US SUPREME COURT DECISIONS

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 dignity 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 government, which by the patent passes to the grantee, and he is entitled to recover the possession in ejectment.

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 the legal title, and is no evidence of such title standing alone when opposed to a patent for the same land.

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 that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect.

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 McCunie 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 10 April, 1838, the defendants prosecuted writs of error to the Supreme Court, bills of exceptions having been sealed by the court.

The bills of exceptions show that on the trial of these cases, the plaintiff below read in evidence a copy of the patent from the United States to John Robertson, Jr., dated 17 June, 1820, for the tract of land mentioned in the above statements, which, reciting that chanrobles.com-red

Page 38 U. S. 437

John Robertson, Jr., had deposited in the General Land Office a certificate, numbered 192, of the Recorder of Land Titles at St. Louis, Missouri, whereby it appeared 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, Jr. was confirmed in his claim for 640 acres of land, being survey No. 2810, and section 32, township 50 north, and range 15 west of 5th principal meridian, and the United States granted to John Robertson, Jr., in fee, the tract of land described above. Also a deed from John Robertson, Jr., to Augustus H. Evans, dated 11 November, 1830, conveying the same tract of land to the said Evans in fee, expressly stipulating, however, against any warranty. Also a deed from Augustus H. Evans to George W. Broderick, the plaintiff below, now defendant in error, dated 7 June, 1830, conveying the same tract of land to the said Broderick in fee, and proved possession of the premises by the defendants below, at the commencement of the suits respectively, and here closed his testimony.

That the defendants below, now plaintiffs in error, read in evidence a transcript of a notice to the recorder of land title for the United States at St. Louis, taken from the records of the office of the recorder, given by John Robertson, Jr., which states that he claims 750 arpens of land in the Big Prairie on the ground of inhabitation and cultivation prior to and on 20 December, 1803, by and with the consent of the proper Spanish officer.

Also copy of proceedings had before the board of commissioners on land claims, on 11 July, 1811, taken from the minutes of the proceedings of the board for ascertaining and adjusting the titles and claims to lands, which shows that on the claim of John Robertson, Jr., for 750 arpens of land in the Big Prairie, the board granted to John Robertson, Jr., 200 arpens of land. Also a transcript of opinion, and report of the recorder of land titles of the United States at St. Louis, made 1 November, 1815, which, in connection with Act of Congress of 29 April, 1816, entitled, "An act for the confirmation of certain claims of land in the Western District of the State of Louisiana and in the Territory of Missouri" (see sec. 2 of this act), shows that the confirmation of 200 arpens, parcel of the claim of John Robertson, Jr., for 750 arpens of land in the Big Prairie, made by the board of commissioners aforesaid, was extended to 640 acres, and this quantity, 640 acres, was accordingly confirmed to him. Also a deed from John Robertson, Jr., to Edward Robertson, Sr. dated 29 May, 1809, conveying the said 750 arpens of land to the said Edward Robertson, Sr., in fee; reciting in same conveyance that 330 arpens of the said 750 arpens had been surveyed, and how, and specifying the manner of laying off the residue, and authorizing the said Edward Robertson to apply for and receive from government or the proper authorities, a patent in his own name for same, and covenanting on behalf of himself and his heirs, to warrant the title chanrobles.com-red

Page 38 U. S. 438

against all persons claiming under, through, or by the vendor. Also a deed from Edward Robertson, Sr., to Morgan Byrne, dated 30 October, 1813, conveying to the said Byrne in fee 300 arpens of land out of a tract of land the head right of John Robertson, Jr., situated and being in the Big Prairie, bounding the part conveyed, parcel of the 750 arpens above described, and covenanting for himself and his heirs to warrant and defend the title against all claims whatever. Also a deed from Edward Robertson, Sr., to Morgan Byrne, dated 11 September, 1816, conveying to the said Byrne in fee 250 arpens of land, part of the head right of John Robertson, Jr., of 750 arpens, situated in the Big Prairie, and containing a covenant for himself and heirs to warrant the title against all claims whatever. Also a copy of deed from Edward Robertson, Sr., to William Shelby, dated 29 October, 1816, conveying to the said Shelby in fee two hundred arpens of land bounding the same, parcel of the head right of John Robertson, Jr. (and parcel of the 750 arpens above described), and containing a covenant of general warranty. Also a copy of deed from William Shelby to Levi Grimes, dated 2 December, 1816, conveying to the said Grimes in fee the 200 arpens of land next above described and containing a covenant of general warranty.

Also a deed from Levi Grimes to Morgan Byrne, dated 26 February, 1817, conveying to the said Byrne in fee the 200 arpens of land next above described, and containing a special warranty.

The defendants also produced in evidence an extract from registry of relinquishments, in office of recorder of land titles for the United States at St. Louis, of lands materially injured by earthquakes, under the Act of Congress of 17 February, 1815, which shows that the confirmation aforesaid to John Robertson, Jr., for 640 acres, situated in the Big Prairie, was relinquished by Morgan Byrne, as the legal representative of John Robertson, Jr., and on such relinquishment the location certificate No. 448 issued.

Also a copy of certificate of location, dated September, 1818, and numbered 448, issued by Recorder of Land Titles of United States at St. Louis, which certifies that a tract of 640 acres of land situated in the Big Prairie was materially injured by earthquakes, and that in conformity with the provisions of the Act of Congress of 17 February, 1815, the said John Robertson, Jr. (reciting that he appears from the books of his office, recorder of land titles of United States, to be the owner) or his legal representatives was entitled to locate 640 acres of land on any of the public lands, &c. Also a copy of the location under the foregoing certificate of location, made 8 October, 1818, which shows that Morgan Byrne, as the legal representative of John Robertson, Jr., entered and located 640 acres of land by virtue of the certificate of location, commonly called a 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, range 15 west of chanrobles.com-red

Page 38 U. S. 439

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, Jr., of claim for 330 arpens and proceedings on same had before the board of commissioners of land claims on 24 March, 1806, and 15 August, 1811, which show that John Robertson, Jr., filed a notice of claim for 330 arpens, 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 arpens, made by one Joseph Story at request of John Robertson, Jr. (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 24 March, 1806, grant to claimant 750 arpens, and on 15 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 1 November, 1815, which, in connection with the Act of Congress of 29 April, 1816, before referred to, shows that the claim of John Robertson for 330 arpens was confirmed to him, and 330 arpens accordingly granted. Also a copy of certificate of location in favor of John Robertson, Jr., or his legal representatives, dated 18 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 arpens 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 17 February, 1815, the said John Robertson, Jr., 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 arpens of land, &c.

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 17 February, 1815, which shows that the confirmation aforesaid, of 330 arpens to John Robertson, Jr., 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 or New Madrid location made by Morgan

Page 38 U. S. 440

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 divest 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. chanrobles.com-red

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