Wholey

Ejectment. Judgment for defendant. Plaintiff appeals.

Both parties claim through one Whitmire. In 1860, Whitmire, who then had only a school-land certificate of purchase upon which twenty per cent of the price had been paid, executed to one Coats an instrument, which is considered below, and Coats subsequently conveyed to the defendant. In 1878 the state issued a patent to Whit-mire, who, in 1884, made a deed to the plaintiff.

*134 The plaintiff’s position is, that prior to the issuance of the patent, Whitmire had merely an interest which, while regarded as the legal title as against third persons, was not so regarded as against the state; that the legal title remained in the state until the issuance of the patent in 1878; that the instrument executed to Coats in 1860 was not a present conveyance, but only an agreement for a deed, and therefore did not pass the after-acquired title, or any title; that after receiving the legal title, Whitmire did not convey it to the defendant, but conveyed it to the plaintiff, and that since the plaintiff has the legal title, he must prevail in ejectment.

From this it is obvious that it is necessary to consider the effect of the instrument…