The confirmation of the Beck grant does not relate back to the date of the application to Surveyor General. In support of these contentions appellant cites: Banks v. Moreno, 39 Cal. 233; Barry v. Gamble, 3 How. 32; Beard v. Federy, 3 Wall. 479; Berthold v. McDonald, 24 Mo. 126; Berthold v. McDonald, 22 How. 334; Bissell v. Henshaw, 1 Sawyer, 553; Butler and Bakers Case, 2 Coke, 29; Carpentier v. Montgomery, 13 Wall. 480; Cessna v. United States, 169 U.S. 165; Chicago c. R.R. v. United States, 159 U.S. 372; Chouteau v. Eckert, 2 How. 345; In re Cooper, 143 U.S. 503; Dent v. Emmeger, 14 Wall. 308; Doe v. Eslava, 9 How. 421; Ely v. United States, 171 U.S. 220; Evans v. Durango Land Co., 85 F. 433; Gibson v. Chouteau, 13 Wall. 101; Good v. McQueen, 3 Tex. 241[ 3 Tex. 241]; Hale v. Ackers, 69 Cal. 160; Hayes v. United States, 170 U.S. 637; Henshaw v. Bissell, 18 Wall. 225; Holliman v. Prebles, 1 Tex. 673[ 1 Tex. 673]; Jackson v. Baird, 4 Johns. 230; Jones v. Garza, 11 Tex. 186[ 11 Tex. 186]; Jones v. Muisbach, 26 Tex. 236[ 26 Tex. 236]; Jones v. United States, 137 U.S. 202; Lanfear v. Hunley, 4 Wall. 204; Landis v. Brandt, 10 How. 370; Leese v. Clark, 3 Cal. 16; Lesbois v. Brammell, 4 How. 449; Lynch v. Bernal, 9 Wall. 315; McCabe v. Worthington, 16 How. 86; Maynard v. Massie, 8 How. 307; Mitchell v. Furman, 180 U.S. 402; Moore v. Steinbach, 127 U.S. 70; Pino v. Hatch, 1 New Mex. 125; Republic v. Thorn, 3 Tex. 499[ 3 Tex. 499]; Rodriguez v. United States, 1 Wall. 482; St. Paul c. Co. v. Winona Co., 112 U.S. 720; Sheldon v. Milmo, 29 S.W. 832; Sioux City c. Co. v. United States, 1
The grant, being a complete and perfect grant prior to the treaty of cession, the grantee thereof, his heirs and assigns, had title in fee, which was not in any way affected by the change of sovereignty. United States v. Percheman, 7 Pet. 86, 87; Ainsa v. New Mex. Ariz. R.R. Co., 175 U.S. 76, 91; Dent v. Emmeger, 14 Wall. 308, 314; Trenier v. Stewart, 101 U.S. 797, 810. The treaty of cession, commonly called the Gadsden Treaty, so provides. Ely v. United States, 171 U.S. 220, 241.
The decision of this court in 1895, that Greer County did not belong to Texas, but was a part of the domain of the United States, can therefore have no effect upon the rights of property or grants hitherto made to Greer County by the State of Texas. United States v. Roselius, 15 How. 36; Townsend v. Greely, 5 Wall. 326; Dent v. Emmeger, 14 Wall. 308; Hardy v. De Leon, 5 Tex. 234[ 5 Tex. 234]; Musquez v. Blake, 24 Tex. 466[ 24 Tex. 466]; Kilpatrick v. Sisneros, 23 Tex. 124[ 23 Tex. 124]; Maxey v. O'Connor, 23 Tex. 242[ 23 Tex. 242]; United States v. Percheman, 7 Pet. 51; Strother v. Lucas, 12 Pet. 410; Airhart v. Massieu, 98 U.S. 496. When the State enters her courts as a suitor, the same law applies to it as to citizens.
The place to litigate it is in the local jurisdiction of the State, by the common-law action of ejectment, or such other action as may be provided for the trial of the legal titles to real estate." 15 How. 23, 24. And Mr. Justice Curtis and three other dissenting justices concurred in the judgment on that ground only. 15 How. 29. See also United States v. Roselius. (1853) 15 How. 36, 38; Maguire v. Tyler, (1869) 8 Wall. 650, 652; Dent v. Emmeger, (1871) 14 Wall. 308, 312; Trenier v. Stewart, (1879) 101 U.S. 797, 802. And the courts of the State of Louisiana habitually exercised jurisdiction to try and determine such titles.
This placed them on the same footing as citizens of the United States. See United States v. Percheman, 7 Pet. 51; United States v. Clarke, 8 Pet. 436, 465; United States v. Wiggins, 14 Pet. 334, 349; United States v. Arredondo, 6 Pet. 691; Henderson v. Poindexter, 12 Wheat. 530, 543; United States v. Reynes, 9 How. 127, 144; Dent v. Emmeger, 14 Wall. 308, as to titles under the cessions of Florida and Louisiana, where a like doctrine has been held. Congress had no power, under the Constitution, to require the presentation of perfect titles to the board of land commissioners, under the penalty of forfeiture of the land.
I am, therefore, of the opinion that plaintiffs do not have the requisite legal title to maintain this action. Haltern v. Emmons, D.C., 46 F. 452; Menard's Heirs v. Massey, 8 How. 293, 306, 12 L.Ed. 1085; Dent v. Emmeger, 14 Wall. 308, 312, 313, 20 L.Ed. 838; Langdeau v. Hanes, 21 Wall. 521, 22 L.Ed. 606; More v. Steinbach, 127 U.S. 70, 32 L.Ed. 51. It follows that the demurrer to the complaint must be sustained, and it is so ordered. This makes it unnecessary to pass upon the question of misjoinder.
What then is the status of these inchoate rights? This question has been answered by this Court in the case of Grant v. Jaramillo, 6 N.M. 313, 317, 28 P. 508, where this Court quoted with approval from the United States Supreme Court case of Dent v. Emmeger, 14 Wall. 308, 20 L.Ed. 838, as follows: "Titles which were perfect before the cession of the territory to the United States continued so afterward, and were in nowise affected by the change of sovereignty.
"The act of Congress, passed on the 13th of June, 1812, confirming the titles and claims of certain towns and villages to village lots and commons, gave a title which is paramount to a title held under an old Spanish concession, confirmed by Congress in 1836." In the case of Dent v. Emmeger, 14 Wall. 308, 20 L. Ed. 838, the defendant, village of Carondelet, claimed title to certain commons which had been surveyed in 1817, and resurveyed, the survey and resurvey having been approved July 29, 1834, all in contemplation of the village's having the commons confirmed to it, pursuant to the Act of June 13, 1812 (2 Stat. at L. 748), and the Act of April 29, 1816 (3 Stat. at L. 325), and the Act of January 27, 1831 (4 Stat. at L. 435); but the title had not been confirmed by an act of Congress. The plaintiff, Dent, held title from Gabriel Cerre, who held a patent which had been issued pursuant to an act of Congress (Act of July 4, 1836 [5 Stat. at L. 127]), the confirmation being founded upon a complete and formal concession made by the Lieutenant Governor of Upper Louisiana to Gabriel Cerre in 1789.