Dryden, Judge,
delivered the opinion of the court.
This was a suit to recover a tract of one by forty arpens of land, situate in the ancient common fields of St. Louis, now within the city limits. The plaintiff recovered a verdict and judgment in the Circuit Court for eleven-fifteenths of the land, and for forty thousand dollars damages, from which the defendants have appealed to this court.
The tract in controversy was confirmed to “ Lirette’s representatives,” by the act of Congress of the 29th. of April, 1816.
The plaintiff’s case assumes that the origin of the title was a concession to Louis Lirette in 1769, by St. Ange, the French commandant at St. Louis, and to establish title in himself the plaintiff read in evidence :
1. This concession to Louis Lirette, of 1769, of one by forty arpens.
2. Duralde survey of a lot of one by forty arpens for Lirette, executed about the year 1772.
[280]*2803. An act of sale in 1774, by Louis Lirette to Jolm B. Yifvarenne, of the lot conceded.
4. The confirmation of Recorder Bates to “ Lirette’s representatives.”
5. The official survey of the tract in dispute, made by René Paul in 1826, in conformity with the confirmation ; and
6. The deed of certain paternal heirs of Louis Yifvarenne, a son and heir of John B. Yifvarenne, the transferee of Lirette, which the defendants admitted conveyed to the plaintiff eleven-fifteenths' of whatever interest in the premises, if any, descended to Louis from his father, John B. Yifvarenne.
The defendants read in evidence a deed dated lltli October, 1817, from Toussaint Marechal and Charles Marechal to Pierre Chouteau, Sen., for the land in controversy, in which the grantors are described as “ heirs at law of the late Jacques Marechal and of Madame Yifvarenne, his wife,” and by which they convey “ all the rights, titles and claims which we (they) have in and to the said piece of land, as heirs of Madame Yifvarenne,” and “ warranting it free from all donations, debts, dower and mortgages.” That the effect the parties expected this deed to have may be the better understood, it is proper to observe that a marriage contract existed between John B. Yifvarenne and his wife, afterwards Madame Marechal, by which it was supposed, in case she survived her husband, she would succeed to one-half of his estate absolutely; that she did accordingly survive him, and after the death of Yifvarenne she married Jacques Marechal, to whom she bore two sons, the grantors in the Chouteau deed, and then herself died. Louis Yifvarenne, the half brother of the Marechals, died childless about the year 1813.
The defendants also read a deed of 13th October, 1819, from Pierre Chouteau, Sen., and wife, to John Mullanphy, conveying to the latter two tracts of land, one of which was the tract in dispute. The deed bounds one of the tracts “on the south by a tract of land formerly granted by the Spanish government to Mr. Louis Lirette, sold by the said Lirette to Mr. Yifvarenne, and by the heirs of said Yifvarenne to us,” [281]*281the grantors. The tract in controversy is then conveyed, and is thus described by the deed, viz: “ Which last piece of land was originally granted to Mr. Louis Lirette, transferred by him to Mr. Yifvarenne, and which we (the grantors) have acquired from the heirs of said Yifvarenne,” and “ warranting it, as toward and against ourselves, heirs, administrators or executors, to be free from all debts, dower or mortgages, but without any other guaranty whatever.” It was likewise shown that the defendants were the heirs of John Mullanphy, the grantee in the last named deed. The defendants also gave evidence tending to prove that the lot conceded to Lirette and transferred by him to Yifvarenne, was another and different lot from the one confirmed and in dispute, and located five and a quarter arpens south of it.
In this condition of the evidence the court, at the instance of the plaintiff, instructed the jury as follows, viz :
“ If the one by forty arpen lot was originally conceded to Lirette and surveyed for him by Spanish authority, as shown by the documents given in evidence; and if afterwards the concession was transferred by Lirette to John B. Yifvarenne, as shown by the act of sale given in evidence; and the concession was afterwards confirmed by the act of Congress of 29th April, 1816, and surveyed by the authority of the United States, as shown by the documents given in evidence; and if the defendants, as the heirs and representatives of John Mullanphy, claim the lot under the deeds they have read in evidence, then the United States official survey No. 1479 is conclusive evidence of the true location of the one by forty arpen lot, and the defendants are estopped from denying that John B. Yifvarenne was the owner of the lot when he died.”
The point in dispute, and which this instruction was intended to meet, was, whether the land which was confirmed, and now in suit, was the same tract that was conceded by St. Ange to Lirette and by him transferred to Yifvarenne ; if not the same, as Yifvarenne’s title depended upon their identity, and as Yifvarenne’s was the only title shown by the plaintiff, the plaintiff was without right.
[282]*282The question was one of fact for the jury, but the court practically solved it as a question of law, by appeal, 1st, to the conclusive nature of official surveys; and 2d, to the doctrine of estoppel by deed.
It is conceived that the rule which establishes the conclusive effect of a survey executed by the proper authority, has no application to a case like the present. If it was denied that the survey gave the true location of the tract confirmed, the rule might with propriety be invoked, but it is not gainsaid in this case that the survey is in exact conformity with the confirmation. The thing denied is, that the tract confirmed to Lirette is the same that Lirette had before transferred to Yifvarenne. Upon this point the survey of Paul could shed no light, and the court erred in telling the jury it did. It is proper here to remark, that in the certificate accompanying Paul’s survey of the confirmation it is stated as a fact that the lot surveyed by him and the lot conceded to Lirette are one and the same. It was no part of the duty of the surveyor to determine the existence or non-existence of this fact, and his statement in regard to it was unauthorized, and therefore incompetent on the question of identity.
As to the doctrine of estoppel. Much and high authority }may be found in support of the principle that a vendee is j estopped to deny his vendor’s title; but the opposite doctrine, ■ established by a series of decisions of this court, has for a | long time pi-evailed in this State,-so that it may now be said , to be the well settled law of Missouri, that a vendee holding J by deed, holds adversely to his vendor, and is not estopped 1 to deny his vendor’s title. (Macklot v. Dubreuil, 9 Mo. 473; Joeckel v. Easton, 11 Mo. 118; Landes et al. v. Perkins, 12 Mo. 238; Blair v. Smith, 16 Mo. 273.) The instruction was f therefore wrong on the subject of estoppel likewise.
2. On the trial it became a question whether John B. Yifvarenne left two children, or one only, surviving him. That the son Louis survived there was no dispute; but as to a son named Eran§ois, baptized April 9th, 1782, the same year of the father’s death, it was a matter of controversy which died [283]*283first, lie or the father.
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Dryden, Judge,
delivered the opinion of the court.
This was a suit to recover a tract of one by forty arpens of land, situate in the ancient common fields of St. Louis, now within the city limits. The plaintiff recovered a verdict and judgment in the Circuit Court for eleven-fifteenths of the land, and for forty thousand dollars damages, from which the defendants have appealed to this court.
The tract in controversy was confirmed to “ Lirette’s representatives,” by the act of Congress of the 29th. of April, 1816.
The plaintiff’s case assumes that the origin of the title was a concession to Louis Lirette in 1769, by St. Ange, the French commandant at St. Louis, and to establish title in himself the plaintiff read in evidence :
1. This concession to Louis Lirette, of 1769, of one by forty arpens.
2. Duralde survey of a lot of one by forty arpens for Lirette, executed about the year 1772.
[280]*2803. An act of sale in 1774, by Louis Lirette to Jolm B. Yifvarenne, of the lot conceded.
4. The confirmation of Recorder Bates to “ Lirette’s representatives.”
5. The official survey of the tract in dispute, made by René Paul in 1826, in conformity with the confirmation ; and
6. The deed of certain paternal heirs of Louis Yifvarenne, a son and heir of John B. Yifvarenne, the transferee of Lirette, which the defendants admitted conveyed to the plaintiff eleven-fifteenths' of whatever interest in the premises, if any, descended to Louis from his father, John B. Yifvarenne.
The defendants read in evidence a deed dated lltli October, 1817, from Toussaint Marechal and Charles Marechal to Pierre Chouteau, Sen., for the land in controversy, in which the grantors are described as “ heirs at law of the late Jacques Marechal and of Madame Yifvarenne, his wife,” and by which they convey “ all the rights, titles and claims which we (they) have in and to the said piece of land, as heirs of Madame Yifvarenne,” and “ warranting it free from all donations, debts, dower and mortgages.” That the effect the parties expected this deed to have may be the better understood, it is proper to observe that a marriage contract existed between John B. Yifvarenne and his wife, afterwards Madame Marechal, by which it was supposed, in case she survived her husband, she would succeed to one-half of his estate absolutely; that she did accordingly survive him, and after the death of Yifvarenne she married Jacques Marechal, to whom she bore two sons, the grantors in the Chouteau deed, and then herself died. Louis Yifvarenne, the half brother of the Marechals, died childless about the year 1813.
The defendants also read a deed of 13th October, 1819, from Pierre Chouteau, Sen., and wife, to John Mullanphy, conveying to the latter two tracts of land, one of which was the tract in dispute. The deed bounds one of the tracts “on the south by a tract of land formerly granted by the Spanish government to Mr. Louis Lirette, sold by the said Lirette to Mr. Yifvarenne, and by the heirs of said Yifvarenne to us,” [281]*281the grantors. The tract in controversy is then conveyed, and is thus described by the deed, viz: “ Which last piece of land was originally granted to Mr. Louis Lirette, transferred by him to Mr. Yifvarenne, and which we (the grantors) have acquired from the heirs of said Yifvarenne,” and “ warranting it, as toward and against ourselves, heirs, administrators or executors, to be free from all debts, dower or mortgages, but without any other guaranty whatever.” It was likewise shown that the defendants were the heirs of John Mullanphy, the grantee in the last named deed. The defendants also gave evidence tending to prove that the lot conceded to Lirette and transferred by him to Yifvarenne, was another and different lot from the one confirmed and in dispute, and located five and a quarter arpens south of it.
In this condition of the evidence the court, at the instance of the plaintiff, instructed the jury as follows, viz :
“ If the one by forty arpen lot was originally conceded to Lirette and surveyed for him by Spanish authority, as shown by the documents given in evidence; and if afterwards the concession was transferred by Lirette to John B. Yifvarenne, as shown by the act of sale given in evidence; and the concession was afterwards confirmed by the act of Congress of 29th April, 1816, and surveyed by the authority of the United States, as shown by the documents given in evidence; and if the defendants, as the heirs and representatives of John Mullanphy, claim the lot under the deeds they have read in evidence, then the United States official survey No. 1479 is conclusive evidence of the true location of the one by forty arpen lot, and the defendants are estopped from denying that John B. Yifvarenne was the owner of the lot when he died.”
The point in dispute, and which this instruction was intended to meet, was, whether the land which was confirmed, and now in suit, was the same tract that was conceded by St. Ange to Lirette and by him transferred to Yifvarenne ; if not the same, as Yifvarenne’s title depended upon their identity, and as Yifvarenne’s was the only title shown by the plaintiff, the plaintiff was without right.
[282]*282The question was one of fact for the jury, but the court practically solved it as a question of law, by appeal, 1st, to the conclusive nature of official surveys; and 2d, to the doctrine of estoppel by deed.
It is conceived that the rule which establishes the conclusive effect of a survey executed by the proper authority, has no application to a case like the present. If it was denied that the survey gave the true location of the tract confirmed, the rule might with propriety be invoked, but it is not gainsaid in this case that the survey is in exact conformity with the confirmation. The thing denied is, that the tract confirmed to Lirette is the same that Lirette had before transferred to Yifvarenne. Upon this point the survey of Paul could shed no light, and the court erred in telling the jury it did. It is proper here to remark, that in the certificate accompanying Paul’s survey of the confirmation it is stated as a fact that the lot surveyed by him and the lot conceded to Lirette are one and the same. It was no part of the duty of the surveyor to determine the existence or non-existence of this fact, and his statement in regard to it was unauthorized, and therefore incompetent on the question of identity.
As to the doctrine of estoppel. Much and high authority }may be found in support of the principle that a vendee is j estopped to deny his vendor’s title; but the opposite doctrine, ■ established by a series of decisions of this court, has for a | long time pi-evailed in this State,-so that it may now be said , to be the well settled law of Missouri, that a vendee holding J by deed, holds adversely to his vendor, and is not estopped 1 to deny his vendor’s title. (Macklot v. Dubreuil, 9 Mo. 473; Joeckel v. Easton, 11 Mo. 118; Landes et al. v. Perkins, 12 Mo. 238; Blair v. Smith, 16 Mo. 273.) The instruction was f therefore wrong on the subject of estoppel likewise.
2. On the trial it became a question whether John B. Yifvarenne left two children, or one only, surviving him. That the son Louis survived there was no dispute; but as to a son named Eran§ois, baptized April 9th, 1782, the same year of the father’s death, it was a matter of controversy which died [283]*283first, lie or the father. The plaintiff gave evideftce consisting chiefly of family tradition, tending to show that the child died first; and on the other hand, the defendants, to prove that the child outlived the father, read in evidence an official inventory, made .August 19, 1782, of the property belonging “ to Genevieve Cardinal, wife of the late John Baptiste Vifvarenne, and to her two younger children living with her,” which was subscribed by Gov. Cruzat and witnesses of assistance, among whom was Sans Souci, a brother-in-law of Vifvarenne. A sale was had of the property October 2,1782. The process verbal of the sale was also subscribed by Cruzat and witnesses, and it describes the property as belonging to Mi's. Vifvarenne and her two children. Sans Souci was a purchaser of several articles at the sale, and subscribed the process verbal. The process was likewise read by the defendants. ■
The court then, at the instance of the defendants, instructed the jury that “ the inventory of the effects and property of Genevieve Cardinal and her two children, read by the defendants, is evidence that at the time it was made there were two sons of J. B. Vifvarenne surviving him.” But, by way of qualification, at the plaintiff’s instance, further charged the jury that “ the inventory and process verbal is not conclusive evidence that John B. Vifvarenne was then dead, or that two of his children were then living, but is a matter to be considered by the jury in determining these questions, together with all the other evidence in the case; and the jury are at liberty, and it is their duty, to give only such weight to it as they shall think it entitled to, and to find these facts as they shall be satisfied in their own minds from all the testimony before them.”
The propositions of law embraced in the instructions are, in the abstract, well enough, but under the evidence, as it existed, were not fairly applicable to the case. The instruction carried upon its face a strong implication that there was something suspicious about the inventory and process verbal as instruments of evidence, and that it was the duty [284]*284of the jury to*receive the facts attested by these documents with distrust. This was unjust. There was nothing in the case to excite the slightest suspicion of the authenticity of the documents themselves, nor was there anything in the facts they attested which was unreasonable or improbable.
The instruments were made by an officer whose duty it was to speak the truth, assisted by others who had opportunities of knowing the truth, and who had no motive to make a false statement of the facts. The necessary operation of the instruction was to lead the jury to under-estimate this evidence.
8. The question affecting the validity of the marriage contract between Yifvarenne and his wife, has twice before, when the case was here, received the consideration of this court. We will leave the question where the decision of our predecessors left it, and suffer that decision to remain the law of the case. (Cutter v. Waddingham et al., 22 Mo. 206.)
4. In the interval between the institution of the suit and the trial of the cause, the plaintiff sold and transferred his interest in the property in controversy to another; and at the trial the plaintiff being thus without title, the defendants objected that he could not recover the land, but only such damages as he had sustained anterior to the transfer. The objection, however, was overruled by the court, and its action in this regard is assigned for error. The objection involves the construction of the act of the 28th of February, 1859, which, by its title, purports to be amendatory of the practice act of 1855.
It is not denied that, if the action had been brought under the law of 1855, the amendatory act would apply to the case and permit the suit still to be prosecuted in the name of the plaintiff; but as it was brought in 1846, before the adoption of the new code of practice, the defendants maintain that the amendatory act does not embrace the case.
The law of 1855, regulating the practice, expressly enacts that its provisions shall not apply to actions then pending, but that such actions {i shall be conducted to final judgment [285]*285in all respects as now provided by law.” (R. C. 1855, p. 1293, § 44.)
The following is the act of February 1859, viz : “ In case of any transfer heretofore made, or hereafter to be made, of an interest in any action now pending, or hereafter to be brought, other than that occasioned by the death, marriage, or other disability of a party, the action shall be continued in the name of- the original party, if the party to whom the transfer is made will indemnify the party in whose name the suit is to be continued against all costs and damages that may be occasioned thereby; or the court may allow the person to whom the transfer is made to be substituted in the action ; and in all such cases, the party to whom the transfer is made may be required by the court, upon the application of the party who made the transfer, either to give such indemnity or to cause himself to be substituted in the action, and upon his omission to do so the court shall order the suit to be dismissed.” (Sess. Acts 1858-9, p. 36.)
Now, the question is whether the provisions of this act, like those of the act to which it, by its title, purports to be an amendment, are restricted in their application to actions brought under the law of 1855, or whether they embrace as well cases previously brought. There is nothing about the act, except its title, that could raise the slightest doubt as to its universality. It is a remedial statute, and ought to be construed liberally for the suppression of the mischief intended to be remedied. The words of the act are plain and exceedingly comprehensive, embracing “ any action now pending,” without any qualification as to the time when, or the law under which, such action was commenced. This case is within the reason of the act; the same reason which demands the remedy for cases under the new law equally requires its application to those under the old. The title may aid in the construction of a statute when its words are too vague and uncertain to be comprehended of themselves, but in this case there is no such necessity for any such resort. The act establishes a wholesome rule of practice, applicable [286]*286alike to all actions, and the instruction asked by the defendants on this point wa§ properly refused.
5. The last point which we are required to pass upon concerns the measure of damage. Proof was given on the part of the plaintiff that if the premises had been free from litigation and had been put to rent, the rents and profits would have amounted to a sum justifying the finding of the jury. On the other hand, it was shown that the rents and profits actually received by the defendants did not exceed the public charges. Upon this evidence the defendants asked the court to instruct the jury “ that if they found that at the commencement of the suit the plaintiff and defendants were respectively entitled to undivided interests in the lot in controversy, then the jury should find for damages no more than the proportional share of the plaintiff, of the rents and profits actually derived by the defendants from said premises.” The court refused the instruction, and its refusal is assigned for error.
Generally, the actual annual value of the property detained, with interest thereon, is the measure of damage in ejectment; and we find no authority to sustain the proposition that the case of tenants in common forms an exception to the general rule.
The fact that the land is held by the owners in undivided interests in any case may very well tend to diminish the annual value, and reduce it below what it would be, if the land was held in severalty; and it is a circumstance which the jury may well consider in determining the question what the annual value is. It however in nowise infringes the rule. The court committed no error in refusing the instruction. For the giving of the first and fifth instructions for the plaintiff, the judgment of the Circuit Court must be reversed, and with the concurrence of Judge Bates it is reversed and remanded.
Judge Bay having been of counsel, did not sit in this case.
Judge Bates. In my opinion, after the plaintiff Cutter had conveyed away the land, he could not recover the possession of it in this suit.