delivered the opinion of the Court.
This was an action of ejectment by.Broderick against Bagnell, for a section of land lying in Howard county, Missouri; and Peter and Luke Byrne were admitted to come in • and defend, under the following-circumstances. - Morgan Byrne claimed to be the owner of-the land, and he was first admitted a co-defendant with Bagnell. *447Byrne, died, and Margaret Byrne, his executrix, was admitted as a co-defendant. Then she died-; and Peter Byrne and Luke Byrne, executors-of the last will of Morgan Byrne, were admitted.
The judgment below is, that the plaintiff recover the land and costs, against Carey Bagnell and P. and L. Byrne, executors of Morgan Byrne.
It is assigned for error, that.the judgment for costs against Peter and Luke Byrne, should have been de bonis testatoris, .and hot de bonis propriis. ...
... ■The presumption, is, that the judgment of the.Circuit Court is pro.pér, and it lies on the plaintiffs in error to show the contrary. 1 Peters, 23. The executors.'of Morgan Byrne had no interest' in the' land by virtue óf their letters testamentary, but cbuld. well have an interest by the will of their testator. On no other ground could they properly-have been permitted to come.in and defend in the character of executors. On this ground, thereforej we presume they were admitted,; and, like other defendant^ in ejectment, having’failed to show the better title, the recovery^ was proper; and costs necessarily followed the judgment de bonis propriis.
The .plaintiff Brbderick claimed'by virtue of a patent from .the United States, to John Robertson,-Jr., dated June 17th, 1820 • and deeds in due form from Robertson and others to himself, proved Carey in possession at the commencement of the suit; and here rested his case.
To show that the better title had been in Morgan Byrne, the defendants produced a deed dated 20th May, 1809, from John Robertson, Jr., to Edward Robertson, Sr., for seven hundred and.fifty arpensof land lying in Big-- Prairie township, in the district of New Madrid, adjoining the lands of Sheckler and Cox; and which deed authorized Ed . ard Robertson to procure a. patent from the government. By different conveyances Morgan Byrne claimed title to the 750 arpens through and undéí Edward Robertson.
The land lies in the county of New Madrid, in the state of-Missouri, and was injured by the earthquakes of December, 18.11. To relieve the inhabitants Who had suffered by this calamity, Congress passed the act of 17th February, 1815; providing that those whose lands had. been-'materially injured,-should' be authorised to locate the same quantity on any of the public lands in the Missouri territory, but not exceeding in any casé £40 acrés; on which being done, the, title to the land injured should revert to the United States.
■ The'recorder of land titles for the territory of Missouri was made-the judge, “ to ascertain who was entitled to-the benefit of the act, and to-what extent;”- on the examination of the evidences-of claim; as compensation for which, if well founded, he was directed to issue a certificate to the claimant. This certificate having issued, and a notice of location having been filed in the surveyor general’s office, on application of the 'claimant-the surveyor was directed to survey, the land selected, and to return a plat to the office of the recorder of land titles, together with á notice in writing, designating the tract *448located; and the ñame of the claimant on whose behalf the location and survey had been made; which plat and notice it was the duty of the recorder to record in his office: and he was required to transmit a report of the claim as allowed, together with the. location by survey to the commissioner of the general land office; and deliver to the claimant a certificate stating the circumstances of the case, and that he was entitled to. a-patent for the tract designated. The notice of location made by the" claimant with the- surveyor general is-no part of the evidence on which the general land office acted; but .the patent issued on the plat and certificate of the surveyor, relumed to the recorder’s office, and which was by him reported to the .general land office. '
The United States never deemed, the land appropriated until the survey was returned, for the reason that there were many titles -and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New. Madrid -claims were subject to be located. • So, there were lead mines and salt springs excluded from entry. Then, again, the notice of entry might be in a form inconsistent with .the laws of the United-States: in all which cases' no survey could be made in. conformity to it. . If no such objection existed it was the duty of the Surveyor to conform to the election made by the claimant, having .the location certificate from the recorder. Still the- only .evidence of the location recognised by the government as an appropriation was the plát.-and certificate .bf the surveyor. Such is the information obtained from the- general land office; As evidence of the form of location, and practice of the office, we have been furnished With a copy of ffie plat and certificates of survey on which the patent in this record is founded, and which is annexed. As before stated, the patent, to John Robertson, Jr. is' deemed to have-been issued regularly; and we must presume that all the usual incipient steps had been taken before the title was perfected. 5 Wheat. 293. 7 Wheat. 157. 6 Peters, 724. 727, 728. 342. And -of course; that the certificate of survey returned by the recorder; .was in the name of John Robertson, Jr. The patent merged the location certificate on which- the survey was founded; so that no second survey could be made by virtue, of the certificate. Thus fortified stands the title of the plaintiff below.
The defendant there relied upon a notice of éntryfiled'witn me surveyor general in these words: “ Morgan Byrne, aS the legal fepre-' sentative of John Robertson, Jr.', enters six hundred and forty acres of land, by virtue of a New Madrid certificate, issued by the recorder of land titles for the territory of Missouri, and dated St. Louis, September, 1818, and numbered 448, in- the- following manner, tb' wit, to include section No. 32, in township No. 50, north of the base line; range Nó. 15, west of the fifth principal, meridian.
“ St. Louis, Oct. Qth, 1818. Morgan Byrne.”
*449Which is founded on the following certificate of location r.
“ No. 448.
" St. Louis, Office of the Recorder of Land Titles,
" September, 1818.
" I certify that a tract of six hundred and forty acres of land, situate, Big Prairie, in the 'comity of .New Madrid, which appears, from thé hooks of this office to. be owned by John Robertson, Jr., has been materially injured by earthquakes''; and that in conformity with the provisions of the act of Congress, of the- 17th. February, 18Í5, the said John Robertson, Jr., or his legal representatives, is entitled to locate six hundred and forty acres of land,, on any of the public lands of the territory of. Missouri, the sale of which is authorised by law. Vide Com’is Cer’e, No. 1126, ext’d.
'“ Frederick BatésN
This, is obviously the foundation- of the survey and patent to John Robertson, Jr. ; , a fact admitted ; but'it is insisted that Byrne had the better title to the recorder’s certificate ; that it issued to him. in fact as the “legal representative of John Robertson, Jr. ;” and that the notice of entry filed with the surveyor general, vested in Byrne a title .of a character on which he could have maintained an ejectment against Broderick-; and that, consequently, his devisees could successfully defend themselves.. That they corild, if. the entry, be ■the better title, must be admitted. '
There is evidence .in this record, tending to show that Morgan Byrne made the relinquishment of the New Madrid claim; but the same evidence, (being extracts from the records of the recorder’s office,) show that the location certificate was granted to John Robertson, Jr. They are as follows:
Warr. or ord. of survey.. Survey.’ Notice to the recorder. Quan’ty claimed. Where situated: Ross’n, Inli’n, Cult. &c. Opinions of the recorder^.
By Ü. S. Corn’s for 200 arpens, cer. 1126.-Johft Robertson, Jr. 750 arpens. Big Prairie. Granted 6^0 acres £.
A list of relinquishments of lands materially injured by earthquakes, in the late county of New Madrid, (present) state of Missouri, under the ac.t of Congress of 17th February, 1815.'
Loc’n cert. Claimants of-record. Quantity. Situation. Relinquishment by whom, and general remarks.
448 John Robertson, Jr. 640 acres. Big Prairie. Morgan Byrne, legal representative,
. This evidence, taken in connexion with the deeds to Edward Robertson, and those from him and others to Byrne, it is. insisted, esta*450blish the better equity- to have been in the latter; and that this equity can be made available for the defendants in the Circuit Court, by force of the act of the legislature' of Missouri, which provides, that an action of enactment may bé maintained'on “ a New Madrid location.”
Our opinion is, first, that the location referred to in the act, iff the plat and certificate of survey returned'to the recorder of land titles; because, by the laws of the United States, this is. deemed the first appropriation of the land,and the legislature of Missouri hadnopower, had it made the attempt, to depiare the notice of location filed with the surveyor, general an appropriatioh contrary to the laws of the United States. The survéy having been made and certified to the recorder in the name óf John Robertson, Jr., Byrne had no title that would sustain an ejectment in, any case; and of'course, "those -claim-ting under him- cannot successfully defend themselves on the evidence they adduced.
But secondly, suppose the plat and certificate of location had-been made and returned to the recorder in.the name of Morgan Byrne,; and that-it had been set up as the better title, in opposition to the patent adduced.on behalf of the plaintiff in ejectment; still, we are of opinion the patent would have been the better legal title. Weare bound to presume' for. the purposes of this action, that all previous steps had been taken by John Robertson,- Jr., to entitle himself to the patent, and .that he had the superior right to obtain it, notwithstanding -ihe claim, set up by Byrne ; and having obtained the patent, Robertson-had the best title,, (to wit, the fee,) known to-a 'Court, of law.
Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the'federal government,'in reference to the public lands, declares the patent the superior and conclusive'-evidence óf legal title; until its issuance, the fee is in the government, which, by -the patent, passes to the grantee; and he is entitled to recover -the possession in ejectment;
If Byrne’s devisees can show him to have been the true owner of the 750 arpens off land, Relinquished because" injured by. earthquakes,and that, the patent issued to John Robertson, Jr.,-by mistake ; then the equity side off the Circuit Court tis the proper forum, .and a Rill. the. proper remédy, tó investigate the equities of the parties. But whether any equity existed tip -virtue of'the act of 1815; and if so, whether it was "adjudged, between the parties by the recorder of land titles; are .questions op which we have formed no opinion, and wish to be understood, as pot irititnating any.
We have been referred to the case pf Ross vs. Barland, 1 Peters, 662, as an adjudication involving the principles in this case; we do not. think so. In that there were conflicting patents; the younger being founded on an appropriation of the specific land, by an entry in the land office of earlier date than the "senior patent. The Court held that the entry , and junior-patent , could be given in evidence in *451connexion as one title, so as to overreach the elder patent; The practice of giving in evidence a special entry in aid of a patent, and dating the legal title' from the date of the entry, is familia* in some of the states, and especially in Tennessee; yet the entry can only come in aid of a legal title; and is nó evidencia of such title standing alone, when opposed-to -a patent for the same land. Where the title has passed out of the United States by conflicting patents, as it had in the case in 6 Peters, there can be no objection to the practice adopted by the Courts of Mississippi to give effect.to the better right, in any form of remedy the legislature or Courts of the state may prescribe.
Nor,4o we doubt the power of the states to pass laws authorizing purchasers of lands from the United States, to prosecute actions of. ejectment, upon certificates of purchase, against trespassers on the lands purchased; but we deny that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress' alone can givé them such effeet.--
Por the several reasons stated, we have no doubt the judgment of the Circuit Cóurt was correct.;, and order"it to be affirmed.
•In the cases of Sampson against Broderick, and M'Cunie agairist the same, the judgments are. álso affirmed.'- • -