Adams, Judge,
delivered the opinion of the court.
This was an action in the nature of a bill inequity commenced by William M. McPherson in April, 1870, and after his death revived in the names of his executors and trustees under his will.
The plaintiff claimed that he was the legal owner in fee of fractional Section 9, in Township 44, of Range 7 East, in the District of Lands subject to sale at St. Louis, Mo., which fractional section of land contained 37 40-100 acres.
The object of this action was to correct errors in law and fact by the officers of Land Office Department of the United States Government, in allowing the heirs at law of Thomas [568]*568Chartrand Sr., deceased, to enter the land in dispute under the pre-emption laws, and to vest title in plaintiff.
This fractional section of laud is situated between Carondelet and St. Louis, and under the Acts of Congress, of 13th of June, 1812, and the 26th of May, 1824, granting commons to the then villages of St. Louis, Carondelet, etc., Carondelet claimed this piece of land as a part of its commons, and under these acts it became the duty of the President of the United States, in the execution of the laws thereof, to cause the commons as claimed to be reserved from entry or sale.
The facts and proofs in this case, show that the Carondelet commons, including the land in dispute as part thereof, were thus reserved from entry or sale from the time of the passage of the Act of Congress, of the 13th of June, 1812, down to the decision of the Supreme Court of the United States at December Term, 1861, in the case of Carondelet vs. St. Louis, (1 Black. 179,) when for the first time it was released from the claim of Carondelet for commons, by the decision in that case. The Land Department of the United States Government had caused proper entries on the books of that department, at the local land office in St. Louis, to be made of this reservation, and this reservation was thus proclaimed to all persons desiring to appropriate any part of these commons, including the land in dispute. So when offers were made, as they were in several instances, to locate pre-emptions of this fractional section of land, they were uniformly refused by the local land officers on account of this reservation ; and the acts of the local laud officers were approved by the Land Office Department at 'Washington City. So there can be no dispute that the land in question was reserved from sale or entry up to the December Term 1861, of the Supreme Court of the United States.
By an Act of Congress entitled, “ An Act to extend preemption rights to certain lands therein mentioned,” approved, March 3, 1853, it was provided : “ That any settler who has or may hereafter settle on lands heretofore reserved on account of claims under French, Spanish or other grants, which have been or shall be hereafter" declared by the Supreme Court of [569]*569the United States, to be invalid, shall be entitled to all the rights of pre-emption granted by this act, and the act of 4th of September, 1841, entitled, ‘An Act to appropriate the proceeds of the public lands, and to grant pre-emption rights’ after the lands shall have been released from reservation, in the same manner as if no reservation existed.” (10 U. S. Statutes at Large, 244.)
After the decisiou of the Supreme Court of the United States in Carondelet vs. St. Louis, the heirs of Thomas Chartrand, Sr., deceased, were allowed by the Land Department to prosecute the claim of their ancestor as pre-emptors on this fractional section of land, and after a contest lasting for several years before the Land Department, between these heirs and the plaintiff, a pre-emption was granted to them in June 1866, and a patent issued thereon in July, 1866.
A decree was rendered at Special Term in favor of the plaintiff, which was-affirmed at General Term.
The plaintiff’s standing in court first demands our attention ; for, unless he has title himself, he has no right to question the claims of the heirs of Chartrand.
He assumes to stand here on a title derived from the State of Missouri, under the Act of Congress of September 4th, 1841, (5 U. S. Statutes at Large, p. 453,) entitled, “An Act to appropriate the proceeds of the sales of public lands and to grant pre-emption rights.” Section 8 of this act provides, “That there shall be granted to each State specified in the first section of this act, five hundred thousand acres of land for purposes of internal improvements, &c.” The State of Missouri is one of the States specified in the first section. The 8th section also points out how the lands are to be selected, and provides that the selection shall be made within the limits of the State, “ on any public land except such as is, or may be reserved from sale by any law of Congress, or proclamation of the President of the United States,” &c.
The General Assembly of Missouri passed acts accepting the five hundred thousand acres, and providing for its selection. (See said Acts, March 27, 1843, p. 77; February 2, [570]*5701847, p. 88 ; March 13,1849, p. 63; March 10,1849, p. 61-65.)
On December 15, 1849, the Governor of Missouri selected for plaintiff, fractional Section 9, Township 44, of Bunge 7, that being the land in dispute, containing 3740-100 acres. The selection of this tract by the Governor was approved by the Secretary of the Interior of the United States, January 17th, 1850, and a patent for this fractional section was issued by the Governor of Missouri to McPherson, reciting the foregoing facts and granting the land to McPherson and his heirs, on the 27th day of February, 1850. This is the only paper title the plaintiff pretends to have for this land. It is obvious that the land in dispute, being at that time reserved from sale, was not of the character of the lands intended to be granted by the 8th section of the Act of Congress above referred to, and was not embraced in that section. That being the case, this selection in my judgment was perfectly null and void, and no title passed thereby to the State of Missouri, and the State could pass none to the plaintiff.
But independent of these considerations, the 8th section of the Act of Congress of September 4th, 1841, was not a present grant. It was not intended that any title should pass merely by force of the Act itself, and the selections to be made thereunder. The words are “ there shall be granted” &c., and not a grant “ in presentid These words import that some other Act is to be passed by Congress before the General Government parts with the fee simple title. This point was expressly decided by the Supreme Court of the United States in Foley vs. Harrison, et al., 15 How., 447. Speaking of this very Act, the Court says: “It could not have been the intention of the Government to relinquish the exercise of power over the public lands that might be located by the State. The same system was to be observed in tire entry of lands by the State as by individuals, except the payment of the money; and this was necessary to give effect to the act and to prevent conflicting entries.” The decisions of the Supreme Court of the United States in regard to Acts of Congress ought to be looked to by the State courts as controlling [571]*571authority. 'Whatever may be the rule in cases peculiarly cognizable by the State Courts, they must yield to that court where the subject matter in contest makes it the only court of last resort.
The case of Foley vs.
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Adams, Judge,
delivered the opinion of the court.
This was an action in the nature of a bill inequity commenced by William M. McPherson in April, 1870, and after his death revived in the names of his executors and trustees under his will.
The plaintiff claimed that he was the legal owner in fee of fractional Section 9, in Township 44, of Range 7 East, in the District of Lands subject to sale at St. Louis, Mo., which fractional section of land contained 37 40-100 acres.
The object of this action was to correct errors in law and fact by the officers of Land Office Department of the United States Government, in allowing the heirs at law of Thomas [568]*568Chartrand Sr., deceased, to enter the land in dispute under the pre-emption laws, and to vest title in plaintiff.
This fractional section of laud is situated between Carondelet and St. Louis, and under the Acts of Congress, of 13th of June, 1812, and the 26th of May, 1824, granting commons to the then villages of St. Louis, Carondelet, etc., Carondelet claimed this piece of land as a part of its commons, and under these acts it became the duty of the President of the United States, in the execution of the laws thereof, to cause the commons as claimed to be reserved from entry or sale.
The facts and proofs in this case, show that the Carondelet commons, including the land in dispute as part thereof, were thus reserved from entry or sale from the time of the passage of the Act of Congress, of the 13th of June, 1812, down to the decision of the Supreme Court of the United States at December Term, 1861, in the case of Carondelet vs. St. Louis, (1 Black. 179,) when for the first time it was released from the claim of Carondelet for commons, by the decision in that case. The Land Department of the United States Government had caused proper entries on the books of that department, at the local land office in St. Louis, to be made of this reservation, and this reservation was thus proclaimed to all persons desiring to appropriate any part of these commons, including the land in dispute. So when offers were made, as they were in several instances, to locate pre-emptions of this fractional section of land, they were uniformly refused by the local land officers on account of this reservation ; and the acts of the local laud officers were approved by the Land Office Department at 'Washington City. So there can be no dispute that the land in question was reserved from sale or entry up to the December Term 1861, of the Supreme Court of the United States.
By an Act of Congress entitled, “ An Act to extend preemption rights to certain lands therein mentioned,” approved, March 3, 1853, it was provided : “ That any settler who has or may hereafter settle on lands heretofore reserved on account of claims under French, Spanish or other grants, which have been or shall be hereafter" declared by the Supreme Court of [569]*569the United States, to be invalid, shall be entitled to all the rights of pre-emption granted by this act, and the act of 4th of September, 1841, entitled, ‘An Act to appropriate the proceeds of the public lands, and to grant pre-emption rights’ after the lands shall have been released from reservation, in the same manner as if no reservation existed.” (10 U. S. Statutes at Large, 244.)
After the decisiou of the Supreme Court of the United States in Carondelet vs. St. Louis, the heirs of Thomas Chartrand, Sr., deceased, were allowed by the Land Department to prosecute the claim of their ancestor as pre-emptors on this fractional section of land, and after a contest lasting for several years before the Land Department, between these heirs and the plaintiff, a pre-emption was granted to them in June 1866, and a patent issued thereon in July, 1866.
A decree was rendered at Special Term in favor of the plaintiff, which was-affirmed at General Term.
The plaintiff’s standing in court first demands our attention ; for, unless he has title himself, he has no right to question the claims of the heirs of Chartrand.
He assumes to stand here on a title derived from the State of Missouri, under the Act of Congress of September 4th, 1841, (5 U. S. Statutes at Large, p. 453,) entitled, “An Act to appropriate the proceeds of the sales of public lands and to grant pre-emption rights.” Section 8 of this act provides, “That there shall be granted to each State specified in the first section of this act, five hundred thousand acres of land for purposes of internal improvements, &c.” The State of Missouri is one of the States specified in the first section. The 8th section also points out how the lands are to be selected, and provides that the selection shall be made within the limits of the State, “ on any public land except such as is, or may be reserved from sale by any law of Congress, or proclamation of the President of the United States,” &c.
The General Assembly of Missouri passed acts accepting the five hundred thousand acres, and providing for its selection. (See said Acts, March 27, 1843, p. 77; February 2, [570]*5701847, p. 88 ; March 13,1849, p. 63; March 10,1849, p. 61-65.)
On December 15, 1849, the Governor of Missouri selected for plaintiff, fractional Section 9, Township 44, of Bunge 7, that being the land in dispute, containing 3740-100 acres. The selection of this tract by the Governor was approved by the Secretary of the Interior of the United States, January 17th, 1850, and a patent for this fractional section was issued by the Governor of Missouri to McPherson, reciting the foregoing facts and granting the land to McPherson and his heirs, on the 27th day of February, 1850. This is the only paper title the plaintiff pretends to have for this land. It is obvious that the land in dispute, being at that time reserved from sale, was not of the character of the lands intended to be granted by the 8th section of the Act of Congress above referred to, and was not embraced in that section. That being the case, this selection in my judgment was perfectly null and void, and no title passed thereby to the State of Missouri, and the State could pass none to the plaintiff.
But independent of these considerations, the 8th section of the Act of Congress of September 4th, 1841, was not a present grant. It was not intended that any title should pass merely by force of the Act itself, and the selections to be made thereunder. The words are “ there shall be granted” &c., and not a grant “ in presentid These words import that some other Act is to be passed by Congress before the General Government parts with the fee simple title. This point was expressly decided by the Supreme Court of the United States in Foley vs. Harrison, et al., 15 How., 447. Speaking of this very Act, the Court says: “It could not have been the intention of the Government to relinquish the exercise of power over the public lands that might be located by the State. The same system was to be observed in tire entry of lands by the State as by individuals, except the payment of the money; and this was necessary to give effect to the act and to prevent conflicting entries.” The decisions of the Supreme Court of the United States in regard to Acts of Congress ought to be looked to by the State courts as controlling [571]*571authority. 'Whatever may be the rule in cases peculiarly cognizable by the State Courts, they must yield to that court where the subject matter in contest makes it the only court of last resort.
The case of Foley vs. Harrison was decided at the December Term, 1853. And afterwards, on the 3rd of August, 1854, Congress passed “An Act to vest in the several States and Territories the title in fee of the lands which have been or may be certified to them.” It consists of a- single section which reads as follows : “That in all cases where lands have been or shall hereafter be granted by any law of Congress to any one of the several States or Territories, and when said law does not convey the fee simple title of such lands or require patents to be issued therefor; the -lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of said office, either as originals, or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such Act of Congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such Acts of Congress, and are not intended to be granted thereby, said lists so far as these lands are concerned-, shall be perfectly null and void, and no right, title, claim or interest shall be conveyed thereby.” (10 U. S. Statutes at Large, 346.)
This Act was no doubt intended by Congress as the means of passing the title in fee of the lands that had been selected by the several States under the Act of September 4th, 1841.
Tile record in this case shows that McPherson, after the passage of this Act, procured from the Commissioner of the General Land Office under his Seal of Office, the following certificate:
“ General Land Office.
June 25th, 1855.
I, John Wilson, Commissioner of the General Land Office, do hereby certify that the State of Missouri selected under the [572]*5728 tlx Section of the Act of Congress entitled, “An Act to appropriate tlxe proceeds of tlie sale of tlie public lauds, and to grant pre-emption rights,” approved September 4th, 1841, fractional Section nine in Township forty-four north of Bange seven, east of the fifth principal Meridian, and that said selec tion has been approved to said State, according to law.
In testimony whereof, I have here Seal oe unto subscribed my name and caused the TT. S. General Seal of tliis Office to be affixed, at tbe Land Oeeioe. City of Washington, on the day and year above written.
John Wilson,
Commissioner of tlie Genei’al Land Office.”
If this certificate was issued for the State of Missouri, and as a monument of its title to the land in dispute, under the - Act of August 3, 1854, it must be construed in connection with that act, and tlie 8th section of the Act of September 4, 1841, and viewed in this light it demonstrates the nullity of the selection of the land in dispute, as that land had been reserved from sale and was not embraced in section 8, and such selection is declared by the Act of August the 3rd, 1854, to be “perfectly null and void,” and that no right or title shall be conveyed thereby.
Bnt if it be conceded that tbe certificate in question conveyed a title to the State of Missouri on the 25th of June, 1855, would such title pass to McPherson by virtue of his patent issued in 1850 ?
The Governor in issuing tlie patent conld onty do so in the execution of a statutory power, and the only title that could be conveyed was such as existed in tbe State at that time.
It is not a deed of conveyance purporting to convey an estate in fee simple absolute, but it recites tlie facts constituting the title of tlie State, and conveys that title and no otberAu after acquired title by tlie State would not pass under that patent, if indeed there conld be any conveyance made in any form by a sovereignty that could have the effect of passing to the grantee a title subsequently acquired.
[573]*573I do not mean to be understood as intimating any opinion on this abstract question, I am however, clearly of the opinion that no after acquired title by the State could pass to McPherson under this patent, unless there be some statutory regulation to that effect, aud none has been referred to, and I am not aware that any exists.
In the City of Carondelet vs. McPherson, 20 Mo., 92, it was assumed without investigation, that the title of the General Government to this fractional section of land had passed to the State of Missouri, under the act of September 4, 1841, and that the patent from the State to McPherson conveyed a complete title to him. The attention of the Court in that case was not called to the points of objection raised here, and therefore the intimation of Judge Gamble to the effect that a complete title had been conveyed to McPherson, can have no authoritative force in this contest and 1 merely refer to that case to show that it has not been overlooked.
There seems to be no light in which the facts of this case can be viewed so as to give the plaintiff' a standing in Court.
He claims title by virtue of the statute of limitations. The statute of limitations in land contests is a statute of repose, and not only bars the title of the real owner but transfers such title to his adversary.
And therefore if the pre-emption claimed by the heirs of Chartrand had been completed and allowed for ten years, so that they could have maintained an action of ejectment on it against McPherson, during all that time their right would have been barred, and an affirmative right thereto would have vested in the plaintiff. Such affirmative title, or right, so created by adverse possession before the issuance of the patent by the Hnited States, ought to be a sufficient transfer of the equity to authorize a decree for the legal title after the emanation of the patent.
It would be no interference, with the primary disposal of the soil by the General Government any more than in a case where the pre-emptor himself had transferred his equity before the issuance of the patent. In either case-the patentee [574]*574ought to be held as a naked trustee for the person holding the equity, whether transferred to him by contract or by the statutory bar. But there was no statutory bar in this case. The Chartrand pre-emption was not proved up or completed till June 1866. The plaintiffs’ possession prior to this date could confer no title. The statute does not run against the Government ; “ nullum, temfyus occurrit regiP
As these views dispose of this case, it is unnecessary to consider the other points so ably discussed by the learned counsel on both sides in making and repelling assaults on their res. pective positions,
The judgment must be reversed and the petition dismissed. Judge Sherwood absent, and the other Judges concur.
Since filing the foregoing opinion, the attention of the Court has been called to § 37 of Oh. 143, of the General Statutes 1865, by which an after acquired title by the State would pass to McPherson under his patent of 1850. But under the view taken by the Court the State never acquired any title whatever to the land in dispute, and therefore none passed to McPherson.
The Judgment therefore of this Court as rendered must stand,
The other Judges concur.