Gaines, et al. v. Hale & Rector. [DECEMBER title. His title has been adjudicated, and the majority say he has none; now what relief is he entitled to? The specific prayer of Rector's bill is, that Gaines may be enjoined from enforcing his judgment in ejectment, and that the certificate held by Belding's heirs be declared null and void; that the pre-emption claim of Percifull, and the Cherokee certificate, held by Hale, declared void; that Gaines and Hale be enjoined from setting up any right or title to said Springs, and that, by a decree, all clouds may be removed from his 'title to the said Hot Springs, and such other relief as may be consistent with the nature of his case. What relief would be consistent with the nature of a case that has no standing in a court of law or equity? To the special relief prayed for, by either Hale or Rector, the majority say, Hale and Rector are not entitled to it, upon the ground presented to the court. But they say that, "settlers making valuable improvements on public lands have not been regarded as trespassers; that this State, by statute, treats and protects such improvements as property." The protection afforded by the State to this class of improvements, to which the court alludes, is found under the title of ejectment, which says: "The action of ejectment may also be maintained, where the plaintiff claims possession of the premises, under or by virtue of: "First, An entry made with the register and receiver of the proper land office of the United States. Second, A pre-emption right under the laws of the United States. Third, Where an improvement has been made by him on any other public lands of the United States, whether the same has been surveyed or not, and where any other person, other than those to whom the right of action is given by the preceding clauses of this section, is in possession of such improvement." This section of our statute does not protect the improvements of either Hale or Rector, because it expressly provides that the claim of improvement cannot be set up against "an entry TERM, 1870.] Gaines, et al. v. Hale & Rector. made with the register and receiver of the proper land office, or a pre-emption right under the laws of the United States." The Belding heirs claim under and by virtue of a judgment in ejectment, based on a "certificate of entry with the register and receiver of the proper land office," which certificate is based upon a "pre-emption right under the law of the United States." This case then comes within the rule laid down in the case of Groom v. Hill, (9 Mo. 322,) where the court declared, under a state of circumstances precisely similar to those in this case, that, "the sale must stand for what it is worth at the time it was made, and cannot be vitiated and annulled by any subsequent ex parte proceedings of officers, provided it was legal and valid at the time it was made; and of its legality and validity, the' court must necessarily be the judge." It is hardly necessary for me to state, that neither Hale nor Rector can raise the question of the legality and validity of the entry, after the court had declared that neither of them have "any rights which, measured by the acts of Congress, have matured into a legal or equitable title." In the case of Frisbie v. Whitney, (9 Wal. 187), the Supreme Court of the United States held, "under the pre-emption laws of the United States, the preemptor acquires no vested rights, until the money has been paid, and the receipt of the proper land officer given to the purchaser." The Belding heirs have paid the money, and obtained the receipt of the proper land officer. This, the Supreme Court of the United States, in the latest decision on the question says, constitutes a vested right. Has the court any authority to declare that this vested right can be adjudged a nullity in a proceeding in which the United States are not a party, and at the instance of men, the majority of this court say, who have no legal or equitable rights? I am disposed to doubt it. The bill no where alludes to any right of the parties under this statute, nor was this suit commenced to retain possession under the statute just quoted, nor can an action under that statute be brought in a court of equity. Gaines, et al. v. Hale & Rector. [DECEMBER There is no prayer for an injunction, that in the event the court should find the title is in the United States, as was the case in Nicoll v. The Trustees of Huntington, and if there had been, I could not have consented to grant it on the motion of a party that the court declares have neither a legal or equitable title to the land. It is a rule of courts of justice to disre gard the right of a party, under a statute of limitation, unless the party desiring to avail himself of its benefit, shall plead the statute. Courts of equity, ought never to grope around among the statutes, to find a statutory right for the benefit of a party that waived all rights he might have had under it, in the court below. If Hale or Rector were entitled to any benefit or right by virtue of this provision of the statute, (a thing I do not concede) they ought to have plead it as fully as they would have pleaded a statute of limitations. The only excuse or authority that the majority of the court pretend to give, for invading the judgment at law, is, that the certificate has been cancelled, upon which the judgment was obtained. How this court is advised that the judgment at law was based upon this certificate alone, they do not state in their opinion. Our statute allowed the action of ejectment to be maintained, upon an entry with the register and receiver of the land office, and also upon a pre-emption made under the laws of the United States. Now the evidence of pre-emption, as well as that of the certificate of the register and receiver of the land office, seems to have been submitted to the law court. The register and receiver, in their report to the commissioner of the general land office, both agree that Belding was in possession of the Hot Springs, and had a portion of the land in controversy in cultivation, as required by the act of 1830, and the only question of difference between them was as to whether Belding was in possession in his own right, or the right of another. The presumption of the law is, that the judgment was authorized by the evidence, and how this court can determine whether the judgment was rendered upon the certificate, TERM, 1870.] Gaines, et al. . Hale & Rector. or the evidence of pre-emption, is more than I am able to determine. It will be borne in mind that Gaines only submits his evidence of title in response to the bills of Hale and Rector. I admit that they were entitled to a discovery of the title of Gaines, so far as was necessary to establish the superiority of their own, but when this discovery had been made, and the complainants had failed to show, either a legal or equitable title to the land in dispute, I deny their right, or of this court, to inquire into the title of a defendant, disclosed under such circumstances, (4 Bouv. Inst., 111). If the complainants are entitled to any relief, it is upon such equities as they may have acquired under the different acts of Congress, and not under the law of this State, regulating the action of ejectment. They have pleaded no rights under the statute; they have relied on the acts of Congress for possession and title, and by these acts they must stand or fall. Upon the findings, in relation to the title of Hale and Rector by the majority, I am of the opinion that the injunction ought to be dissolved, and the bill dismissed. I am also of the opinion that the decree as to costs is palpably erroneous. BOWEN, J., dissenting, says: The opinion of the majority of the court, in this case, contains the following: "Counsel for Rector have filed two briefs, of fifty-eight and sixty-eight pages respectively, in which they have insisted that the Supreme Court of the United States, commencing with the case of Bagnell v. Broderick, down to the case of Rector . Ashley, have omitted to notice the act of April 29, 1816, and its effect upon the act of February, 7, 1815. If this were true. it would certainly be a most remarkable case of judicial oversight. A careful examination of this act, however, will show that counsel are mistaken, and that the practical effect of the act of 1816, so far as it changes or modifies the act of 1815, is Gaines, et al. v. Hale & Rector. [DECEMBER simply to abolish the office of principal deputy surveyor and all other surveyors' offices that had previously been established," etc. My own success, in the direction of finding any case decided by the Supreme Court of the United States, in which the act of 1816 has been construed, has not been greater than that of the counsel referred to. Why the act of 1816 has never been noticed, it is not my province to determine. That it has not, I am very clear; and whether from judicial oversight, the oversight of counsel, or from the state of facts in the cases determined, rendering it prudent for the parties seeking to perfect or quiet their titles, not to press a construction of that act, the plain, unvarnished fact stands forth in bold relief that the Supreme Court of the United States never has construed it. I am unwilling to indulge in the presumption that, in the determination of the various cases under the act of 1815, that court silently passed over the act of 1816, on the ground that it would be taken for granted that the non-effect of the latter on the former act was so patent as to render it a work of supererogation on its part to even refer to the latter act. I am equally unwilling to accept as authority the decisions of any court, simply because they belong to the same general class, when it is clearly apparent that the case at bar presents questions not even noticed in former adjudications. The rule on this point is so old and well established that it need only be mentioned to be recognized. The New Madrid act of February 17, 1815, required, among other things, a return of the plat of location to the recorder, together with notice, etc. The act of April 29, 1816, provided that "all plats of the surveys, and all other papers and documents pertaining to, or which did pertain to, the office of surveyor general, under the Spanish government, within the limits of the territory of Missouri, or to the office of principal deputy surveyor for said territory, or to the office of surveyor general, or to any office hereafter established or authorized for the purpose of executing or |