Napton, Judge,
delivered the opinion of the court.
This case presents substantially the same questions that were before the court when it was here before. (25 Mo., 484.) Upon the last trial, in the land court, all the evidence was submitted, and there was a finding by the court of the facts ; but upon this finding the same questions arise as did upon the demurrer to the bill.
It is unnecessary to repeat what I said when the case was here before. Upon the propriety of the location of the Bra-zeau reservation by survey under the Secretary of the Interior in 1852,1 give no opinion. I consider the case as decided by the case of Cochran v. West; and if it should turn out that I am mistaken in the construction given to this and other decisions of the supreme court of the United States, I prefer leaving to that court an examination into the question of location which will arise in the event that these decisions have been misunderstood.
It has been suggested that the survey of Brown of two tracts in one may be treated as the authoritative government survey; and if so, that there is nothing in the principle deter[209]*209mined in Cochran v. West to prevent a correction of the last survey which located the Brazeau reservation outside of the .Labeaume concession and south of the ditch. But it will be observed that all these surveys — Soulard’s, Brown’s, and the survey under the directions of Secretary Stuart — were all before the court in the case referred to, and the last was regarded by the court as the authoritative survey.
Upon this ground alone of res adjudicata, I am for affirming the judgment of the land court.
Judge Ewing concurs in this opinion.
Scott, Judge.
P. Chouteau owned two parcels of land north of St. Louis. One of these tracts was supposed to be immediately north of and adjoining the other. On the first of June, 1826, Chouteau conveyed to G. F. Strother these tracts of land by the following descriptions: “ All that tract or parcel of land granted to the said Pierre Chouteau in October, 1797, by Charles Dehault Delassus, Spanish commandant, beginning at Roy’s line, running north to La-beaume’s south line, and extending from the river to the common fields west, it being intended hereby to convey to the said G. E. Strother, his heirs and assigns, all the land contained within the said concession, except that heretofore sold by the said Pierre Chouteau according to his said several contracts, to be limited by the metes and bounds limited and fixed by the intention of the parties at the period of contracting. And one other tract of land containing four ar-pens, running on the river, and running back four arpens, making sixteen arpens, lying between the north line of the first described tract of land and the south boundary of the tract of land sold by Joseph Brazeau to Labeaume ; said sixteen arpens being a tract or parcel of land confirmed to Joseph Brazeair, and sold and conveyed by Joseph Brazeau to Pierre Chouteau.” The exceptions in the granting part of the deed in relation to the first tract described have no influence in this controversy, as they all lie south of the land in dispute.
[210]*210On the 3d of September, 1880, Strother, by a deed containing an exception not affecting this controversy, conveyed the tracts of land he purchased from Chouteau to John O’Fallon and John Mullanphy, in trust for the St. Louis Marine Railway Company. With the exception above stated, this deed professed to convey to the said trustees the same tracts, pieces or parcels of land which the said G. F. Strother purchased from Pierre Chouteau by the deed above mentioned, and the description of the tracts in the two deeds correspond in substance if not in words.
On the 31st of January, 1851, the St. Louis Marine Railway Company passed the following resolutions: “ 1st. That the land belonging to or claimed by the St. Louis Marine Railway Company in the city of St. Louis, and north of what is known as Labeaume’s ditch, being four arpens in front on the river, ánd four arpens in depth, and bounded on the east by the Mississippi river, and south by said ditch of Labeaume, and containing sixteen arpens, be conveyed to John Ma-gwire, and that J. O’Fallon, surviving trustee, who holds the legal title to the said land, be and he is hereby directed to make said conveyance to said Magwire and deliver the same. 2d. That, on receiving the deed on the last resolution mentioned, said John Magwire execute and deliver to the stockholders of said company an agreement to commence suits or other proceedings, without delay and at his own expense, for the recovery of the land to be conveyed to him, and on recovering the same, or any part thereof, to convey to each stockholder such portion of said land as shall be equal to one-fourth of what is represented by the stock such stockholders may hold at the time of said recovery.” Magwire entered into an agreement in pursuance to this resolution, and on the 2d of January, 1852, John O’Fallon executed to him a deed in which the land is described as set forth in the foregoing resolutions. Thus it appears that the St. Louis Marine Railway Company has employed the plaintiff to prosecute this suit for the company, and the plaintiff can not be viewed in a more favorable light than, the company itself.
[211]*211Now the concession to Chouteau, as surveyed by the United States, which is the first tract mentioned in the deed from him to Strother, did not extend so far north as it was made to extend by the Spanish survey made for Chouteau under his concession. The Spanish surveyor bounds this concession on the north by the land of Labeaume, and on the figurative plat accompanying the survey there is marked a ditch as the northern boundary of the survey.
Brazeau originally, under the Spanish government, owned the land which is described above as Labeaume’s. He sold it to Labeaume, and after Labeaume purchased from Brazeau he obtained from the Spanish government an extension of the limits of the land he so purchased. Brazeau, in making a sale to Labeaume, reserved to himself four arpens of land to be taken at the foot of the hillock in the southern part of said tract. This hillock is some distance below the ditch marked as the northern boundary of the Spanish survey of Chouteau’s concession by Delassus. The space between a line from the foot of the hillock and the ditch would contain some eighteen and a half arpens. This hillock, in the earliest Spanish documents concerning Brazeau and Labeaume’s concessions, transfers and reservations, is called the grange de terre. It is a noted object, the locality of which admitted of no uncertainty or dispute. In July, 1816, Brazeau conveyed to Pierre Chouteau the reservation of four by four arpens in pursuance, as it is alleged in the deed, to a previous sale. This deed describes the tract of four by four as situated in the south part of the concession to Brazeau which he conveyed to Labeaume. These facts are narrated not with a view to locate the four by four tract reserved by Brazeau and by him sold to P. Chouteau, who conveyed to Strother and who conveyed to the trustees of the St. Louis Marine Railway Company. They are stated to show that there was a ground for dispute as to the fact whether the four by four tract should be located north or south of the ditch.
The government of the United States surveyed and loca;! ted the four by four tract immediately south of the ditch of [212]
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Napton, Judge,
delivered the opinion of the court.
This case presents substantially the same questions that were before the court when it was here before. (25 Mo., 484.) Upon the last trial, in the land court, all the evidence was submitted, and there was a finding by the court of the facts ; but upon this finding the same questions arise as did upon the demurrer to the bill.
It is unnecessary to repeat what I said when the case was here before. Upon the propriety of the location of the Bra-zeau reservation by survey under the Secretary of the Interior in 1852,1 give no opinion. I consider the case as decided by the case of Cochran v. West; and if it should turn out that I am mistaken in the construction given to this and other decisions of the supreme court of the United States, I prefer leaving to that court an examination into the question of location which will arise in the event that these decisions have been misunderstood.
It has been suggested that the survey of Brown of two tracts in one may be treated as the authoritative government survey; and if so, that there is nothing in the principle deter[209]*209mined in Cochran v. West to prevent a correction of the last survey which located the Brazeau reservation outside of the .Labeaume concession and south of the ditch. But it will be observed that all these surveys — Soulard’s, Brown’s, and the survey under the directions of Secretary Stuart — were all before the court in the case referred to, and the last was regarded by the court as the authoritative survey.
Upon this ground alone of res adjudicata, I am for affirming the judgment of the land court.
Judge Ewing concurs in this opinion.
Scott, Judge.
P. Chouteau owned two parcels of land north of St. Louis. One of these tracts was supposed to be immediately north of and adjoining the other. On the first of June, 1826, Chouteau conveyed to G. F. Strother these tracts of land by the following descriptions: “ All that tract or parcel of land granted to the said Pierre Chouteau in October, 1797, by Charles Dehault Delassus, Spanish commandant, beginning at Roy’s line, running north to La-beaume’s south line, and extending from the river to the common fields west, it being intended hereby to convey to the said G. E. Strother, his heirs and assigns, all the land contained within the said concession, except that heretofore sold by the said Pierre Chouteau according to his said several contracts, to be limited by the metes and bounds limited and fixed by the intention of the parties at the period of contracting. And one other tract of land containing four ar-pens, running on the river, and running back four arpens, making sixteen arpens, lying between the north line of the first described tract of land and the south boundary of the tract of land sold by Joseph Brazeau to Labeaume ; said sixteen arpens being a tract or parcel of land confirmed to Joseph Brazeair, and sold and conveyed by Joseph Brazeau to Pierre Chouteau.” The exceptions in the granting part of the deed in relation to the first tract described have no influence in this controversy, as they all lie south of the land in dispute.
[210]*210On the 3d of September, 1880, Strother, by a deed containing an exception not affecting this controversy, conveyed the tracts of land he purchased from Chouteau to John O’Fallon and John Mullanphy, in trust for the St. Louis Marine Railway Company. With the exception above stated, this deed professed to convey to the said trustees the same tracts, pieces or parcels of land which the said G. F. Strother purchased from Pierre Chouteau by the deed above mentioned, and the description of the tracts in the two deeds correspond in substance if not in words.
On the 31st of January, 1851, the St. Louis Marine Railway Company passed the following resolutions: “ 1st. That the land belonging to or claimed by the St. Louis Marine Railway Company in the city of St. Louis, and north of what is known as Labeaume’s ditch, being four arpens in front on the river, ánd four arpens in depth, and bounded on the east by the Mississippi river, and south by said ditch of Labeaume, and containing sixteen arpens, be conveyed to John Ma-gwire, and that J. O’Fallon, surviving trustee, who holds the legal title to the said land, be and he is hereby directed to make said conveyance to said Magwire and deliver the same. 2d. That, on receiving the deed on the last resolution mentioned, said John Magwire execute and deliver to the stockholders of said company an agreement to commence suits or other proceedings, without delay and at his own expense, for the recovery of the land to be conveyed to him, and on recovering the same, or any part thereof, to convey to each stockholder such portion of said land as shall be equal to one-fourth of what is represented by the stock such stockholders may hold at the time of said recovery.” Magwire entered into an agreement in pursuance to this resolution, and on the 2d of January, 1852, John O’Fallon executed to him a deed in which the land is described as set forth in the foregoing resolutions. Thus it appears that the St. Louis Marine Railway Company has employed the plaintiff to prosecute this suit for the company, and the plaintiff can not be viewed in a more favorable light than, the company itself.
[211]*211Now the concession to Chouteau, as surveyed by the United States, which is the first tract mentioned in the deed from him to Strother, did not extend so far north as it was made to extend by the Spanish survey made for Chouteau under his concession. The Spanish surveyor bounds this concession on the north by the land of Labeaume, and on the figurative plat accompanying the survey there is marked a ditch as the northern boundary of the survey.
Brazeau originally, under the Spanish government, owned the land which is described above as Labeaume’s. He sold it to Labeaume, and after Labeaume purchased from Brazeau he obtained from the Spanish government an extension of the limits of the land he so purchased. Brazeau, in making a sale to Labeaume, reserved to himself four arpens of land to be taken at the foot of the hillock in the southern part of said tract. This hillock is some distance below the ditch marked as the northern boundary of the Spanish survey of Chouteau’s concession by Delassus. The space between a line from the foot of the hillock and the ditch would contain some eighteen and a half arpens. This hillock, in the earliest Spanish documents concerning Brazeau and Labeaume’s concessions, transfers and reservations, is called the grange de terre. It is a noted object, the locality of which admitted of no uncertainty or dispute. In July, 1816, Brazeau conveyed to Pierre Chouteau the reservation of four by four arpens in pursuance, as it is alleged in the deed, to a previous sale. This deed describes the tract of four by four as situated in the south part of the concession to Brazeau which he conveyed to Labeaume. These facts are narrated not with a view to locate the four by four tract reserved by Brazeau and by him sold to P. Chouteau, who conveyed to Strother and who conveyed to the trustees of the St. Louis Marine Railway Company. They are stated to show that there was a ground for dispute as to the fact whether the four by four tract should be located north or south of the ditch.
The government of the United States surveyed and loca;! ted the four by four tract immediately south of the ditch of [212]*212Labeaume, and on the 25th of March, 1852, issued a patent therefor to Joseph Brazeau or his legal representatives. The plaintiff John Magwire, claiming to be the representative of Brazeau, refused to receive this patent because it did not properly locate the four by four tract, placing it south instead of north of Labeaume’s ditch, and during the pendency of this suit the patent was recalled.
In 1856 the patent for the four by four was demanded of the recorder of land titles by Louis G-. Picot, trustee of Ann Biddle, who was an original stockholder in the Marine Railway Company, and to whom the said company had conveyed two lots in the year 1841, which lots are situated within the boundaries of the patent to Joseph Brazeau. This demand was made by Picot as a representative of Joseph Brazeau.
Under these circumstances, how does the Marine Railway Company or its agent Magwire claim to be the exclusive representative of Brazeau ? Is not Picot a representative of Brazeau, having a prior right to Magwire ? Can Magwire, as agent, claiming as agent of the Marine Railway Company, have rights superior to those who claim by a prior title from that company ? Can Magwire insist that, as representative of Brazeau, he is entitled to the land north of the ditch, and thus exclude those who are prior in right to him, claiming to be the same representative ? Magwire only claims the land north of the ditch. Now if Picot, as representative of Brazeau, is entitled to the land by a prior title from the Marine Railway Company, whether it is north or south of the ditch, can there be any equity in the subsequent claim of Magwire ? If the government of the United States had a right to locate the four by four; if that location has been made and a patent issued to Joseph Brazeau or his legal representatives; if Picot, claiming to be the representative of Brazeau, is willing to take the land as located by the United States, on what ground shall Magwire, the agent of the Marine Railway Company, prevent this after the company has made Picot such representative. The company can not have land both north and south of the ditch. If it has placed [213]*213Picot south, and the government has given him a patent where the company has located him, what right has that company, through its agent, the plaintiff, to deny him .the benefit of that patent, and, by seeking for a location of the land elsewhere, violate its faith and obligations to him.
These doubts and difficulties suggest themselves to my mind in considering this case. I can not see how the company, or its agent Magwire, can have any equity in this case whilst there is a prior appropriation of the four by four south of the ditch to its alienee. Picot is not before the court. His claim under the patent has not yet been presented to us. Whether he has any claim under the patent; whether the officers of the government could appropriate the land to the satisfaction of the four by four claim; what has been the effect of recalling the patent; whether that act does divest any right previously vested in him; whether Magwire by refusing the patent could affect his rights, are all questions not presented by the record, and nothing will be said in relation to them, but it seems to me will have to be determined before we can ascertain whether there is any equity in Ma-gwire suing for the Marine Railway Company.
If the title to the four by four located north of the ditch was in the Marine Railway Company, and if it had previously sold and appropriated that tract south of the ditch, and had afterwards defeated the right of her alienee, I do not see why she would not be compelled to hold such title in trust for those who were wronged.
I must know what the company has done with the land south of the ditch before I can say that there is any equity in Magwire. This is not the former action of ejectment in which the mere legal title is involved, but it is a bill in chancery, and the equity of the party must appear.
I do not see that the claim of the plaintiff is strengthened by his deed from Hamilton, the administrator of Strother. It appears to me that that deed was ineffectual, as Strother in.his lifetime had conveyed away all his interest in the four by four tract.
[214]*214When this case was here before, I expressed the opinion, founded on a fact which I supposed I was warranted in assuming by the consent of the plaintiff’s counsel, that there was no equity in the bill. Was I in error in supposing that I was warranted in making that assumption ? Yet the case, as now presented, furnishes ground, as I conceive, for the same opinion. As the case has been tried again since then, and as the same difficulty existed in the way of recovery on the part of the plaintiff and he did not see proper to obviate it, but insisted on his equity as his bill was framed, I am in favor of an affirmance of the judgment, believing that, under the circumstances, it would be unwarrantable to keep the defendants longer before the court.
The judgment must be affirmed, in my opinion. The other judges concur in affirming the judgment.