John Gallipot, ex dem. John Bruner, plaintiff in error v. Jonathan D. Manlove and Moses Manlove, defendants in error, 1 Scam. 156

Smith, Justice, delivered the opinion of the Court: This was an action of ejectment brought to recover possession of the North West quarter of

Section 30, Town 2 North, of Range 1 West of the 4th principal meridian, lying in the county of Schuyler. A verdict was rendered for the defendant. On the trial, the plaintiff offered in evidence, a certificate of the Register of the United States’ Land Office at Springfield, in this State, dated November 3d, 1834, by which it was declared, that on the 3d day of August, 1830, John Bruner purchased of the United States, at the said office, the land in question, as appeared from the records on file in said office, which, was objected to, but. admitted by the Court, the hand writing of the Register being ¡Droved.

The plaintiff also proved the possession of the land by the defendants. The defendants then offered in evidence, which was objected to by the plaintiff, a duplicate receipt of the Receiver of public moneys „at Springfield, dated 29th of January, 1831, which expressed to have received of the defendants the sum of $197,60, being in full for the same land ; also a certificate of the Register of the said Land Office, dated 19th of September, 1834, which declared, that on the 29th of January, 1831, the defendants purchased of the United States, at the said Land Office, by virtue of the provisions of

an act of Congress, approved on the 29 th of May, 1830, entitled “An act to grant pre-emption rights to settlers on the public lands” the same tract of land which appeared of record in said office. The Circuit Court admitted, notwithstanding the objection of the plaintiff, the last two certificates to be read in evidence.

The defendants were also permitted to prove, notwithstanding the objection of the plaintiff, that the defendants were in possession of the land in question, and cultivated the same several years before the purchase of the land, either by Bruner or the defendants, except a portion of time when they had been out of the county, at the Mines—but how long a time the witness could not state. Several sets of instructions were prayed for and either given or refused.

But it is not deemed essential to refer to more than one asked for by the plaintiff’s counsel, and refused to be given by the Court, viz: the 2d, “That the certificate of the Register and duplicate of the Receiver of the Land Office at Springfield, showing a sale of the same land in question to the defendants by the United States, after said sale of said land to Bruner, is not a better, legal and paramount title for said land to defendants.” On this state of the case, three questions seem naturally to arise out of the evidence, on the second instruction prayed for: 1st.

What is the rule in reference to the conveyance by the government of the United States of its land, where there are two sales and conveyances of the same land to different persons, and at different periods of time ? 2d. What is the character and effect, and what the extent of the rights of the parties, derived from the certificates of the United States’ Land Officers, by the laws of this State ? 3d. Was the refusal of the Court to give the instruction prayed for by the plaintiff’s counsel, an error ?

On the first point, we presume that a patent for land, or any mode of sale adopted by the government for the disposition of the public domain, must be subject to the same rules of

interpretation as ordinary cases. It will not, we apprehend, be for a moment contended to be otherwise. What then is the rule where two patents have issued for the same lands, to different persons, at different times ? The elder patent is the highest evidence of title, and as long as it remains in force, it is conclusive against a junior patent. The second patent is inoperative and void, if the land passed by the first patent. It is the almost universal rule of our courts, to look to the elder patent in all questions of title, and to give it effect.

It is not for the Court to look to any equitable claim on the general government which a third party might have in respect to lands conveyed to another person prior to the issuing the patent. The elder patent must be impeached and vacated, before any title can be set up under the younger one, and it cannot be impeached by parol proof in such an action as the present. Letters patent are matter of record; they can alone be avoided in chancery by a writ of scire facias sued out on the part of the government or by some one prosecuting in its name, or by a bill in chancery.

The settled English practice is so, and we have no law or practice prescribing a different course. By an examination it will be found, that the authorities, both English and American, speak of the case of two successive patents for the same thing, and that the second patent is void, though some differ as to which shall pursue the remedy to vacate either. The better construction, however, and one more consonant to the nature of the case, seems to be, that the scire facias should be prosecuted by the second grantee, to avoid the first, it being a matter of record, or that he pursue his remedy by bill in chancery.

In Virginia, by a law of that State, a patent may be declared void from defects appearing on its face, without the necessity of resorting to a scire facias to repeal it. Considering then that the rule of law is as stated, in reference to two patents issued at different times, to different persons, for the same thing, we are necessarily led to the consideration of the second point, in which is to be examined the character and effect of the certificates of the Register and Receiver, and the rights of the respective parties under them. By the 4th

section of the act declaring what shall be evidence in certain cases, approved 10th January, 1827, it is declared that “ The official certificate of any Register or Receiver of any Land Office of the United States, to any fact or matter on record in his office, shall be received as evidence in any court in this State, and shall be competent to prove the fact so certified.

The certificate of any such Register of the entry or purchase of any tract of land within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, to recover possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better, legal, and paramount title be exhibited for the same.” From this

section of that act, it is manifest that the Register’s certificate is raised to as high a character in point of evidence, in the present form of action, as a patent possibly could be. Its effect is to be the same, and the rights derived from it for the purpose of recovering or maintaining possession of lands described in it, are co-extensive with the most formal, regularly issued patent. These certificates not only vest the title acquired by purchase from the government in the purchaser, for the purposes named, but make that title transmissible to the heir or to the assignee.

For any purpose, then, so far as regards the character of these certificates as evidence in an action of ejectment, they must be considered of as high dignity as patents, and partaking of all their legal attributes. Having settled their character and effect, the rights of the parties under them must be governed by the same rules of

interpretation as in the case of patents. No reason can exist for an exception. There is, however, a point of some importance in the case, which seems not to have been adverted to by counsel in the Court below or here. The certificate of the Register given to Bruner, shows the fact that the land was purchased after the passage of the pre-emption law. But whether the defendants established their right to the pre-emption at the Land Office, before or after the purchase by Bruner, does not appear in the case.

We might presume it was subsequent thereto, and at the time of the payment of the purchase money; but the Register’s certificate is given on the 19th September, 1834, and recites that the purchase was made in pursuance of the act of the 29th May, 1830. But the Receiver’s certificate negatives the idea of its being a pre-emption purchase by defendants, for there is no recital in the Receiver’s certificate that it was so purchased.

Whether in pursuance of the act of Congress of the 29th May, 1830, the defendants acquired a previous right of purchase of the land in question, we have no means of determining, except so far as the certificate of the Register of the Land Office may lead to such conclusion. But on the other hand, the certificate of the first purchase in August, 1830, by Bruner, is equally as conclusive that the government would not have sold land to which the defendants had a pre-emption right of purchase.

The certificate, however, being placed on the same ground as an actual patent for the purpose of evidence in this action, we are bound to consider the first as conclusive until vacated. Whether the same solemnities and forms of proceeding are to be observed to vacate it as in the case of a patent, is a question we are not now called on to determine. That it could not be contradicted by parol, is, however, certain. It would require, we should suppose, some legal proceedings to be had before it could be vacated.

Whether there might be sufficient cause to do that, is also a matter not before the Court for its decision. We can know nothing of the merits of such a matter' at this time.. The third point is easily settled. The principles here laid down as to the character and effect of the first certificate, and the rights of the party under it, determine the refusal of the Circuit Court to have been erroneous in refusing the instruction asked.

The judgment of the Circuit Court is reversed, and the cause remanded, with instructions to the Circuit Court to award a venire de novo, and for further proceedings not inconsistent with this opinion. Judgment reversed. Jackson ex dem. Mancius v. Lawton, 10 Johns. 23; Jackson v.-, 4 Johns. 163; Jackson v. Hart, 12 Johns. 77, 81. King v. Avery, 2 Term R. 515; Daniel’s case, Dyer 133. Alexander v. Greenup, 1 Munf. 134; R. C. of Virginia, of 1819, vol. i. 466. R. L. 280; Gale’s Stat. 287. See note to the case of Jackson ex dem McConnell v. Wilcox. Post.