author: Mr. Justice NELSON

text:
    The President, Directors, and Company of the Farmers’ Bank of Virginia, Appellants, v. Horace H. Groves, Administrator of Moses Groves, Deceased.
    The principles of law decided in this case are so dependent upon the facts that a succinct statement of the latter becomes necessary.
    Collier was in possession of two drafts drawn by King upon Groves and accepted by him for the accommodation of King. Collier pledged these drafts to the Farmers’ ' Bank of Virginia, as collateral security for a debt which he owed the bank.
    The drafts not being paid at maturity, the bank sued both Groves and King, and recovered judgments against them, which were liens upon their property.
    Collier and King then agreed, that if Collier were to purchase King’s property at a certain sum, he would return his drafts to him and free him from the bank. To this agreement Groves was a witness, and the purchase was accordingly made.
    Collier and the bank then agreed that the bank should give him time and he should give additional collateral security to the bank and mortgage his property; first reducing the liens of prior mortgages down to a certain sum. The bank was moreover to surrender the collateral securities previously received. The mortgage was made by Collier and the collateral securities surrendered to him by the bank.
    After this, the bank had no right to prosecute the judgment which it had obtained against Groves.
    By the first agreement made between King and Collier, to which Groves was privy, Collier exonerated Groves, as far as it was in his power; and in consequence of the second agreement between Collier and the bank, Collier became re-invested with the whole control of the matter and his previous exoneration of Groves became immediately operative. Groves was, therefore, entirely discharged from all responsibility.
    The failure of Collier to comply with his contract with the bank, did not prevent this exoneration of Groves from being effectual.
    This was an appeal from the Circuit Court of the United States for the District of Louisiana, sitting as a court of equity.
    The facts in the case are set forth in the opinion of the court, to which the reader is referred.
    It was argued by Mr. Farland, for the appellants, and Mr. Johnson, for the appellee.
    The grounds upon which a reversal of the decree was claimed, were the following:
    It ought to be remarked, in the first place, that the only contract to which the bank admits itself to have been a party, after the rendition of their judgment against Groves, was a new mortgage given by Collier to Pegram, their agent, about the month of December, 1841, and of that contract there is no copy in the record, and it was not in evidence in the court below. Now, it is in reference to that contract that the bank, while admitting that it was understood at first, that the collateral security was to be surrendered to Collier, yet,.he neither paid the notes secured by the new mortgage, nor did he insist on the surrender of the collaterals, but expressly waived the assignment of the judgment and consented that it should stand as additional security for Collier’s debt, inasmuch as it turned out that the property was subject to heavy previous incumbrances. Is there any thing in the record in reference to that contract from which this ceurt can infer an intention on the part of the bank to operate a novation unconditionally of the judgment against Groves, which is not even alleged in1 the bill, and to substitute in its place a new mortgage on the property of Collier, and his promissory notes ? Sueh a security will' be regarded by the law of Louisiana, where the contract was entered into, as cumulative, unless the previous debt was released in express terms. It is of the essence of a novation that the first debt be extinguished, and a new one substituted in its place; a novation is never presumed. See Louisiana Code, art. 2181, e't seq.; 2d Annual Reports, 188 ; Parker v. Alexander.
    It is an ominous circumstance in reference to this new contract or mortgage, that it/was not produced in evidence by the party claiming the benefit of its stipulations. If it had contained an absolute release of the judgfnent against Groves, the sagacious and able counsel of the estate would not have failed to introduce it in support of the allegations in their bill. As it was in their power and was withheld, we have a right to infer that its production Vould have made against them.
    But there is another view of this matter which, it appears, was absolutely insuperable.
    -Moses Groves was not a party to the new contract in 1841, and he now seeks to avail himself of a stipulation in his favor contained in it. This is what, in the technical language of the civil law, is called a stipulation pour autrui, ór a stipulation in favor of a third person. The doctrine is well settled, that third persons may accept such stipulation iñ their favor, and enforce them either by action or exception. But before such acceptance and its notification to the parties, it may be retracted and desisted from, and the third person has no right to complain. Now in this case, it appears that Collier waived the release of the collateral security previously given, and agreed that the new mortgage should stand as additional security for the debt due to the bank, long before Groves sought to rely upon it as a discharge of the judgment against him.
    See Flower v. Lane et al. 6 Martin, N. S. 152; Pemberton v. Zacharie et al. 5 La. R. 316; Mayor et al. v. Bailey, 5 Martin, 322; Marigny v. Remy, 3 Martin, N. S. 607.
    We come now to examine the contract between Collier and King, on which the complainants rely in their bill as evidence of a discharge or payment of the judgment against Groves-- It is remarkable that neither the bank nor Moses Groves was a party to that agreement. Collier did not even assume to act as the agent of the bank, much less is there any proof that he was so, or -¿hat his agreement with King was ever known to the bank. The whole purport of that agreement was, that Collier was to be permitted to purchase certain property of King’s at sheriff’s sale, at a certain price, and if he did so, Collier would' grant full acquittance of certain debts, and particularly to Moses Groves, a full acquittance of all demands against said Groves, for and on account of said judgment obtained by the Farmers’ Bank of Virginia.
    The property which Collier was authorized to purchase on these conditions, is enumerated in the contract, consisting of sundry tracts of land, and á large number of slaves. Now, the only evidence that he purchased any part of the property in pursuance of the agreement, is found in a sheriff’s deed, and a simple comparison between the agreement and the sheriff’s deed Will show that a large part of the property of Ring never was sold according to that agreement. The condition, therefore, apon which Colliér was himself bound to procure a release of the judgment in favor of the bank, has not been complied with, and even betweén him and King no such obligation has resulted from the sale, much less is there any thing in the whole transaction which is binding on the bank. It was as to the bank, res inter alios acta.

    There is not the least pretext for saying, that the bank ever ratified and approved this agreement, or that they ever had any knowledge of it.
   Mr. Justice NELSON

delivered the opinion of the court.

This case comes up on an appeal from a decree of the Circuit Court of the United States for the District of Louisiana.

The case is somewhat complicated and confused, and it will be. necessary to state the material facts to be found in it in order to present clearly the legal questions involved, and .upon which the decision must depend.

On the 13th March, 1837, Thompson L. King drew two drafts, amounting, in the aggregate, to fifteen thousand four, hundred and ninety-seven dollars, in favor John E. Hunter, upon Moses Groves, who duly accepted the same. The liability of Groves upon these drafts to the bank constitutes the main point in the controversy. The drafts were subsequently, but before maturity, indorsed by Hunter to Lewis A. Collier, and by him passed to the Farmers? Bank of Virginia, the appellants, as collateral security for an indebtedness to the Bank. Groves was an accommodation acceptor for the benefit of King, the drawer.

The bank recovered judgment against Groves for'the amount of the draft»- in the Madison District Court of Louisiana, December 1, 1840, and which was recorded in the office of the parish judge on the same day, in the parish • of Madison, where the defendant resided, so as to operate as a judicial mortgage on his .real estate and slaves. The bank recovered judgment also against King, the drawer, on one of the drafts; and, at the same time, -held other judgments and demands against him, in which Collier was interested, to the amount of some fifteen thousand dollars. These judgments and demands had been pledged to the bank by Collier, as collateral security for his indebtedness. '

' On the 26th February, 1841, a written agreement was entered into between Collier and King, in which, after reciting the several judgments and demands above stated, and held by the bank against King, and in which Collier was interested; and also reciting and describing certain plantations and lands, belonging to the said King, containing in all about tw;enty-two' hundred' acres, and a large number of slaves on the same, it was agreed, among other things, that if the* said Collier should be permitted to purchase the said property at sheriff’s sale on any of the aforementioned judgments for his own account, or for the account of the bank, at a sum not exceeding the whole amount of the several judgments and demands, or for a less sum; that then, and in that case, the said property should be received by him in satisfaction and discharge of the same; and the evidences of the several debts and demands thus held by him and the bank should be delivered up to the persons entitled to the same; and full discharges given; and especially to Moses Groves for. and on account of the judgment obtained by the Farmers’ Bank of Virginia against him.

There are several other provisions and stipulations in said agreement; but, as they have no necessary bearing upon the material questions in the case, it is unimportant to notice them. Groves was a witness to this agreement.

In pursuance of this arrangement Collier became the purchaser of the property on the 13th of March, 1841, for the sum of $32,515, and received a deed of the same from the sheriff on the sixteenth of the month thereafter.

On the 1st of December, 1841, the Farmers’' Bank of Virginia proposed to Collier, through their authorized agent, an arrangement of his indebtedness to them, as follows:

1. The bank to give him a credit on the same of one, two, and three years. 2. And surrender all the collateral securities which they had received from him. And Collier, on his part, 1. To pay all the expenses of prosecuting the collateral securities to the attorneys in whose hands they are. 2. To give á mortgage,, which was to operate as a judicial mortgage in favor'of the bank, on all the property which he held in Concordia parish. 3. To assign to the bank certain notes, as collateral security, which he held against Dix & Glascock, amounting to $9000. 4. To have all the mortgages that appear as incumbrances upon the property reduced by a discharge of record to an amount not exceeding thirty-five thousand dollars, besides those in favor of the Bank of Virginia, and Lancaster, Denby, & Company. And 5. To give three notes to the bank, one for $11,764.68, payable in twelve months after date, one for $12,470.57, payable two years after date, and one for $13,218.80,- payable three years after date, amounting, in the aggregate, to thirty-seven thousand four hundred and fifty-four dollars, five cents.

This is the substance of the proposition made by the agent, and which was intended as instructions to F. H. Farrar, his attorney, under whose direction the mortgage was to be prepared and executed.

On the 3d of December, 1841, the mortgage was duly executed by Collier, and delivered to Farrar, and accepted by him on behalf of the bank.

It was recorded in the proper office, and a copy with the three notes transmitted by mail to the bank agreeably to the instructions.

' On the 20th of April, 1843, the Farmers’ Bank of Virginia applied to the judge of the Circuit Court of the United States, in the ^District of Louisiana, for an executor’s process against the estate of Groves, he having died in December, 1841, praying that so much of his-estate might be seized and sold as should be necessary to satisfy the judgment, which had been obtained by the bank against him December 1st, 1840, and which wé have already referred to; and an order was granted accordingly; whereupon,. Horace H. Groves, the son of the deceased, and administrator of the estate, filed the bill in this case in the Circuit Court of the United States, setting out, substantially, the facts already recited, and praying that the bank may be enjoined from proceeding to seize and sell any part of the estate, that the executory process may be set aside, and the bank decreed to enter satisfaction of the judgment of record. ,

The answer of the bank denies the authority of Collier to act for them in any settlement or discharge of the judgment, or for any purpose in connection therewith. They also deny that they ever gave their assent to the alleged discharge of the debt for which the judgment was rendered, or ever ratified or confirmed the acts and doings of Collier in relation thereto.

They further allege, that Collier was indebted to them in the year .1837, in a large amount, and that he transferred to them the acceptances of Groves, mentioned, in the bill, as far back as 1837 and before they reached maturity, as collateral security for his indebtedness. ' That they never intended to place the bills under the control of Cellior, b,ut held them as their own, and prosecúted them to judgment. Nor did they ever allow him to take the.charge and management of the judgment as their agent after it was recovered.

They further-allege, that being delayed in the collection of the collateral securities, and. receiving no payments from Collier, they employed James. W. Pegram, in Novgpaber, 1841, as their ag'ént, to call upon. Collier, at his home, with instructions to obtain a more satisfactory arrangement of the debt against him. That it resulted in the extension of the time of payment on his giving the'' mortgage, and notes referred to in the bill. They admit it was understood between their agent and Collier, that the. negotiable paper which had been transferred as collateral security was to be surrendered up to him, the security furnished by the mortgage being, as represented by him, sufficient to secure his indebtedness, and relying on his punctuality in the payment of the notes as they became due. That two of the notes provided for by the mortgage are already past due, and nothing paid by the0 said Collier; that the property covered by the mortgage is discovered to be liable under previous incumbrances to a large amount, which may render it insufficient for the payment of their debt. That said Collier has long since waived the assignméñt of the said judgment, and consented that the bank might retain it as additional security.

The .court below granted a preliminary injunction, and after-, wards at the hearing on the pleadings and proofs, confirmed the same, and decreed, that satisfaction of the judgment against Groves should be. entered of record.

Upon full consideration we are of opinion this decree is right, and should be affirmed.

King, the drawer of the bills, was the principal debtor, as the acceptance by Groves was for his accommodation. He was therefore bound to provide for them and keep Groves harmless; and this he did, so far as the interest of Collier was concerned, by the agreement of 26th February, 1841, and subsequent purchase by Collier of the plantation and slaves in pursuance of its stipulations. The purchase and title of the property under the sheriff’s sale, it was agreed, should be made, and taken in satisfaction of this among other demands against King; and in order to complete the satisfaction, Collier bound himself to procure a discharge of the judgment which the bank had recovered upon the drafts, and then held. Groves was privy, and consenting to this arrangement between King and Collier, and, as between the latter and him, vffien consummated, it constituted a valid defence to the drafts or judgment either in law or equity.

It is true, as the bank was not privy and consenting to the arrangement, their interest in the drafts was unaffected by it, and they were still at liberty to enforce their judgment against Groves, if necessary to the payment of the debt for which the drafts had been pledged ás security.

But, on the 3d of December following, they entered into an arrangement with Collier- by which it was agreed ■ that, on the execution arid delivery to them of three notes, payable in one, two, and three years, covering -the whole amount of his indebtedness to the bank, together with a mortgage upon a large plantation and slaves, besides other real estate, as security for the paymerit, all the collateral securities previously held for the indebtedness should be given up to him. The notes, and martgage were executed and delivered accordingly, and the collateral securities surrendered, and the interest in them again exclusively vested in Collier; and in this way becoming the owner of the drafts and judgment against Groves, for which he had already received satisfaction, and bound himself to procure a discharge from the bank, the agreement with King, the principal debtor, operated instantly as aft extinguishment of the demand; and placed it beyond the power of either Collier or the bank, or both of them together, to revive it by any subsequent arrangement. The defence of Groves, arising out of the agreement of King with Collier, attached immediately on the bank reinvesting Col: Her with their interest ■ in the drafts, and would adhere to them into whosever hands they might pass. They were not only bills over due, but had become merged in judgment against Groves.

It has been argued, on behalf of the bank, that Collier failed to comply with all the conditions upon which they stipulated to accept the mortgage and surrender the previous collateral securities ; and especially in one important particular, namely, the discharge of record of existing incumbrances upon the property so as to reduce them to an amount not exceeding ¡$¡35,000.

But there are several answers to this objection.

In the first place, the weight of the proof is, that the agent, after an investigation and examination of these incumbrances, waived the discharge of record, being satisfied that they had been .paid from the representation of Collier.

And in the second, no such ground of defence is set up in the answer, nor is. there any allegation of imposition or fraud by Collier in the transaction. And, in • the third, assuming, that there was, the bank could not avail themselves of it for the purpose of avoiding their part of the arrangement, and, at the same time, hold on to the mortgage as a security for Collier’s indebtedness. There has been no surrender of the mortgage, on the part of the bank, or offer to surrender and vacate the agreement. On the contrary, it is claimed'by them as an available security, held and relied on against Collier.

It may be, that if a fraud had been committed' upon the bank, in the negotiation to substitute this mortgage for other collateral securities, upon a surrender of the mortgage and notes accompanying ,it to Collier, on a discovery of the fraud, claiming to. vacate the arrangement on this ground, their right to and interest in the securities surrendered, in the absence of any prejudice to the rights of third persons acquired, in the mean time, might revive; and, in this way, the defence of Groves be overreached, the bank being thus remitted to their original rights. But, be this as it may, as no such step has been taken, nor even claim of fraud set up in the pleadings, we are bound to regard the air rangement as valid and binding upon both parties; and if any fraud or imposition has been committed to the prejudice of the bank, they must look, to him personally for compensation and redress. The rights acquired by each party to the securities exchanged, must be taken to be such as were' intended by the terms of agreement; and, regarding the transaction in this light, it is clear, even conceding, as is alleged, that Collier has since waived the surrender of the collateral securities for which he had stipulated, or has since reassigned them to the bank, the defence of Groves is still complete. These drafts, and judgment upon them, became extinguished the moment the agreement between the bank and Collier was carried into execution. They then became the exclusive property of the latter^ in which event his agreement with King, the principal debtor, worked an immediate satisfaction.

It has, also, been argued, that King has failed to fulfil all the stipulations in his agreement with Collier, and hence that it is not available to Groves. But this is a question exclusively between him and Collier, who, for aught that appears, is content with the agreement in the way it has been carried into execution. He purchased the property and took the sheriff’s deed as is alleged, and not denied, went into the possession and enjoyment of the estate, and still holds it. And, if he has not acquired all the property stipulated for in his agreement, he must Took .to King, personally, .for compensation and redress. He has chosen to accept the execution of the agreement, and must be deemed bound by its stipulations.

In every view we have been able to take of the case, we are of opinion the decree of the court below is right, and should be affirmed.

Order.

This cause came on- to be heard on the' transcript of the record, from the Circuit Court of the United States for the District of Lomsiana, and was argued by counsel. On consideration whereof, it is now- here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    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.
    Where the highest court of a State affirmed the judgment of the court below, ia • consequence of an equal division between the judges thereof, such judgment of affirmance is' considered, when ihe case is brought here under the twenty-fifth section of the Judiciary Act, as an affirmance of the rulings of the court below.
    Under the act of the 17th February, 1815, (3 Stat. at Large, 211,) for the relief of the inhabitants of New Madrid County, who suffered by earthquakes, a notice of location given to the Surveyor-General was not sufficient to vest the title in the applicant; the title was not complete until the plat and certificate of survey were filed and recorded in the Recorder’s office. An exchange of titles then at once took place. .The applicant beoame entitled to his new location, and the land which he abandoned reverted to the United States.
    But if the claim, under a New Madrid certificate, be prosecuted by an agent without the knowledge of the principal^ the title to the new land cannot vest in the principal until he assents to and adopts the proceedings of his agent; because, by such assent,, he relinquishes the title to the land which he first owned.
    In 1820, Congress granted to the State of Missouri, (3 Stat. at Large 547,) four sections of land, which should, “under the'direction of the legislature, be located, as neap as may be, in one body, at any time, in such townships and ranges as the legis- ■ lature may select, on any of the public lah.ds 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.”
    Thjs grant did not need an application to an officer of the United States for permis- . sion to locate it. When the legislature selected the land, and gave notice thereof to the Surveyor-General and Recorder of the Land-District, the land became identified and the title complete.
    In making the selection, the legislature had a right to inaludo fractional parts of . sections, until the entire amount-of .four sections was made up.
    The timé at which the title of the State became complete, was the day on which the Governor notified the Surveyor-General of the selection of the land by commissioners who had been appointed for that purpose..
    " This case was brought up from the Supreme Court of the State of Missouri by a writ of error, issued under the 25th section of the Judiciary- Act.
    It was an ejectment brought-by the plaintiffs in error, in the Circuit Court of Cole County, (State Court of Missouri,) to recover lot No. 455, as known and described upon the plat of the city of Jefferson, lying and being at a corner formed by the intersection of Washington and High Streets. Both parties claimed to derive title from the United States. Th.e cause was submitted to the Circuit Court of Cole County, asá jury, and the judgment being for the defendant, the plaintiffs carried it to the Supreme Court of Missouri, where the judgment of the court below was affirmed by a divided court; one judge not sitting, one being for affirming the judgment,'and one dissenting. The plaintiffs then brought the case to this court by writ of error.
    The bill of exceptions, which was taken to the rulings of the court upon the trial of the cause in Cole County, áets forth, in extenso, sundry papers, the insertion of which does not appear necessary .in this report. A summary of the evidence offered, together with the prayers to the court, seems to be all that- is required.
    Upon the trial in the Circuit Court, .the plaintiffs gave in evidence the following chain of- title, to wit:
    1. A confiimátion made' by the Board of Commissioners, on the 8th of January, 1811, of two hundred arpens of land, in the county of New Madrid, to Baptiste Delisle, as described in a plat of survey certified the 27th of February, 1806.
    2. The commissioners’ or New Madrid certificate, issued 20th of November, 1817, to Baptiste Delisle, for two hundred arpens, in lieu of his land, injured by earthquakes, lying in the county of New Madrid.
    3. A notice of location given to the Surveyor-General, by Thomas Hempstead, and A. L. Langham, as the legal representatives. of Baptiste Delisle, dated 2d June, 1821, that they had located two hundred arpens under the foregoing certificate, “ so as to include fractional section number six, the northeast fractional quarter of fractional section number seven, and as much off the north part of the west fractional half of fractional section number eight, as will make the quantity of two hundred arpens, a}l in township number forty-four, north qf the base line of range number eleven, west of the fifth principal meridian, south of the Missouri River.”
    4. A survey made by the Deputy-Surveyor of the above location, dated 5th of' August, 1821, and filed 11th of February, 1822.'
    5. Patent certificate, dated 25th of February, 1822, and delivered to Charles L. Hempstead.
    6. Patent from the United States to Baptiste Delisle, dated the 13th of November, 1822.
    7. Deed from Delisle and wife to Robert D. Dawson and Godfrey Leissieur, for the land patented to him, dated 13th of September, 1842.
    8. It was admitted that the parties suing as the heirs of R. D. Dawson, were his heirs, and their, names were correctly set out.
    9. It was further admitted, that the defendant was in possession of the land in controversy, at the commencement of this suit.
    10. The monthly arid yearly value of the premises was agreed upon between the parties. •
    The defendant, to show title in himself, relied upon the following facts:
    1. An. act of Congress, approved 6th March, 1820, the fourth paragraph of the sixth section of which provides as follows: “ Four. entire sections of land be, and the same are hereby granted to said State, (the State of Missouri,) for the purpose of fixing their 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.” 3 Stat. at Large, 547.
    2. An ordinance, adopted by the Convention of the State of Missouri, on the 19th July, 1820, accepting the said grant of land. R. C. 1845, p. 22.
    '3. An act of the legislature of the State of Missouri, entitled il An act providing for the location of the permanent seat of government for the State of Missouri,” approved 16th November,
    1820. 1 Terr. Laws, 649. This act appoints commissioners to select a site for the permanent seat of government, and requires them to make their report to the next session of the General Assembly of said State.
    4. An act, supplementary to the foregoing act, approved 28th June, 1821. 1 Terr. Laws, 773. This act provides for filling vacancies that may happen in the Board of Commissioners, and extends the time of making their report until the next session of the General Assembly.
    5. A joint resolution of the General Assembly, approved 28th June; 1821, (1 Terr. Laws, 780,) requiring the Governor of the State to notify the Surveyor-General for the State of Illinois and Missouri, and also the Register of the Land-Office in which the lands are selected, that commissioners appointed for that purpose “ have selected the fractional sections six, seven, and eight, the entire sections seventeen and eighteen, and so touch 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 number eleven, to 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 the State.”
    6. An act of the General Assembly, entitled “ An act fixing che permanent seat of government,” .approved 31st December, 1821. 1 Terr. Laws, 825. 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 thud 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.
    7. Also, an act of the General Assembly; entitled “ An act supplementary to the act fixing the permanent seat of .government,” approved 11th January,.1822. 1 Terr. Laws, 859. This act further 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 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 lands selected for the permanent seat of government, in order that any claim or claims may be adjusted, provided nothing herein contained shall in anywise be construed to legalize or acknowledge such claim as valid in law,” shall, by said commissioners, be communicated to the general assembly.
    8. • A proclamation by, the President of the United States, •dated 13th June, 1823, "bringing into market by public sale, in the ordinary way, townships No. 40, 41, 42, 43, and 44, in range 11 west, and townships No. 40, 41, 42, and 43, in ranges 12,13, and 14, of the fifth principal meridian. Bales to take place on the first Monday of October, 1823.
    9. It whs admitted that the premises in dispute are a part of the lands described in the foregoing resolutions; and the acts of the legislature given in evidence by the defendant subsequent thereto ; and that the defendant holds whatever title the State had to the said claim.
    To rebut the defendant’s title, the plaintiff gave the following evidence:
    1. A copy of a letter from the Governor of the State of Missouri, addressed to the Survey or- General of Illinois and Missouri, dated 3d July, 1821, informing him of the selection made-by the commissioners, for locating the permanent seat of government, and requesting him to withhold the lands thus designated, from sale or location, until the General Assembly shall determine whether they will accept the same. This letter is indorsed as having been received 8th July, 1821.
    2. A letter from same to same, dated 1st January, 1822, transmitting an authenticated copy of the act of 3lst 'December, 1821, entitled “ An act fixing the permanent seat of government.” This letter, by the indorsement thereon, appears to have been received on-the day of its date.
    3. A letter from the Surveyor-General to Governor McNair, in answer-to the above letter, dated 2d January, 1822. After acknowledging the receipt of the letter of the 1st January, 1822, and the copy of the act .of the General Assembly of 31st December, 1821, the letter proceeds as follows: “ I conceive it proper for me to inform you, for the information of the General Assembly, that a part of this land, (referring to the land selected by the commissioners, and accepted by the act of 31st December, 1821,1 was located in virtue of a New Madrid certificate, on the 2d June, 1821, as represented on the sketch, and described in the entry made thereof, which you will find herewith inclosed. You will also receive a copy of a paper purporting to be a copy of "an entry, or location of fractional section No. 7, township No. 44, north of the base line of range No. 11, west of the fifth' principal meridian; this day filed in this office by Major Taylor Berry. For the character of this last-mentioned paper, as I view it, see my remarks on the back thereof.”
    4. It was admitted that the journal of the Senate of Missouri, of the 23d November, 1821, shows that a committee of the senate, to which had been referred the report of the commissioners, for the location of the seat of government of the State, reported to the senate that the propositions made by Angers L. Langham ought to be accepted; and that the seat of government should be permanently located on the eight hundred and ninety-two acres of land situated at Cote Sans Dessein. That one half of which Langham proposed to donate to the State, which was concurred' in. On motion, the report was laid on the table until next day, and afterwards, on the 25th. November, 1821, the same was indefinitely postponed.
    5. That the journal of the house of representatives shows that, on the 28th November, 1821, the house had under consideration the location of the permanent seat of government.
    On the 15th of December next, following, the committee of the judiciary of the house reported to the house the state of the title at Cote Sans Dessein; On the 28th of same month, the house had the same subject under consideration.
    6. It was further admitted that the journal of the house of representatives shows, that, on the 3d January, 1822, Governor McNair laid before the General Assembly the communication received by him from the Surveyor- General, of date 2d January, 1822.
    7. A joint resolution of the two houses of the General Assembly, requesting the Governor to notify the President of the United States of the selection made for the seat of government, approved 14th December, 1822 1 Terr. Laws, 984.
    8. An act of the General Assembly of the State of Missouri, approved 19th December, 1822, (1 Terr. Laws, 1018,) authorizing the trustees appointed by the act to contract with the claimant for the removal of the New Madrid location from the lands selected for the seat of government on certain conditions ; if an adjustment be not obtained, then the trustees are required to select eight squares for public purposes, and the land áq selected, together with the streets and alleys laid, out, are condemned for public use, &c.
    9. The survey of thé lands selected by the State of Missouri, made in August, 1824, and approved by the Surveyor-General, on the 25th September, 1847.
    Thereupon the defendant-offered the following additional evidence, to wit;

      1. A copy from the books of the Recorder of Land Titles of the relinquishment of lands in New Madrid, by which it appears that the land in lieu of which the certificate in favor of Baptiste Delisle was issued, and which the plaintiff had given in evidence, was made by Carter Beamon.
    2. A copy of a deed from Delisle, for the land in New Madrid, to Carter Beamon, dated 4th August, 1817, acknowledged on same day, and recorded on the 17th September, 1817. It was certified by the Reeorder of Land Titles as being a true copy of the original on file in his office, and was also a sworn copy. Having first proved by a witness that he had applied to said recorder for the original which he had seen in his office and had compared with the copy, stating to him that he wished to use it on the trial of this case. But the recorder refused to let it go out of his office, saying that it was one of the files of his office, and that he was not authorized to let it go out of his office.
    3. A certified copy of a deed from Delisle to Alexander Conia, dated 17th October, 1810, proved on the 20th January, 1823, before the judge .of the County Court of St. Louis County, and recorded on the 6th May, 1823, in Cole County. This deed conveys the samé land, in New Madrid County.
    The plaintiffs objected to the introduction of both deeds as evidence in the cause, and. then objections were sustained, and said deeds rejected.
    4. The defendant then read in evidence the deposition of John Baptiste Delisle, which shows that, until the year 1842, he never knew that the certificate issued in his favor, by virtue of which the location on the land in question was made, had been issued, nor of the location, nor survey thereof, nor of the issuing or existence of a patent to him of said land, nor even,that Congress had passed a law for the relief of the sufferers by earthquakes in New Madrid County. And that, consequently, until said last-mentioned date, he never had' given any assent to any of the proceedings touching the New Madrid location in his. name. '
    On the close of the evidence the counsel for the plaintiff prayed the comt to declare the following, in the nature of instructions, to be the law*' of this ease : —
    1st. The patent from the United States to John Baptiste Delisle, if the same be true and genuine, is sufficient in law to vest the legal title [to] the land therein mentioned in the said Delisle, if he were living at its date. [Given.]
    2d. The deed from Delisle and wife to Robert D. Dawson and Godfrey Lessieur, if true and genuine, is sufficient in law to vest said title in said Dawson and Lessieur. [ Given.],
    4th. That if the New Madrid certificate, granted to said Deli.sle, was, on the 2d June,T821, located on the land in con: troversy, and was afterwards surveyed by a United States surveyor, according to law, and was appraised by the Surveyor-' General; and said land was finally patented to Delisle, according to said location and survey, then the effect of said patent is to vest said legal title in said Delisle, (as against any other title • derived from the United States,) from said 2d June, 1821, the date of said location. [Refused.]
    5th. That to vest the legal title to the four entire sections of land granted to the. State for a seat of government by the act of the 6th March, 1820, it was necessary that said location should have been made of four whole and entire sections; and that a location thereof, on two whole sections and five parts of other sections, was not in conformity with said act, and therefore void, unless subsequently ratified by the Government of the United States, or some department or office thereof, authorized so to do. [Refused.]
    6th. That a location of said land by the State should have been made in the office of some officer of the Land-Office Department of the United States, and that a record of said location sh'r uld have -been made in such office. [Refused.]
    7th. To give validity to such location, it should have been sanctioned by some officer of the United States having authority in disposing of the public lands. [Refused.]
    8th. That such location could not lawfully be made in the office of the Surveyor of Public Lands in Illinois and Missouri. [Refused.]
    9th. There is no evidence before the court, sitting as a jury, that any location of said- four entire sections ever was in fact made. [Refused.]
    10th. That if the New Madrid certificate, granted to John B. Delisle, was, on the 2d of June, 1821, located on the lands in' controversy; and that said location was, on the 5th of August, 1821, surveyed by the proper officer of the United States, and afterwards patented to said Delisle, in conformity to said survey, the effect of said patent' is to vest said title in said Delisle, or his legal representatives, from the said 5th of August, 1821. as against any person deriving title from the United States, after said location, and before said patent. [Refused.]
    11th. That the notice of location, survey; patent, and other documents and acts shown in evidence by the plaintiffs, touching the location of the New Madrid certificate, No. 347, issued to John B. Delisle, &c., if true and genuine documents, show a better title than any which has-been shown by the defendants. [Refused.]
    12th. The neglect of the Surveyor-General, or the Recorder of Land-Titles, to perform any act of mere duty on their part, towards the consummation of a title on said location, could not affect the rights of the party interested. [Refused.]
    The defendants then prayed the following instructions:
    1st. The title of the United States to the land described in the copy of the patent given in evidence by the plaintiffs was nót divested out of the United States until the plat and survey, given in evidence by the plaintiffs, was returned to the office of the Recorder of Land Titles; and the title of the United States to the land located under the directions of 'the Legislature of the State of Missouri, in pursuance of the 4th proposition of the 6th section of ,the act of Congress of the 6th of March, 1820, was vested in the State as early as the acceptance by said State of the selection of land made by her commissioners. If, therefore, said acceptance was made prior, in point of time, to the returning of said survey and plat to the office of the Recorder of Land Titles; and if the land so selected and located embraces the same land mentioned in said copy of patent given in evidence by the plaintiff, then the said plaintiffs are not entitled to recover in this action. [Refused.]
    2d. If the John B. Delisle, who was the owner of the land in the county of New Madrid, in lieu of which the certificate No. 347 was issued, until the year 1842, knew nothing of the issuing or existence of said certificate, nor of the notice, survey, or patent, given in evidence by the plaintiffs, and never assented to the same prior to said date, and if, prior to said date, the former sections of land mentioned .in the 4th proposition of the 6th section of 'the act of Congress, approved March the 6th, 1820, had been located under • the direction of the Legislature of this State, upon the premises in question, then no title passed to said Delisle, in or to said premises, as against the State of Missouri. [ Given.]
    3d. If Langham and Hempstead obtained the certificate No. 347, given in evidence by the plaintiffs claiming to be the legal representatives of John B. Delisle, and. in that character made the location, when j.n fact they were not the legal representatives of said Delisle, fior in any manner entitled to said certificate, nor. to the land located by virtue thereof, such location-is void, as against this defendant. [Refused.]
    The first and third of which were refused, and the second given, to the giving of which the plaintiffs also excepted.
    The court thereupon gave a verdict for the defendant.
    The plain Lius then moved for a new trial, which was refused, and a bill of exceptions was taken to the several rulings of the COUTt.
    It has been" before mentioned, that the Supreme Court of Missouri affirmed the judgment of the court below by a divided court; and that the plaintiffs sued out a writ of error, and brought the case up to this court.
    It was argued by Mr. Glover, for the plaintiffs in error, and Mr. Leslie, for the defendant.

      Mr. Glover made the following points:
    1. The plaintiffs in error exhibited a title good in itself. The New Madrid certificate to John Baptiste Delisle, or his legal representatives, dated November 20, 1817, the entry therewith of June 2, 1821, the survey of August 5th, 1821, issued to the recorder February 11, 1822, patent certificate February 25, 1822, and patent in conformity with the said preliminary steps, dated November 13,1822, constitute a title which would hold the land if no other title had emanated from the United States.
    2. The defendant in error also claims that he holds a title valid in itself. This proposition the plaintiffs controvert entirely. They believe that the defendant has no title whatever; and in due time will endeavor to demonstrate that all the steps taken by the State of Missouri, in order to perfect a title under the grant contained in the act of Congress, approved March 6, 1820, were null .and void, not being in conformity to the terms of the grant, or the laws of the land.
    3. They 'will concede, however, for the present, and merely for the sake of the argument, that such- a title exists in the defendant' as he claimed for himself, and proceed to examine, with this view of the subject, what is the relative value of that title when compared with the plaintiffs’.
    4. Whenever two titles have emanated from government, it becomes necessary to inquire which is the elder title, as that one must prevail. 1 Peters, 668 ; 13 lb, 436.
    5. The plaintiffs insist that their title began to exist at the date of the entry, or notice of location, June 2, 1821; and that the patent thereon, issued to Delisle, or his legal representatives, relates back to the said entry, and overreaches any other title, taking its inception in the mean time from the Government of the United States.
    6. A contrary position has been taken just here by the defend- - ant. It is this: that the right of Delisle, or any one claiming under him, incepted only at the moment of the return of the plat of his survey into the office of the Recorder of Land Titles.' That in a case of conflicting titles, the priority of right can only be. determined with reference to the date of this event; and that after the title is consummated by the emanation- of a patent,, it has relation only to this point of time. Two decisions of this court are relied on as establishing this doctrine, Bagnell v. Broderick, 13 Peters, 436; and Barry v. Gamble, 3 How. 32.
    (The counsel then examined these and other decisions of this court to show that the question did not arise, when an inchoate right springs up in the progress of acquiring a title under a New Madrid certificate, as against a conflicting grant.)
    7. That the notice, survey, and patent vested a title in John Baptist Delisle, or his legal representatives, notwithstanding the said Delisle was ignorant of the fact of their emanation. The delivery of the said documents to Langham and Hempstead, as the acts of the United States, for the use of said Delisle, being beneficial to him, Ms land in New Madrid having been destroyed, vested a perfect title in him. 4 Kent, Com. 454 and notes; 2 Salk. R. 168; 1 Touch. 236; 15 Wend. 660; 6 Cow. 620; 8 Barn. & Cress. 448; 5 Mo. R. 147; 4 Day, 66 ; 12 Johns. 82.
    . 8. But delivery is not a requisite formality to the validity of a patent. It takes effect on passing, the seal of the office, without the act of delivery, and without any affirmative assent of the patentee. 2 Coke, 276 and note; 17 Cr. Eliz. 167; 5 Cow. 458; 1 Cranch, 160 ; 1 Cov. & Hughes, Dig. 738, ch. 7, No. 8.
    9. It would, therefore, seem to be unnecessary to look further into the case, supposing that a valid title, standing by itself, has been shown in the. State of Missouri. The inception of the same could not be earlier than the selection of the land in question, December 31,1821, by the legislative act. The title of Delisle, beginning on the 2d June, 1821, was earlier intime, and must prevail over the supposed State title.
    30. If, however, the right of Delisle did not begin to exist till there was proof of his affirmative assent to the entry, location and patent in his name, as shown by his deed to Lessieur and Dawson, in 1842, still the' plaintiffs were entitled to recover, because there was no title whatever in the State, as will now be shown.
    11. The act of Congress, March 6,1820, gave the grant therein contained, on the express condition — “provided” is the word —- that the location should be -made prior to the public sale of lands surrounding such location. This word makes a precedent condition. This was án emergency the defendant saw the necessity of meeting. He, therefore, introduced proof that, on one side of the location the iands were not offered at public sale prior to October, 1823, while he introduced no evidence as to the public sale of the lands on the other side of the location, they having been offered.to public sale prior to the location. The location was, therefore, in violation of this condition of the grant, and void. 4 Pick. 45, 7; Ib. 156; 6 T. R. 320; 2 Barr, 219.
    12. The act of the Legislature of Missouri, approved Decernber 31, 1821, was merely an expression of intention to locate, not a location of their grant. To have constituted a location, application ought to have been 'made at the proper land-office, and an entry allowed according to the laws of the United States. But 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, the said lands. [See Land Laws Instructions arid op. part 2, No. 304, 474, 394, showing that such a location should be entered in the Register’s office.] The State location was, therefore, void for want of a proper record thereof in the proper office of the government of the United States.
    13. But the steps taken by the State of Missouri, with reference to their grant, were otherwise in violation of the terms of the grant, and contrary to the laws of the United States. In this, the lands claimed to have been located, are not the lands granted. In contemplation of the laws of the United States, the terms “section,” “ half section,” “ quarter section,” designate certain specific tracts marked and designated on the map of public surveys, indicate riot a quantity of acres, but tracts inclosed in certain metes and bounds, and no other idea can be substituted as the meaning of the grant. Thus a section is-not 640 acres at the. will of the grantee ; but is a known and fixed subdivision of the public land, marked and bounded as such. And so with “ a half section,” “ a quarter section.” That this position is well taken, observe the distinctive phraseology of the following acts of Congress: An Act granting lands to Mississippi, Public Lands Laws, Instructions, and Opinions, part 1, p. 308. Ib. 267, an Act granting lands to Indiana. Ib. 312, an Act granting lands to Illinois. Ib. 305, an Act granting lands to Alabama. Ib. 578, an Act granting to Cherokee County, Alabama, 150 acres land in lieu of the “ quarter section ” allowed by law. Ib. 377, an Act granting lands to Florida. Ib. 315, an Act granting lands to Illinois. Ib. 484, an Act granting lands to Arkansas. Ib. 568, an Act granting lands to Arkansas, and confirming certain illegal selections made by Governor Pope, ib. p. 325.
    The counsel then' argued that the location by the State was irregular and void, for the following reasons :
    1. Because “entire sections” were not taken throughout.
    2. Because- “ fractions ” were taken in part.
    3. Because a slip, two miles in length, was taken off of two “ entire sections,” thus making them fractional, and breaking up the legal subdivisions.
    4. By substituting quantity for metes and bounds, when by the laws of the land the’ metes and bounds of four entire “ sections ” were ali the State was entitled to receive, whether they contained 2,566 acres or not. If this grant had been of “ sections ” the purpose would be manifest; but a grant of " four entire sections ” was enough to preclude the possibility of doubt as to the legislative intention. See 3 Howard, 660, where a survey made in violation of a rule laid down for securing the proper subdivision of the public lands was pronounced void, as was also the patent on said survey. See 7 Porter, ft. 432; 6 Cowen, 722.
    14. Should the défendant, however, succeed in establishing the legality and necessity of a survey of the grant to the State, he will still not be relieved of difficulty. The doctrine for which he has contended — of appropriation of the land by surveys — will then be brought home to his own door. His survey not being made till August, 1824, could not appropriate the land prior to that time; and, not being approved till 1847, had no existence as an official act till after the institution of his suit. The. approval of said survey was the first entry on the books of any officer of the land department, in relation to the State grant or selections. The defendant has assumed the ground that the State grant was to be located by a new survey, in like manner as a new Madrid certificate; and that the plat of the survey was the location. If he is right in this position, then two conclusions follow. 1. That the State location was not made till after the public sale, of all the lands surrounding it had taken place, and was, of course, void by the terms of the grant. 2, .That when it was located, the land had been appropriated to Delisle, and the location void for want of title in the United States.
    15. If it shall be considered by the court that, although the lands of Delisle, in lieu of which his New Madrid certificate was issued, were destroyed, and the grant was consequently pure donation to him, that, nevertheless, no title vested in him till his deed to Dawson and Lessieur, in 1824, still the plaintiffs were entitled to recover, the defendant not having shown any title in himself. A title springing up in Delisle in 1842, was in time to appropriate the land.
    16. The act of the Legislature of- Missouri, approved December 19, 1822, [1 Terr. Laws, p. 1018,] by which the tract patented to Delisle was condemned to the public use, was not .relied on heretofore by the defendant as helping his'case, and, I suppose, will not be here.

      Mr. Leslie, for the defendant in error,
    contended that, under the several acts, viz., of Congress, approved 6th March, 1820; an ordinance of the Convention of Missouri, passed on 19th of July, 1820, accepting the grant; an act of the General Assembly of Missouri, approved November 16, 1820 ; an act of the General Assembly of Missouri, approved June 28,1821; nothing more was necessary than the mere passage of the acts to vest a title in the State of Missouri.
    The counsel then contended that Hempstead and Langham, in their proceedings in making the location and obtaining the certificate, were guilty of fraud on Delisle and on the government. On Delisle, because he was alive and had no knowledge of their doings and gave no assent thereto; on the government, because they sought to appropriate the public lands contrary to the terms and meaning of the act of Congress for the benefit of New Madrid sufferers.
    The counsel then contended that the court erred in refusing the first instruction asked by the defendant’s counsel; that the point contained therein was directly involved in the cases of Basnell et al. v. Broderick, 13 Pet. 436 ; and Barry v. Gamble, 3 How. 51, and was decided by this court.
    The counsel then contended that the court was- correct in granting the second instruction asked for by the defendant’s counsel; that the act of Congress for the relief of the New Madrid sufferers was not a mere donation of land, to which the assent of Delisle might be implied ; but that it was an exchange which could not be effectual until Delisle surrendered his injured tract to the United States. Consequently an affirmative act on his part was necessary before a title to the new location could vest; and, therefore, no title vested in him until 1842, when he assented to what had been done in his name. But before 1842, the title of the State of Missouri had become complete.
   Mr. Justice CATRON

delivered the opinion of the court.

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.

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 agai.nst the United. States; and the inquiry arises, what acts were required on the part of the locator to divest the United States of title 'r 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 Deli'sle was one of the sufferers, and on November 20th, 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 deputy-surveyor for said Territory, or uiider 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.

The surveyor was required to make the location, and. survey, “ on application of the claimant.” On this requirement a practice naturally sprung up, of filing with the surveyor a noticé of location, describing the land that the claimant desired should be surveyed for him, and with which request the surveyor complied, unless some valid objection stood in the way, and rendered a compliance improper.

The notice of location, in this instance, was delivered to the Surveyor-General June 2d, 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 offitíe ; 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 td the Recorder’s office. And what was the character of the evidence he had tg rely on there ? His entry was tó 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 produée 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, 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 Peters,) 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 ihe 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 seléct, 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 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 áre 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 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 á 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 o£ 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 title in the State of Missouri, of four sections ; and that the selection made by the State Legislature oursuant to the act of Congress, and the notice given of such location to the Surveyor-General, and the Register of the local district where the land lay, gave precision to' the title, and attached to it the land selected. The United States assented to this mode of proceeding; nor can an individual call it in question.

It is insisted, in the next place, that the location was void, • because fractional sections were selected, to make the quantity of 2560 acres, embraced by the grant; that the law granted entire sections, in a square form, and intended to exclude fractional parts of sections ; and as this controversy involved a fraction, no title was taken by the State of Missouri.

This objection is plausible, but we think unsound. The whole quantity was to be selected in one body as near as might be; the object of the grant was a city site for a great political purpose; that the seat of government would be established on the Missouri River was almost certain, a fact that could not have been overlooked by Congress. To a metropolis, the river front was absolutely necessary. If the land was selected adjoining the river, fractions must of necessity be taken ; and, therefore, the act of Congress'cannot be construed in the restricted sense contended for without violating a leading object of grantor and grantee ; nor does it seem to have entered the mind of either, that a selection of fractions violated the terms of the grant. From first to last, for nearly thirty years, has the grantor acquiesced; nor do we think that the validity of the selection can be called in question by an objection never set up by the United States.

The next inquiry is, as to the date when the land selected attached to the grant. June 28,1821, the Governor of Missouri notified the Surveyor-General of the fact, that the land had been located by the commissioners, and awaited the action of the Legislature; and. on the. 31st day of December, 1821, the land was accepted by the Legislature; the same act provides for laying off a town and the establishment of the seat of government thereon. And as the commissioners had power to locate, and did so, subject only to legislative sanction of their report, and that report was sanctioned, our opinion is that the acts were concurrent, and that the title refers to the first act; and, therefore, that the State took title from the 28th of June, 1821, when the Surveyor-General was notified that the location had been made. We státe this as matter of principle, held in the case of Landes v. Brant, decided at last term. It is not material, however, whether the date be the 28th of June, or 31st of December, 1821, when the Legislature acted. Delisle’s location by survey, was filed and recorded, in the Recorder’s office, February 11, 1822; this is the first evidence of its legal existence appearing of record, and on that day it took date. It follows, that the legal title of Missouri, is elder than the equitable title set up under Delisle’s claim. This was in effect the opinion of the .court below, as appears by a refusal to give the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th exposition of the law demanded by the plaintiffs; and with which opinion we concur.

The next question raised and decided by the State courts appears by the following exposition of the law, pronounced at the request of the defendant, and bn which the judgment also proceeded:

' If John B. Delisle, who was the owner of the land in the County of New Madrid, in lieu of which the certificate No. 347 was issued,- until the year 1842, knew nothing of the issuing or existence of said- certificate, nor of notice, survey, or patent given in evidence by the plaintiffs, and never assented to the same prior to that date ; and if, prior to that date, the four sections of land mentioned in the fourth proposition of the sixth section of the act of Congress, approved March 6th, 1820, had been located under the direction of the Legislature of this State upon the premises in question, then no title passed to the said Delisle, in or to said premises, as against the State of Missouri.”

The evidence shows, that all the steps taken for the purpose of obtaining a grant of land from the United States, in lieu of land owned' by John B. Delisle, lying in New. Madrid County, and which had been injured by earthquakes, were taken by Langham and Hempstead, or at their instance, they representing themselves to be the legal representatives of Delisle, and without the consent, 'knowledge, or authority of Delisle, and that what was done by them in his name did not receive his sanction or assent until the year 1842. But it is insisted that the law will imply his assent, as the grant was beneficial to him. This might be a safe implication if the grant had been a pure donation unaccompanied with any condition; but such is not the fact. The act of Congress for the relief of the inhabitants of New Madrid County, whose lands had been materially injured by earthquakes, provides that, where locations are made under the act, the title of the individual to the land injured shall, revert to, and become absolutely vested in, the United States. Instead, therefore, of its being a pure donation on the part of the government, it was a proffered barter or exchange of lands by legislative enactment. Where the value of the land in New Madrid had been entirely destroyed, it might be regarded as a donation of other, land to the individual owner; but where that was not the case, it could not be so considered. Now, it is a well known .fact, that much of the land exchanged with' the government under this law is this day of more intrinsic value than the land located in lieu, thereof. Where this is the case, the government, instead of making a donation, has driven a profitable bargain. But the government is not chargeable with any wrong in this transaction, because the owners of land in New Madrid- were not compelled to accept the provisions of the act; if they did so-, it was a voluntary act on their part, and their assent should be evidenced by some. affirmative act done by them.

There is, however, in this case, no ground for implication. All presumption of assent is utterly excluded by the evidence of Delisle himself, who states that he was wholly ignorant of the existence of the act of Congress on that subject until the year 1842. He could not be divested of his land in New Madrid until he assented to the exchange, and he could give no assent until he was informed of the act of Congress making provision for those whose land had been injured. The title, then, to the land in New Madrid remained in Delisle up to the year 1842, when he assented to what had been done by Lang-ham . and Hempstead in his name; and, as Congress only intended to grant other land on condition that the title to the land injured should revert to, and vest in the government, no title could pass to Delisle until 1842, prior to which time the State of Missouri had acquired title to the land in controversy.

It is proper to remark that, on the last ground of defence, we have adopted the views, in part, expressed by one of the judges of the Supreme Court of Missouri, whose opinion is found in the record.

Our conclusion is that, on both grounds of defence, the State courts expounded the law applicable to the facts correctly, and that therefore the judgment should be affirmed.

Order.

This cause came on to be heard on the 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.


author: Mr. Justice WAYNE

text:
    John L. Harris, surviving partner of Rowan and Harris, v. Hiram G. Runnels.
    "Where a defendant, when sued upon a note, set up, as a defence, that the note was given for an illegal consideration,' the whole statute must be examined in order to discover whether or not the legislature intended’ to prevent courts of justice from enforcing contracts relating to the act prohibited.

      Where a statute prohibits an act or annexes a penalty to its commission, it is trae that the act is made unlawful, but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it.
    Where a statute is silent, and contains nothing from which the contrary can properly be inferred, a contract in contravention of it is void. But the whole statute must be examined in order to decide whether or not it does contain any thing “ from which the contrary can be properly inferred.”
    Thus, where a statute of Mississippi declared that slaves should not be brought into the State without a previous certificate signed by two freeholders, with a certificate of the clerk, of the-county from which they came, certifying that the signers wore respectable freeholders; and slaves were brought in without such certificate and sold, the contract is not void, but the purchaser must pay his note given for the purchase-money.
    Other parts of the statute indicate that the legislature did not intend to declare the contract void; as, for example, a part in which a fine is imposed upon the buyer and also upon the seller.
    This case was brought up, by writ of error, from the Circuit Court of the, United States for the Southern District of Mississippi.
    The action was originally brought by Rowan & Harris upon the following note. Rowan having died during, the suit, it was prosecuted by, Harris, the surviving jpartner. It will be'perceived that the action was by the indorsees against the indorser. ■
    Dollars 8,671.33§.
    On or before the first day, of March, eighteen hundred and forty, I promise to pay H. G. Runnels, or order, eighty-six hundred and seventy-one 33| dollars, negotiable and payable at the Planters’ Bank, Natchez, Miss., value received, this 7th De-' cember, 1837.
    G. W. Auams.

      (Indorsed.)

    For value received, I transfer and assign over to Rowan & Harris the within note of $8,671. 33*-; said note is secured by mortgage on lands, of record in Bolivar county, Miss., and I vest in said Rowan & Harris the right to control said mortgage.
    Given under my hand this 22d .July, 1838.
    H. G. Runnels.
    Rowan & Harris.
    Before stating the pleas of th,e defendant, it is proper to.refer to a statute of Mississippi, passed in 1852. (Howard & Hutch. Digest, 155.)
    See. 1. Describes who are slaves ; such as are brought in pursuant to law,' &c.
    Sec. 2, Slaves may be brought in, except convicts.
    Sec. 3. No person shall bring in or hold convicts.

      See. 4. Slaves not to be brought in without a previous certificate, signed by two respectable freeholders in the county and State' from which the slaves were brought, and signed and acknowledged before the clerk of said county, and certified by the clerk that the persons whose signatures were affixed thereto were respectable freeholders of the county and neighborhood where they resided, containing a particular description of the stature and complexion of such slaves, together with the names, ages, and sex of the same; and furthermore, that the slaves therein mentioned and described had not been guilty or convicted of murder, burglary, or arson, or felony, within the knowledge or belief of siich freeholders.
    Sec. 5. The seller shall register the certificate in the Orphans’ Court, and swear that he believes it to be true.
    Sec. 6. Seller or purchaser, contrary to this act, shall pay one hundred dollars for every slave so sold or purchased.
    To the declaration of the plaintiff, Runnels plead three pleas, viz., the general issue of non assumpsit and two special pleas. The conclusion of one of these pleas will show the nature of both. “ And the defendant avers, that the said plaintiffs had not, previously to the importation of the slaves, sold as aforesaid to the said defendant, and had not previously to, nor at the time when the said slaves were sold to this defendant, obtained a certificate signed by two respectable freeholders in the county of the .State of Virginia, from which said slaves were brought, and signed or acknowledged before the clerk of said county, in the State of Virginia, and certified by said clerk, that the persons whose signatures were affixed thereto were respectable freeholders of the county and neighborhood where they resided, containing a particular description of the stature and complexion of such slaves, together with the names, ages, and sex of- the same; and furthermore, that the slaves therein mentioned and described had not been guilty or convicted of murder, burglary, or arson, or felony, within the knowledge or belief of such freeholders, in the said State of Virginia; and so this defendant says, that the sale of said slaves to him was illegal and void, and the transfer and indorsement made by him of the note in the declaration was also illegal and void, and this he is ready to verify; wherefore, & c.”
    The plaintiff joined issue upon the first plea, and demurred to the two special pleas. Upon the -trial, the court below overruled the demurrers, and gave judgment for the defendant. Whereupon, the plaintiff brought the case up to this court by writ of error.
    It was argued by Mr. Nelson, for the plaintiff in error, and by Mr. Howard for the defendant.

      Mr. Nelson contended that the Statute of Mississippi was a mere police regulation, the non-observance of which did not avoid the contract, and cited the following cases : Faikney v. Reynous, 4 Burr. 2069; Petrie v. Hannay, 3 Term. Rep. 418; Farmer v. Russell and another, 1 Bos. & Pul. 296; Simpson v. Bloss, 7 Taunt. 246; Johnson and others v. Hudson, 11 East, 180; Armstrong v. Toler, 11 Wheat. 259; Graves v. Slaughter, 15 Pet. R. 449; and Story’s , Confl. of Laws, pp. 205 - 209. The act of Mississippi of the 18th June, 1822, How. & Hutch. Digest, 156 ; Hutch. Mississippi Code, 513.

      Mr. Howard contended, that contracts contrary to laws or public policy are void and will not be enforced.
    Craig v. State of Missouri, 4 Pet. 426; Hunt v. Knickerbacker, 5 Johns. 327; Sharp v. Teese, 4 Halst. 352; Marchant v. Evans, 8 Taunt. 142; Stephens v. Robinson, 2 Cromp. & Jer. 209; Spurgeen v. McElwain, 6 Ohio, 442; Belding v. Pitkin, 2 Caines, 147; Fales v. Mayberry, 2 Gall. 560; Griswold v. Waddington, 15 Johns. 37; 16 Ib. 438.
    They are void whether so declared by the statute or not. It is sufficient that they are forbidden, or contrary to law or public policy. Yeates v. Williams, 5 Pike, 684; Eberman v. Reitzel, 1 Watts & Serg. 181.
    Where a thing is not absolutely prohibited, but permitted to be done in a particular manner, and prohibited in any other, cqntracts are not valid made in violation of the prescribed method. This was settled in the celebrated case of Law v. Hodson, 11 East, 300, which was an action to' recover the price of brick which did not conform to the size prescribed by the statute. Like the. Missisippi law of 1822, it did not declare contracts void, but contained a prohibition under penalty. To the same effect is Little v. Poole, 9 Barn. & Cress. 192; Forster v. Taylor, 5 Barn. & Adol. 887; Tyson v. Thomas, 1 McCl. & Young, 119; Lahgton v. Hughes, 1 Maule & Selwyn, 593; Bank U. S. v. Owens, 2 Peters, 537.
    It was decided in Massachusetts, that “ no action lies on a promissory note, the consideration whereof was the sale of shingles, not .of the size prescribed by the statute.” Wheeler v. Russell, 17 Mass. 258.
    No. action can be maintained for leather not stamped as required by law; Elkins v. Parkhurst, 17 Vermont, 105; DeBegnis v. Armistead, 10 Bing. 107; Cope v. Rowland, 2 Meeson & Welsb. 149. The last case decides, that business by a broker without license is illegal, and that he cannot recover for his services.
   Mr. Justice WAYNE

delivered the opinion of the court.

It is said that the note sued upon in this case, was given for an illegal consideration.

The illegality alleged is, that the plaintiff brought slaves into the State of Mississippi as merchandise, in contravention of the statute regulating-the importation of them, and sold them to the defendant, for which the note was given in payment. It is admitted by tire-plaintiff’s demurrer to the defendant’s special plea, that they were so brought and sold. The court overruled the demurrer and gave judgment for the defendant. The cause is before, this court upon a writ of error sued out by the plaintiff. The law making contracts, in contravention of statutes, irrecoverable by suit, will be first stated and afterwards applied to this case.

There is no doubt that assumpsit cannot be sustained upon a contract which has not a sufficient consideration. It must not be illegal, of an immoral tendency, or contrary to sound policy. The common law maxims áre ex turpi causd, non oritur actio— ex dolo malo non oritwr actio. It prohibits every thing which is unjust or contra bonos mores. The object of all law is to repress vice and to promote the general welfare of society; and it does not give its assistance to a person to enforce a demand, originating in his breach or violation of its principles and enactments. Contracts in violation of statutes are void; and they are so whether the consideration to -be performed or the act to be done be a violation of the statute.

A statute may either expressly prohibit or enjpin an act, or it may impliedly prohibit or enjoin it, by' affixing á penalty to the performance or omission thereof. It makes no difference whether the prohibition be expressed or implied. In either case, a contract in violation of its provisions is void. The rule is certain and plain. The practice under it has been otherwise. The decisions in the English courts have been fiuctuating and counteracting. Those in the courts of our States have followed them without much discrimination. No one can-read any one of the recent elementary treatises upon contracts without noticing the differences of opinion among judges as to the operation, of the rale. Showing, however, as they do, the history of these differences, they may lead to more conformity of judicial opinion hereafter in this respect.

The character of these differences will be seen by noticing one of them. Others might easily be made.

Within a few years we were told, in the English Reports, and seemingly to us with a good reason, that the rule which avoids a contract made in contravention of a statute, did not apply to statutes made for the protection of the revenue only, That the non-observance of excise regulations will not avoid a contract. in respect of their subject-matter, if it be not accompanied with fraud, although a penalty attaches. Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 Barn. & Cress. 98; Hodgson v. Temple, 5 Taunt. 181. And that it was always to be applied, when the statute was made for the protection of the public from moral evils, or from those which we know from experience that society must be guarded from by preventive legislation. Such was received as the law by the courts in England and in our States, and cases were ruled in both accordingly; but afterwards, with only a few years intervening, Baron Parke, a distinguished judge, truly said, in Cope v. Rowland, (2 Cromp. Mee. & Ros. 157,) “ Notwithstanding some dicta apparently to the contrary, if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which has made it so has in view the protection of the revenue or any other object.” Such we believe to be now the rule in England, but with many exceptions, made upon distinctions very difficult to be Understood consistently with the rule; so much so, that we have concluded, before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, that the statute must be examined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. In other words, whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken for granted that the legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a court of justice. In this way the principle of the rule is admitted, without at all lessening its force, though its absolute and unconditional application to every case is denied. It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravehtion of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void.

It is not necessary, however, that the reverse of that should be expressed in terms to exempt a contract from the rule. The exemption may be inferred from those rules of interpretation, to which, from the nature of legislation, all of it is liable when subjected to judicial scrutiny. That legislators do not think the rule one of universal obligation, or that, upon grounds of public policy it should always be applied, is very certain; For, in some statutes it is said in terms that such contracts are void; in others, that they are not so. In one statute, there is no prohibition expressed, arid only a penalty; in another, there is prohibition and penalty, in some of which, contracts in violation of them are void or not, according to the subject-matter and object of the statute; and there are other statutes in which there are penalties and prohibitions, in which contracts made in contravention of them will not be void, unless one of the parties to them practises a fraud upon the ignorance of the other. It must be obvious, from such diversities of legislation, that statutes forbidding or enjoining things to be done, with penalties accordingly, should always be fully examined, before courts should refuse to give aid to enforce contracts which are said to be in contravention of them.

We now turn to the case on hand, to apply to it our version of the rule and the manner of its application.

The statute relied upon by the defendant, to avoid the payment of his note, is that of June, 1822, (Hutch. Dig. 512.) He relies upon the fourth section, substantially recited in his special pleas, arid says the plaintiff cannot recover upon the note, as it was given for an illegal consideration, from the plaintiff’s having failed, before he sold the negroes, to comply with the directions in the fourth section. The sixth section declares that both the seller and the buyer of such slaves shall pay one hundred dollars for every slave so sold or purchased. The two sections, considered conjunctively, seem to us to imply that the penalty only, without any other loss to either the seller or the buyer, was to be inflicted. The subject-matter and the sufficiency of the penalty relatively to the value of a slave,, to prevent the mischief against which the legislature meant t° guard, imply that the legislature did not mean that such a contract should not be enforced in a court of justice. Besides, as the act was meant to prevent convict negroes from being brought into the State for sale, and another penalty for that offence is to be inflicted, severer than that of the sixth section, without a forfeiture of the slave or any provision for his removal from the State, it cannot have been intended that the disregard of precautionary directions, for the importation of slaves for sale was to be visited with its penalty, and the indirect forfeiture by the. seller of the price of them, by denying to him the aid of courts to enforce a contract of sale for negroes who were not convicts. This statute must be interpreted as all other statutes are liable to be. The State’s policy was to exclude all negroes tainted with crime. For aught. that appears in the pleadings, the defendant bargained for the negroes, knowing that they were brought into the State as he says they were. If, then, there was a violation of the law by his purchase, he stands in pari delicto with the seller, with this difference between them, that he' is now seeking to add to his breach of the law the injustice of retaining the negroes without paying for them. And he might do so if the statute was such as it is represented to be in his pleas. The law will not aid either of two parties who are in pari delicto in the violation of a statute. Whatever may be stated in a contract for an illegal purpose, a defendant, against wliom it is sought to be enforced, may, to prevent it, show both the turpitude of himself and the plaintiff. Lord Mansfield said, with a very proper sensibility of the injustice of such a plea, and of the policy which permits it to be insisted upon, “ The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds' at all times very ill in the mouth of a defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded on general principles of policy, which the defendant has the advantage of, contrary to ,'the real justice, as between him and the plaintiff.” Such is the law, and the defendant would have the advantage if he had not mistaken the statute under which it is claimed.

It is a rule, if effects and consequences shall result from an interpretation of a statute contrary and in ópposition to the policy which it discloses, or substantially avoiding the infliction, of a penalty upon the transgressor, that such an interpretation must be rejected. In this ease, the interpretation contended for in behalf of the defendant does both. One of them has already been stated. It is, that it would lead to the infliction of a severer penalty for the disregard of the directions for buying slaves for sale who are not convicts, than the statute imposes upon those who shall bring convict slaves into the State.

Further, the penalty in the sixth section, upon such as do not comply with the directions in the fourth, is to be equally inflicted upon the buyer and the seller.

Make, then, this contract void, by the application of the rule pari delicto potior conditio est defendentis et possidentis, and the defendant, in the event of .his conviction for transgressing the statute, would be substantially released from the penalty as to all the objects for which punishment is ever inflicted; because, having the power to retain the negroes, he would pay the fine from their labor, or would get them for only so much less than he bargained to give for them. In other words, the seller, if convicted too, would pay his own and the buyer’s fine. Again, as the rule is not allowed for the benefit of either party to an illegal contract, but altogether upon grounds of public policy, we do not think that public policy calls for the application of it in this case, as the defendant might keep the slaves which he bought from the plaintiff within the State of Mississippi, contrary to the law which forbade the sale of them.

Such decided advantages, to one of two who have violated q, statute by a contract, could not have been meant by the Legislature of Mississippi.

It is gratifying to us, that the conclusion at which we have arrived is sustained by the subsequent legislation of Mississippi. In 1837, (Hutch. Dig. 535,) an act was passed repealing the act permitting slaves to be brought into the State for sale. In addition/to the penalty, it is declared in terms that all contracts in contravention of it shall be void. There could not be, from statutes in pari materiá, especially in one repealing another and substituting new conditions and penalties upon the same subject-matter of both, a stronger circumstance to show, that under the first statute in order, contracts in violation of it-were not meant to be irrecoverable by suit. Our judgment in -this case is, that the contract is not void, and that the defendant can take nothing by his pleas.

We are .aware, that decisions have been made in the courts of Mississippi seemingly in conflict with this; but they are only so in appearance. None of them were made until after the constitution of Mississippi of 1817 had been superseded by that of 1832. We have said, more than once, and now say again, that the clause in the constitution of 1832, prohibiting the introduction of slaves into the State as merchandise, was inoperative to prevent it until the legislature acted upon it. We have read all that has been officially written in opposition to that conclusion without having our confidence in its correctness at all shaken.

We shall direct the reversal of the judgment in this case.

Mr. Justice McLBAN and Mr. Justice CURTIS dissented.

Order.

This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause' be, "and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions for further proceedings to be had therein, in conformity to the opinion of this court.