# Bagnell v. Broderick

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## Dissenting Opinion

    McLean
United States Supreme Court
38 U.S. 436
Bagnell v. Broderick
IN error to the Circuit Court of the United States for the District of Missouri.
This was an action of ejectment for a tract of land in the state of Missouri, instituted by George W. Broderick against Bagnell, the defendant, the tenant in possession; and in the progress of the cause, Morgan Byrne, the landlord, was made co-defendant, and he dying, his executors were substituted.
Other actions of ejectment were at the same time instituted by George W. Broderick, for parts of the said tract in the possession of M'Cunie, and of Sampson; and the executors of Morgan Byrne became in the same manner co-defendants in the cases. A verdict, in conformity to the opinion of the Circuit Court, having been given for the plaintiff in each of the cases, on the 10th of April, 1838, the defendants prosecuted writs of error to the Supreme Court; bills of exceptions having been sealed by the Court.
The bills of exceptions show that on the trial of these cases the plaintiff below read in evidence a copy of the patent from the United States to John Robertson, Jr. dated 17th June, 1820, for the tract of land mentioned in the above statements, which, reciting that John Robertson, Jr. had deposited in the general land office a certificate, numbered 192, of the recorder of land titles at St. Louis, Missouri; whereby it appeared that in pursuance of an act of Congress passed 17th 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. was confirmed in his claim for 640 acres of land, being survey No. 2810, and section 32, township 50 north, and range 15 west of 5th principal meridian; and the United States granted to John Robertson, Jr. in fee, the tract of land described above. Also a deed from John Robertson, Jr. to Augustus H. Evans, dated 11th November, 1830, conveying the same tract of land to the said Evans in fee, expressly stipulating, however, against any warranty. Also a deed from Augustus H. Evans to George W. Broderick, the plaintiff below, now defendant in error, dated 7th June, 1830, conveying the same tract of land to the said Broderick in fee, and proved possession of the premises by the defendants below; at the commencement of the suits respectively, and here closed his testimony.
That the defendants below, now plaintiffs in error, read in evidence a transcript of a notice to the recorder of land title for the United States at St. Louis, taken from the records of the office of the recorder, given by John Robertson, Jr., which states that he claims 750 arpens of land in the Big Prairie, on the ground of inhabitation and cultivation, prior to and on 20th December, 1803, by and with the consent of the proper Spanish officer.
Also copy of proceedings had before the board of commissioners on land claims, on the 11th July, 1811, taken from the minutes of the proceedings of the board for ascertaining and adjusting the titles and claims to lands, which shows that on the claim of John Robertson, Jr. for 750 arpens of land in the Big Prairie, the board granted to John Robertson, Jr. 200 arpens of land. Also a transcript of opinion, and report of the recorder of land titles of the United States at St. Louis, made 1st November, 1815, which, in connexion with act of Congress of 29th April, 1816, entitled, 'An act for the confirmation of certain claims of land in the western district of the state of Louisiana, and in the territory of Missouri,' (see sec. 2 of this act,) shows that the confirmation of 200 arpens, parcel of the claim of John Robertson, Jr. for 750 arpens of land in the Big Prairie, made by the board of Commissioners aforesaid, was extended to 640 acres, and this quantity, 640 acres, was accordingly confirmed to him. Also a deed from John Robertson, Jr. to Edward Robertson, Sr. dated 29th May, 1809, conveying the said 750 arpens of land to the said Edward Robertson, Sr. in fee; reciting in same conveyance that 330 arpens of the said 750 arpens had been surveyed, and how; and specifying the manner of laying off the residue, and authorizing the said Edward Robertson to apply for and receive from government or the proper authorities, a patent in his own name for same; and covenanting on behalf of himself and his heirs, to warrant the title against all persons claiming under, through, or by the vendor. Also a deed from Edward Robertson, Sr. to Morgan Byrne, dated 30th October, 1813, conveying to the said Byrne, in fee, 300 arpens of land out of a tract of land the head right of John Robertson, Jr. situated and being in the Big Prairie, bounding the part conveyed, parcel of the 750 arpens above described; and covenanting for himself and his heirs to warrant and defend the title against all claims whatever. Also a deed from Edward Robertson, Sr. to Morgan Byrne, dated 11th September, 1816, conveying to the said Byrne in fee 250 arpens of land, part of the head right of John Robertson, Jr. of 750 arpens, situated in the Big Prairie, and containing a covenant for himself and heirs, to warrant the title against all claims whatever. Also a copy of deed from Edward Robertson, Sr. to William Shelby, dated 29th October, 1816, conveying to the said Shelby in fee two hundred arpens of land bounding the same, parcel of the head right of John Robertson, Jr., (and parcel of the 750 arpens above described,) and containing a covenant of general warranty. Also a copy of deed from William Shelby to Levi Grimes, dated 2d December, 1816, conveying to the said Grimes in fee the 200 arpens of land next above described, and containing a covenant of general warranty.
Also a deed from Levi Grimes to Morgan Byrne, dated 26th February, 1817, conveying to the said Byrne in fee the 200 arpens of land next above described, and containing a special warranty.
The defendants also produced in evidence an extract from registry of relinquishments, in office of recorder of land titles for the United States at St. Louis, of lands materially injured by earthquakes, under the act of Congress of 17th February, 1815; which shows that the confirmation aforesaid to John Robertson, Jr. for 640 acres, situated in the Big Prairie, was relinquished by Morgan Byrne, as the legal representative of John Robertson, Jr., and on such relinquishment the location certificate No. 448 issued.
Also a copy of certificate of location, dated September, 1818, and numbered 448, issued by recorder of land titles of United States at St. Louis, which certifies that a tract of 640 acres of land situated in the Big Prairie was materially injured by earthquakes, and that in conformity with the provisions of the act of Congress of 17th February, 1815, the said John Robertson, Jr., (reciting that he appears from the books of his office, recorder of land titles of United States, to be the owner,) or his legal representatives, was entitled to locate 640 acres of land on any of the public lands, &c. Also a copy of the location under the foregoing certificate of location, made 8th October, 1818, which shows that Morgan Byrne, as the legal representative of John Robertson, Jr., entered and located 640 acres of land, by virtue of the certificate of location, commonly called a New Madrid certificate, issued by the recorder of land titles of the United States at St. Louis, dated September, 1818, and numbered 448, so as to include section No. 32, township 50 north, range 15 west of 5th principal meridian, (the same premises in dispute;) and here the defendants below closed their testimony.
The plaintiff below then read in evidence, a copy of notice by John Robertson, Jr., of claim for 330 arpens, and proceedings on same had before the board of commissioners of land claims, on 24th March, 1806, and 15th August, 1811, which show that John Robertson, Jr. filed a notice of claim for 330 arpens, situated in the district of New Madrid, under the second section of the act of Congress of March, 1805, accompanied by a plat of survey of 330 arpens, made by one Joseph Story, at request of John Robertson, Jr., (as the same purports,) who, as the survey recites, claimed the same as part of his settlement right, by virtue of the second section of the act of Congress, of March, 1805; that the board of commissioners on the 24th March, 1806, grant to claimant 750 arpens, and on the 15th August, 1811, reject the claim entirely, saying the claim ought not to be granted. Also, a transcript of opinion, and report of the recorder of land titles of United States, at St. Louis, made 1st November, 1815, which, in connexion with the act of Congress of 29th April, 1816, before referred to, shows that the claim of John Robertson, for 330 arpens, was confirmed to him, and 330 arpens accordingly granted. Also, a copy of certificate of location in favour of John Robertson, Jr. or his legal representatives, dated 18th September, 1818, and numbered 447, issued by the recorder of land titles of the United States, at St. Louis, which certifies that a tract of 330 arpens of land situated on lake St. Marie, had been materially injured by earthquakes, and that in conformity with the provisions of the act of Congress, of 17th February, 1815, the said John Robertson, Jr., reciting that he appears from the books of his office, recorder of land titles of the United States, to be the owner, or his legal representatives, was entitled to locate 330 arpens of land, &c.
The defendants below then read in evidence, an extract from registry of relinquishments, in the office of recorder of land titles of the United States, at St. Louis, of lands materially injured by earthquakes, under the act of Congress of 17th February, 1815, which shows that the confirmation aforesaid, of 330 arpens to John Robertson, Jr., was relinquished by James Tanner, as his legal representative, and that on such relinquishment the location certificate, No. 447, issued. Also, a certificate of the recorder of land titles aforesaid, that from entries made in the books of his office of New Madrid location certificates issued, the certificate of location No. 447, was delivered to one Jacoby, for James Tanner, and certificate of location No. 448, was delivered to Morgan Byrne; and proved that the premises in dispute in each case, was of the value of three thousand dollars: which closed and was all the evidence given in the causes.
Upon the case made, the defendants below moved the Court to instruct the jury as follows:
1. That the entry or New Madrid location, made by Morgan Byrne in his own name, as given in evidence in these cases, is proof of legal title to the land; and is a sufficient defence against all persons who do not show a better legal title to the same land.
2. That the patent, a copy of which has been given in evidence by the plaintiff, did not vest in the patentee any better legal right to the land in question than he had before the date thereof, as against the defendants claiming the same land adversely by other title.
3. That after the entry and before the patent, Morgan Byrne had a legal title to the land in question, sufficient to enable him to prosecute or defend an action of ejectment therefor: And that the issuing of the patent could not divest that title.
4. That if the jury believe the patent, a copy of which has been offered in evidence by the plaintiff, issued on the location made by Morgan Byrne, and shown in evidence on the part of the defendants in these cases; the patent is not such title as will avail against the location.
All which instructions the Court refused: to which refusal exceptions were taken.
Mr. Beverly Allen submitted a printed argument for the plaintiffs in error.
The errors assigned are, besides the general assignment, four; answering respectively to the refusal of the Court to give the four instructions prayed: and a fifth, that the judgment against the executors of Byrne, was de bonis propriis, whereas, it should have been de bonis testatoris.
It appears from the testimony in the three cases, that Morgan Byrne, the landlord and testator was the owner of the land in New Madrid, which was injured by earthquakes; that he applied for and obtained the certificate of location No. 448, relinquishing his land in New Madrid, in lieu of which this certificate issued by the United States, and was located in his own name on the tract of land in dispute, in virtue of certificate No. 448; that upon his location, a patent certificate issued, and on this certificate a patent issued to John Robertson, Jr., the same person who once owned the land in New Madrid, relinquished by Byrne and under whom Byrne claimed that land. That the plaintiff derives title to the land in dispute, from John Robertson, Jr., by deeds executed since the issue of the patent; and being such owner, instituted these actions of ejectment to recover the possession of the land located as aforesaid by Byrne.
The question is, whether in such a case and on such a statement of facts, John Robertson, Jr. the patentee, or George W. Broderick, his assignee, can recover against Morgan Byrne, the locator of the land, or his representatives. The plaintiffs in error, contend that the patentee and his assignee cannot; and rely on the following grounds:
1. The title of Morgan Byrne was sufficient to maintain an action of ejectment. See Revised Code of Missouri, of 1825, page 343, sec. 2d, in force, at commencement of these suits.(a) And Revised Code of Missouri, of 1835, page 234, 235, sec. 1, 2, and 9, in force at trial of same.(b)
2. That whatever was sufficient to maintain, must be sufficient to defend an action of ejectment. This is a corollary from the first ground. If these two points are well taken, the first special error is well assigned.
3. That the patent is not, in this case, and on this statement of facts, the 'better title' contemplated by the acts of assembly referred to.
As to the first point, argument cannot elucidate the words of the law. Its meaning is evident, and the first rule of construction is not to construe that which needs no construction.
As to the second point. The correctness of this is necessarily implied in the language and spirit of the law. It is a sequence from the first. If the title of Byrne was such as would enable him to maintain an action of ejectment and recover possession, it would be
'Sec. 2. The action of ejectment may also be maintained in all cases where the plaintiff claims possession of the premises, against any person not having a better title thereto, under or by virtue of,
First, An entry with the register and receiver of any land office of the United States, or with the commissioner of the general land office thereof; or,
Second, A pre-emption right under the laws of the United States; or,
Third, A New Madrid location; or,
Fourth, A confirmation made under the laws of the United States; or,
Fifth, A French or Spanish grant, warrant, or order of survey, surveyed by proper authority under the French or Spanish governments, and recorded according to the usages of the country, prior to the tenth day of March, eighteen hundred and four.'
'Sec. 9. To entitle the plaintiff to recover, it shall be sufficient for absurd not to hold it to be sufficient to maintain that possession when recovered.
As to the third point. Here the inquiry arises what is the meaning of the phrase 'better title' in the acts of assembly referred to. A title is thus defined by Lord Coke, 1 Inst. 345: 'Titulus est justa causa possidendi id quod nostrum est.' Or by Blackstone, Black. Com. vol. ii. p. 195: 'It is the means whereby the owner of lands hath the just possession of his property.' What this 'justa causa' or 'means' is, must, in all countries, depend on the law of the country where the subject of the title is situated. United States vs. Crosby, 7 Cranch, 115. Clark vs. Graham, 6 Wheat. 567. Kerr vs. Devisees of Moon, 9 Wheat. 565. M'Cormick et al. vs. Sullivan et al. 10 Wheat. 192. The 'justa causa' or 'means' is nothing more than those indicia of ownership which are recognised by the laws of the country as evidence of right. Title is by descent or purchase. The indicia of the former is heirship, of the latter any of those modes of acquiring property which are recognised by law. The laws of Missouri, where lies the property in dispute, recognise the entry or location of land, as in this case, to be a mode of acquiring property, and an evidence of right in the locator. They also recognise a patent to be a mode of acquiring property, and an evidence of right. We have then an indicium of ownership in Morgan Byrne, and an indicium of ownership in John Robertson, Jr.: and these indicia of ownership are considered by the laws of Missouri such evidence of right as will enable either to maintain or defend an action of ejectment. Morgan Byrne had, in this case, the possession, the right of possession, and the right of property, which together constitute a completely good title, denominated a double right 'jus duplicatum,' or 'droit droit.' Black. Com. vol. ii. p. 199. In him was the 'juris et seisina conjunctio' which constitute the title completely legal, or a perfect title. Kent's Com. Lec. 65.
It may be admitted that a patent is considered in law a higher species of evidence of right, but that can avail nothing in this case, where the evidence of right in the other party is sufficient to maintain or defend the action of ejectment. The words of the law are not 'against any person not having a title thereto, proved by a higher species of evidence,' but 'against any person not having a better title thereto;' that is, an indicium of ownership recognised by the law as evidence of a better right. It then necessarily follows, that in the construction of the words 'better title' we must look not at the species of evidence of the title, but to the justness of the title. On looking into the titles of these two contending claimants, the patentee and the locator, we find they both have the same origin: they both originate in the relinquishment made by Morgan Byrne and the certificate of location No. 448; and now, which of the two has the better title, or more just title to the land located under the certificate, Morgan Byrne, whose land was relinquished, or John Robertson, Jr. who had no interest in the land relinquished; Byrne, who was interested in and made the location, or Robertson, Jr., who had no interest therein, was no party to it, and who had previously sold and conveyed to him, under whom Byrne claimed the land thus relinquished, and in virtue of which relinquishment Byrne made that location? Seeing then both to have those evidences of right recognised by the law to be sufficient to maintain or defend an ejectment, the justness of the title of Robertson, Jr., must be examined. On this examination it will be found that Robertson, Jr., shows no title better than Byrne's; and failing in this, Broderick, the assignee of Robertson, Jr., cannot recover against the tenant and representatives of Byrne.
There has been no adjudication by the Supreme Court of Missouri, what is meant by the words 'better title.' In the case of the administrators of Janis vs. Guerno, 4 Miss. Rep. 458, the Court says, 'what shall be considered a better title, the act does not define. It surely does not mean that the bare possession of the defendant shall be so considered. We understand then that the meaning of the act is, that when the plaintiff produces a confirmation of the land to himself, he has made out his case, and will be entitled to recover unless the defendant can show a better title. What in all cases, or indeed what would be a better title in any case, need not be now decided.'
Titles are legal or equitable, predicated on that distinction known in many of the states of the Union between law and equity. The former are subjects of examination in Courts of law, and the latter in Courts of equity. In those states, of which Missouri is one, legal titles are the subject of examination in Courts of law, equitable in Courts of equity, whether a title be legal or equitable; that is, whether it be the subject of examination in a Court of law or equity: the foundation of a proceeding in one Court or the other depends on the statute of the state where the tribunal is situated in which the examination or proceeding is had. Robinson vs. Campbell, 3 Wheat. 212. Society for the propagation of the gospel vs. Wheeler et al. 2 Gallis. 105. In Missouri the title of Morgan Byrne is the subject of examination, and the foundation of a proceeding in a Court of law. It is a title on which an ejectment, which by the law of Missouri is a legal proceeding, may be maintained or defended, and is therefore a legal title, and will be so considered in the Courts of the United States, conformably to the decision in Robinson vs. Campbell, 3 Wheat. 212. There is then before the Court in these cases a legal title in both plaintiffs and defendant in erorr, and the inquiry again recurs which has the better title; not which has the higher species of evidence of title, but which in point of justness of superior right should prevail. What has already been said shows that Byrne, who owned the land in New Madrid, relinquished the same to the United States and made the location, has a more just and superior right, in other words, a better title, to the land located than. John Robertson, Jr., original owner of the land in New Madrid, who sold the same to Edward Robertson, Sr., under whom Byrne claimed the same, who had no agency in the relinquishment, no interest in the land relinquished, and no right to the land located by Byrne anterior to the issuing of the patent. In other words, by Byrne's act the land in dispute was severed from the domain of the United States, and by him appropriated with the consent of the United States, by him purchased for a good and valuable consideration from the United States, by him acquired in an exchange with the United States. He gave other lands for it to the United States. From the moment of the location it became his-the United States had no title to it at the date of the patent. See act of Congress, 17 Feb. 1815, sec. 2, proviso 2. The title was in Byrne, and that title was such as enabled Byrne to institute in the Courts of law of Missouri an action of ejectment; and it is submitted, whether under these circumstances it can be said that the title of John Robertson, Jr., is better than the title of Morgan Byrne: whether a patent issuing from the United States to John Robertson, Jr., for land they had previously disposed of, can prevail against Byrne, to whom it was so disposed, and this disposition being recognised by the laws of Missouri as a title on which to maintain an ejectment. Our statute requires that in actions of ejectment an examination be made into the successive gradations of title, or the various evidences of title to land in a contest between two persons claiming the same land, whenever those gradations or evidences are recognised by the law as legal titles, or titles on which an ejectment may be maintained or defended. This is all that is insisted on in these cases. It is not asked to maintain or defend an ejectment on an equitable title, nor to look behind the patent as to the regularity of the steps from the first to the last ending with the issue of the patent; but to ascertain who had the prior legal right, that right on which an ejectment might be maintained or defended. The plaintiffs in error feel confident that on such examination their right will be found to be a legal and prior right; being legal, it is examinable in a Court of law, is the foundation of a legal proceeding, is sufficient to maintain or defend an action of ejectment; and, being prior in time, is more powerful in law and right, and must prevail against the right of the defendant in error, which, though legal, is posterior in time. But if it should be said that the patent is the legal title, and the location an equitable title, yet the statute of Missouri making this equitable title examinable in a Court of Law, and giving it that dignity which authorizes an action of ejectment to be maintained or defended on it, the Courts of the United States are bound to give it the same dignity; and when they find it possessing the effect ascribed to it by the laws of Missouri, to give to it the like preference over the patent in this case, that the Courts of Tennessee and the Supreme Court of the United States, following those Courts, give to the junior patent founded on an elder entry over an elder patent founded on a junior entry. Polk's lessee vs. Wendall, 9 Cranch, 87.
The decision of the Supreme Court of the United States that a patent is a title from its date, and conclusive against all those whose rights do not commence previous to its emanation, 7 Wheat. 212, implies that there may be rights commencing anterior to the patent. Is there a right, in these cases, commencing anterior to the date of the patent? The location was anterior, and gives a right. Is this anterior right examinable in a Court of law? The statute of Missouri makes it so examinable; and being so, whenever a contest arises between a patent and an anterior location, this location, whether a legal or an equitable right, must in the construction of the statute of Missouri, have its effect; and, if of a merit superior to the patent, have the same effect it would have in a Court of equity and prevail over the patent. Finley vs. Williams et al., 9 Cranch, 164. McArthur vs. Browder, 4 Wheat. 488.
If the preceding views be correct, the general and first four special errors are well assigned.
As to the fifth special error. There is no such thing known to the law or in the practice of the law in the Courts of Missouri, as those pleas peculiar to an executor or administrator growing out of the matter of assets. In Missouri no execution issues against an executor or administrator sued as such, unless specially sued for a devastavit, or on his bond as such. All demands, no matter of what dignity, are presented to the Court having cognizance over the administration of estates, by whom they are classed; and at the annual settlements of the administrators or executors, that portion of the assets which consists of money, is apportioned among the creditors: and thus and not otherwise are demands, whether by simple contract, by specialty or by judgment, against an estate collected. For all defaults on the part of an executor or administrator, a suggestion of a devastavit is made and tried in the Court having cognizance of the administration of estates, or the bond of the executor or administrator is put in suit. Judgments predicated on the false pleading of the executor or administrator, as technically understood in the laws of England, are unknown to the law or in its practice in Missouri. See Revised Code of Missouri of 1835, title Administration.
Coxe for the defendant in error.--
The decision of the Circuit Court is to be considered correct, until its incorrectness is made to appear. This was so held by this Court in the case of Carroll vs. Peake, 1 Peters, 23. Have the plaintiffs in error shown that there was error in the decision of the Circuit Court? It was a question on the legal title of the parties in the cause, and this question alone was decided by the Court. The equitable claims of those who alleged they were justly entitled to the land under Robertson, could not be taken into consideration in the action on the law side of the Circuit Court. The chancery powers of the Court could have been invoked by the defendants in another form than in a defence to an action of ejectment.
The grant and patent are evidence in a Court of law of the matters recited in them. The grant, legally and fully executed, was competent evidence of the matters set forth in it; and as none other was necessary, it was in effect conclusive.' The United States vs. Arredondo et al., 6 Peters, 724. No facts behind the grant can be investigated. 11 Wheat. 580. A patent is evidence in a Court of law of the regularity of all the previous steps to it. 5 Wheat. 293. 7 Wheat. 151. The Court are bound to presume the acts of commissioners intrusted by laws of Congress to inquire into claims to lands, regular; and the decisions of these commissioners are in Courts of law binding and effectual. This principle was decided in the case of Ross vs. Barland, 1 Peters, 668.
The defendant in error supported his claim to the land by a patent issued by the proper authority. The patent was granted on the facts stated in the records of the land office, and those records are evidence of the proceedings stated in them. They are conclusive evidence. This was fully decided by this Court in the case of Galt vs. Galloway and others, 4 Peters, 342. This Court then said, 'As the records of the land office are of great importance to the country, and are kept under the official sanction of the government, their contents must always be considered, and they are always received in Courts of justice, as evidence of the facts stated.'
The commissioner of the land office was empowered by the act of Congress to investigate the facts connected with every application for land, in consequence of the injuries sustained by the earthquake; and he was to adjudge to the person entitled, after such investigation, the land to be granted by the United States. In this case, Robertson was in full life when the land was granted and patented to him; and he conveyed it to those under whom by regular conveyances the defendant in error holds. In a Court of law nothing more was necessary than the exhibition of such a legal title.
Nor could the plaintiffs in error derive any right to maintain their title under the provisions of the law of Missouri of 1835. That law can have no operation on the system established by the United States for the sale of their public lands, and the granting of titles thereto. Against trespassers, the law of Missouri may have full effect; and a holder of land in Missouri under a pre-emption right, New Madrid location, or entry with the register, might maintain an ejectment. But this law could give no right to an ejectment under an incohate right in the Courts of the United States, against a patent issued by the proper officer authorized by the act of Congress to grant a patent. The states of the United States cannot make by their statutes any titles or claims to lands by certificates of entry which are inferior to a patent, of equal dignity with a patent.
Mr. Justice CATRON delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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