Brief of
B. A. Hill,on Rehearing.
I. The statute of limitations began to run from the day the survey of the New Madrid location was returned to the Recorder of land titles, and the patent certificate was issued August 16,1841.
*575(a) The patent certificate in this case has the same effect as the patent certificate issued under a confirmation by the old Board under the acts of 1805 and 1807; the same identical form is adopted, that “ the party is entitled to a patent for the tract of land therein designated.” The list of patent certificates shows this date, and an extract from that list ap. pears in the part of the record appended to'the printed record by stipulation — Gray v. Givens, 26 Mo. 299.
In Bagnell v. Broderick, 13. Pet. 448, and Barry v. Gamble, 8 How. 51, the Supreme Court of the United States held that the land was appropriated and severed from the public domain to satisfy the grant by the New Madrid act, when the plat and survey were returned by the Surveyor General to the Recorder of land titles — Lessieur v. Price, 12 How. 74; Cabanné v. Lindell, 12 Mo. 184. This has been a rule of property in this State from that day.
II. The exchange between James Y. O’Carroll and the United States was effected on the 16th August, 1841, when the patent certificate was ordered to be issued, and the proceedings to obtain the patent were a mere form. The patent issued on the 10th of June, 1862, to James Y. O’Carroll, or his legal representatives, whereby the title under the great seal passed in form for the located land to James Y. O’Oar-roll or his legal representatives.
III. By the doctrine of relation, the land located by a survey was exchanged in 1841 for the land injured by earthquakes ; and when the patent issued in 1862, it related to the day when by force of the acts of Congress the exchange had been effected.
In Landes v. Brant, 10 How. 372, it is held that a patent issued in 1845, a few days before suit was brought on a confirmation of 1810, the patent related back to the day of the filing of the claim in 1806 before the Recorder for confirmation. An instruction (pp. 358-9) giving the defendant the benefit of the statute of limitations was not held to be erroneous. The title of Glamorgan, in the case of Landes v. Brant, under the confirmation,,was held to be inchoate or *576inceptive, and the patent was held to carry the legal title back by relation to the day of the filing the claim for confirmation, and to vest the legal title as of that day.
In Gray v. Givens, 26 Mo. 300-1, the Supreme Court of this State, following the decisions of the Supreme Court of the United States of 1837 and 1843, and of the Supreme Court of Missouri of 1848, holds that the statute of limitations runs from the day of the exchange by force of the acts of Congress, the day of the issuing of the patent certificate on the New Madrid location.
The logical conclusion to be drawn from all the cases is, that the New Madrid location being perfected in August, 1841, the exchange was finally made between the United States and the legal representatives of James Y. O’Carroll, and the United States had no further interest or title in the land, and the issue of the patent in 1862 was a mere form, and the patent consummating the exchange, as the final record of the Government, related back like an execution to the day of the attachment, and passed the title according to the act of Congress as of the day when the exchange was effected in' 1841.
IY. The equitable title or claim would under our statute pass by limitations as completely as the legal title — McNair v. Lot, 34 Mo. 285. Whatever equity McRee had in 1838, when he made the deed to P. Chouteau for the 64 acres described in his deed, he had in 1846, when his new decree was entered affirming the old decree of 1821.
In Fenn v. Holme, 21 How., the Supreme Court of the United States only held that the courts of the United States had no jurisdiction at law of inchoate or equitable titles.
In Maguire v. Tyler, 1 Black, 199, 202, the court held and exercised jurisdiction over an equitable title originating under a confirmation of 1810, as against an United States patent issued for the same land in 1852 to Louis Labeaume. This case expressly holds that the Federal courts will take jurisdiction over equitable titles emanating under acts of Congress.
*577The inchoate claim to an unlocated tract of land is cer" tainly not so clear as a claim upon an exchange under acts of of Congress after a survey locating the land by the United States, and granted by the United States to Jas. Y. O’Carroll or his legal representatives. In the case of Mitchell v. Handfield, 33 Mo. 438, the court held that a confirmation on a Spanish survey for Labeaume passes the title to the land included in the survey, and that the title passes at the time of the confirmation. So it was held in West v. Cochrane, 17 How. 412-13, 417.
V. The title passes in 1841, in this case, by force of the act of Congress of 1815.
We do not question the right of Congress to pass the title to the lands of the United States; but as to the title they vested, we hold that the courts of this State have the right to decide. When the title has passed, the forum is here, and the courts of this State can adjudicate upon them.
Glover & Shepley, for appellants.
The possession for more than twenty years since the survey was returned in 1841 to the Recorder of land titles, and before the commencement of this suit, is an effectual bar to the plaintjff’s right to recover.
Graver consequences can scarcely arise in the determination of questions affecting real estate in this State than will arise if the court shall hold decisively that the statute does not commence to run until the emanation of a patent in the case of a New Madrid location. In this county, until the last two or three years, the great majority of New Madrid locations were without a patent; while in the counties on the Missouri river there were and are now very few upon which patents have issued. So as to confirmations by the first Board of Commissioners which require patents, but on which in the great majority of instances patents have never issued ; the same principle that would prevent the statute from running in the case of a New Madrid location until a patent issued would equally apply to such cases.
*5781. The title as between the United States and the owner of the New Madrid certificate became vested in the holder of the New Madrid certificate at the time of the filing of the survey of the land located thereunder in the office of the Recorder of land titles — Bagnell v. Broderick, 13 Pet. 448; Barry v. Gamble, 3 How. 51; Givens v. Gray, 26 Mo. 300. So afterward in the decision given in this case.
2. Since 1825 ejectment would lie in the State courts in favor of a plaintiff claiming under a New Marid location, the survey of which had been so returned — Acts of 1825, pp. 234-5.
The Supreme Court of the United States recognizes the validity of the laws of Missouri giving owners of imperfect titles the right to sue in ejectment.
3. The survey having been returned in 1841, and Chou-teau having taken possession prior to that time of this land under a recorded deed, and having had possession ever since under it down to the commencement of this suit in 1862 adverse to plaintiff and those under whom he claims, the action of plaintiff is barred — Lindell v. Cabanné, 12 Mo. 184; Givens v. Gray, 26 Mo. 300; Clemens v. Runckel, 34 Mo. 41. In this last case, all the objections which the plaintiff urges against the bar of the statute are considered and overruled.
Even if he (Chouteau) had not claimed under recorded deeds, but held alone under actual possession, yet under the decisions in this State that possession, when for the length of the time mentioned in the statute, gives title of itself upon which an ejectment can be maintained — Biddle v. Mellon, 13 Mo.
The case of Givens v. Gray is admitted to be decisive of this case, unless it be overruled ; and the plaintiff holds that the case of Fenn v. Holme, 20 How. 488, is entirely antagonistic to that decision, and overruled it. This does not in the least affect this question; it is simply a question as to the form of action. That is, a claimant under a confirmation of the first Board of Commissioners, under the Recorder’s decision under the act of 1816, or holding under a New Mad*579rid certificate surveyed and returned to the Recorder of land titles as the acts under which these respective titles emanated, provided for the issuing of a patent, until that conclusive evidence of title issue, the common law action of ejectment would not lie.
The radical defect in the plaintiff’s argument is, that he denies that there is any vesting of title until the patent issues. No decision can be found that holds any such doctrine ; on the contrary, all these decisions hold that the title passed out of the United States at the time, the survey was returned. This is expressly asserted in all these cases. In the decision in Fenn v. Holmes, at p. 488, it is declared only that because “ the patent is the superior and conclusive evidence of the legal title in the courts of the United States, the action of ejectment cannot be maintained without the patent.”
Gibson, for himself.
As to the statute of limitations:
I. The opinion already given that the plaintiff’s title was neither barred nor divested by the statutes of this State, being based upon the decisions in Fenn v. Holme and Hooper v. Scheimer, the first question that arises here is, whether the construction given to those decisions was erroneous ; for if it be correct, all further inquiry is concluded, the Supreme Court of the United States being the ultimate authority on the question, and it having, in Fenn v. Holme, had under consideration the identical title set up here by the defendant.
1. Fenn v. Holme was not decided upon any question relating to the pleadings. It was not doubted that the pleadings were in proper form, and that if the plaintiff therein could maintain any action at law, the action brought was the correct one to bring; but the court held that no action at law could be maintained by the plaintiff in that case.
In Hooper v. Scheimer, the case of Fenn v. Holme was affirmed, and the court declared that “ it is the settled doctrine of this court that no action of ejectment will lie on *580such an equitable title, notwithstanding a State Legislature may have provided otherwise by statute. The law is only-binding on the State courts, and has no force in the Circuit court of the Union.” I admit that these decisions are in direct conflict with Gray v. Givens, 26 Mo. 300.
The case of Gray v. Givens cannot be sustained on legal principles, and conflicts directly with a series of decisions of the Supreme Court of the United States, of this State, and of other States. This case necessarily decides either that the fee emanated from the Government before the patent issued, or that the statute of the State ran against the fee while it was still in the Government.
As to the first point, the court seems to base its decision on the cases of Bagnell v. Broderick, Barry v. Gamble, and Lessieur v. Price, and to have concluded from the language used in those cases that the legal title had passed from the Government when the return of the survey was made to the Recorder. It says there is “title and a right of action.” Fenn v. Holme and Hooper v. Scheimer exploded the construction thus given to these cases. In Barry v. Gamble, and Lessieur v. Price, the only question was, when the location become sufficiently formal and valid to operate as against conflicting claims held by third persons. No such question as herein involved was before the the court in either of those cases.
In Bagnell v. Broderick the patent prevailed against the inceptive title, although the defendant actually held the deed of the patentee for the land. After this decision, to hold that the title had passed before the patent issued was a simple blunder.
The laws of Congress, and the decisions of the Supreme Court'of the United States, which declare that the fee shall pass only by the patent, were intended, and desgined to secure uniformity in the disposition of the public domain, and to secure the land to the true owners under the Federal Government. The court says “ there is title”; but what was the nature thereof ? It certainly was not legal, and it is *581a misnomer to call it an equitable title: it was an equitable interest. By whatever name it may be called, it was simply a just demand or claim upon the Government for the land, which could not be enforced by a court of equity (Maguire v. Tyler, 1 Black), nor prosecuted at law (Fenn v. Holme).
It says there was a “ right of action,” but it does not say under what laws. There was a right of action under the State laws, but none under the Federal laws.
It is the settled doctrine of this court that, in a contest between a patent and an entry, the patent will prevail — 17 Mo. 81; 20 Mo. 108.
Now, when this location became complete on the return of the transcript plat of the survey to the Recorder, the title of Mrs. McRee was precisely the same as an entry. In the case of an entry, the party buys the land with his money, and has an vested equity, but no title. In the case of a New Madrid “complete location,” the locator has bought the land in an exchange, and paid for it by conveying to the Government the injured land. In either case the Government receives a valuable consideration. If the statute runs against the locator, or operates to convey his equity, it will necessarily be equally efficacious against an entry. Now, suppose A. has the senior entry and B. has the junior entry, a patent and possession. If A. brings his action on his entry he must fail; and, if he is delayed (as is often the case) for more than ten years, if the defendant is right, the statute runs against 1ns title by patent, or operates to convey his equity, which brings the legal title by enurement to it, and, in either case, he loses the land. When it is considered that the Legislature, once the power is admitted to be in it, may fix its own time within which the action must be brought, (in Wisconsin the time for non-residents is fixed at three years, and in Illinois in some cases at eighteen months), and that local political bodies are liable to be influenced by local interests, it will be seen, when this question is brought before the Supreme Court of the United States, it is not likely to receive a favorable consideration.
*582When the two questions — that is, whether the plaintiff is barred, or whether his equity is conveyed by operation of law, so that the legal title passes to the defendant by enurement — are reduced to principle, they become blended into the one, question — whether a State can compel a purchaser, under the Government, for a valuable consideration, to bring suit before he gets the superior or legal title, or lose his land.
The compact contained in the State Constitution is not truly stated in the case of Gray v. Givens. The opinion says merely that the General Assembly cannot “interfere with the primary disposal of the soil.” It omits the very important additional provision in the compact, which is in these words, “nor with any regulation Congress may find necessary for securing the title in such soil to the bona fide purchaser.”
I here ask upon what principle it is that the plaintiff should be deprived of his fee for not bringing suit at a time when the courts had no power over it ? In Perry v. O’Hanlon, 11 Mo. 594, the court says “ the laws of the United States, under which those officers profess to act, are the laws by which the validity of those acts are judged.” The opinion of the court in Cabanné v. Lindell, 12 Mo. 186, has been totally misrepresented. The court there decided that the statute of limitations did not run until the survey was returned to the Recorder; but it did not decide, nor was the question before it, when the statute did commence to run.
Hunter v. Hemphill and Fenn v. Holme prove that but for the statute of this State no right of action existed until the patent issued, and of course no limitation could run until that time.
The principle the plaintiff contends for is this : It matters not how the fee or legal title passes, whether by act of Congress, or confirmation, or patent. Until it does pass, the rights of the person to whom it is passed cannot be barred or conveyed away or affected by State legislation, and that all questions as to who is entitled to the benefit of such fee must be determined solely by reference to the laws of Congress.
*583These doctrines are established in their fullest extent, and almost in totidem verbis, by the Supreme Court of the United States in Irwin v. Marshall, 20 How. 563.
The principles established by this decisions in this State, and in the Supreme Court of the United States, are sustained by the decisions in other States.
Until the title issues the possession is under, not adverse to, the Government, and the statute does not run until the patent issued — Morris v. Thomas, 5 Birney, 79; Proprietors No. Six v. McFarland, 12 Mass. 236; Runey v. Edwards, 15 Mass. 251-295; Chiles v. Calk, 4 Bibb, 554.
II. As to the conveyance of the equitable interest by statute, relation and enurement:
1. The two questions, whether the plaintiff’s remedy is merely barred, or whether his equity is conveyed and vested in the defendant by operation of the statute of limitations, are so intimately blended together that I have considered them above as one and the same.
The reasons which prevent the bar operate with equal force against the conveyance; but there are additional and irresistible reasons why the conveyance can not be operated by the statute, and especially in a case.where there is no bar.
2. If the State were to deny a remedy to the plaintiff in its courts (which it has not done), while this would be a denial of justice, and a violation of its constitution, there might be no redress; but for it to attempt to convey away the land from a purchaser under the Government by a statute, and not upon any equitable grounds of relief,' is, in effect, a grant of the land by the State Government to the defendant without any consideration paid by him, which is a violation of the constitutional compact.
In this point the defendant sets up a conveyance by the State in opposition to a conveyance by the United States.
In Cabanné v. Lindell, it is said; “ The remedy offered by the State the claimant might use or not, at his pleasure.” Then surely the State cannot impose on him the penalty of conveying his land to another for exercising his “ pleasure.”
*5843. In Biddle v. Mellon, the court hold that the statute, when it runs or operates, conveys the title; but the first question is, whether it runs against the plaintiff’s title while it was in the Government ? To say that it cannot operate as a bar, but does operate as a conveyance, is to reverse the universal order of law, and to affirm that the plaintiff still has his remedy, but has lost his right — that the statute conveys the land for not suing in a case to which the statute does not apply. If the statute does not run against the title, it does not operate at all. In Biddle v. Mellon it was admitted that the remedy was gone, and the only question was, whether in such a case the right was conveyed.
No question was raised in that case concerning titles emanating from the Government, and none such were determined by it. This is the entire decision: “ We are of opinion that twenty continuous years’ adverse possession of land confers upon the possessor an absolute title against all persons un-excepted by the terms of the statute.”
Now, the possession here was “ not adverse, but under the Government” — Landes v. Perkins, 12 Mo. And again the Government is excepted by the statute as much as if it were by name included in the exceptions — Ang. on Lim. 34-6; Com. v. McGowan, 4 Bibb, 64; Chiles v. Calk, 554; Com. v. Johnson, 6 Barr, 136.
III. The court has fallen into a mistake as to fundamental facts concerning the return of the survey in 1841, and as to my point in relation to the same ; which is not surprising, as the defendants’ counsel have many times stated the facts erroneously. The point which I made, and now repeat, and upon which no opinion has yet been given by the court, and which, if valid, is decisive of all questions on the statute of limitations, and which I therefore pray the court to decide, is this:
The copy or “ transcript plat ” of this survey, which was returned to the Recorder of land titles in 1841, did not show any of the interferences. A patent certificate was issued on it, and sent to the Land Department at Washington for a *585patent. The department there declined to issue the patent, and remitted the survey — or rather the copy of it — back to the Surveyor General’s office by an official letter, dated 19th March, 1847, directed to E. R. Conway, Esq., Surveyor General. This was many years before I became connected with these affairs. The order of 1862 was given in evidence solely to prove that the rules of the department required the interferences to be shown on the plats sent first to the Recorder, and by him transmitted to Washington. That the Commissioner of the General Land Office had power to revise the surveys, is established by the Supreme Court of the United States in Maguire v. Tyler, 1 Black; Lessieur v. Price, and the act of 17th February, 1815. That such a requirement is legal and proper, will hardly be disputed. That there was any official misconduct, or wrong’ intention on the part of the Commissioner, cannot be pretended.
Now when this “ transcript plat ” of the survey was, in 1847, remitted back to the Surveyor General’s office, where it originally started from, and was not recognized, but repudiated, by the department at Washington, was it still existing as a valid and legal return of the survey to the Recorder ? Will this court hold that the department at Washington had no power to remit such a survey, in good faith, to the Surveyor General in order that it should be made to conform to the reasonable and proper requirements of the department, and that the return is valid notwithstanding its repudiation and remission ?
If the return copy of the survey was thus made void, of course, the patent certificate No. 447, issued on it, became null.
Holmes, Judge,delivered the opinion of the court.
A rehearing was granted in this case upon the question of the statute of limitations, and also upon the effect of the first decree in chancery to pass the title of the minor heir of Christian Wilt, upon a suggestion that other authorities could be produced on that subject.
*586As to the matter of the decree, we have seen no reason to change onr former opinion, nor would it affect the result even if there were any error in this. It was only one of three distinct reasons given why the equitable right to the located land did not pass from the heir of Wilt and from Hertzog before the decree made'in 1848, either one of which was deemed sufficient. This result appeared to be so manifest as not to require discussion at length. On this part of the case we do not entertain the least doubt.
The question whether the plaintiff’s action was barred by the statute of limitations has been reai-gued, on the part of the defendants, upon the same grounds that it was before. It seemed to be supposed then, as it is now, that the location alone, when made in 1841, operated as an exchange to pass the title out of the United States, and that, therefore, the statute, beginning to run from that date, would be a complete bar to the plaintiff’s action. No legal theory, no principle of law, was ever suggested, nor has been now, on which it was conceived that such a result could possibly take place.
It was said in the former opinion, that “ until the patent issued the legal title remained in the United States, and the statute of limitations did not begin to run against the plaintiff before the date of the patent.” This conclusion proceeded upon the ground that although the action given by the statute upon the equitable right only, which had passed out of the United States, might be barred, it did not follow that an action based upon the right of entry by virtue of the absolute legal title by patent would also be barred. The idea that the fiction of relation could be applied, not only to carry the legal title to the owner of the inceptive right, through the intermediate conveyances, but. also for the purpose of bringing it within the operation of the statute of limitations from the date of the -inceptive equity, had not been suggested, and had not occurred to us. The argument did not proceed upon this theory, but (as we understand it) upon the supposition that the whole title passed out of the United States by virtue of the location and exchange, and *587was therefore barred by the statute. This position is so directly antagonistic to repeated decisions of the Supreme Court of the United States, that it is considered to be wholly untenable — Fenn v. Holme, 21 How. (U. S.) 481; Hooper v. Scheimer, 23 How. (U. S.) 235; Irwin v. Marshall, 20 How. (U. S.) 558; Bagnell v. Broderick, 13 Pet. 448.
The case of Gray v. Givens, 26 Mo. 291, had been cited as an authority to the point, that the statute began to run from the date of the location, and there being no doubt on that point, so far as the equitable title was concerned, we bad not noticed that the plaintiff, in that case, had introduced a patent dated in 1855, as well as evidence of the location made long before, and that the court had decided that the whole cause of action was barred by the statute, notwithstanding the patent. The reasons and authorities which are given in the opinion, in support of this decision, are not at all satisfactory to our minds; but, upon other grounds which we proceed to state, we have arrived at the conclusion that the decision was right.
It is well,settled that no statute of limitations of a State can run against the United States, nor affect the grantees of the Government, until the title has passed from the proprietary sovereignty. Statutes of limitation operated to bar the cause of action, not to convey title from one party to another, and they merely extinguish, the remedy by operating a bar to every kind of action ; though adverse possession for the full period of the limitation may be evidence of a fee, and equivalent to an absolute title, against all but the sovereign — 3 Greenl. Crui. Dig. tit. 31, ch. 2, § 1-4; Ang. Lim. 396 ; Biddle v. Mellon, 13 Mo. 335; 1 Greenl. Ev. § 16.
No cause of action upon a.right of entry by virtue of the legal title by patent, as such only, could exist until the patent issued. The statute gave an action in ejectment based upon the right of entry by virtue of the. equitable right created by the location. Whether that right were such an interest, or title of property, as could give the party, otherwise, a standing in a court of law, it is needless to in*588quire here. It is easy to understand how an action, founded irpon any such right or title, which had passed out of the United States, might be barred by the statute ; but it would by no means follow that an action based upon another right of entry, by virtue of the absolute title by patent, would also be barred. It is an old maxim, that where two rights concur in one person, it is all the same as if there were different persons; where there is a new right there is a new period in which to pursue the remedy; and if two separate rights exist, the loss of one by lapse of time will not impair the other — 3 Greenl. Crui. Dig. 247; Stowell v. Lord Zouch, Plowd. 368; Ang. Lim. 390. The action of ejectment upon a location is given by the statute'only, and would not exist otherwise; but an action of ejectment upon the legal title by patent exists by laws of the United States, and of this State, without the help of this special provision of the statute. The two rights of entry, therefore, are distict in themselves, and the causes of action have a different foundation. The possession of the same land is claimed in both, but by different rights, and, if there were nothing more, the one cause of action might be barred, and not the other.
But there is another principle upon which we think the statute may be made to operate here as a bar to the plaintiffs action, and that is the fiction of relation, whereby the legal title is to be considered as passing out of the United States, through the patent, at its date, but as instantly dropping back in time to the date of the location as the first act, or inception of the conveyance, to vest the title in the owner of the equity as of that date, and make it pass from him to the patentee named, through all the intermediate conveyances ; and so, that the two rights of entry, and the two causes of action, are thus by relation merged into one, and the statute may.be held to have operated upon both at once. The legal -fitleáh making this circuit necessarily runs around the period of the statuté'b’ar, and the action founded upon this new right’is -paet by the-, statute on its way, and cut off with that whicli existed before. Each one of the parties» *589through whom the patentee derived the equitable right, had in succession an effective action for the recovery of the possession of this land, during all that time, while an adverse possession existed. This áction was, by the statute, placed upon the same footing, and was equally effectual as-if the party had all the while been invested with the legal title— Hunter v. Hemphill, 6 Mo. 119.
This possession was not adverse to- the United States, but would be considered as held under the Government (Landes v. Perkins, 12 Mo. 258); but it was adverse to the other parties, who were claiming to be the owners of this same equitable right under which the plaintiff claims, and to which the legal title was united by relation, and it was therefore adverse to both titles. The defendants, though without title, were in possession under a claim of title, and with' an expectation of obtaining the title from the United States. The possession of one with the intention to acquire a right of pre-emption has been held to work a disseisin of all but the sovereign — Clemens v. Runckel, 34 Mo. 41.
In Landes v. Brant, 10 How. (U. S.) 372, and French v. Spencer, 21 How. (U. S.) 228, the doctrine of relation was applied to the title, as between the parties and purchasers, which was made to relate back and bear date with the incep-tive right, so that the intermediate conveyances should be “covered by the legal title.” In Landes v. Brant, it was applied (independently of the act of Congress of May 20, 1856, in reference to deceased parties) where the relation carried back the title to a time when the confirmee was still living. The operation of the statute of limitations upon a title so vesting was not specially considered. An instruction had been given for the defendant, in the U. S. Circuit Court below, which might have involved this application of the fiction of relation; but it was not partiéítlárly^pxamined, and the judgment was affirmed, jjcdmuwliicli" if niiyght be inferred that the instruction was¡/í^pt('Condemi^q1á|\I>ff'he one application would seem to follow^ íogieall^%om th'é other. No reason is perceived why the legal ítitíe should riot foe con*590sidered as vested of that date, with reference to the statute of limitations, as well as for the purpose of passing the title to a purchaser, through intermediate conveyances. The very essence of the fiction regards time, and effect is given to the patent as if it bore date with the first act or inception of the conveyance. Nor does it seem to make any difference that the patent is made directly to a living person by name. This patent was issued to Mary McRee as assignee by de-raignment of title, and as being the owner of the equitable right. The legal title and the inceptive right could be united in her only by virtue of the relation. In the cases of sheriffs5 deeds made to the purchaser by name, after the day of sale, the deeds are held to relate to the day of sale, and' to vest the title as of that date — Boyd v. Longworth, 11 Ohio, 235; Alexander v. Merry, 9 Mo. 524; Crowley v. Wallace, 12 Mo. 145; Jackson v. McCall, 3 Conn. 75. In the cases of Crowley v. Wallace, and Jackson v. McCall, the suit was commenced after the sale, but before the deed was made, and it was held that the title should be considered as vested by relation as of the date of the sale, to avoid the objection that the plaintiff could only recover on the title which he had at the commencement of his suit. Time was the only thing in question, and if a title by relation may antedate a suit commenced, it may as well antedate the period of the statute bar.
Resort must be had to this principle in order to make the patent avail to the patentee. It is only by virtue of her equitable right as assignee of the owner of the injured land, who made the exchange and became entitled to the land located in lieu thereof as a purchaser from the Government, that she was the person entitled to receive the patent at all. If the patent had been issued to an entire stranger to this right, we suppose it would have been void for want of authority of law to make it. She must invoke this fiction, then, in order to make the patent avail to vest a valid legal title in her. It reaches her only by passing through the chain of derivative title from the first locator by relation, and in pass*591ing it is met and cut off by the statute bar. It is impossible, therefore, to apply in her favor the exception that the fiction may hold to some intent, and to some intent not, ut res magis valeat quam pereat. The patent is not thereby rendered inoperative or void, but made valid to pass the title to the true grantee, the original purchaser from the United States, and from him to her. If any injury or injustice be done to her, it is not by the relation. Whatever injury she may be said to sustain, she suffers only by reason of the operation of the statute of limitations, and this in contemplation of law is no injustice. The plaintiff stands in her place here, and must fail to recover, not because the patent, is declared invalid, or ineffectual to pass the title from the United States, nor because the title has not been conveyed to him, but because the statute has extinguished his remedy by taking away every kind of action.
It is laid down that the fiction is not to be applied to the injury of the rights of a stranger. Here no such rights intervene. It is to be applied in furtherance of justice, ut res magis valeat quam pereat; and on this principle it may have effect to some intent, and not to some other intent, as to make a deed, a lease, or an escrow, operative, but not to make it void — Butler and Baker’s case, 3 Coke, 36; Menvil’s case, 13 Coke, 21; 18 Vin. Abr. 290; 4 Kent’s Com. 454. It may have effect to overreach a right or title of later origin than the first act to which relation is had— Thompson v. Leach, 3 Lev. 284; Rutherford v. Greene, 2 Wheat. 297. It will not be applied against the real fact, where it would operate to deprive a party of his defence under the statute of limitations — Lyttleton v. Cross, 3 Barn. & Cres. 317. That would do injustice to a third person and a stranger. These defendants are strangers to the parties to this conveyance, but, of course, no injustice is done to themj and we see no reason why they are not entitled to the benefit of this defence. Nor do we find any ground on which an exception can be made in favor of the plaintiff. It is objected that no relation can be had to a trespass; but the *592effect is not to make the title pass to a trespasser, or mere intruder, but to make it vest in the plaintiff through the inceptive title, whereby, as a necessary consequence, his action is barred, and his remedy lost.
This is a mere fiction of law, and it goes upon reasoning that is somewhat abstruse and technical. The maxim nul-lum tempus occurrit regí is also technical in its operation. It was said in Crawley v. Wallace, that this fiction could not be applied to a better purpose than to prevent another fiction from working an injury. We know no other justice here than the justice of the law; nor do we see than any such injustice would be done to the plaintiff as should prevent us from giving the defendants the benefit of the fiction. And further, it comes in support of the former deliberate decision of this court in Gray v. Givens, 26 Mo. 291, which seems to have been rendered in accordance with the ideas which have prevailed in this State, and which is entitled to the weight of a precedént with us.
Upon these principles, the statute is made to operate a bar to the plaintiff’s action, without coming in conflict, in any manner, with the decisions of the Supreme Court of the United States as to, the effect and dignity of a patent, or with the constitutional compact that the State “ shall never interfere with the primary disposal of the soil of the United States, nor with any regulation Congress may find necessary for securing the title in such soil to the bona fide purchasers.” It contemplates that the title has passed out of the United States by virtue of the patent, and in accordance with the laws of the United States, and become vested in such purchaser;
In the former opinion in this case, the question whether the public officers had power to annul the location merely because the transcript plat did not show the interferences with other surveys, was considered in reference to the validity of the patent that had been issued. It is now insisted by the plaintiff, in reference to the defence under the statute of limitations, that the transcript plat and patent certificate were *593in 1847 repudiated by the Land Department, and remitted to the Surveyor General for re-examination as to these interferences ; that when the new transcript plat had been returned, and reported to the Commissioner, with a new patent certificate, the former documents were annulled under instructions from him in 1862, and that the patent was issued, upon the new certificate; and that therefore the location made in 1841 was void ab initio, or had been, repudiated and annulled, so that the statute of limitations could not run against him until 1862.
It appears by the record that in 1847 instructions were sent to the Surveyor General to examine into “the various conflicts with said survey,” and to report his “ decision ” as to “the validity of each interference”; and it was said therein, in substance, that if any of the lands embraced within the interferences had been reserved at the date of the location, the location must yield to them, because interdicted so far by the New Madrid act; but that if such lands were not reserved, but were subject to location under the act, then “ the New Madrid claim would of course hold valid against either tract in that category.” The validity of such conflicting titles would be a matter of law and a proper subject of judicial inquiry whenever they might be produced in court. It may have been very proper that the plat should show these interferences; but it is evident that the location, as made in 1841, was not regarded by the Commissioner as wholly void, nor was the transcript plat entirely repudiated. The object seems to have been to have the plat corrected so as to show the interferences of conflicting surveys which might be valid against the location, because the lands contained in them had been reserved, or were not subject to location, and more particularly with a view to the issuing of a patent in proper form; and when the corrected plat and new patent certificate had been reported to the Commissioner in 1862, then the old plat and certificate were declared “ inoperative,” the Recorder and Surveyor General were instructed to cancel them, and the patent issued upon *594the new documents. The location itself was not annulled. The return of the plat to the Recorder and the recording of . it by him are the acts which evidence the assent of the Government to the location and make an appropriation of the land; the United States then assented to the.exchange— Lessieur v. Price, 12 How. (U. S.) 74; Bagnell v. Broderick, 18 Pet. 436.
We find no evidence here that these officers had ever undertaken wholly to annul this location, or to declare it void ab initio. When the old papers had been “superseded” by the new, the old ones were declared “inoperative.” The new documents do not appear to have differed from the old ones otherwise than as they showed the interferences. So far as any of these lands had been reserved, or were not subject to location, we suppose the location would be void, and the patent also; but we know no authority for saying that the location as made would therefore be wholly invalid. It might be valid as to a part of the land included and void as to the rest. So far as valid, it was a good location; and so it seems to have been considered by the Commissioner. When entries have been made or rights or titles have emanated from the Government in pursuance of law, the public officers have no power to annul them. In Penn v. Holme, 21 How. (U. S.) 481, these instructions were before the court, and the plaintiff failed to recover for the reason that the action of the Land Department had not terminated in a patent conveying the title; but it was not intimated that the location of 1841 had been annulled, or would be held to be entirely void — Groom v. Hill, 9 Mo. 320; Perry v. O’Hanlon, 11 Mo. 585; U. States v. Stone, 2 Wall. (U. S.) 525.
We must therefore conclude that this location as made in 1841, for so much of this land as had never been sold nor reserved, but was then subject to location, was valid; that it has never been annulled by the public officers, nor by any action of the Land Department; and that the statute of limitations began to run, as against the plaintiff, claiming by a right and title which had emanated from the Government, *595and upon which an action was given, upon an adverse possession held within the terms of the statute, from the date of the location made in 1841.
It follows that the instruction given for the plaintiff was erroneous, and that the instructions asked for by the defendants on the subject of the statute of limitations should have been given.
There being no dispute as to the fact of the possession, and the plaintiff not desiring to have the cause remanded, the judgment will simply be reversed. The other judges concur.