Opinion of the Court by
Napton, Judge.
This was an action of ejectment brought by plaintiffs to recovera tract of land in Cooper county. Upon the trial, the plaintiff submitted a series of title papers, on each of which they separately relied, and which were successively rejected by the court. The plaintiff then relied upon the whole conjunctively, and the court considered them insufficient evidence of title. A non-suit was submitted to, and a motion made to set the same aside, which was overruled by the court. The following was the evidence:
1st. A certified copy of a concession to Piere Chouteau, upon an application or petition to the Li. Governor. The petition of Chouteau sets forth his desire that the Li, Gov. [101]*101would grant him 30,000 arpents of land on the Missouri river, 60 miles above the mouth of the Osage, so as to in-elude the river Lamine, and some salt springs which he designed to work. De Lassus on the 20th Oct. 1799, grants the petition of Mr. Chouteau, and directs that the surveyor, Soulard, should survey the land when Mr. Chouteau desired it, reserving, however, as usual, the right of the Intendent General to confirm the title.
choutJau’ps-titioned the It. gov. of Upper Louisiana to grant him 30,000ai'pents of land on the Mo. river, CO miles above the mouth of the Osage, so as to include the river La-mine and some salt springs. De Lassus, the £ranted the petition on the and°°ciii'ee?ed that the sur-ahoufd^urvey clTouteau'dc1 sired it, reserving the right of the Intend-ent general to confirm the title. Held, that this concession of the It. gov. was a permission to Chouteau to appropriate the said land, and could not effect a severance of the land specified from the King’s domain,until an actual survey was made, as the survey alone appropriates land. This concession, or grant, without any survey under the Spanish authorities, is not such a grant as is contemplated by our act regulating the action of Ej ectment.
[101]*1012d, A copy of the proceedings of the board of commissioners in 1800, containing notice of the claim contained in the concession, copy of the concession, and a document purporting to be an assent on the part of the Osage Indians to the occupancy of the land by Mr. Chouteau. Also the proceedings of the board in 1833, confirming the claim. The following is the certificate of the recorder of land titles:
“Recorder’s Office St. Louis, Missouri, June 17, 1839. I certify the first part of the foregoing, (being the notice to the recorder of land claims,) to be truly transcribed from Book D, page 152, the 2d and 3d parts, (being the assent of the Osage Indians, and the petition and grant,) to be truly copied from the original documents on file — and the balance to be truly transcribed from the minutes of the commissioners — all on file and of record in this office.
F. R. CONWAY, U. S. Recorder of D. & C.”
3d. The act of congress of 4th July 1836, confirming certain claims to land, and a survey made subsequent to said act.
4th. A patent for the land confirmed by said act of 4th July, 1836.
Evidence was given of the conveyance from Chouteau to Ashley, the death of Ashley, and then, heirship of the present plaintiffs.
This evidence the circuit court reiected severa'ly and , , _ . ... . J lectively, as insufficient to maintain the action.
I will consider the evidence in detail, as it was presented to the circuit court. • •
The concession, or grant of De Lassus in 1799, was a permission to Chouteau to appropriate 30,000 arpens of land on the Missouri river, 60 miles above the mouth of the [102]*102Osage, with a warrant authorising the surveyor to have same surveyed whenever it suited Mr. Chouteau’s pleasure.
This permission, or warrant of survey, did not purport to be a grant, and could not be construed to effect a severance of the land specified, from the King’s domain, until an actual survey was made. The survey alone appropriates the land. Taylor & Ourly v. Brown, 5 Cranch, 234. This paper, therefore, was not such a grant as is contemplated by our act regulating the action of ejectment, and consequently did not of itself make out the plaintiff’s right of recovery.
The proceedings of the board of commissioners in 1833, by which the claim of Chouteau was recommended for confirmation, constitutes the second step taken in the court below, and involves the question whether the action of this board was such as is contemplated by our statute, “ a confirmation under the laws of the United States,” sufficient to maintain ejectment. The act of July 9th, 1832, for the final adjustment of private land claims in Missouri, makes it the duty of the recorder and the two commissioners joined with him, to examine all the unconfirmed claims to land in that State, which had been legally filed ; and to c'ass the same, so as to show, first, what claims in their opinion would have been in fact confirmed, according to the laws, usages and customs of the Spanish government, had the same continued; and secondly, what claims, in their opinion, are destitute of merit, in law or equity, under such usages and customs.
The recorder and commissioners were further directed, at the commencement of each session of congress, to lay before the commissioner of the general land office a report of the claims so classed, stating the date and quantity of each, whether there be any, and what conflicting claims, and the evidence upon which each depended, to be laid before-congress for their final decision upon the claims contained in such first class. By the act of March 2, 1833, two years additional time was allowed the recorder to take testimony.
That the action of this board of commissioners in 1833, on the claim of Chouteau, was such a confirmation as comes [103]*103within the meaning of our act concerning evidence, (Rev. C. 1835, p. 251, s. 7,) I entertain no doubt. In the case George v. Murphy, (1 Mo. Rep. 770,) the court gave this construction to a confirmation made by the recorder under the act of 2d August, 1813. But the act of our legislature, regulating the action of ejectment, authorises that action to be maintained on a confirmation made under the laws of the . t IJnited States. Is this such a confirmation ? It is clear from the terms of the act, that this board erected under the act of July 9, 1832, had no power to confirm any claim whatever. Their duty was merely to divide the unconfirmed claims into two classes, the one embracing such as in .... ° their estimation appeared equitable, and the other such as had no merit in law or equity, and to report the first class of claims to the commissioner of the general land office for the subsequent action of congress. Had the board confirmed any claims under this act, their action would have been en- . it. tireiy beyond their powers, and of course a mere nullity,
juiy 4, 1836, U8"?1®3P1'.0-vision for issuing any pa-evid¿nce°ofer title, to the derthat act, iin.athere , being no law of the general Authorising1 the issuing of the patents'3’ is3"ed t° claimants under said act are void‘
But they did not undertake to confirm. The extract from the minutes of the board, given as evidence, shows a mere expression of opinion that the claim should be confirmed. This was no confirmation,
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Opinion of the Court by
Napton, Judge.
This was an action of ejectment brought by plaintiffs to recovera tract of land in Cooper county. Upon the trial, the plaintiff submitted a series of title papers, on each of which they separately relied, and which were successively rejected by the court. The plaintiff then relied upon the whole conjunctively, and the court considered them insufficient evidence of title. A non-suit was submitted to, and a motion made to set the same aside, which was overruled by the court. The following was the evidence:
1st. A certified copy of a concession to Piere Chouteau, upon an application or petition to the Li. Governor. The petition of Chouteau sets forth his desire that the Li, Gov. [101]*101would grant him 30,000 arpents of land on the Missouri river, 60 miles above the mouth of the Osage, so as to in-elude the river Lamine, and some salt springs which he designed to work. De Lassus on the 20th Oct. 1799, grants the petition of Mr. Chouteau, and directs that the surveyor, Soulard, should survey the land when Mr. Chouteau desired it, reserving, however, as usual, the right of the Intendent General to confirm the title.
choutJau’ps-titioned the It. gov. of Upper Louisiana to grant him 30,000ai'pents of land on the Mo. river, CO miles above the mouth of the Osage, so as to include the river La-mine and some salt springs. De Lassus, the £ranted the petition on the and°°ciii'ee?ed that the sur-ahoufd^urvey clTouteau'dc1 sired it, reserving the right of the Intend-ent general to confirm the title. Held, that this concession of the It. gov. was a permission to Chouteau to appropriate the said land, and could not effect a severance of the land specified from the King’s domain,until an actual survey was made, as the survey alone appropriates land. This concession, or grant, without any survey under the Spanish authorities, is not such a grant as is contemplated by our act regulating the action of Ej ectment.
[101]*1012d, A copy of the proceedings of the board of commissioners in 1800, containing notice of the claim contained in the concession, copy of the concession, and a document purporting to be an assent on the part of the Osage Indians to the occupancy of the land by Mr. Chouteau. Also the proceedings of the board in 1833, confirming the claim. The following is the certificate of the recorder of land titles:
“Recorder’s Office St. Louis, Missouri, June 17, 1839. I certify the first part of the foregoing, (being the notice to the recorder of land claims,) to be truly transcribed from Book D, page 152, the 2d and 3d parts, (being the assent of the Osage Indians, and the petition and grant,) to be truly copied from the original documents on file — and the balance to be truly transcribed from the minutes of the commissioners — all on file and of record in this office.
F. R. CONWAY, U. S. Recorder of D. & C.”
3d. The act of congress of 4th July 1836, confirming certain claims to land, and a survey made subsequent to said act.
4th. A patent for the land confirmed by said act of 4th July, 1836.
Evidence was given of the conveyance from Chouteau to Ashley, the death of Ashley, and then, heirship of the present plaintiffs.
This evidence the circuit court reiected severa'ly and , , _ . ... . J lectively, as insufficient to maintain the action.
I will consider the evidence in detail, as it was presented to the circuit court. • •
The concession, or grant of De Lassus in 1799, was a permission to Chouteau to appropriate 30,000 arpens of land on the Missouri river, 60 miles above the mouth of the [102]*102Osage, with a warrant authorising the surveyor to have same surveyed whenever it suited Mr. Chouteau’s pleasure.
This permission, or warrant of survey, did not purport to be a grant, and could not be construed to effect a severance of the land specified, from the King’s domain, until an actual survey was made. The survey alone appropriates the land. Taylor & Ourly v. Brown, 5 Cranch, 234. This paper, therefore, was not such a grant as is contemplated by our act regulating the action of ejectment, and consequently did not of itself make out the plaintiff’s right of recovery.
The proceedings of the board of commissioners in 1833, by which the claim of Chouteau was recommended for confirmation, constitutes the second step taken in the court below, and involves the question whether the action of this board was such as is contemplated by our statute, “ a confirmation under the laws of the United States,” sufficient to maintain ejectment. The act of July 9th, 1832, for the final adjustment of private land claims in Missouri, makes it the duty of the recorder and the two commissioners joined with him, to examine all the unconfirmed claims to land in that State, which had been legally filed ; and to c'ass the same, so as to show, first, what claims in their opinion would have been in fact confirmed, according to the laws, usages and customs of the Spanish government, had the same continued; and secondly, what claims, in their opinion, are destitute of merit, in law or equity, under such usages and customs.
The recorder and commissioners were further directed, at the commencement of each session of congress, to lay before the commissioner of the general land office a report of the claims so classed, stating the date and quantity of each, whether there be any, and what conflicting claims, and the evidence upon which each depended, to be laid before-congress for their final decision upon the claims contained in such first class. By the act of March 2, 1833, two years additional time was allowed the recorder to take testimony.
That the action of this board of commissioners in 1833, on the claim of Chouteau, was such a confirmation as comes [103]*103within the meaning of our act concerning evidence, (Rev. C. 1835, p. 251, s. 7,) I entertain no doubt. In the case George v. Murphy, (1 Mo. Rep. 770,) the court gave this construction to a confirmation made by the recorder under the act of 2d August, 1813. But the act of our legislature, regulating the action of ejectment, authorises that action to be maintained on a confirmation made under the laws of the . t IJnited States. Is this such a confirmation ? It is clear from the terms of the act, that this board erected under the act of July 9, 1832, had no power to confirm any claim whatever. Their duty was merely to divide the unconfirmed claims into two classes, the one embracing such as in .... ° their estimation appeared equitable, and the other such as had no merit in law or equity, and to report the first class of claims to the commissioner of the general land office for the subsequent action of congress. Had the board confirmed any claims under this act, their action would have been en- . it. tireiy beyond their powers, and of course a mere nullity,
juiy 4, 1836, U8"?1®3P1'.0-vision for issuing any pa-evid¿nce°ofer title, to the derthat act, iin.athere , being no law of the general Authorising1 the issuing of the patents'3’ is3"ed t° claimants under said act are void‘
But they did not undertake to confirm. The extract from the minutes of the board, given as evidence, shows a mere expression of opinion that the claim should be confirmed. This was no confirmation, therefore, under any law of the United States, and of itself could not make out the plaintiff’s title.
The act of July 4, 1836, was then read in evidence to show a confirmation under the laws of the United States, That act declares “ that the decisions in favor of land claimants, made by the recorder of land titles in the State of Missouri, and the two commissioners associated with him by virtue of an act entitled ‘ an act for the adjustment of private land claims in Missouri,’ approved July 9th, 1832, and an act supplemental thereto, approved March 2d, 1833, as entered in the transcript of decisions transmitted by the said recorder and commissioners, to the commissioners of the general land office, and by him laid before congress at the two last and present sessions, be and the same are hereby confirmed, saving and reserving, however, to all adverse claimants, the right to assert the validity of their claims in a court or courts of justice.” The act proceeds to make ex[104]*104ceptions of certain claims therein enumerated, of which the present claim is not one.
The plain* tiffs, to bring their claim within the provisions of the act of congress of July 4, 3836, confirming the proceedings of the board of commissioners, offered in evidence extracts from the minutes of the board, containing their proceed ings on this claim in 1833, certified by the recorder of land titles to be truly transcribed from the minutes of the board, and on file of record in his office. Held, that as this evidence did not show under what power the commissioners acted, or whether this was one of those decisions reported to the general land office, the proof was of too loose and indefinite a character to raise even a presumption in favor of the claim of the plaintiffs, and it was therefore properly the^euit |°^tdi,tI0n:3Uf" out a under'tiie'011 laws of the ' a es’
[104]*104To bring the present claimwithin the provisions of this act, it must appear to be one of those claims reported favorably on by the recorder and commissioners, who acted by virtue oí the two acts above enumerated, and entered in the transcript of decisions transmitted by the.said recorder and commissioners, to the commissioner of the general land office, and by him laid before congress. For this purpose the plaintiffs presented extracts from the minutes of the commissioners, containing their proceedings on this claim in 1833, certified by the recorder of land titles to be truly transcribed from the minutes of the board, and on file and of record in his office. The evidence was undoubtedly good as far as it went, but there is nothing to show under what power these commissioners acted, or whether it was one of those decisions reported to the commissioners of the general land office. Where duties are enjoined by law on public officers, the presumption is certainly that those duties have been performed, and the very strictest proof would not, and should not be required in cases like the present. But a prima facia case, at least, must be made out. No presumption legally arises, that this board had no subsequent action upon the claim after the date of the proceedings copied ; and it should, at all events, have appeared from the certificate of the recorder or otherwise, under what law of the United States or authority, this board acted. The proof is of too loose and indefinite a character to raise even a presumption in favor of the plaintiffs, and was therefore properly considered by the circuit court as insufficient to make out a confirmation under the laws of the United States.
The last little paper we are called on to consider, is that patent offered by the plaintiffs, under the seal of the general land office. The act of 4th July, 1836, is a legislative grant, it parts with all the interest of the United States in the confirmed claims.
This legislative grant or confirmation has been held equivalent to a patent, and requires no further action on the part of the federal government to perfect the title. The [105]*105entire and absolute property passes from the grantors vests in the grantees by virtue of the act, as much so as if patent had issued. Such has been the construction given to similar acts by this court, and the supreme court of the United States, in -numerous and repeated cases. Vapur v. Benton, Mo. Rep. ; Tatter v. Primm, Mo. Rep.; Strother v. Lucas, Peters’Rep. The wisdom or propriety of these decisions, it would be useless now to discuss. Whether der this adjudicated opinion of these legislative grants, congress could provide further and additional evidences of title, may very well be questioned. The question did arise under the act of 13th June, 1812, and 26th April, 1824, in the case of Gurno v. Administrator of Janis, and a majority of .the court in that case held, that congress might provide means of furnishing evidence of title to the claimants under those acts. The matte.t was much discussed, when that case , . , . . — ; ■- , . , came up a second time m this court, and only one judge expressed any opinion on that point. Gurno v. Janis’ Administrator, (6 Mo. R. 330.)
CongresTof°f 4\ *836' is a legisla-grant, ^ the^juerest1 oí the United States in the confirmed f'1!”?3- Til‘3 legislative grant or con-fquival°entS to patent, and furtherlction °^0ih^ to perfect the entire and ah-proper-the general™ government the confirm-thcyact.tUe
The action of the board of commissioners,under the act of congress of July oimmendfriir this claim for tton^uTnot ®uch \‘a oon-firmntion made under the laws of the United States,” as is contemplated by the statute of the State regulat’g the action of Ejectment. That board had no power to confirm any claim whatever. The action of the board, however, upon this claim, comes within the meaning of the 7th sec. of the act concerning evidence.
[105]*105It is not necessary to decide the question in this case. Congress made no such provision in the act of 4th July,a 1836, or subsequently,' that 1 am a /.prised of, for issuing any patent or other evidences of title to the claimants under that act. Nor has any authority, under any general law of the United States, been shown for issuing this patent. Without such authority, it is no better'than blank McConnell’s lessee v. Wilcox, 13 Peters.
The circuit court did not, for the reasons above mentioned, err either in rejecting the several evidences of title offered by'the plaintiffs, separately, or conjunctively, and judgment is affirmed. ' J & ...
Tompkins, Judge.