#### Fail and Nabb, Appellants, v. Goodtitle, ex dem., Hay and Lagow, Appellees.

APPEAL FROM LAWRENCE.

A purchaser’s right under a sheriff's deed is not affected under the act of 1819, by its not being acknowledged in court. It is well acknowledged, if it be acknowledged before the circuit court of the county of which he is sheriff, and where the land lies.

A certificate of the register of a land office is not evidence, (a)

(a)

See Rev. Laws of 1827, page 199.

Opinion of the Court by

Justice Lockwood.

This is an action of ejectment tried at the Lawrence circuit court. On the trial a verdict was found for the plaintiff below, and judgment rendered thereon. Several errors have been assigned, but on a careful inspection of the record, the court are of opinion that the record does not present facts on which to found most of the errors assigned. The bills of exceptions taken on the trial, furnish all the causes of error that can be assigned, and they are either so inartificially drawn as not to present the points intended to be relied on by the counsel for the defendants below, or such points do not exist in the case.

The court can not but regret that they are so frequently called upon to adjudicate on cases that are so imperfectly presented, that they are unable, with all the sagacity they possess, to ascertain from the record the real questions decided below. In the case now under consideration, the court however, have this satisfactory reflection, that in case they should be so unfortunate as not to decide on the real matter in dispute between the parties, their decision will not be final. Another action may be commenced, in which the rights of the parties may be presented in such a manner as, eventually, to obtain a decision on the merits. On the trial below, the plaintiff offered in evidence a sheriff’s deed, to the reception of which the defendants below excepted. The exception is in these words: “ which was opposed and objected to by the defendants, by their counsel, because it was acknowledged before the Lawrence circuit court, and not before the Crawford circuit court; which objection was overruled by the court, to which opinion the defendants, by their counsel, object and except,” &c.

The only question here presented is, whether the reason given why the deed should not be read in evidence, is a valid one. The objection is not general but special.

*202The parties are therefore confined to the identical objection which they made. Had other objections existed, it is fairly to be presumed, that the objection would have been general, or that the other objections would have been specified. As the bill of exceptions does not purport to give all the testimony in the case, it is also fairly presumable, that the objections taken in the assignment of errors to the reception of this deed in evidence, were either waived or obviated by proof on the trial. The court can not, therefore, inquire any further than as to the correctness of the decision on the point raised on the trial, as it is found in the bill of exceptions, and that is, whether it were essential to the validity of this deed, that it should have been acknowledged by the sheriff of Lawrence county before the Crawford circuit court ? The only statute that requires a deed to be acknowledged in court, is the statute of 22d of March, 1819.* The second section says, “ that upon such sale, the sheriff or other officer shall make return thereof indorsed or annexed to the said writ of execution, and give the buyer a deed, duly executed and acknowledged in court, of what is sold,” &c. The legislature doubtless intended this requisition to the sheriff, for the benefit of the purchaser. In this view of the subject, the acknowledgment may be dispensed with altogether, without affecting the purchaser’s right under the deed. (1)

It would be attended with great inconvenience and expense to compel the sheriff to go to a distant county, to acknowledge the execution of a deed for lands lying in the county of which he is sheriff; and as the statute does not designate the court, we are also of opinion that there has been a sufficient compliance with the statute. The second and third bills of exceptions are to the rejection of the deed of the executors of T. Dubois, deceased, and the certificate of the register of the land office at Vincennes. The objections taken to the reception of these papers in evidence are general, and were sustained by the court. In relation to the deed, the ground of objection does not appear, but, taken in connection with the offer to prove the location made of the premises by the certificates of the register of the land office, which were rejected, it is presumable, that the rejection of the deed was *203founded upon the ground that no title was proved to exist in the executor’s testator.

Robinson, for appellants.

Eddy, for appellee.

As the objection was general, and it does not appear that there was any offer to prove the execution of the deed, the deed was also properly rejected on that account. In relation to the certificate of the register of the land office, the court are of opinion, that it was properly rejected. The signature of registers of land offices can not be known, officially, to the court. They have no public seal to authenticate their signature; proof ought therefore to have been given of the hand writing of the register. The court have strong doubts whether the certificate of a clerk of the register can be received at all, but if received, it ought to be accompanied with proof, that the person who gave the certificate is clerk, and of his hand writing. As these bills of exception present all the grounds that can be assigned for error, and from the view taken of them, they do not furnish sufficient reasons to reverse the judgment of the court, the judgment is therefore affirmed with costs. (2)

Judgment affirmed.

*

Laws of 1819, page 177.

(1)

The following is the statute now in force in relation to acknowledgment of deeds by sheriff. “ All deeds which may be executed by any sheriff or other officer, for any real estate sold on execution, upon being acknowledged or proven before any clerk of any cotut of record in this state, and certified under the seal of such court, shall be admitted to record in the county where the real estate sold shall be situated.” Purple’s statutes, p. 160, sec. 29. Scates’ Comp., 975.

(2)

Certificates of the Register of the Land office are made admissible as evidence by the following provision: “ The official certificate of any register or receiver of any land office of the United States, to any fact or matter on record in his office, shall bo received in evidence in any court in this state, and shall be competent to prove the fact so certified. The certificate of any such register, of the entry or purchase of any tract of land, within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns, to recover the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be established for the same.” Purple’s statutes, p. 541, sec. 4. Scales’ Comp., p. 255. This is substantially the provisions of the act of 1827, cited in the note of Judge Bbbese; but in 1839, the following additional act was passed: “A patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or the purchase of the same land.” Purple’s statutes, 541, Sec. 5 Scates’ Comp., 255.

Under these statutes we have had the following decisions:

The receipt of a receiver of a land office, of the receipt of the purchase money, for a tract of land, is not evidence of title. Carson et al. v. Merle et al., 4 Scam., 363.

The register having the custody of all the record books, and plats relating to the sales of land in his district, is the only officer whose certificate could be safely received as evidence of title, and is made so by statute. Roper v. Clabaugh, 3 Scam., 166.

The receiver’s certificate is made evidence of any fact or matter on record in his office, but the register’s certificate is made evidence of title, id.

The official certificate of the register of a land office, is made evidence, by the express terms of the statute. Turney v. Goodman, 1 Scam., 185.

Where a record shows that the certificate of the register of a land office was re*204ceived in evidence, the court will presume that proof of his official character and hand writing were previously made, unless a contrary statement is contained in the bill of exceptions. Russell v. Whiteside, 4 Scam., 7.

In McConnell v. Wilcox, 1 Scam., 344, it was held that “the certificate of the register of the land office, of the purchase of a tract of land from, the United States, is of as high authority as a patent.” This was decided before the passage of the act of 1839, referred to above, and was taken to the Supreme Court of the United States, and by that court reversed, which caused the passage of the act of 1839. 13 Peters, 498. In that court, among other things, the court held:

Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, where Congress grants lands in words of present grant.

The act of the legislature of Illinois, giving a right to the holder of a register’s certificate of the entry of public lands, to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title to the lands is in the hands of the defendant, or of those he represents. The exception in the law of Illinois, applies to cases in which the United States have not parted with the title to the land, by granting a patent for it.

A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts; and to regulate the disposition of the property of her citizens, by descent, devise, or alienation. But Congress is invested, by the constitution, with the power of disposing of the public land, and making needful rules and regulations respecting it.

Where a patent has not been issued fora part of the public lands, a state has no power to declare any title, less than a patent, valid, against a claim of the United States to the land; or against, a title held under a patent granted by the United States.

Whenever the question in any court, state or federal, is, whether the title to property which had belonged to the United States, has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.

In another case the same court held the following:

Congress have the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues, the fee is in the government; which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment.

When the title to the public land has passed out of the United States by conflicting patents, there can be no objection to the practice adopted by the courts of a state to give effect to the better right, in any form of remedy the legislature or courts of the" state may prescribe.

No doubt is entertained of the power of the states to pass laws authorizing purchasers of lands from the United States, to prosecute actions of ejectment upon certificates of purchase, against trespassers on the lands purchased; but it is denied that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect. Bagnell et al. v. Broderick, 13 Peters, 439.

Upon the effect of the register’s certificate, see also the following cases Bruner v. Manlove et al., 1 Scam., 157. Whitesides et ux. v. Divers, 4 Scam., 337. Delannay v. Burnett, 4 Gilm., 454.