SAMUEL MASSEY AND OTHERS, PLAINTIFFS IN ERROR,
v.
JOSEPH L. PAPIN
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In 1806, James Mackay claimed 30,000 arpents of land before a federal land commission in St. Louis, which rejected his claim in 1809; Mackay later mortgaged 14,000 arpents to Delassus in 1819, and when Papin acquired the mortgage and foreclosed, he obtained title superior to that claimed by Mackay's heirs. The Supreme Court affirmed the Missouri court's decision that Papin's title as the mortgage assignee was superior to the heirs' claim, holding that when Congress later confirmed the land to Mackay's legal representatives in 1836, the confirmation carried the mortgage incumbrance along with the legal title, and the heirs took the land subject to the mortgage that had attached during their ancestor's lifetime.
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Mr. Justice CATRON delivered the opinion of the court.
This case is brought here by writ of error to the Supreme Court of Missouri. .
In 1806, James Mackay presented his claim before the board of commissioners, sitting at St. Louis, to have confirmed to him 30,000 arpents of land. In .1809, the board rejected the claim.
In 1819, Mackay gave a bond in the nature of a mortgage on 14,000 arpénts of the land to Delassus. Papin claimed as assignee of the mortgage, which he caused to be foreclosed, and purchased in the land, and took a title from the sheriff. Massey and others claim under Mackay’s heirs.
• The Supreme Court, of Missouri decided that Papin, claiming under the mortgage of Mackay to Delassus, had a better title-than Massey, who claimed under the heirs. And to reverse' this decision, this writ of error is prosecuted.
The board of land commissioners of 1809 refused to confirm the claim; th^y were acting on the title as between the United States and the claimant. The Government had the power to gránt the land in fee, regardless of the opinion of the board. Accordingly, in 1882, an act of Congress was passed organizing another board to examine this description of Spanish claims, which had-been rejected by the old board. The newboard, m October, 1882, recommended-the claim for confirmation “to said James Mackay, or his legal representatives.” James Mackayhad died, and his heirs presented the claim the second time; ánd it is insisted that the confirmation to them by the act of 1836 rejected the mortgage of Delassus, and that the heirs took the unincumbered legal title discharged of the mortgage.
An imperfect Spanish title, claimed by virtue of á concession, was, by the laws of Missouri, subject tó sale and assignment, and of course subject to be mortgaged for a debt. The heirs of Mackay took the lands by descent,- with the incumbrance attached, and held them in like manner that their ancestor held. The grant of the lands to the heirs by the act. of 1836 carried the equities of the mortgagee with the legal title, of which he took the benefit — a consequenee.contemplated by the mortgage itself; and if the assignment had been in its form a legal conveyance of the lands, the-grantee would have taken a-legal, title. And . to-this effect are'the cases of Bissel v. Penrose, 8 How., and Landes v. Brant, 10 How.
. It is ordered that the judgment be affirmed.-
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Toledo v. Hamilton, 134 U.S. 296 (U.S. 1890)…y to the extent of the title that the railroad company had. The mortgage being one with words of general description,' conveyed land held by a full equitable, as well as that held by a legal, title. Jones on Mortgages, section 138 ; Massey v. Papin, 24 How. 362; Farmers’ Loan and Trust Co. v. Fisher, 17 Wisconsin, 114; Lincoln Building Association v. Hass, 10 Nebraska, 581; Laughlin v. Braley, 25 Kansas, 147. We conclude, therefore, that there is nothing in this fact to justify an award of priority to app…