I dissent. The plaintiff has purchased and paid for the title of the United States, and also that of the state; yet it is held that the defendant, although he has never connected himself with either of the paramount sources of title, and does not possess the necessary qualifications to purchase the lands in controversy, may prevail in an action of ejectment. The misfortune of the plaintiff seems to be, — according to the theory of defendant and the decision of the majority,—that when the United States sold it had no title, and when the state sold it had no title to convey; and therefore, during the time the game of battle-door and shuttlecock for this land was going on between the officers of the land departments of the two governments, the plaintiff and its grantors gambled their money *108in vain. I venture to say that if the grantors had been individuals instead of governments, there would be no question that a grant, bargain, and sale deed would convey to their grantees the title held by the grantors at the time of the grant and that afterward acquired; and that as against an intruder—one who did not have even a contract of purchase and sale from either—■ the grantees would prevail in ejectment. For this reason, and for other reasons stated in the former decision of this court affirming the decision of the court below, I am unable to agree with the majority of the court in their final conclusion.
On the 4th of February, 1890, Mr. Chief Justice Beatty rendered the following concurring opinion:—