Lessieur v. Price. 12 H. GODFREY LESSIEUR, ABRAM AUGUSTINE and MARY W., his Wife, THOMAS H. DAWSON, RICHARD J. WATSON and SARAH, his Wife, and PALMELIA E. DAWSON, LAURA A. DAWSON and GEORGE W. DAWSON, Infants, by THOMAS H. DAWSON, their Guardian, Plaintiffs in Error, v. THOMAS PRICE. 12 H. 59. If the judgment of an inferior court of a State, against a title claimed under an act of congress, is affirmed by a divided court above, a writ of error lies, under the 25th section of the judiciary act of 1789, (1 Stats. at Large, 85.) The inception of title to a particular tract of land under a New Madrid certificate, is the recording of the plat and survey in the recorder's office. By the act of March 3, 1820, (3 Stats. at Large, 547, § 6,) granting four sections of land to the State of Missouri, a title to four sections of land was vested in the State, with power to select and locate the particular land; and when the selection was made by authorized commissioners and notified to the surveyor-general, the title became attached to the particular land so selected. The surrounding circumstances considered, and allowed to give a construction to an act of congress making a grant of land. A location under a New Madrid certificate amounted to an exchange of the land at New Madrid for the land located, and could not be made without the knowledge of the owner of the New Madrid claim. THE material facts appear in the opinion of the court. Glover, for the plaintiffs. Leslie, contrà. *CATRON, J., delivered the opinion of the court. [* 72 ] The first consideration arising in this case involves a matter of practice. The suit was brought in a state circuit court of Missouri, and tried by the court without the intervention of a jury; when the judge ruled questions of law propounded to him unfavorable to the plaintiffs, and gave judgment for the defendant, to reverse which, a writ of error was prosecuted, and the cause removed to the supreme court of that State. On a rehearing there, only two of the judges were competent to preside; they disagreed in opinion, and a judgment of affirmance was entered because of that division. And the question here is, how we are to treat the points ruled in the circuit court. Our conclusion is, that the rulings of the circuit judge were adopted and affirmed by the judgment rendered in the supreme court, in like manner that they would have been had both judges concurred in affirming the judgment on all the grounds assumed by the court below: to hold otherwise, would be declaring that nothing had been decided in the state court of last resort, and thereby a second writ of error to this court would be defeated. Lessieur v. Price. 12 H. [ *73 ] *Both sides claim title under acts of congress; on a construction of these, and the facts calling for construction, the controversy throughout depends, and therefore, this court has unrestricted power to adjudge and conclude the controversy. Plaintiffs claim title under a New Madrid certificate; and the defendant under an act of congress, granting to the State of Missouri a tract of four sections, to the end of locating the seat of government on it; and the principal question presented by the record is, which party first acquired such an interest in the land as will, by the laws of Missouri, support an action of ejectment. The state law provides that those claiming lands by "New Madrid locations," may maintain actions of ejectment therefor. The location must, of course, be an appropriation of the land, and its acquisition by the locator, with the corresponding right to possess and enjoy it, as against the United States; and the inquiry arises, what acts were required on the part of the locator to devest the United States of title? This depends on a true construction of the act of February 17, 1815,' for the relief of the inhabitants of New Madrid county, who suffered by earthquakes. John Baptiste Delisle was one of the sufferers, and on November 20, 1817, a location certificate for two hundred arpens was obtained from the recorder of land-titles, authorizing Delisle to locate that quantity on any of the public lands within Missouri territory, the sale of which was authorized by law. The act declares that such certificate having issued, the location shall be made on application of the claimant by the principal deputysurveyor for said territory, or under his direction, whose duty it shall be to cause a survey thereof to be made, and return a plat of the survey to the recorder of land-titles, together with a notice in writing, designating the tract or tracts thus located, and the name of the claimant on whose behalf the same shall be made, which notice and plat, said recorder shall cause to be recorded in his office. That it shall be the duty of the recorder to transmit a report of claims allowed, and locations made, under this act to the commissioner of the general land-office; and he shall deliver to the party a certificate, stating the circumstances of the case, and that he is entitled to a patent, and on which a patent shall issue, &c. on The surveyor was required to make the location, and survey, application of the claimant." On this requirement, a practice naturally sprung up of filing with the surveyor a notice of location, describing the land that the claimant desired should be surveyed for him, and with which request the surveyor complied, unless some 11 Stats. at Large, 211. Lessieur v. Price. 12 H. valid objection stood in the way, and rendered a compliance improper. The notice of location, in this instance, was delivered [ *74 ] to the surveyor-general June 2, 1821, for the land in dispute, and is claimed as the inception of title and location in fact, within the meaning of the state law, authorizing ejectments on New Madrid locations. That it was the mere act of the party, not having the assent of government, must be admitted. The act of congress provides, "that, in every case where such location shall be made, according to the provisions of this act, the title of the person or persons to the land injured as aforesaid shall revert to, and become absolutely vested in the United States. A concurrent vestiture of title must have occurred. The injured land must have vested in the United States at the same time that title was taken by the new location. It was intended to be an exchange between the parties, and the inquiry arises, when did the United States take title? Was it when application in writing was made by the claimant to the surveyor to have his land located and surveyed at a particular place? The warrant, or location certificate, issued from the recorder's office, and there it was returnable; there the plat and certificate were returned and recorded; that officer issued the patent certificate; in that office the law required all official business to be transacted, and not in the surveyor's office. That the notice of location, and plat and certificate were recorded in the surveyor's office is true, and it was proper. It was not done, however, to the end of furnishing evidence of title to the claimant, but to have evidence there to show that the land was appropriated according to the New Madrid act, and for the convenience of the surveyor's department. The plain meaning of the law is as above stated, nor can its import be changed by the practice pursued in the surveyor's office; there the claimant could not go for record evidence of his location, binding the United States to an exchange of lands. He could only refer to the recorder's office. And what was the character of the evidence he had to rely on there? His entry was to be made by the principal surveyor, or under his direction. It was to consist of a plat of survey, and a certificate describing the land, with the name of the claimant for whom the location by survey was made. This return the recorder had to examine, pass upon, and record; if the location and survey had been properly made, then the United States assented to the exchange, and not until then. The danger of allowing a claimant to locate a floating warrant at his own discretion, threatened the country with evils that had afflicted some of the elder States. It would have been certain to produce Lessieur v. Price. 12 H. conflict of claims for the same land, to a material extent, and been contrary to a settled policy of the United States in disposing of the public lands, which was to avoid such conflict; and, [75] *therefore, the act of 1815 vested the power of locating the claim in the principal surveyor of the territory. We expressed our opinion as to what was a location of a New Madrid claim in the case of Bagnell v. Broderick, 13 Pet. 436, thirteen years ago; and did so again in Barry v. Gamble, 3 How. 51, in 1845, nor would we have said any thing further on the subject but for the division of opinion in the supreme court of Missouri, which seems to call in question the opinion expressed in the cases referred to, as we understand the proceeding there, on the ground that such expression of opinion was not necessary to arrive at the decisions then made. A second question on the merits arises on the defendant's title, and is so connected with the one just discussed, that the principles governing it must be settled before a legal conclusion can be arrived at which will govern the controversy. On the 6th of March, 1820, congress provided by law for the admission of the then Missouri territory as a State of the Union, and among numerous other regulations to aid the new State on coming in, it was enacted, "that four entire sections of land be, and the same are hereby granted to the said State, for the purpose. of fixing the seat of government thereon; which said sections shall, under the direction of the legislature of said State, be located, as near as may be, in one body, at any time, in such townships and ranges as the legislature aforesaid may select, on any of the public lands of the United States; provided that such locations shall be made prior to the public sale of the lands of the United States surrounding such location." To secure the benefits of this donation, the following steps were taken by the State of Missouri : 1. An ordinance adopted by the convention convened to form a constitution on the 19th of July, accepting the grant of land. 2. An act of the legislature of the State providing for the location of the permanent seat of government, approved 16th November, 1820. This act appoints commissioners to settle a site for the permanent seat of government, and requires them to make their report at the next session of the general assembly of said State. 3. An act supplementary to the foregoing act, approved 28th June, 1821. This act further extends the time of making their report until the next session. 4. A joint resolution, also approved 28th June, 1821, requiring the Lessieur v. Price. 12 H. ། governor of the State to notify the surveyor-general for the States of Illinois and Missouri, and also the register of the land-office in which the lands are selected, that the commissioners appointed for that purpose "have selected the fractional sections six, seven, and eight, the entire sections seventeen and eighteen, * and so [ *76 ] much of the north part of sections nineteen and twenty as will make four sections in fractional township forty-four south of the Missouri River, in range No. 11 west, fifth principal meridian; and that he request the said surveyor and register to withhold the same from sale or location, until the general assembly determine whether said selection be accepted by said State." 5. An act of the general assembly, entitled " an act fixing the permanent seat of government," approved 31st December, 1821, the first section of which accepts the land above described for the use and benefit of said State. The second section provides for the laying out of a town thereon, and the third section requires the governor to notify the surveyor-general of the acceptance of said land by the general assembly, for the permanent seat of government, by transmitting to him an authenticated copy of said act. 6. Also an act of the general assembly, entitled: "An act supplementary to the act fixing the permanent seat of government,” approved 11th January, 1822. This act provides for the laying out of a town on the land selected, authorizes the sale of the lots in said town, and prescribes the terms of said sale, and requires the commissioners to make a report of their acts in this respect to the next general assembly. It further provides that "any proposals made by any person or persons having claim to any part of the said land, selected for the permanent seat of government, in order that any claim or claims may be adjusted, shall by said commissioners be communicated to the general assembly." These proceedings took place before the surrounding lands were offered at public sale. First, it is insisted" that the location was void because there never was any communication made by any person for the State of Missouri to any officer of the United States having power to grant an application for, or allow any location of said lands; and that such location should have been entered and recorded in the register's office of the local land district." The land was granted, by the act of 1820; it was a present grant, wanting identity to make it perfect; and the legislature was vested with full power to select and locate the land; and we need only here say what was substantially said by this court, in the case of Rutherford v. Green's Heirs, 2 Wheat. 196, that the act of 1820 vested a |