dissenting. The only difference in the questions presented in these three cases is, that the bill in Mo. 1, Rose v. Buckland, sets forth facts sufficient to raise questions upon the statute of limitations, and constructive notice of title by recording. The others do neither, as to the first purchaser from the common vendors, the Cloughs, but all, aver possessions and improvements, and constructive notice from these facts.
We have gone into the question of the character of title and possession necessary to a defence under the statute of limitations and its construction, in Woodward v. Blanchard, at this term, 16 Ills. R. 424, and need not repeat the arguments or authorities here again. This title falls within the reasoning, arguments and conclusion of that case, and is supported by the cases referred to in it. The only difference which we need notice is, that there, the statute was set up as a shield, and here, it is, by the bill, asked to be made a sword, or so in part, for compelling a quit-claim under decree for quieting title. We need only remark upon this ground of equity, that, standing alone, in the bill, it should have been dismissed, because it will constitute a good defence, if proven to the action of ejectment, sought to be enjoined. Though we may consider it in connection with other grounds of equity' in the bill, and decree upon the whole, if sustained, as they are admitted by the demuTrer ; yet the statute of limitations, alone, would be no ground for retaining the bill for purposes of relief. So, in any point of view, we deem it very unimportant to discuss it.
We have, in like manner, reviewed and discussed the question of implied notice by the recording acts, and need only to refer to the case of Bourland v. The County of Peoria et al., 16 Ill. R. 538. The recording in No. 1 was constructive notice, and is sanctioned in Bourland v. The County of Peoria, and cases there referred to, and others, and all the usual modes of actual and constructive notice sanctioned by courts of equity may still be shown, to charge the adverse title as not innocent. These bills all aver actual possession, and the making of improvements, at the time of the sales and conveyances from David Clough, on the 3rd July, and Mary Clough, on the 22nd July, 1852, to Paul Morrell. These are sufficient notice to put him upon inquiry. These were continued, and the recording of all the deeds under adverse claim of title added to them, (except that of David Clough to Amos Whittemore, of 25th Nov., 1840,. and from him to Wintz,) (see 3 Sugd. Vend, and Purch. 469-, and references,) before Bestor filed his deed for record, and before Buckland purchased. We think the facts and circumstances averred sufficient to put him and all prior grantors, under whom he claims, upon inquiry of the tenant or occupant in possession. This view must bring us to the consideration of the two titles, and a determination as to which is best in equity.
The objections to the title are, fraud on the part of Amos Whittemore, for which we see no foundation in the bills, and that Whittemore’s contracts and conveyance of the land were void under the acts of Congress. The title emanated in the' bounty of the government to the ancestor, Daniel Clough, for military services as a soldier of the revolutionary and late war of 1812. See act of Congress, 24 Dec., 1811; 2 Story L. U. S., p. 1205, Sec. 2; p. 1208, Sec. 12. The act of May 6, 1812, set apart lands to satisfy these bounties, limited applications for warrants to five years, and declared that the bounty land warrants should be issued only in the names of the persons entitled, and that such warrants should not be assignable. 2 Story L. U. S., p. 1243, Sec. 1, 2.
By the 4th section, page 1244, it is provided, “ that no claim for the military land bounties aforesaid shall be assignable or transferable in any manner whatever, until after a patent shall have been granted in the manner aforesaid. All sales, mortgages, contracts or agreements, of any nature whatever, made prior thereto, for the purpose, or with intent of alienating, pledging or mortgaging any such claim, are hereby declared, and shall be held, null and void ; nor shall any tract of land, granted as aforesaid, be liable to be taken in execution or sold on account of any such sale, mortgage, contract or agreement, or on account of any debt contracted prior to the date of the patent, either by the person originally entitled to the land, or by his heirs or legal representatives, or by virtue of any process or suit at law, or judgment of court, against a person entitled to receive his patent as aforesaid.”
The act of 1816 renews the bounty in section three, and in section five provides,<£ that no transfer of land granted in virtue of this or any other law, giving bounties of land,” ££ shall be valid, unless the contract or agreement therefor, or letter of attorney, giving power to sell or convey, shall have been executed, after the patents shall be issued and delivered to the persons entitled thereto.” 3 Story Laws U. S., p. 1563. The time for issuing and locating warrants extended to 1819. 3 Story L. U. S., p. 1661. These powers were extended, and revived and extended, from time to time. See 3 Story L. U. S., p. 1664, Sec. 1; p. 1721, Secs. 1, 2; p. 1969, Sec. 1; 4 Story L. U. S., p. 2410, Sec. 1, Caps. 279, 280; 5 Story L. U. S., p. 2873, Secs. 1, 2. This last act was dated in 1842, and again extended the time for issuing, and allowed a location of them upon any land subject to entry, and provided “ that the certificate of location obtained under the provisions of this act shall not be assignable, but the patent shall in all cases issue in the name of the person originally entitled to the bounty land, or to his heirs or legal representatives.” How far do these provisions affect the complainants’ titles in equity? The Cloughs had only an equitable claim upon the government for land, and which was, by the receipt and deed, sufficiently described and assigned, for a valuable consideration; and so, with the power of attorney, to operate on such an interest. This was settled, in principle, in Fisher v. Fields, 10 John. R. 502, in a strongly analagous case.
The strongest ground assumed in the argument is, that by these several acts, the contract, sale and conveyance being made before the patent issued, were null and void. Such a position demands very grave and serious consideration, before I can sanction it. State governments are supposed to represent and exercise all the general powers of government, not delegated to the United States, nor prohibited to them by the constitutions of the United States, or the particular State. The government of the United States is one of special delegated authority, and is confined to those powers expressly so delegated, and such implied powers as are necessary to the exercise of those delegated, (Article 10 of amendments;) the remainder not prohibited, are reserved expressly to the States or the people. And the enumeration in the constitution is not to be construed as denying or disparaging the remaining powers of government. Article 9. In suits at common law, for values above twenty dollars, the trial by jury, and the rules of the common law are preserved in the courts of the United States. Article 7. The articles, from one to six, inclusive of amendments, contain a bill of declarative rights, restrictive of the powers granted to the United States.
Article four of constitution, sections one and two, declare in like manner genéral rights; and clauses two and three of section two, prohibit certain action of the States, to defeat the rights therein declared. So section three, clause one, declares further rights and restrictions upon the power; and section four is a declaration of rights, and a delegation of power to secure them.
But the great mass of powers delegated to the general government are found in the 8th section of the 1st article; and the general explanatory restriction upon the powers granted is found in the 9th section. But no where in the whole instrument have I found a section or clause authorizing local territorial legislation upon contracts generally, or upon the common domestic and business relations of citizens of the States, or United States, within the States, unless it be over the territory of the District of Columbia, and such places as are purchased with the consent of the State or States, in which they are situated, for forts, magazines, arsenals, dock yards and other needful buildings, as provided in clause seventeen of section eight.
The 18th clause gives the power to make all necessary and proper laws to carry into execution the powers delegated; and amongst them we find (article 4, section 3, clause 2,) power to dispose of, and make all needful rules and regulations respecting the territory and other property belonging to the United States, but not to be construed to the prejudice of the claims of the United States or any particular State; and, also, that the constitution and treaties made under its authority, and laws made in pursuance of it, are the supreme law of the land. We are bound by them and will obey them.
But I claim the right, in adjudicating upon the rights of parties, before me, and in cases within the jurisdiction of the court, to examine whether the law of Congress, under which either party may claim or defend, is in pursuance of, conformable to, and within, the express or implied powers granted. After thus presenting a general outline of the delegated powers, and the restrictions and explanations of them, with those declared to be reserved and secured to the States and people, I come to the examination of the acts of Congress, upon the rights of the parties in the case before us. It is a new phase, and, I am persuaded, a rare instance of the claim and exercise of such power, as being within those expressed or implied. A part of these acts I am unable to distinguish away, but feel compelled to understand the intention of the makers as asserting the power and right to legislate upon that class of contracts, &c., debts, judgments and executions, which respect to bounty land claims, and bounty lands after patent issued; and under the best and soundest view I am able to take of the constitution, its objects and intent, I am constrained to say, that the subject matter of these provisions is not included in, or contemplated, or intended to be within, the expressed or implied powers. Congress, I conceive, has no power to legislate upon the subject of contracts, rights, property, real or personal, laws of descent or distribution, the domestic relations, or intercourse of the citizens in their social or business relations; nop to repeal, alter, or change the principles of the common law, in its most comprehensive sense, as including the commercial, ecclesiastical and civil law, as it respects their relation to these transactions, relations and property, or their appropriate remedies. Commonwealth v. Murray, 4 Binn. R. 495, per Breckenridge, J.
Congress has the power to sell or dispose of the public lands, and may pass such laws and make such rules and regulations as are found necessary and are deemed judicious to accomplish this object, and to secure the title to the purchaser or donee. But the contract, sale, or conveyance of the land, when made, is interpreted in its terms, and its obligations ascertained by the rules and principles of the general or common law of the place of the contract, or the situs of the property, as would be done on a similar contract between private persons. 3 Story on Const. 200, Sec. 1324; United States v. Barker, 12 Wheat. R. 559; Sergeant’s Const. Law 290.
Congress may provide, as in these acts, that they will recognize no purchaser or assignee of an equitable claim for bounty land, nor the rights of any save the donee or his heirs, &c., but will issue the patent to him or them alone. But when they undertake to go a step beyond this, and not only refuse to recognize such purchase or assignment as giving any right to demand the land or patent, but also to provide and declare such contract, purchase, assignment, and all agreements for such equity or land void as between the parties to it, although such agreement is lawful, valid, binding, and enforcible by the laws of the State where it is made or the land lies, as between the parties to it, I am constrained to regard it as an unauthorized and unconstitutional invasion of State sovereignty, and such acts are null and void. Under the laws of Illinois this contract for an equitable claim on the United States for a quarter section of bounty land was lawful. When made between parties capable of contracting, for a valuable consideration, and without fraud, it is capable of being enforced by specific conveyance, or damages may be recovered for its breach. I am not advised that it was void by the laws of N. Hampshire, where made, and it may be enforced as made for land, or an equitable interest in the land, within the jurisdiction of this State. A power in a landholder—and it is in such light as a trustee, that I regard the United States in relation to the power to sell and dispose of this land under the constitution—to exempt the land on sale or donation from the general or special authority and jurisdiction of the laws of the State is. not recognized, conceded, or compatible with political sovereignty. Nor can it find any sanction or place in the constitution of the United States. Neither is a power to make a particular disposition of it by entailment, or. will, any exception to the general rule. It is not an incident to proprietorship, but must depend upon the local institutions and laws. As well might Congress, by virtue of its ownership and power to sell and dispose of it, under the constitution, change, alter, or amend the law of descents, testaments, and intestacies and distributions, and the settlement of estates, so far as subjecting lands to the payment of debts is concerned, and the law of judgment and other liens upon and their sale for debts of any description, as to alter, amend or change the laws of Illinois, under which this contract may be enforced, or under which plaintiff might have satisfaction of damages for its breach, or other creditor, prior to patent, have the same for his debt by a sale of this land on mortgage or execution. Nearly the whole domain of Illinois has been originally derived from the same original ownership; some States, and many territories yet to become States, entirely so. If Congress has this power over the contracts, &c., and all rights relating to the land by virtue of that ownership and the power of its disposition under the constitution, I know of no legitimate argument that would limit or prevent their moulding and controlling the institutions and laws of the States for ages, and that by laws regulating the powers and rights of all owners of it, and regulating their duties and liabilities.
When we have acquiesced in the power in Congress to secure the land and the title to the purchaser, we have reached the boundary of political and proprietary jurisdiction and right. The doctrine laid down in Wilcox v. Jackson, 13 Pet. R. 498, in relation to the evidence of title and the power of the State to establish the character and kind of evidence, reached that boundary. But the court distinctly recognize the political right and power of the State to legislate as she deems proper in relation to the property of the citizens, and this may well include their contracts. The first acts of the general government, in relation to these territories and public lands, commenced in usurpation of powers acquiesced in under a law of necessity, (see Federalist, Nos. 38, 42, 43; 3 Story Com. Const. 186-7,) but the power of sale has been confided since by the constitution, that I will support; but I should feel derelict in my duty, if I sanction acts that would sweep away the jurisdiction of the State to regulate its landed interest and all the contracts and remedies of its citizens respecting it, and quietly suffer a centralization of this power over both, in the United States. I do not pretend that these acts alone would effect so disastrous a state of things, but if the power exercised in this instance exists, we hold our jurisdiction as a State by the uncertain tenure of national discretion. Congress passed laws inflicting penalties for trespasses committed upon the public lands, thus exercising acts of political sovereignty within the territorial limits of this State, and regulating acts and remedies in relation to the property within its jurisdiction. I need not characterize these acts, nor examine their claims to constitutional sanction after the formation of a State government, but I may be allowed to believe that such acts and pretensions by any other landholder, individual or corporate, would have excited attention and rebuke. But even admitting this as a necessary rule or regulation, for its disposition, without appealing to the laws of the State for its protection equally and alike with all other proprietors, still they may not therefore assume to regulate and control it after they have sold it, nor intermeddle with lawful contracts between citizens of the State concerning it,"nor make void all the judgments that are rendered for debts due prior to their patent, and entitled by the laws of the State to satisfaction by a sale of it, after the title is made. I do not suppose that Congress, in these instances, designed to interfere with State jurisdiction. But through a high and tender regard to an improvident class of individuals, objects of their bounty, these provisions were inserted for their protection and security, as well as for protection of the United States, from fraud and imposition. But no motive, however exalted or commendable, will satisfy or palliate the invasion of the State’s sovereignty and right to regulate the protection and rights of her citizens, either in their persons or property. As well might Congress declare that lands sold or given, should not descend to an alien heir in this State, because it might endanger the peace, safety and stability of our institutions, while the laws of the State allow such alien to take by descent. See Justice Johnson Arguendo, Ogden v. Saunders, 6 Cond. R. 531; Lessee of Jackson v. Burns, 3 Binn. R. 84.
This contract was made on the 25th Nov., 1840. The last act of Congress, which revived the former acts, and under which this land was obtained, passed in 1842. If the act was allowed to be valid as to the character of its provisions, it might still be held invalid as to this contract, because it impairs the obligation by declaring the whole void, and this retrospectively.
I know, literally, by the terms of the tenth section of the first article, that the prohibition to pass laws impairing the obligation of contracts is confined to the States, See 3 Story Com. Const., Sec. 1339, p. 212. Satterlee v. Matthewson, 2 Pet. R. 416, per Johnson, J.
The reasoning of Judge Story in 3 Story Com. on Const. 268, Sec. 1393, is altogether applicable to the United States as well as to the several States, the principles of our institutions and natural justice should shield parties from a wanton destruction of their contracts and rights where no principles of public policy are contravened by them.
It is with diffidence that I approach a subject so grave, and the first of its character I have met with. But I feel sure that precedent is not wanting, to show that State courts will declare the acts of Congress invalid, when properly presented, and essential to the rights of parties before them. See U. States v. Lathrop, 17 John. R. 10; Sergeant Const. Law 279 to 290; though most of the cases I have examined were cases of habeas corpus.