Edward H. McCabe, Plaintiff in error, v. Lloyd D. Worthington, 16 How. 86

Mr. Justice CATRON delivered the opinion of the court. This cause comes here by writ óf error to the Supreme Court of Missouri, under the twenty-fifth

section .of the judiciary Act. The error assumed to have been committed below, is that the court misconstrued the act of May 26,-1824, enabling claimants to lands in Missouri, to institute proceedings to try the validity of their claims. The action being an ejectment, and the defendant in possession by virtue of patents from the United States, the only question is whether the plaintiff has a better legal title. The plaintiff relies on a decree of this court, made in 1836, in favor of' Soulard’s heirs against the United States for 10,000 arpens of land including the premises sued for.

The decree is’ of younger date than the entries of the defendant, which were made in 1834, and are a good title to'sustain or defend an ejectment in Missouri. Soulard’s claim- was filed in' the District Court, in August, 1824, and a confirmation demanded, but which was refused, and the petition dismissed in 1825; from this decree an appeal was prosecuted, and in 1836, a decree was rendered by this court confirming the claim. And the question here is, whether the decree in the Supreme Court related back to the date of filing the petition against the United States in the District Court.

If it did, then the plaintiff is entitled to recover; and if it did not, then the judgment below must be affirmed. The act of March 3,1807, declared that all claims to lands should be .void- unless notice of the claim, &c., should be filed with the Recorder of Land Titles, prior ’ to the first of July, 1808. Soulard’s claim was not filed with the recorder, nor -Was it presented to any tribunal for action on it, till, suit was brought in 1824, in the District Court. Up to that time, the land claimed was subject to sale.

This is admitted: But the argument for the plaintiff is, that the act of 1824 removed the bar, and restored the claim to its original standing as if the act of 1807 had not been passed. • Admitting this to be true, still it proves nothing, as the United States could beyon.d question have sold this land before 1807, and passed the legal title; and hence the removal of the bar, imposed by that act, left.the land equally open to sale at any time after 1807, as it was before that time. -The act of February 17,1818, laid off local land districts in Missouri; cine of which embraced the land in dispute, and provided for the salev. of public lands, from time to time, in each district.

But an exception was made according to the act of 1811: That till after the decision of Congress thereon, no tract of land shall be offered for sale, the claim to which, has been in due time, and according to law, presented to the Recorder of Land Titles, and filed in his office.

The claims thus reserved from sale were the' ones Congress ■ supposed would come before the District Court and be adjudicated under the act of 1824; and as they stood protected from sale, no further provision was' made by the act to protect such claims as that of Soulard, which had never been recorded. ' Having given no additional protection by the act of 1824, and Congress having the power to grant the land, or to cause it to be. done, through the department of public lands, the Commissioner of the General Land Office (June 25, 1831) ordered the registers and receivers of the various land districts in- Missouri to proceed to sell the lands, not adjudicated under the act of 1824, which had been subject to adjudication: holding that, notwithstanding, the provisions of the acts of 1811 and 1818, all claims not brought before the court, or if brought, not prosecuted to a final decision in three years by reason of neglect on the part of the claimant, were subject to be offered at public sale.

Volume of Instructions and Opinions, No. 704.

Under this established construction, the land in question was sold to the defendant. • He could not know that Soulard’s heirs claimed the land, as their claim was nowhere recorded in any office appertaining to the department of public lands; and if he had known that such claim existed, still the land court in Missouri had ceased to exist on the 26th of May, 1830, four years before he " purchased: Soulard’s claim had been rejected in that court, and had been pending on appeal in the Supreme Court, for nearly ten years after the suit was instituted; whereas the act of 1824, required that it s..ould be prosecuted to a final decision within three years.

Thus stand the equities of the defendant. But another consideration is conclusive of this case: The act of May 24,1828, § 2, provides, that confirmations had. by virtue' of the act of 1824, and patents issued thereon, should only operate as relinquishments , on the part of the United States, and’ should in nowise affect the right of title, either in law or equity, of adverse claimants to the same land.

The act spoke of confirmations by decree, and declared that the decree should operate prospectively; and consequently embraced á case, where the land was acquired by purchase from the United States before the decree was made, unless the acts of 1811 and 1818 pro-.tected the land from sale. For these reasons, we agree withjhe Supreme Court of Missouri, that the defendant has the .older and better legal title, and order the judgment to be affirmed. Ordér. This cause came on to be heard on this transcript of the record from the Supreme Court of the State of Missouri, and ■was argued by counsel.

On consideration whereof it is now here ordered, and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with .costs;