CAREY BAGNELL AND THE EXECUTORS OF MORGAN BYRNE, PLAINTIFFS IN ERROR,
vs.
GEORGE W. BRODERICK, DEFENDANT IN ERROR.
Supreme Court of United States.
*440 Mr. Beverly Allen submitted a printed argument for the plaintiffs in error.
Coxe for the defendant in error. &mdash.
*445 *446 Mr. Justice CATRON 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. *447 Byrne 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 not de bonis propriis.
The presumption is, that the judgment of the Circuit Court is proper, 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 of their letters testamentary, but could 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, therefore, we presume they were admitted; and, like other defendants in ejectment, having failed to show the better title, the recovery was proper; and costs necessarily followed the judgment de bonis propriis.
The plaintiff Broderick 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 arpens of land lying in Big Prairie township, in the district of New Madrid, adjoining the lands of Sheckler and Cox; and which deed authorized Edward Robertson to procure a patent from the government. By different conveyances Morgan Byrne claimed title to the 750 arpens through and under Edward Robertson.
The land lies in the county of New Madrid, in the state of Missouri, and was injured by the earthquakes of December, 1811. 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 authorized to locate the same quantity on any of the public lands in the Missouri territory, but not exceeding in any case 640 acres; 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 a notice in writing, designating the tract *448 located, and the name 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, returned 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 plat and certificate of 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 the 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 entry filed with the surveyor general in these words: "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, 1818, and numbered 448, in the following manner, to wit, to include section No. 32, in township No. 50, north of the base line, range No. 15, west of the fifth principal meridian.
"St. Louis, Oct. 8th, 1818. MORGAN BYRNE."*449 Which is founded on the following certificate of location:
"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 17th February, 1815, 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'rs
Cer'e, No. 1126, ext'd. "FREDERICK BATES."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 could, 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. | Notice to the recorder. | Quan'ty | Where | Poss'n, | Opinions of the | | survey. | | | claimed. | situated. | Inh'n, | recorder. | | | | | | | Cult. &c. | | |------------------|---------|-------------------------|-----------|-----------|-----------|-----------------| | By U.S. Com's | | | | | | | | for 200 arpens, | | John Robertson, Jr. | 750 | Big | | Granted 640 | | cer. 1126. | | | arpens. | Prairie. | | acres E. | ------------------------------------------------------------------------------------------------------------
A list of relinquishments of lands materially injured by earthquakes, in the late county of New Madrid, (present) state of Missouri, under the act of Congress of 17th February, 1815.
------------------------------------------------------------------------------------------------- | Loc'n cert. | Claimants of | Quantity. | Situation. | Relinquishment by whom, and general | | | record. | | | remarks. | | ------------|-----------------|------------|--------------|-------------------------------------| | 448 | John Robertson, | 640 acres. | Big Prairie. | Morgan Byrne, legal representative. | | | Jr. | | | | -------------------------------------------------------------------------------------------------
This evidence, taken in connexion with the deeds to Edward Robertson, and those from him and others to Byrne, it is insisted, establish *450 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 be maintained on "a New Madrid location."
Our opinion is, first, that the location referred to in the act, is 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 had no power, had it made the attempt, to declare the notice of location filed with the surveyor general an appropriation contrary to the laws of the United States. The survey having been made and certified to the recorder in the name of John Robertson, Jr., Byrne had no title that would sustain an ejectment in any case; and of course, those claiming 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. We are 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, not withstanding the 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 of 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 of land, relinquished because injured by earthquakes, and that the patent issued to John Robertson, Jr., by mistake; then the equity side of the Circuit Court is the proper forum, and a bill the proper remedy, to investigate the equities of the parties. But whether any equity existed in virtue of the act of 1815; and if so, whether it was adjudged between the parties by the recorder of land titles; are questions on which we have formed no opinion, and wish to be understood as not intimating any.
We have been referred to the case of 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 *451 connexion 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 familiar in some of the states, and especially in Tennessee; yet the entry can only come in aid of a legal title, and is no evidence 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 do 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 give them such effect.
For the several reasons stated, we have no doubt the judgment of the Circuit Court was correct; and order it to be affirmed.
In the cases of Sampson against Broderick, and M`Cunie against the same, the judgments are also affirmed.
Mr. Justice M`LEAN dissented.
Being opposed to the decision of the Court in this case, I will state, as shortly as I can, the grounds of my 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 office 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 evidence 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 *452 the 11th of 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 conveyed 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 law 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 copy 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 17th February, 1815, 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.
[Signed.] FREDERICK BATES.And 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, 1818, and numbered 448, in the following manner, to wit: to include section No. thirty-two, in township No. fifty, north of the base line, range No. fifteen west of the fifth principal 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; *453 and 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 will 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 of any part of the public land which had been offered for sale.
It appears that under the law of 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 premises, 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 same character.
In this view of the case there can be no doubt that Byrne 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 the 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 patent must have been fraudulently obtained by him, on the presentation of 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 are the facts from which it is inferred.
The proof of Byrne's title is irrefragable; and it is equally clear *454 that Robertson had no title to the land, until he fraudulently obtained the patent. Having 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 be 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 better 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. But, 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 been acted *455 on 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 entry. 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 a 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 rule 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 been attempted to be overreached and subverted.
Judging from the evidence of this case, I have never seen a grosser act of fraud than the obtainment 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 Byrne 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 principle, that fraud may be investigated as well at law as in chancery; and I am strongly inclined to think if *456 this fraud had been brought before the Court and jury, independent of the statute of Missouri, they must have determined that it vitiated 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 the case of Sims' lessee vs. Irvine, 3 Dallas 457, this Court say, "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 powers; 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 law 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 those rules of decision in cases brought up from such states, provided that in so doing, they do not 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 certificate, given under that law, is superior to the title of any one who purchased the same land at the public sales." This was the rule 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 *457 made in 1799; and the rule laid down in these cases 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 endangered 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 not only a 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 the 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.
*458 Mr. Justice M`KINLEY concurred in opinion with Mr. Justice M`LEAN.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Missouri, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.
NOTE.
No. 192. Office of the recorder of land titles. St. Louis, March 9, 1820.I certify, that in pursuance of the act of Congress, passed the 17th day of February, 1815, a location certificate, No. 448, issued from this office in favour of John Robertson, Jr., or his legal representatives, for six hundred and forty acres of land; that a location has been made, as appears by the plat of survey herewith, and that the said John Robertson, Jr., or his legal representatives, is entitled to a patent for the said tract, containing, according to said location, six hundred and forty acres of land, being section No. 32, in township No. 50, north of base line range No. 15 west of 5th principal meridian. No. of survey, 2,810.
FREDERICK BATES.Township No. 50, North of the Base line, Range No. 15, West fifth principal meridian.
79 50 ---------------------- | No. 448. | Surveyors' Office, St. Louis. | | January 15, 1820. | John Robertson, Jr. | I certify that section No. 32, in township | Section 32. | No. 50, north of the base line, range No. 15, | 640. | west of the 5th principal meridian, was located ---------------------- on the 8th day of October, 1818, for John Robertson, Jr., or his legal representatives, by virtue of No. 448, dated September, 1818, issued by the recorder of land titles for the Missouri territory, to said John Robertson, Jr., or his legal representatives, for six hundred and forty acres of land, in conformity with the provisions of the act of Congress of the 17th February, 1815, for the relief of sufferers by earthquakes in the late county of New Madrid. WM. RECTOR:To Frederick Bates, Esq., Recorder of land titles for the Missouri Territory.