Opinion of the Court delivered by
Tompkins Judge.
Newman brought an action of ejectment in the circuit court of St. Louis county against Lawless, who being the judge of that court, the cause was transferred to the circuit court of Bt. Charles county, judgment was there given against Newman, and to reverse it, he prosecutes his writ of error in this court.
The land sued for, is the spot where Lawless’ house stands in the city of St. Louis, a part of block 109 : and if the fractional township, within which this laud lies, were sub-divided into sections, according to the manner in which the lands of the United States are surveyed it Would fall within the south east quarter of section No. 23, of township No-forty-five north of Range No. seven, east of the 5th principal meridian.
Newman derived his title to this land or lot from John Baptiste Marly, a part of whose legal representatives were Newman’s vendors; and it lies west of fourth street, which separates it from the lot of Louis Delille. It was proved that Marly, who died in 1806, had before the year 1800, built a barn on it and also inclosed and cultivated it. Marly retained possession till his death, residing all the time on second street in St. Louis. Some years after his death, his widow laid in a claim for this lot, before the recorder of land titles for the territory of Missouri. At that time, the Recorder had succeeded to all the powers and duties conferred and imposed on the board of commissioners, appointed in pursuance of the act of Congress of the 2nd of March 1805, for the purpose of ascertaining the titles of persons claiming [285]*285lands in the territory, under any French or Spanish grant. The application is in these words, viz: “Widow Marly to Frederick Bates, Recorder of land titles within and for the ‘Territory of Missouri. Sir: please to take notice, that I ‘claim a lot in St. Louis, of 120 by one hundred and fifty ‘feet, bade of Louis Delille, as a barn lot, the same having ‘been owned by my husband, from a number of years to ‘the present day.” Signed, “Felicite Veuve Marly.”
The claim was confirmed, and the patent issued to Feli-cite Marly in her own name. No evidence was given that this lot was ever surveyed in the life time of John B. Marly. Two deeds, made by several representatives of the deceased Marly were given in evidence. The first of which is as follows: “Whereas we claim a piece, or tract of land, as 'the heirs of Baptiste Marly, and his wife, deceased, situate ‘in tlie south part of the town of St. Louis, by virtue of an ‘actual settlement made on said land by our ancestors, ac‘cording to the provisions of two acts of Congress; the one ‘passed the 13th of June 1812, defining the rights, titles, or ‘claims to town or village lots, out lots &c.; the other, passed the 12 of April 1814, granting the right of pre-emption ‘to any person, or the legal representatives of any person. •who had actually setted on any of the public lands in the ‘now State of Missouri, and inhabited and cultivated the ‘same, according to the provisions of an act of Congress passed the 5th of February 1813, entitled an act giving the ‘right of pre-emption in the purchase of lands situate in Illinois territory; aud also according to the provisions of an ‘act of Congress passed the 24th of April 1818, granting the ‘right of pre-emption to certain settlers on the public lands, ‘according to the provisions of that, and preceding acts; ‘which land, so claimed by us, is claimed by virtue of a settlement made by our ancestors, on or near block 109 and ‘78, as numbered on the map of the city of St. Louis, supposed to be on the south east quarter of section No. twenty ‘three, of town No. forty-five, north of Range No. 7, east ‘of the fifth principal meridian.” Then follow the granting •words. The second reads thus: “We, &c., do hereby for ‘and in consideration of &c., give, grant, &c., unto Jonas [286]*286‘Newman, all the right, claim 'and interest which we have ‘or can have, by virtue oí’ a settlement made by uur ancea- ‘ tors John Baptiste Marly and wii'e, deceased, on ornear ‘blocks 109 and 78, in the city of St. Louis; which land we ‘claim by virtue of divers acts of Congress, and the seltle‘ment so made as arore-:aid; and is supposed to be situated ‘in township forty-five rorth, range 7 east, andón the south ‘east quarter of section 238.”
Lawless the defendant, below', and also here, claims by title derived from Felicite Marly, widow of John Baptiste Marly, deceased. ¡ he patent recite ■, that whereat Felicite Marly, widow of John Ba; tiste Marly, ha* deposited in tire .general land office, a certificate number one thousand one hundred and fifty, of the Recorder of land titles at Ft. Louis Missouri, whereby it a] pears, that in | ur uanee of the several acts of Congre w lor the ad u <tm rat, of title • and cl iim.3 to lands, the sai 1 Feii: ite Marly, widow of Biptiste Mailv, has been continued in her claim to a led of land in 8,1. Louis M iss ouri, containing cue bandied and twenty feet in front by one hundred t:nd f'dly fed in depth, French mea lire, Arc. there it. therefore granted to 1 !:o said Felicite ft ally wich w &c. and her heir , the lot of land above de orihed. Felicite Mnriy s-oid to Thomaa F. Riddick, and he to Alexander Stew ait, and the heir • of A loander bleu art to 'llamas Biddle, in tri M '"or 'Vir.< i n i;> ! aw-io ;, wie of 1 he defendant. Thi: chijin <>’ míe ¡ e e-rie--: We an. e ti e de'eudant contended te: t da ,-'-n ...; 'i 1 > r > e-ion • ;< light again, t his wife, 1be íi 1 it. t í i w i,11, c¡ v.a; i r t I efme this <•( mí, the ■•■id:..- i - o' n-e ■ re ..•!■: I y le ', then | lain-tií-in erx-r. ft v,-•, the o.dges being present, and com i. ¡: e . .-el; iJiat as much was then said oa the mi* s i u-.t mm n. <¡ mdpe* the tglit it deser 'ed. 1 h«''u ko.d ..ctfiiiii us :.!<■«;.> .1 aigume.it to change my or niif f-ri.i o' S ;.r,ig : wot 1> :sol now | re; erne to di-lurb a deci it n m >do be a i; íj •; <, :;iV; thi.. sugt merit being addre ceil to v coi n .' ro; o ea -.a two only of tl/e„ulges. See the ¡ oint du-ided ¡ eg i>.-1 v id :i ! d; ■, It me oí ft is. ou* ri decision,-. On sht. mi turn of -.he defendant in error, the court gave tita.*; in:«ruc*k.ns to wst;
[287]*2871st. If in the deed-; given in evidence by the plaintiff from the heirs of B.iptute Miriy to the plaintiff, the jury, on inspecting the same, .'hall not fin 1 therein a description of the premi e. in the declaration me itioaed and described, they ought to find for the de enln.it. \
¿id. If the jury shall be of opinion, that in the above1 deed from the heir ¡ of B ipti ;te Marly to the plaintiff, the premise; in the declaration mentioned, are not described,, they ought co disregard all parol, or other evidence, to explain a,lv doubt or ambiguity, apparent or patent, on the face of those deed; reflecting the premises conveyed or intended to be conveyed.
3rd. if the jury shall be of opinion that it has not been satisfactorily "proved by the plaintiff, that previom to the 2dth of December 1-803, a town lot,, out lot, or common field lot existed, on, or within the premises in the declaration mentioned, they shall find for the defendant.
5th. If the jury shall be of opinion that Baptiste Marly did not, previous to the 20th of December 1803, occupy, by himself or tenant, and pos-'ess the premises in the declaration mentioned and described, by and under the French or Spanish government, as a town lot, out lot, or common field lot, they shall find for the defendant..
12th. If the jury shall be of opinion, that it has not been-satisfactorily proved by the plaintiff, that Baptiste Marly claimed the premises, in the declaration mentioned, from the French or Spani.-.h (Government, or from the American-Government, they shall find for the defendant.
13th. That no evidence whatever has been offered, or given, to establish a title in Baptiste Marly to the premises in the declaration mentioned, under any pre-emption law,, or law of the Uni ted States, granting land by virtue of settlement thereon.
The plaintiff moved for a new trial because the jury found contrary to evidence; against the weight of evidence; against the law; and against the instructions of the court. This motion was overruled.
The errors assigned are general, and that the court mis-instructed the jury; and the first and most material inquiry [288]*288will be, did the plaintiff give any evidence, which would entitle John Baptiste Marly, or his legal representatives, to recover in this action?
By the first section of the act of Congress of the 13th of June 1812, it is provided, that the rights, titles, and claims, to town or village lots, out lots, common field lots, and commons, in, adjoining, and belonging to, the several town» or villages of Portage Des Sioux, St. Charles, St. Louis, and others in the territory of Missouri, which lots have been inhabited, cultivated, or possessed, prior to the 20th of December 1803, shall be, and the same are hereby, confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights thereto.
By the third section of the same act, it is provided, that every claim to a donation of land in the said territory, in virtue of settlement and cultivation, which is embraced by the report of the commissioners transmitted to the Secretary of the Treasury, and which shall, by the said report, appear not to have been confirmed, merely because permission, by the proper Spanish officer, to settle, has not been duly proven; or because the tract claimed, although inhabited, was not cultivated on the 20th of December, 1803, or not to have been confirmed on account of both of these causes; the same shall be confirmed, in case it shall appear that the tract so claimed was inhabited by the claimant, or some one for his use, prior to the 20th of December, 1803, as aforesaid &c. By the act of 18th of April 1814, still greater indulgence was given to those claiming lands, not embraced within the description of village or town lots, out lots, or common fields; and the second section of that act, provides that every person claiming lands within the said territory, by right of donation under any former laws, whose claims are contained in the report of any of the Boards of Commissioners, made, or hereafter to be made, under existing laws, and which claims shall appear by the said report not to have been confirmed, merely because the tracts claimed were not inhabited on the 20th day of December, 1803, every such person shall be, and the same hereby is confirmed, in his claim or claims, and by the fifth section of the same [289]*289act, it is farther provided, that “every person, and the le-gai representative of every person, who has actually inhab-1 ited and cultivated a tract of land lying in the territory of Missouri, which tract is not rightfully claimed by any other person, and who shall not have removed from the said territory, shall be entitled to a right of pre-emption in the purchase thereof, under the same restrictions, conditions, provisions and regulations, in every respect, as are directed in the act giving the right of pre-emption in the purchase of lands, to certain settlers in Illinois territory, passed 5th February, in the year 1813. i
The second section of this last mentioned act of the 5th of February, ISIS, requires every person claiming a preference in becoming the purchaser of a tract of land in virtue of this act, to make known his claim to the Register of the land office of the district in which the land may lie, by delivering a notice in vjriting wherein he shall particularly designate the quarter section which he claims, and in every case where it shall appear to the satisfaction of the Register and Receiver of the land office, that any person who has delivered this notice of claim is entitled, according to the provisions of this act, to a preference in becoming the purchaser of a quarter section of land, such persorf so entitled, shall have a right to enter the same with the Register of the land office on producing his receipt from the receiver of public monies, &■c. provided, that all the lands to be sold under this act, shall be entered with the Register, at least two weeks before the time of the commencement of the public sales.
The public sales of land in the district, where the contested land lies, took place nearly twenty years before the trial of this cause in the circuit court, and not one word of evidence appears on the record, to show even a notice to the Register, of the claim either of John Baptiste Marly, or of his legal representatives, much less of the allowance of that claim by the register and receiver, and the payment of the price of the land, without which last act, the two first would have been of no avail. The act of the 24th of April 1816, gives no relief to negligence of this kind, for it makes no change in the act of 1813, as to the necessity of notice to [290]*290the register and re-eiver, and laitly of the payment of the price of the land. — No longer embarrassed then with the claim of the plaint iT under the pre emption laws, I will proceed to the coa i leratioa of the other laws by virtue' of which he claim-a; vended of the heirs of John Baptists Marly.
Before proceeding to the examination of the other laws relied on, it may be .veil to pre ni :e that by the 8th e -lion of the act of 13th of Ju ¡e 1812. the recorder succeeded to the power- and duties of the board of eornmis doner , and that by the fifth ■ e -lion <'f the act of the 2nd March 1835, this board ora majority of them, had power to heir and decide, in a summary manner, all matters receding such claims, also to adminLter oaths and com el the attendance of witness e;, and examine them, and such other testimony as might be adduced; to demand and obtain from the | roper officers all public records, in which grants of land-, warrants or order of survey, or any oilier evidence of claim ■ to land derived either from the French or Spanish governments, may have been recorded; to take transcripts of such records, or any part thereof; to have access to all other records of a public nature lehtive to the granting, sale, transfer, or titles; of lands within hi; district, and decide acr ording to justice and equity on all claims filed.
The evidence that JNewman gives of the title of his vendors is this, that Felicite Marly filed a claim for ¡his land in her own right,and that the Recorder acting under the authority of the law ju.,t above recited, decided that it was her property, and it is contended, that she being the widow oí John B. Marly, this adjudication of the recoider inures 1o the benefit of the heirs of the deceased J. B. Mariy. The nase of Strother vs. Lucas lias been twice before the Supreme Court of the United States, and each time it lias been decided that the confirmation (that is to say, the adjudication of the board of Commissioners) inures to the benefit of the confirmee, and not to that of any grantee of the French or Spanish Government, from whom such confirmee might have .derived 'title, whether medialely or immediately. See 6 Peters, p. 772, and 12 Peters 458.
[291]*291la the first case, or rather the first time this case was before the Supreme Court, the district court had instructed the jury, that if they found from the evidence, that the two confirmations to Auguste Chouteau, given in evidence by the plaintiff in this case, are for the same land, and include all the premises in the declaration mentioned, the plaintiff cannot recover in this action. Chouteau was not the grantee of the Spanish Government, but claimed the land as ven-dee, in perhaps the fourth or fifth degree from the grantee of the crown of Spain.
The Supreme Court decided that the instruction was correctly given. The decision of that court, on the construe-" tion of an act of Congress, is obligatory on this; and if the law of the land did not make it so, the reason and justice of the case would. More than fifteen years before this case was first in the Supreme Court of the United States, the superior court of the Territory had made the same decision on the construction of the acts of Congress for ascertaining and adjusting laud claims in the territory of Missouri. The decision of this last mentioned court, though not obligatory on this, is of not less authority than the former. The judges of the territorial court decided at a time when, and in a country where, almost every individual member of the community was deeply interested in understanding the force and effect of these acts of Congress. It became the duty if Congress, immediately on the cession of the territory by France, to provide for speedily ascertaining and adjusting all piivate claims to lands in the ceded territory; and it was equally the interest of the United States that these claims should be ascertained and adjusted, in order that the lands belonging to the public might bo brought into market for the benefit of the Treasury. For the purpose of a<ce.rtaiuing and adjusting those private claims, aboard of commissioners had been appointed as early as 1805, and by the fourth, section of the act of 2nd March, of that year, it was provided, that all persons claiming lands by virtue of any legal French or- Spanish grant, made and completed before the first day of October, 1800, might, and those claiming by virtue of the two first sections of that act, or by virtue of any [292]*292grant or incomplete title bearing date subsequent to the 1st of October 1800, were required to deliver to the recorder of land titles, a notice, in writing, stating the nature and extent of their claims, together with a plat of the tract or tracts claimed; and the consequence of negleeting to deliver such notice, &c., was a forfeiture of'all the advantages offered to such claimants by the provisions of that act. By this act claimants were allowed till the 1st day of March, 1806, to file their claims.
Several acts were subsequently passed extending the time for filing their claims, and granting other indulgences. But such was the sullen indifference of the claimants, that, when Congress determined no longer to defray the expense of maintaining a board of commissioners, much remained to be done towards ascertaining the claims which the Cougress itself thought ought to be confirmed. Therefore the act of 13th of June 1012, was passed, at the suggestion, probably, of some, or all of the commissioners of the board.— For the dates show that Missouri then had no delegate in Congress. The terms used in confirming tracts of land, in the acts of Congress of 13th June 1812, and of the 12 of April, 1814, are equally as strong as those used in the act of 1812, confirming town or village lots, out lots, and common field lots, and commons. There is found this only difference, that the town or village lots, out lots, com • mon field lots, and commons, being in legal contemplation, as well as in reality, already ascertained by survey, they were confirmed to the inhabitants of the respective towns or village, enumerated in the act, according to their several rights in common thereto, and whether they filed a claim or not, no forfeiture took place; whereas those who had a claim to a tract of land which was neither town nor village lot, out lot, common field lot, nor commons, in, adjoining, and belonging to, the several towns or villages enumerated in the act, were required to file their claims by a given day, otherwise such claimants forfeited all the advantages accruing from these acts of Congress. The act of 13th June 1812, presumes that in the enumerated villages, there will be property not rightfully appropriated or claimed, and all such is [293]*293reserved for the support of schools, with the exception of such as the President of the United States might think per to reserve for military purposes. The policy of the law then as much required the claimants of town or village lots, out lots, and common field lots, to come in and establish, before the recorder, their several claims, as it required those who claimed by any incomplete French or Spanish grant, or as a donation, by virtue of settlement or cultivation.— But the law -had neglected to annex the penalty of forfeture .of all the benefits of the act, to ths neglect of this duty.— The claimant then who went forward before the recorder and proved his right under the act of 1812, to a town or village lot, out lot, or common field lot, had a good title against all persons who could not produce a complete French -or Spanish grant, or show title by ¡a confirmation of .a board .of Commissioners.
T.he policy of the law required that those lots which had notbeen inhabited, cultivated, or possessed, prior to the 20th day of December, 18031, should be appropriated to the support of schools, with the exception of such only as the President of the United States might think proper to reserve, for military purposes.; and that policy also required,' that all the other lands in the ceded territory, should be offered for sale as soon as convenient, with the exception of such as was rightfully claimed by individuals. There can he no reason then, why the action of the recorder on a lot claimed by one of the inhabitants for a town or village lot, should not, if the claim be confirmed, avail the claimant as much as his confirmation of an incomplete French or Spanish grant, or his confirmation of a tract of land claimed as a donation in virtue of any of the acts of Congress. The claim of those deriving title to the land in dispute then under Felicite Marly, whether it be town or village lot, out lot, common field lot, or a tract of land claimed as a donation on account of settlement or cultivation is, in my opinion, good against every person who cannot produce either a good title from the French or Spanish government, or a prior confirmation by a board of commissioners. But there is no evidence on the record that the land in dis^ [294]*294pute was on the 20th day of December, 1803, eimer a village lot, out lot, or common field lot. A lot in popular language, when real property is the subject matter of discourse, is a parcel of land designated by metes and bounds; and in the contemplation of the acts of Congress, which have been reviewed, it is a parcel of ground surveyed and marked out under the authority, either of the crown of France, or of that of Spain. In the case of Waddingham vs. Gamble p. 468 of the 4th vol. of Missouri decisions, it appeared on the record, that common field lots were surveyed and corners established by public authority, and that all these matters were registered in a book by authority of law. It cannot then be presumed that if there ever had- been, in the year 1803, a fourth street in St. Louis, some record of it would not be found. Mr. Bird, in a written argument furnished to this court says, “after the defendant had proved by the ‘acts of the general government and its officers, by the proceedings before the said recorder, and by said patent, that tlhe lot in question was a town lot, and was in 1814, bounded by a street, he then procures several, witnesses, with ‘had memory, to testify to what is abundently contradicted iby the history of the settlement of this town,-, by other witnesses, by public documents, and could be easily disproved «by the official acts of Marie P. Ledue, the strongest witness ‘for the defendant, namely, that where the dei'endant now ■resides, was in Spanish times, no part of the town of St. ‘Louis, that fourth street was first laid out in 1820 or thereabouts.”
The recorders certificate, dated 1st January, 1814, states, that the lot was bounded east by a street. If, indeed, the recital of the eastern boundary line of this lot by the recorder, in his certificate of confirmation, he evidence not to be rebutted, or in say maimer disproved, which 1 believe no court ever yet decided in such a case, it cannot be urged a ¡ evidence that a street existed there anterior to the date of the certificate. The insertion of the street as the eastern limit, appears to be the gratuitous act of the recorder; nothing of the existence of the street appears either in the widow’s application, or in the testimony of the witr.e:s examine.1; [295]*295and one street alone existing qn the east side of the lot, is slender proof that it is a town or village lot. The, witnesses tell us there were no cross streets. The patent dated 14th of March 1839, calls for one street on the east and another on the south. It is certain that the maker of the patent had no official information of the boundaries of this lot, other than the proceedings of the recorder, and even the recorders proceedings did not conduct him back further than 1814. The boundaries then given to the lot by the patent on the tfo'h Jay of March, 1839, and the eastern extremity, as designated by the recorderin his proceedings on that subjoci on ¡lie ib.d. day of January, 1814, are no proof that on the hthh day of December, 1893, that ground, lying west of fourth street and north of Poplar street so called in the patent, was divided into town or village lots, and constituted a pari, of the village of St. Louis. To prove then the existence or non existence of a fourth street, we are reduced to the necessity of adverting'io oral testimony, to which as the defendant did not object as inadmissible, because the absence of better evidence was not accounted for, this court can novsr make no objection.
Three of the plaintiffs witnesses speak of fourth street, viz Antoine Pniith, Louis Delille and Michal Marly, Smith says: “the lot lay on the west side of fourth street and op‘posite the lot of Mr. Delille, which is on the east side of ‘what is now called fourth street: Cant say how large the ‘inclosure about the lot was. The inclosure extended back ‘to within the about 30 feet of Mr. Chouteau’s fence. There ‘was a space between the inclosure (where fourth street now ‘is) and Delille’s lot.” Louis Delille the second of the witnesses last above mentioned says: “Marly had a lot in St. ‘Louis directly west of his father’s lot, between it and Chou-Heau’s land. Ilis father owned a lot on the east side of ‘fourth street.” In another place he says “there was a ‘street there, which was considered asa street, a good deal ‘used, and we did all our hauling on it, and so did others.”
The sum of what these two witnesses state, is that there was an open space betwixt the inclosure of Marly, and that of Delille; and that this open space was, at the time when [296]*296they were testifying, called fourth street. But Michel Mar"-' brother to John Baptiste Marly, and who, from his testimony,- appears to have made the inclosure for his deceased brother', and to have resided with him many years before his death,- says that he is now sixty years old, does not know the direction- of fourth street, there was no street there at that time — there were “only barns there.” This testimony appears to have been given on the first trial in the circuit court, and on the second he testifies to the same purpose, confirming the testimony of Chouteau, Paul, and Leduc, among others, witnesses of the defendant. Chouteau testified, that he came to Sir Louis, before a house was built in it, and that there never was any street, marked out in it, west of third street, before the occupation of the country by the American government.
Leduc states, that he had been a resident since 1799, and, that fourth street was not marked out or surveyed, till about twenty years before the time he testified, that is to say in 1817, and Paul states, that he became a resident of St. Louis in 1809, and never heard of fourth street till he surveyed it in 1816, when Chouteau and Lucas made their addition to St. Louis. What Mr. Bird means when he says, in his written argument before referred to, viz: that the testimony of these witnesses is abundently contradicted by the history of the settlement of the town, is not so very obvious to me, I am not informed that the history of the settlement of St. Louis is good evidence- in a court of record, even if preserved in a bill of exceptions. History is most commonly but hearsay evidence. To what history he refers he does not tell, whether traditional or something more authentic.
But it certainly cannot be that this-court can take any notice of any evidence not appearing on this record, without transgressing the longest and best established rules of proceeding in appellate courts. The testimony given in this case raises a very strong presumption that all the land lying west of fourth street itself, was public property, when the American government took possession of the territory.— Felicite Marly got a lot granted to her with a very indefinite boundary, viz: east by a street-separating it from'the lot [297]*297of Louis Delille. The owner of this lot in 1816, when we are told Lucas and Chouteau made their addition to St. Louis, must have been a poor calculator if he had not known how to reconcile himself to the streets traced out two years after his title had accrued.
He was still separated from Louis Delille by a street, and that was all the recorder called for. It was quite immaterial to the owner if the street separating his lot from that of Louis Delille were twice as wide as the old streets, and certainly no injury to his property, that Poplar street came then into existence, on the southern extremity of his lot, as I before observed, it is my opinion, that none of this evidence ought to have gone to the jury, to prove that the contested property was a town dr village lot, or out lot, had it been objected to; but one of the plaintiff’s witnesses speaks directly as to the existence of fourth street under the government of Spain, and he says there was no fourth street, while several of the defendants witnesses testify as strongly as can be testified do a negative, saying there was no fourth street till about the year 1816. In case the contested ground be not a town or village lot, out lot &c. surveyed and marked out by authority of law under either France or Spain, the act of Congress expressly declares, that the claimants must file a notice with the recorder; and the deceased John B. Marly did not file one, nor did any one of his heirs claim in his right, but the widow claimed, and it was confirmed to her.
But had the confirmed lot been proved to be a town or village lot, I am of opinion, for masons above given, that it was a duly of the persons claiming it, to file a notice with the recorder, and procure an adjudication or confirmation of the claim, if such person or persons, wished to avail himself, or themselves, of any benefit offered by the act of Congress of 13th of June, 1813. But neither John B. Marly, nor his heirs, having done this, and Felicite Marly having procured the lot in question to be confirmed to herself, all persons are now concluded by this adjudication, or confirmation, of the recorder, except those who may be able to pi'oduce either a complete French or Spanish grant, or [298]*298confirmation of the same property bj’’ the board of commissioners made prior to that of the recorder of land titles.
In a declar-ationbfoject-meni, thb do-tiie^premlscs <ontoiided for as to enable identifyUilm, with the description contained in the which Ti™ j,h]intiil' cíahír and i ihfir evi-t’.wuco ifa mad-jnissiblo to íJeutífy toe j>rrm if.es do-Fcribed in the with'1 those' ('.‘•scribed in the dead.
m the3circuit court to give instructions to the jury questions of° nw; there-íisTñtMs the court in-utrucled the jury, that dUrcgard °all evidence to ■awillguitjlpa-0n the taco of ^10 dood’ tha bupicmo court hold tion io bo ur. 33 ¡t was the nro-was tl\o pro-Vmce of the to decide who-^uity'" was orla party should the court oon(ioiyed t0 t>e the ambi-fruity patent ,,,ui struct tlu ju-amb^uKy1'"11 could not be any evidence d£Í!dK tiic
[298]*298The instructions given by the circuit court will now be reviewed.
The first instruction given for the defendant seems to me unobjectionable. The plaintiff had attempted to set out the premises contended for, and if he did not give a true descrip-lion, such as the jury could identify with the description contained in his deeds, the foundation of his claim, he certainly ought not to recover.
In the second, the court, at thp defendants instance instructs the iury to disregard all parol or other evidence, in- ° , . / . . . . , , - dependent oí, and extrinsic to, the deeds which had beeii oi-fered by the plaintiff to explain any doubt or ambiguity, apparent and patent, on the face of the deeds respecting the premises conveyed, or intended to be convoyed. The words “doubt” and “apparent” used by the defendant in this . . second instruction, were, 1 suppose, intended by him to convey ^he same idea as the ’other two words with which they • _ J are connected, viz: “ambiguity” and “patent.” If they uieai1 any thing else, I do not know what it is, and he lias failed to explain them. They will then be treated as mere , , . ... . , verbiage. An ambiguity patent is thus described: “wnen a clause in a deed or will, or any other instrument, is so ambiguously or defectively expressed, that a court, which has to put a construction on the instrument, is unable to collect the intention of the parly; and in such case evidence of the declaration of the party cannot be admitted to explain his intention.” Whether then an ambiguity is patent or latent, jj the province of the court, and not of the jury to decide; , , ’ • „ , and the defendant ought to have called the attention ol the court; to what he conceived to be the ambiguitn patent, and to have required the court to instruct the jury, that such could not he explained by any evidence, to be pr0¿juce(j fry the plaintiff, dehors the deed itserf. The de-1 „ , 1 . „ . . scription of the property is sufficiently vague, Uut if the plaintifF was content to take it on such desorption, the laws referred to in the deeds show that the evidence of the vendors title, if any is to be found, in the case of a right of pre[299]*299emption, in the registers office of the district where the land lay; and in case it be a town or village lot, out lot, common field lot, orlaiad claimed by right of donation under the second section of the act of 12th of April 1814, in the office of the recorder of land titles at St. Louis. The United States have provided whenever a claim is confirmed, wheth- or bv the recorder or by the register and receiver of the land < ^ office, that it shall be sufficiently described to ascertain its locahty. tins instruction was clearly wrong, it being no tIk business of a iurv to ascertain what is an • v _ íc>.¡ ¡na ]1£3 f t oi guhv p been iV.i had it Ivt. ■ ■d under proved The third instruction seems to nave the belief that the contested property, to hate been a town or village lot, out loi, on ;o 3‘Hh day of December, 1803, lot, or cciritnon fiei would have been confirmed to John Baptiste Marly and legal i vpro'ontati ves, by 1 he let section of the act of 13th of June 1812, by which it may be recollected that the rights, titles, and Hahns to uf.eh lota, were confirmed to theinhabi-of tauts of liia several towns or villages, according to tneir several ri'dit ■; and it was lire intention of the defendant to ' ’ say, that, although, if the contested property were proved to be a town lot, out lot, or cemmnn field lot, the might succeed in ins op.-e, yet, if the land were either a set-llement right, under the second section of the act of the 12th of April, 1814, by right of donation, or under the fifth section oi the last mentioned act, as a pre-emption he could not succeed. In this view, the instruction was in my opinion correctly given. For neither John Baptiste Marly nor the vendors his heirs, had filed a notice with the recorder, that this land was claimed by right of donation under the ‘ second section of the net of 12 of April 1814, nor did it pear in evidence that this land had ever been adjudged them by the register and receiver of the land district where it lay, under the 5th section of the same act as a pre-emption right. But I have before given it as my opinion that even . , . .‘ ,, , m the case of a town or village lot, out lot, or common lot, the jurisdiction of the recorder still continued, and it was a part of his duty, under the first section of the act 13th of June, 1812, to ascertain to whom those lots, out [300]*300&c. belonged at that time, and that his decision, on the right óf property in one of these lots, was as conclusive as his decision on a claim made to land by right of donation undeT the 2nd section of the act of 12th of April, 1814. The third instruction then, was, in my opinion, wrong only in being too narrow: that is, the defendant committed error against himself; and of this thp plaintiff has no right to complain.
(¡i^c^ún-dcr ono M-tVllO it W£LS proved, prior olesod and controversy; aud, m support 0f his Congrcs-s jg^ J»^ea’k-ng further provision for nettling the claims %o in the territory of Missouri”: also the acts of April 12, 1814, and April 24, hng pro-omption rights in The^defomL ant claimed, under a confirmation, by of land ^titles fotho widow Held: tll¿t ag the plaintiff had lulled to prove that the land, in controversy, was cither a town or village lot, out lot, common field lot, or commons, wi-visions of!the act of Juno had^howiTno compliance with the said pre-emption aots, nor any either the h’reneh'1 gov-drnments, or by a board of commissioners, ke could not prevail a-fondant!*0 d°" ^tiTn^on^" eluded all bieTo show a complete Spanish or French grant, fixation by" a board of ors?orSbring ^1.®]^86^88 provisions of j^grels
[300]*300The fifth instruction, was in my opinion, incorrectly given. John Baptiste Marly might, if Ihe property here in dispute had been neither town nor village lot &c. in 1803, still r . ° have claimed it by right ol donation under the 2nd section ^ act of 2nd April, 1814, and as before observed, it ap-peai’s very satisfactorily to me, on this record, that both the contested land, and other land adjoining, was a part of the public domain at that time. The same observation may be , , . ,.1T made or the lath instruction as ol the third. 1 can see no reason the jury should be told by the court, that if the plaintiffs had not proved that Marly claimed the premises m the declaration mentioned, either from the French or Spanish or American government, they must find for the defendant. „„ , . , , J . , , J.he plaintiff pretended to set up no grant either by Prance or Spain, and depended solely on the provisions made by the several acts of Congress, and therefore ought to have claimed from the United States (or from the American government as the defendant has it) through the recorder of land . . titles, the agent appointed by law lor the purpose ol receiv-in§ suc^ c^aails’ ant^ deciding on their validity. No injury is however done to the plaintiff by this surplussage in the i^th instruction.
Having before given my opinion that the plaintiff had not , , . , , , produced any evidence ol title m his vendors to the contes-tefj property, it becomes useless to examine the 13th instruction. If ever a good reason existed why a jury should find a vordict tor a defendant in an action of ejectment, it must exist when the plaintiff gives no evidence to sustain his case. Tile court committed then no error on the score of evidence jn refusing to allow the plaintiff a new trial. But the de- ° 1 fendant succeeded in procuring from the court a very impro Per instruction to the jury viz: that they must disregard alj [301]*301¡evidente offered by the plaintiff to explain any arhbiguity patent on the face of the deeds given in evidence, .without telling the jury in wha.t that ambiguity patent consisted, and as I believe when no such ambiguity existed in the deeds offered in evidence by the plaintiff. Had the plaintiff offered any evidence of title in himself from which the jury might by possibility have found a verdict for him. his right to a new trial would have been undoubted. But according to the evidence in the record, he relies on the bounty extended ^ to the inhabitants of the ceded territory in the several acts of Congress above enumerated. Congress, when they confer a favor have an indisputable right to confer it on their own terms. The recorder was their agent, appointed for the special purpose of deciding not only who was on the 20th day of December, 1803, such an inhabitant as was entitled by the operation óf the several acts of Congress to town or village lot, out lot, or common field lot, or a tract of land by right of donation, but he was also their agent appointed to decide in whom the property in such lot, or tract ot land, vested at the time of the application made to him ior the confirmation of such property. Felicite Marly applied to him, claiming the property, and he confirmed it to her, that is, he decided it was her property, and his decision con-eludes all persons who cannot show either a grant n C ■ • r ranee or Spam, ora prior confirmation by the board oí commissioners.
m^t of ^the" circuit court reversed, on structions gi-..has shown no right [of ac-tlon’
Shall then this judgment be reversed because of the wrong instructions procured by the defendant from the court, and the cause remanded to the circuit court in order to allow the plaintiff to search fer evidence of a grant from France or Spain, or for a prior confirmation by a board of commissioners? Had the crown of France or Spain ever made a grant of this land to the plaintiffs vendors, it is not to be pre. sumed that he would have rested his claim on the acts of Congress passed for the benefit of such as had no grants» and if it had ever been confirmed to those under whom the plaintiff claims, by a board of commissioners, we cannot presume that the claim wmuld have attempted to be sustained on the construction of the confirmation of the recorder to [302]*302Felicite Marly. The plaintiff then having introduced no ev--idence calculated to establish any right to this land, either in himself, or in those under whom he claims, it is my opin-lon t-bat it is improper to reverse this judgment because the circuit court gave erroneous instructions to the jury. To reverse a judgment and remands cause lo the circuit court under such circumstances weuld be holding out an inducement to the plaintiff to use improper means >to procure testimony to sustain his case. The judgment of the circuit court ought then in my opinion to be affirmed. It being also the opinion of Judge Nap ton that this judgment ought ■to be affirmed, it is accordingly affirmed.
Separate, opinion of Napton - Judge.
I concur in affirming the judgment of the circuit couit, on the ground that there is no evidence on the record of so decisive a character that Marie’s inclosure was a village lot, as would require this court to set aside the verdict of the jury. I do not concur in so muc.; of Judge Tompkins opinion •as considers the claimants under the act of 13th June 1812 under the necessity of taking further steps before the recorder for the purpose of perfecting their titles.
McGirk Judge not sitting.