Daniel v. Purvis

Simrall, J.

delivered the opinion of the court:

W. J. Purvis, the ancestor of the plaintiff, entered the land in dispute, at the land office .at Jackson, on the 7th of March, 1856, and on the first of March, 1859, a patent was issued to him by the United States.

A. L. Daniel, the defendant, derives title by mesne conveyances from C. J. McLauran, who purchased the land from the state, and received a patent the 15th of January, 1857. The title of the state is under the act of congress of Sept. 28, 1850, which granted to the state “ all the swamp and overflowed lands therein,” for certain purposes. The premises sued for are included in the list and plat of such lands, approved by the secretary of the interior the 6th of Dec., 1856.

*263 The decision of the circuit court was in favor of the plaintiff’s title, derived by purchase from the United States.

In the case of Fore v. Williams, 35 Miss. Rep., 536 -7-8, it was held that tbe act of congress (above referred to) in its first section, •made a grant of the overflowed and swamp lands to the state, which took immediate effect as to all such lands then unsold by the United States. The first section by its terms makes a present grant, and therefore the second section looking to the issuance of a patent to the state after the lands have been located, gives no •additional value or significance, which had not already attached to the grant. A certain officer was designated to make out an accurate list and plat of the lands embraced in the grant, which thereby made specific and certain the parcels and tracts of land which passed to the state. In Railroad Co. v. Smith, 9 Wallace, 99, the supreme court put the same construction upon the act of congress, holding that it operated as a present grant “ of the swamp and overflowed lands made thereby unfit for cultivation and not sold,” and that although the secretary of the interior might long delay or neglect to perfect the lists and maps, it was open to other proof, to show that particular tracts were of the character described in the act. It was not dependent upon a designation of the lands by the secretary, whether they vested or not in the state. But if the state or its vendee could show by witnesses, that certain tracts were swamp and overflowed lands, that established the title under the grant.

The act of congress grants immediately to the state the swamp and overflowed lands, of which no disposition had before that time been made. The words in the act are “ unsold.”

The ground of the decision in Funston v. Metcalf, 40 Miss., 506 -7, was that no approval of the particular parcel was ever made by the secretary, but such approval was purposely withheld, because of a prior sale by the United States.

The agreeed facts in this case are, that the tract sued for was u swamp and overflowed ” land and “ in the list of swamp land *264 located by the state and filed in the office of secretary of state, on the 6th of December, 1856, and submitted to the secretary of the interior on the 11th of November, 1856, and approved by the secretary November 18th, 1856. The entry by Purvis, through whom the plaintiff in ejectment claims, was made, 7th of March, 1856, several months before the list of swamp lands was approved by the secretary.

In Railroad Co. v. Smith (supra), the railroad company claimed under a grant, made by congress May 15, 1856, in aid of the road, which, however, was subject to the exception that it did not attach to any lands which had been previously sold or disposed of by the United States. It was held that the lands which were “swamp and overflowed,” and which passed to the state by act of September 28, 1850, were excepted out of the grant to the. railroad company — and as we have seen, if it could be shown by testimony, that the land was of the character named in the act — such lands passed to the state, although the secretary of the interior may not have approved a list and plat of them. In the agreed case, it is admitted that the tract sued for was “such” (thatit was swamp land in the sense of the act), and further, that “ it is in the list,” made out and approved by the authorities.

The swamp and overflowed lands vested by virtue of the grant by congress in the state. In this case it is admitted as a, fact, that the particular parcel was “swamp land.” If so, then no interest remained in the United States which could be sold to Purvis, the enterer and patentee. The designation of a list and plat, approved by the secretary of the interior, was to identify the land. The title passed to the state, by virtue of the grant in the act of 1850 ; the list and plat served to identify the subject of the grant. See Wray v. Doe, ex demise, etc., 10 S. & M., 452 ; Harris v. McKissick, 31 Miss., 169 ; Minter et al. v. Shirley, 15 Miss., 376 , et seq.

In the case of Ford v. Williams, supra, the patent from the s'tate bore date the 20th of March, 1855, and the date of the entry at United States land office, was 3d of November, 1851. The *265 list and approval of the secretary thereto, of the swamp lands was dated 31st of January, 1855. If the title remained in the United States subject to sale, before this list and plat was made ’out and approved, plainly the purchaser from them would have had the better title. But as the grant has been construed, it takes effect presently, and therefore a purchaser from the state gets a title which relates back to the date of the grant by congress, and must prevail over any purchaser from the United States subsequent thereto. •

On the agreed facts, the verdict ought to have been for the defendant.

Judgment reversed, and cause remanded.