By the Court.
Lyon, J.,delivering the opinion.
The only question in this case, as it has been argued be*281fore us, is: Are the certificates, issued by the receiver from the land office, for the government price or purchase money, for the land in question, in the State of Alabama, sufficient evidence of title to enable the holder thereof to "recover and hold" the lands according to the laws of that State? If they are, the plaintiff, Coulter, is not entitled to recover, as it is clear that the defendant has either caused to be made, or offered to do so within time, titles to the plaintiffs under these certificates. We think that these certificates vest the title to the land in the holder, so as to- enable him 'to sue for, recover,. and hold the lands under the laws of Alabama. And that the offer of the defendant, Moore, to make, or cause to be made, titles to the plaintiff under the same, was a sufficient compliance with the terms of his agreement to defeat the plaintiff’s right to recover the two thousand dollars sued for. By an Act of the State of Alabama, of December 24th, 1812, it is enacted: “That all certificates, issued in pursuance of any Act of Congress, by any of the boards of commissioners, register of a land office, or any other person duly authorized to issue such certificates upon any warrant, or order of survey, or to any donation or preemption claimants for any lands in this Territory, shall be taken and received as vesting a full, complete and legal title in the person in whose favor the said certificate is. granted to the lands therein mentioned, and his, her or their assigns, so far as to enable the holder of such certificates to maintain any action thereon, and the same shall be received in evidence as such in any Court in this Territory.” Toidmm’s Dig. Laws of Ala. 248. This Act is substantially incorporated in the Code of Alabama, and is, so- far as we have been able to see, now the law of that State. See §2292, Alabama Code, p. 426; Although, these certificates are not within the words of these Acts, yet they are manifestly within their sense, and must be judged of accordingly. Without going through the various Acts of Congress, to see what are the duties and powers of the receiver, and the legal effect of these certificates, it will be sufficient to dispose of this question to refer to an adjudication of the Supreme-Court of the United States, in which the duties and powers of that officer, and the effect of these certificates as evidence of titles are pretty fully stated. I refer to the case of Carroll vs. Safford, 3 How. S. C. 441. The lands in controversy in that case were in a *282like situation to these in this case; that is, the lands had been entered, paid for and certificates given by the receiver, as in this case. Afterwards, and before patents issued, taxes were assessed on the lands, and they were sold for the payment. On a bill filed to set aside this tax-sale, on the ground that the lands were not subject to assessment of taxes, as the titles were in the Government and not in the holder of the certificate, th'e Court held, that, “When the land was purchased and paid -for, it was no longer the property of the United States, but of the purchaser. He held for it a final certificate, which could no more be cancelled by the United States than a patent.” “It .is said that the fee is not in the purchaser, but in the United States until the patent shall be issued. This is so technically at law, but not in equity.” “The land in the hands of the purchaser is real estate, descends to his heirs. Now, why can not such property be taxed by its proper denomination, as real estate? In the words of the statute: as lands owned by non-residents?” Again— “Now, lands which have been sold by the United States, can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are concerned, they are protected under the patent certificate as fully as under the patent. Suppose the officers of the Government had sold a tract of land, received the purchase money and issued a patent certificate — can. it be contended that they could sell it again and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. ‘When sold, the Government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser, and any second purchaser would take the land charged with the trust.” — • “The government has no right to refuse a patent to- a bona fide purchaser of land offered for sale.” “The land should be estimated at its full value as the owner having paid for it, is subjected to no additional charge for the obtainment' of the patent.” It appears, therefore, that the holder of the certificate is in fact the owner of the land mentioned, and if he has not the legal title technically, his is a perfect equity, that, in this State at least, without the aid of such a statute as that of Alabama, is sufficient to support a recovery in ejectment, as has constantly been held by this Court, from Pitts & Billiard, 3 Kelly, 5, down to the present time.
*283As the verdict of the jury was for the defendant, and in accordance with our conviction of the rights of the parties upon the facts, the judgment of the Court below, in granting a new trial, must be reversed.
There is another view of this case that has been neither argued by counsel nor considered by this Court, but to which I desire to call attention of those interested in the question:
The facts show that the parties had exchanged lands, or agreed to do so. The defendant agreeing to give this tract in Alabama for one that the plaintiff owned in Georgia somewhere, perhaps, and this agreement was given by. the defendant to the plaintiff as an assurance that he would properly convey the same to- him, in execution of that contract, precisely as a bond for titles is given, and for the. same purposes. In this sense — and what other can the transaction have — what is the two thousand dollars specified but a penalty? And how can it be recovered in this form, when it can not be in any other? Is not the plaintiff’s damages in this as it is in all other like cases — what he has actually sustained and no more — and that is the value of the land in case no title is or can be made? I merely throw out these questions as suggestions of my own, which, in my opinion, must have controlled the plaintiff’s right to recover, had we come to a different conclusion on the case as argued.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the' ground that the Court erred in granting a new trial in this case.