a mode of acquiring property, and an ev idence of right in the locator. They also recognize a patent to be a mode of acquiring propritory of Missouri, or by the recorder of land titles, or by concession not exceeding one league square, or by settlement right, or other right, where such right or concession has been confirmed by the commissioners aforesaid, or recorder aforesaid, or by any act of Congress: or where the same is held by deed, patent, entry, warrant or survey, being confirmed as aforesaid; or by any French or Spanish grant, warrant, or order of survey, which prior to the tenth day of March, one thousand eight hundred and four, had been surveyed by proper authority, under the French or Spanish governments, and recorded according to the custom and usages of the country, although such person may not be in the actual possession; or if the same shall have been actually surveyed, by authority of the United States, since the tenth day of March, one thousand eight hundred and four, or by any proper officer, under the French or Spanish governments, prior to the said tenth day of March, one thousand eight hundred and four, such person shall, and may maintain actions of ejectment or trespass, in any court having jurisdiction thereof, against any person not having a better title and in all actions of ejectment, where a verdict shall be found for the plaintiff, the jury shall also find damages for the mesne profits, up to the time of rendering the verdict: Provided, however, That mesne profits shall not be recovered for any time prior to the commencement of the sult, unless the plaintiff shall prove that the defendant had knowledge of his

|

erty, and an evidence of right. We have, then, an indicium of ownership in Morgan Byrne, and an indicium of ownership in John Robertson, Jun.: and these indicia of ownership are considered by the laws of Missouri such evidence of right as will enable either to maintain or defend an action of ejectment. Morgan Byrne had, in this case, the possession, the right of possession, and the right of property, which together constitute a completely good title, denominated a double_right_jus duplicatum, or droit droit. Black Com. Vol. II., p. 199. In him was the juris et seisina conjunctio which constitute the title completely legal or a perfect title. Kent's Com. Lec. 65.

It may be admitted that a patent is considered in law a higher species of evidence of right, but that can avail nothing in this case, where the evidence of right in the other party is sufficient to maintain or defend the action of ejectment. The words of the law are not "against any person not having a title thereto, proved by a higher species of evidence" but "against any person not having a better title thereto;" that is, an indicium of ownership recognized by the law as evidence of a better right. It then necessarily follows that in the construction of the words "better title" we must look not at the species of evidence of the title, but to the justness of the title.

On looking into the titles of these two contending claimants, the patentee and the locator, we find they both have the same origin: they both originate in the relinquishment made by Morgan Byrne and the certificate of location No. 448; and now, which of the two has the better title, or more just title to the land located under the certificate-Morgan Byrne, whose land was relinquished, or John Robertson, Jun., who had no interest in the land relinquished; Byrne, who was interested in and made [*443 the location, or Robertson, Jun., who had no interest therein, was no party to it, and who had previously sold and conveyed to him, under whom Byrne claimed the land thus relinquished, and in virtue of which relinquishment Byrne made that location? Seeing, then, both to have those evidences of right recognized by the law to be sufficient to maintain or defend an ejectclaim; and then only from the time of such knowledge coming from the defendant."

1.-"Sec. 1. The action of ejectment may be maintained in all cases when the plaintiff is legally entitled to the possession of the premises.

"Sec. 2. The action of ejectment may also be maintained in all cases where the plaintiff claims possession of the premises, against any person not having a better title thereto, under or by virtue of

First, An entry with the register and receiver of any land-office of the United States, or with the commissioner of the general land-office thereof; or, Second, A pre-emption right under the laws of the United States; or,

Third, A New Madrid location; or,

Fourth, A confirmation made under the laws of the United States; or,

Fifth, A French or Spanish grant, warrant, or order of survey, surveyed by proper authority under the French or Spanish governments, and recorded according to the usages of the country, prior to the tenth day of March, eighteen hundred and four.

"Sec. 9. To entitle the plaintiff to recover, it shall be sufficient for him to show that, at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff had such right to the possession thereof as is declared by this act to be sufficient to maintain the action."

There has been no adjudication by the Supreme Court of Missouri, what is meant by the words "better title." In the case of The Administrators of Janis v. Guerno, 4 Miss. Rep. 458, the court says, "what shall be considered a better title, the act does not define. It surely does not mean that the bare possession of the defendant shall be so considered. We understand, then, that the meaning of the act is, that when the plaintiff produces a confirmation of the land to himself, he has made out his case, and will be entitled to recover unless the defendant can show a better title. What in all cases, or indeed what would be a better title in any case, need not be now decided."

Titles are legal or equitable, predicated on that distinction known in many of the States of the Union between law and equity. The former are subjects of examination in courts of law, and the latter in courts of equity. In those States, of which Missouri is one, legal titles are the subject of examination in courts of law, equitable in courts of equity, whether a title be legal or equitable; that is, whether it be the subject of examination in a court of law or equity; the foundation of a proceeding in one court or the other depends on the statute of the State where the tribunal is situated in which the examination or proceeding is had. Robinson v. Campbell, 3 Wheat. 212; Society for the Propagation of the Gospel in Foreign Parts v. Wheeler et al., 2 Gallis. 105. In Missouri the title of Morgan Byrne is the subject of examination, and the foundation of a proceeding in a court of law. It is a title on which an ejectment, which by the law of Missouri is a legal proceeding, may be maintained or defended, and is therefore a legal title, and will be so considered in the courts of the United States, conformably to the decision in Robinson v. Campbell, 3 Wheat. 212. There is then before the court in these cases a legal title in both plaintiffs and defendant in error, and the inquiry again recurs which has the better title; not which has the higher species of evidence of title, but which in point of justness of superior right should prevail. What has al ready been said shows that Byrne, who owned the land in New Madrid, relinquished the same to the United States and made the location, has a more just and superior right, in other words, a better title to the land located than John Robertson, Jun., original owner of the land in New Madrid, who sold the same to Edward Robertson, Sen., under whom 444*] Byrne claimed the same, who had no agency in the relinquishment, no interest in the land relinquished, and no right to the land located by Byrne anterior to the issuing of the patent. In other words, by Byrne's act the land in dispute was severed from the domain of the United States, and by him appropriated with the consent of the United States, by him purchased for a good and valuable consideration from the United States, by him acquired in an exchange with the United States. He gave

United States had no title to it at the date of the patent. See Act of Congress, 17 Feb. 1815, sec. 2, proviso 2. The title was in Byrne, and that title was such as enabled Byrne to institute in the courts of law of Mis souri an action of ejectment; and it is submitted, whether under these circumstances it can be said that the title of John Robertson, Jun., is better than the title of Morgan Byrne: whether a patent issuing from the United States to John Robertson, Jun., for land they had previously disposed of, can prevail against Byrne, to whom it was so disposed, and this disposition being recognized by the laws of Missouri as a title on which to maintain an ejectment. Our statute requires that in actions of ejectment an examination be made into the successive gradations of title, or the various evidences of title to land in a contest between two persons claiming the same land, whenever those gradations or evidences are recognized by the law as legal titles, or titles on which an ejectment may be maintained or defended. This is all that is insisted on in these cases. It is not asked to maintain or defend an ejectment on an equitable title, nor to look behind the patent as to the regularity of the steps from the first to the last, ending with the issue of the patent; but to ascertain who had the prior legal right, that right on which an ejectment might be maintained or defended. The plaintiffs in error feel confident that on such examination their right will be found to be a legal and prior right; being legal, it is examinable in a court of law, is the foundation of a legal proceeding, is sufficient to maintain or defend an action of ejectment; and, being prior in time, is more powerful in law and right, and must prevail against the right of the defendant in error, which, though legal, is posterior in time. But if it should be said that the patent is the legal title, and the location an equitable title, yet the statute of Missouri making this equitable title examinable in a court of law, and giving it that dignity which authorizes an action of ejectment to be maintained or defended on it, the courts of the United States are bound to give it the same dignity; and when they find it possessing the effect ascribed to it by the laws of Missouri, to give to it the like preference over the patent in this case that the courts of Tennessee and the Supreme Court of the United States, following those courts, give to the junior patent founded on an elder entry over an elder patent founded on a junior entry. Polk's Lessee v. Wendall, 9 Cranch, 87.

The decision of the Supreme Court of the United States that a patent is a title from its date, and conclusive against all those whose *rights do not commence previous to [*445 its emanation (7 Wheat. 212), implies that there may be rights commencing anterior to the patent. Is there a right, in these cases, commencing anterior to the date of the patent' The location was anterior, and gives a right. Is this anterior right examinable in a court of law? The statute of Missouri makes it so examinable; and being so, whenever a contest arises between a patent and an anterior location, this location, whether a legal or an equitable right, must, in the construction of the