dissented.
Being opposed, to the decision of the Court in this case, I will state, as shortly as I can, the grounds..of rffy dissent. I am induced, to do this from the peculiar circumstances of the case.
To.sustain his action of ejectment, the plaintiff, in the’.Circuit Court, gave in evidence a patent to John Robertson, Jr.; which states “ that he had deposited in the ■ general land officé a certificate numbered one hundred and -ninety-two, of the recorder of land titles at St. Louis, Missouri; whereby.it appears that; in pursuance of an .act of Congress, passed-17 February, 1815, entitled, an act for the relief of the inhabitants of the late county'of New Madrid, in the Missouri territory, who suffered by earthquakes, the said John Robertson, Jr., is confirmed in his claim for six hundred and forty acres .of land, being survey No. 2,810, and section thirty-two, of township fifty, north,- in range fifteen, west of. the fifth principal meridian line,” &c. The patent bears date 17th June, 1820. On the 16th November, 1830, the patentee conveyed the land to Augustus-H. Evans. And on the 7th June, 1831, Evans conveyed to Broderick, the lessor of the plaintiff.
-The defendants first gave in evidenee.a confirmation of a Spanish claim for settlement and .cultivation to John Robertson, Jr,, for six hundred and forty acres of land in the Big Prairie, near New Madrid. The- entire interest in this right was conveyed by John Robertson, Jr., to -Edward Robertson-, Sr., the 29th May, 1829.
On the 30th October, 1813, Edward Robertson, Sr.,-conveyed three hundred arpens of this tract of land to Morgan'Byrne. .And *452the 11th óf September, 1816, he conveyed to Byrne- two hundred and fifty arpens more'of the same tract. On the 29th October, 1816, Robertson conveyed to William Shelby two hundred and fifty arpens of the same tract. . And on the 2d December, 1816, Shelby conveyed to Levi Grimes; and on the 26th February, 1817, Grimes fconyeyed to Morgan Byrne. .
By these conveyances Byrne became vested with the entire original right of John Robertson, Jr., to the tract of land, as above stated.
Under the act of Congress of the 17th February, 1815, any person owning land within the county of New Madrid, in. the Missouri territory, which had. been injured by earthquakes, had the right to relinquish the same to the United States, and receive a certificate therefor, specifying the quantity of acres, not to exceed six hundred and forty, which he was authorized to locate on- any land of the United States; and on such location being made, the land relinquished became absolutely vested.in the United States.
Under this daw Byrne relinquished to the United States the six hundred and forty acres in the Big Prairie, as the legal representative of John Robertson,-Jr., who was the claimant of record originally. , The following is a cppy of the certificate of location issued on this relinquishment:—
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 county of New. Madrid, which appears from the books 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 17tlF February, 1815, the said John Robertson, Jr., or his legal representatives,.is entitled to loeate 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.
[Signed.] - Frederick Bates.
. Arid’on the. 8th of October; 1818, Byrne’ made the following, location: — . .
“ Morgan Byrne, as the legal representative 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-, Í818, and numbered 448, in the-following manner,, to wit: to include section No. thirty-two, in township No.- fifty, néíth of the baseline, range No. -fifteen west of the fifth rincipal meridian.?’' And here the evidence of the defendants closed;.
On this state of facts, the defendant’s counsel moved the Court to • instruct the jury, that the entry or New Madrid'location, made by. Morgan Byrne in his own name, is proof of a legal title to the land.;; *453and is a sufficient defence against all persons who do not show a better legal title to the same land. That if the jury believe the patent, a .copy-of which has been given in evidence by. plaintiff,issued on the location made by Morgan Byrne, the patent is not such title as wili avail against the location..
- The .revised code of Missouri of 1825, which was in force when this action was commenced, provides that a New Madrid location shall be a title on which to sustain an action of ejectment against any person not having a better title.
The defendant’s show, by deeds of conveyance from John Robertson, Jr., that Morgan Byrne had a full and clear title to the 640 acres of land near New Madrid; that he relinquished said land,' under the act of Congress of 1815, to the United States, and located the section of land now in controversy. He being the owner of the land, as the legal representative of John Robertson, Jr., was' the only person who could relinquish it to the United States. By virtue of this relinquishment, and in consideration of its having been made, he.received the certificate which authorised him to.locate the same number .of acres óf any part of the- public land which had been offered for sale.
It appears that under the-law pf 1815, the New Madrid claimant had to show a confirmation of the land claimed ■ by him on the public records in. the name of the first claimant, and to show a derivative title' to himself, before he was permitted to relinquish it to the government. And in the present instance, John Robertson, Jr., being the original confirmee of the title, the record was. produced establishing the fact; • and -Byrne then proved, by an exhibition of his deeds,- that Robertson had parted with all his right in the pré-' mises,- and that he was his legal representative. It was in this capacity that the relinquishment was made,'and the certificate of location was issued. And he made the "location of the land in controversy, in the samé character.
In this view of the cáse there can be no doubt that Byrpe or his assignee has the title to the land. And that there is possession .under this' title is shown by the-fact that the action-of ejectment was commenced by the lessor of the plaintiff, to obtain rthe- possession.
' It appears that the patent was issued to John Robertson, Jr., improperly; as in 1809 he conveyed all his interest in the land relinquished. Before, the emanation of the patent, he had not a shadow of title, -either equitable- or legal, to the land in dispute. And the patént' must have been fraudulently obtained by him, on the presentafior fif the certificate of location made by Byrne. The evidence on this point is too clear to be controverted. It is established by deeds executed in the most solemn form, and by records which contain the highest verity. The inference of the fraud is as irresistible as aré the facts from which it is inferred.
The proof of Byrne’s title is irrefragable; and it is equally- cléar *454that Robertson had no title to the land, until he fraudulently obtained the patent.' Haying no shadow of right, he could obtain the patent in his own name by no other than fraudulent means. - And no Court which could feel itself' authorised to look behind the patent, could hesitate to pronounce the title of Byrne valid against the patentee, who has sought to cover, his fraud by this legal instrument.
And the question here arises, whether, under the Missouri statute, the Circuit Court ought not to have instructed the jury, ‘that under the deeds and records given in evidence, Byrne’s was the- better title. I cannot doubt that this instruction should have been given.
The statute makes the location a legal title for the purposes of the action of ejectment. And if it bé a .good title, on which to bring an 'ejectment, it must be equally effectual in the defence of such an action. ■This title, the statute declares, shall prevail against any person who has not the better title.
And what kind of a title is this, better title. Surely it is a title that under the facts and circumstances of the case ought to' prevail against that to which it is opposed.
It is urged that this better title must mean a better title'than others of the. same class; but that it can never be considered a better title against a patent. And why may it not be considered a bettér title against the patent?
The title set up in the defence derives its validity from laws of the -United States, as entirely as the patent. The question then is, which is the better title of the two, both .originating from the same sovereignty ? The statute of Missouri does nothing more than declare that a Court of law may do in an action of ejectment, what no one doubts would be competent for a Court of chancery to do.
And'may not the legislature do this? It does not originate a title, under-any pretence of state sovereignty, which is to operate against a patent from the United States ; but it gives to a Court of law, powers in the action of ejectment, which in some other states are exercised only by a Court of chancery. This has always been the rule in Pennsylvania, and in other states which- have no Court of chancery.
Technically, a location, is an .inchoate legal title. Rut, out of this class of titles a new rule of equity grew up, by the practice of the Courts of Kentucky.. And this rule is not in conformity with the long established principles.of a Court of equity.
As between conflicting entries, the doctrine of notice is utterly discarded. The entry must be a legal one, by embracing all the substantial requisites of the law, or a subsequent .'entry may be made on the same land, though the locator have full knowledge of the first entry.
This forms an anomaly in the history of equity jurisdiction. It authorizes .a Court of equity to give effect to that which is, in itself, strictly a legal right.
Principles growing out of this peculiar system -have bben acted *455on from necessity, by the Courts of the United States; but they have not been regarded as appropriate to an equitable jurisdiction in other cases.
■ ' Had the Courts of Kentucky acted upon entries as .legal titles, Whether under their own rules, or by virtue of statutory provisions, the Courts of the United' States would have adopted, the same mode of proceeding, In the .state of Tennessee,, a junior .patent under' the first entry will overreach an elder patent, under a junior conflicting .eptry. This,'in Kentucky, would be the exercise of an equitable jurisdiction. In Missouri, under the statute, it would be examinable at law.
It is said, the patent merges the location. This, under the Kentucky system is true; but, where the .patent has been issued, through á. mistake. or fraud, to an individual who was not entitled to it; a Court of equity will control’ the right of the patentee, by compelling him to convey'to the person who has the better right.
And why may not a Court of law protect this better right. The right may be investigated as fully, and considering the nature of the rights under the Missouri statute, as safely-in a Court of, law.as in a Court of chancery. But this, with the Court,' is not a question of policy; It is a'fule of. evidence and of property-adopted by the state of Missouri, and our whole course of adjudications requires us to. regard it. There is therefore no more violation of principle in examining the title of Byrne at law, then in equity. The - result' is substantially the same in both modes; as.the title of Byrne must be protected from the fraud, by which it has -béen attempted to be overreached and subverted.
judging from the evidence of this case, I have never seen a grosser act of. fraud than the dbtainment of this patent by Robertson ; eleven years after he had conveyed every vestige of right in the land, which was relinquished as the consideration to the United States for the location in controversy.
It was stated in the argument that Byrné made the location, but took no step subsequently to perfect the title. . That Robertson-had the survey executed and returned. This' is an argument against the record. By the certificate which authorized the location it was required to be located on land, “ the sale of which is authorized by law.” And no land is authorized-by law’to be .sold, except such as has been surveyed by the officers of the United States. - The location in question was made on a, section, designated by its number, township, and range, and which of course had been surveyed.
' As Robertson’s name was inserted in the location agreeably to the forms used, he being the'original claimant on record, of the New Madrid tract relinquished, he Was enabled to practise an imposition and fraud on the commissioner of the general land office, and obtain the patent. ■
It is a well settled priñciple, that fraud may be investigated as. well at law as in chancery; and I am strongly inclined to think if *456this-fraud.had been brought before the Court and -jury, independent of the statute of Missouri, they must have determined that it viti-, ate'd the patent.
Can any one look at these two titles, that of Byrne having been obtained by a fair purchase, relinquishment, and location; and that of Robertson by fraudulently obtaining the- patent, and hesitate in-deciding which is the better title. ' And it appears to me that the statute of Missouri in providing that such a location shall be a title, on which an action of ejectment may be sustained, covers the whole case; and enables the Court and jury to determine which is the better-title.
In thé : case of Sims’ lessee vs. Irvine, 3 Dallas 457, this Court s^iy, “ in Pennsylvania, where the consideration has been paid,' a survey, though unaccompanied by a patent gives, a legal right of entry, which is sufficient in ejectment.” Why they have been adjudged to give such right; whether from a defect' of chancery pow? ers; or for other reasons of policy Or justice' is not now material. The right once having become an established legal right, and having incorporated itself, as such, with property'and tenures; 'it remains a legal right notwithstanding any new .distribution of judicial powers, and must'be regarded by the common la.w Courts of the United States, in Pennsylvania, as a rule of decision.
• And in the case of Ross vs. Doe on the demise of Barland et al. 1 Peters, 664, this Court say,' “for.the plaintiff it is argued.that the state- Court erred in deciding that the .elder grant should not prevail' .in the action of ejectment.” '
The question-in this-case was between a claimant under a patent of the -United States, and one who claimed the same land under a donation certificate, given by- commissioners. The question was identically the same, in principle; as in-the case under consideration.
And this Court decided, “ where by the established practice of Courts in particular states, the Courts in actions of ejectment look beyond the grant, and examine the progressive' stages of the title from its incipient state until its consummation'; such a practice will form the law of cases decided under the same,- in'these states: and the Supreme Court of the United States regard tho'se rules of decision in cases brought- up from,such states, provided that in so doing,they do'liot suffer "the provisions of any statute of the United States to be violated. Under the act of Congress,'of March 3, 1803, such lands only were .authorized to. be; offered for sale as had not been appropriated by ,the previous sections of the law, and certificates' granted by -the commissioners in pursuance thereof. A right, therefore, to a particular tract of land derived from a donation certifícate, given tinder, that law, is superior to the title of anyone who- pqr-■chased the same land at the public sales.” .This was'the rulé in ejectment cases in the State of Mississippi, from whence this cause was'brought. . '
This decision was given in 1828; the one cited from Dallas was *457made in 1799; and the rule laid down in these eases has not been questioned by any other adjudication of this Court. Other decisions might be referred to of the same import, but it is deemed to be unnecessary.
I will, however, notice a case decided at the present term, which, in my judgment, in principle, has a strong application to the question under consideration. By a statute of Kentucky it is provided that. “ any person having both the legal title, and possession of land, may institute a suit against any other person setting/ up a claim thereto; and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to- release his claim thereto, and to pay the complainant his costs,” &c. Now here is a statute which creates an equity, or rule of'proceeding in a Court of chancery ; which, in-the case of Clark vs. Smith has been very properly ■recognized as a rule of proceeding in this Court.
Now the statute of Missouri created a legal right, or rule of proceeding in the action of ejectment. And if the Kentucky statute can give the rule of proceeding to this Court, in chancery, why'may not the Missouri statute do the same thing at law..
In the state of Illinois, by statute, a certificate of. the register of the land office of the United’ States of an entry of land, is made a good title on which, to sustain an action of-ejectment: and the Supreme Court of that state has long since settled the rule, that such a title may be held good against a patent.wrongfully or fraudulently obtained. In the sate of-Alabama there is a similar law, and it has received, by the Supreme Court of that state, the same construction.
. The idea,- that if a state can pass a law authorising an action of ejectment on a certificate of the register, and that if this certificate, Under any'circumstances should be held the better title, against a patent wrongfully issued would endanger the .public lands; is so novel and so unfounded that I must notice it. Had not such an argument been advanced, I should have supposed that' two things, so wholly disconnected as this premiss and conclusion could never be associated in the mind of any one. •
How is the public lands endangerel by the establishment of this--rule?- ' / - ...
' The. certificate as well as the patent emanate from the'federal government. Now if the patent through mistake or fraud has been issued wrongfully, no one doubts that a Court of chancery may protect the right, in such, a case, of the certificate holder;, ■. The state of Illinois says, this may be done at law, and this is the whole matter. If there be danger to the public lands' in this, it is riot only U modern discovery: but to guard effectually against the danger, the. states must abolish their Courts of chancery, or restrict them under all. circumstances from-questioning thé right of the patentee. If the state Courts cannot try'these cases between their own citizens and under their own laws, where are they to be tried? All who claim under a patent are entitled to the same rights as the patentee.