*571The lows : defendants filed their motion for rehearing as fol-
Motion for Rehearing.
The defendant in this cause now comes and moves the court to grant a rehearing herein, and in doing so he does not propose to ask the court to review any of the questions which in the opinion given in this cause have been examined, but upon one upon which the court have pronounced no opinion, and the determination of which affects not only the land in controversy, but necessarily involves the very grave question whether — in the case of confirmations under different acts of Congress, which acts provide for the issuing of a a patent — the statute of limitations does not commence running until the patent actually emanates from the United States. There are many lots of ground in the city and its vicinity confirmed under various acts of Congress, where no patent has ever issued; and yet where actions of ejectment have been under our statute maintained, and the statute of limitations as a defence has been set up and admitted to be a good defence, we apprehend that it is certain that this judgment cannot be allowed to stand without directly reversing the cases of Cabanné v. Lindell, 12 Mo. 184, and that of Givens v. Gray, 26 Mo. 300, both decided by the Supreme Court of the State, and commencing as far back as the year 1848, as well as the cases of Bagnell v. Broderick, 13 Pet. 436; Barry v. Gamble, 3 How. 51; Lessieur v. Price, 12 How. 74, which cases in the United States Court conclusively hold that the right to the new located land passed by operation of law when the survey of newly located land was filed in the office of the Recorder of land titles, and that at the same time the title to the injured land passed to the United States, thus effecting, as the court have said, an exchange of land between the two proprietors — the United States on the one hand, and James Y. O’Carroll’s legal representatives on the other. The question becomes the more grave, because by the decision in this case no notice has been taken of it, and it will be said in the Supreme Court of the United States that the Supreme Court of the State has virtually if not directly overruled the cases of Cabanné v. Lindell and Gray v. Givens; and that -as this was a decision of the highest court of the State upon a local statute, that decision is conclusive upon the Courts of the United States. *572Again, in order to give the Supreme Court of the United States jurisdiction, the decision must be against the validity of some act of Congress, &c.
I. The action of ejectment would lie, under our statute, (tit. Ejectment) on a New Madrid location. By all the authorities, State and Federal, the location became perfect on the return of the survey to the Recorder of land titles— See cases above cited.
II. In the decision filed in this case it is held that the return of the survey in 1841 to the Recorder was operative, and that the proceedings subsequent, to annul the patent certificate of 1841, were simply void — See opinion.
The exchange of the new location for the lands injured by earthquakes was effected in 1841. Mr. Chouteau was then in possession of the locus in quo by color of title, by recorded deeds ; and whosoever held the.title, right or claim to the new location in 1841, Mr. Chouteau held adversely to him by substantial enclosures and houses. From that day, in 1841, to the day this suit was commenced in 1862, the defendant continued in possession, a period of 20 years, open, notorious and adverse — Gray v. Givens, 26 Mo. 300, approving Lindell v. Cabanné, 12 Mo. 184; Biddle v. Mellon, 18 Mo. —; and basing the decision on the case of Bagnell v. Broderick, 13 Pet. 436; Barry v. Gamble, 3 How. 51, and Leisseur v. Price, 12 How. 60.
The constitutional question is fully considered, and the right of the State to pass laws for the limitations of actions of ejectment in such cases is distinctly affirmed. Altogether the cases of Gray v. Givens and Cabanné v. Lindell cannot stand if the case at bar be held not to furnish a defence under the statute of limitations. Gray v. Givens, 26 Mo. 300, expressly decides that in this case the statute is a complete defence.
III. The logical conclusion to be drawn from the cases is that the new location being perfected in 1841, the exchange by operation of law was concluded between the United States and the legal representatives of Jas. Y. O’Carroll, and the United States had no further interest, and the issue of the patent in 1862 was a mere form, and it related back to the day of the exchange in 1841, and passed the title to the legal representatives of Jas. Y. O’Carroll as of that day. See Landes v. Brant, 10 How., where the Supreme Court of the United States held that a patent issued to J. Clamorgan *573in 1845, related back to the inception of the proceedings in 1806, and passed the title as of that date.
IV. The equitable title or claim would under our statute pass by limitations as perfectly as the legal estate. Whatever equity McRee bad in 1838, when he made the deed to Chouteau for a part of the certificate, to-wit, 64 acres, passed by the deed, and McRee had the same equity then that he had in 1846, when the decree was entered. Mr. Chouteau’s possession under that deed, for twenty years adjoining the said McRee and his devisee, operates (as under the case of Biddle v. Mellon, 13 Mo.) to give Mr. Chouteau a title to everything that McRee might have conveyed. If McRee had an equity, it passed — if he or any one else had a legal estate, it passed — by force of the possession for twenty years.
We sincerely hope that a rehearing in this case may be ordered, so as to give us an opportunity of considering the questions at issue, which are of such magnitude as to demand a most thorough and exhausting examination.
Holmes, Judge,delivered the opinion of the court.
A motion for a rehearing has been filed in this cause, upon the subject of the statute of limitations, which, it is supposed, had not received a full consideration in the opinion that has been delivered. This subject was by no means entirely overlooked in making up our decision of the case; but our attention was not so particularly directed to the question of the operation of the statute of limitations as to other points which were more fully dwelt upon in the argument. It had certainly escaped our notice that in the case of Gray v. Givens, 26 Mo. 291, the plaintiff had given in evidence not only the documentary evidences of a New Madrid location made, but also a patent dated in 1855, and that the court distinctly held that an adverse possession for the full period of the statute of limitations constituted a bar as against both the location and the patent. As to what weight is to be given to this precedent, or to the reasons and authorities on which it rests, as against the later decision of the Supreme Court of the United States in Fenn v. Holme, 21 How. (U. S.) 481, we shall not now express any opinion, further than to call the attention of counsel to the subject.
*574It has occurred to us, also, that it may be a matter deserving further argument, whether, when the equitable title, acquired by virtue of a complete location made, has passed out of the United States, an adverse possession for the full period of the statute of limitations, which may be deemed equivalent to an absolute title as against all but the sovereign proprietor of the soil, may not be held to be conclusive evidence of an actual conveyance of such equitable title to the adverse possessor, so that the patent may be made to enure to him as the owner of the inceptive right.
We have been led to entertain serious doubts, also, whether such absolute title by adverse possession, under the statute of a State, can possibly be made to prevail against a party claiming by patent from the United States within ten years before suit, as if it were a title superior to that of the sovereign.
For these reasons, and considering the great importance of a correct settlement of this question in this State, as well as the magnitude of the interests involved in this particular case, we have concluded that it would not be inconsistent with our duty in the premises to grant this motion for a rehearing on this subject of the statute of limitations, and also upon the'effect of the first decree in chancery to pass the title of the heir of Christian Wilt, on which there may be some room for doubt.
The judgmemt of affirmance will be set aside, and the cause will be set down for a rehearing on this point on the first day of next term; the other judges concurring.