Mr Justice Thompson
delivered the opinion of the Court
This case comes up on a writ of error from the district court of Missouri. It was an action of ejectment for two arpeas ©t land in front and forty arpens in depth, in and adjoining the city of St Louis in the state of Missouri.
The material question in the case arises upon an instruction given to the jury upon the prater of the defendant below, who is the defendant here.
Upon the trial no evidence was given on the part of.the defendant, and the plaintiff having closed his case, the defendant moved the court to instruct the jury as follows: “that if the jury find from the evidence that the two confirmations made by the board of commissioners to Auguste Choteau, 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.” Which instruction was given, and the jury found a verdict for the defendant.
In the course of the trial certain depositions were offered in evidence, which, among other things,.went to prove the hand writing of Rene Kiercereau, whose name appeared as a witness to one of the deeds which had been admitted in evidence (and who, in the body of the deed, was described as a witness of assistance), by comparing the hand writing of the witness with the'hand writing of entries made in. a certain register of marriages and interments, alleged to have been made by the witness; of which, however, there was no direct evidence. .The depositions, so far as they went to prove the hand writing of the witness to the deed by comparison, were objected to and overruled by the court, to which exception was taken.
It is a general rule, that evidence by comparison, of hands is not admissible, where the witness has had no previous knowledge of the hand writing, but is called upon to testify merely from a comparison of hands. There may be cases, where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, comparison of hand writing with documents, known to be in his hand writing, has been admitted, But these are extraordinary instances, arising from the necessity of the ease, and which do not apply to the one before the court. For there were living Witnesses examined as to the hand writing, and, besides, the
deed was received and read in evidence, qnd the plaintiff had the. full benefit of it. But it is said, the evidence was offered for the purpose of identifying the witness, and to show that he was the original grantee of the forty arpens, and the husband of Marie Reneux Robillar; and being named in the deed as a witness of assistance, it operated by the Spanish and French law as a conveyance of his own title, the same as if he had signed the deed as grantor.
There are two answers to be given to the objection made to the ruling of the judge in the court below, in the view now presented. In the first place, that was no.t stated as the purpose for which it was offered, nor was it ahown that such was’ the operation of the deed thus witnessed by the Spanish or French law; and these being foreign laws, should have been proved. Thecourt cannot be charged with knowledge offoreign laws. But, in the second place, the record does not show that the judge was called upon to express any opinion with respect to the legal effect and operation, of the deed, or that the plaintiff had not the full benefit of its being considered his deed. And, indeed, it would seem.from the course of the trial, that it was so considered, or at all events the contrary does not appear from any question presented to the court on the subject.
Two other points have been made and argued here, which do not appear to have been raised in the court below, and which will be veiy briefly noticed.
It is objected on the part of the defendant that the plaintiff's claim, even from his own showing, is no more than an equitable right, for which an action of ejectment will not lie.
There is in the state of Missouri an act of the legislature regulating the action of ejectment, and enumerating various classes of cases of claims to land, where the action will lie; among which a claim under any French or Spanish grant, warrant, or order of survey, which, prior to the 10th of March 1804, had been surveyed by proper authority under the French or Spanish governments, and recorded according to the customs and usages of the country. Rev. Laws Miss. 343.
This would seem broad enough to embrace the claim now in question, and authorise the right to be tried in an action of ejectment in the state courts. How far the courts of the
United States will adopt such practice,. has come under the consideration of this court in several cases, Robinson v. Campbell, 3 Wheat. 212; De la Croix v. Chamberlain, 12 Wheat. 599; and the court has been strongly inclined against sustaining the action upon a mere equitable title, except perhaps where, by the statutes of a state; a- title which would otherwise be deemed merely equitable, is recognized as a legal title, or a title which would be yalid at law. We do not mean, however, to be understood as expressing any opinion upon this question in the present case. But as the cause has been tried upon the merits, and so argued here, we think best to decide upon the merits, without noticing the objection to the forms of the action.
An objection rather of a novel character has been made on the part of the plaintiff to the confirmation of the title in Choteau, because the defendant was one of the commissioners who confirmed the claim, and had purchased the lots of Choteau, before the confirmation. On reference to the proceedings of the commissioners, the allegation does not appear to be founded in fact: although he was one of the commissioners, he did not sit with them when this claim was confirmed. But it is a little singular that the plaintiff should himself give this confirmation in evidence in support of his own title, and then attempt to impeach it.
The main question in the cause, however, grows out of the instructions given by the court to the jury: and to a right understanding of that question, a brief statement of the case as it stood when the instruction was given becomés necessary.
The plaintiff as the origin of his title gave in .evidence two certified copies of' entries of surveys from what is called the Livre Terrien. The one, purporting to be an entry of a survey made for Rene Kiercereau of one by forty arpens: the other, a survey purporting t.o have been made for Joseph Gamache for the same quantity. On the 29th of January 1773, Gamache conveyed to Louis Chancillier one half of the lot surveyed for him, and on the 6 th of April 1781, Marie Rcneux Robillar (the wife of Rehe Kiercereau) conveyed to Louis Chancillier the lot surveyed for him.. Chancillier cultivated a part of these lots until his death in 1785; after his death, his widow, Madame Chancillier, became the purchaser of the one and a
half arpens of land, but did not take possession of or cultivate tnese lots; nor does it appear that she laid claim to them until about the year 1818; and in September 1828 she sold the lots to George F. Strother, who conveyed the same to the plaintiff.
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Mr Justice Thompson
delivered the opinion of the Court
This case comes up on a writ of error from the district court of Missouri. It was an action of ejectment for two arpeas ©t land in front and forty arpens in depth, in and adjoining the city of St Louis in the state of Missouri.
The material question in the case arises upon an instruction given to the jury upon the prater of the defendant below, who is the defendant here.
Upon the trial no evidence was given on the part of.the defendant, and the plaintiff having closed his case, the defendant moved the court to instruct the jury as follows: “that if the jury find from the evidence that the two confirmations made by the board of commissioners to Auguste Choteau, 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.” Which instruction was given, and the jury found a verdict for the defendant.
In the course of the trial certain depositions were offered in evidence, which, among other things,.went to prove the hand writing of Rene Kiercereau, whose name appeared as a witness to one of the deeds which had been admitted in evidence (and who, in the body of the deed, was described as a witness of assistance), by comparing the hand writing of the witness with the'hand writing of entries made in. a certain register of marriages and interments, alleged to have been made by the witness; of which, however, there was no direct evidence. .The depositions, so far as they went to prove the hand writing of the witness to the deed by comparison, were objected to and overruled by the court, to which exception was taken.
It is a general rule, that evidence by comparison, of hands is not admissible, where the witness has had no previous knowledge of the hand writing, but is called upon to testify merely from a comparison of hands. There may be cases, where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, comparison of hand writing with documents, known to be in his hand writing, has been admitted, But these are extraordinary instances, arising from the necessity of the ease, and which do not apply to the one before the court. For there were living Witnesses examined as to the hand writing, and, besides, the
deed was received and read in evidence, qnd the plaintiff had the. full benefit of it. But it is said, the evidence was offered for the purpose of identifying the witness, and to show that he was the original grantee of the forty arpens, and the husband of Marie Reneux Robillar; and being named in the deed as a witness of assistance, it operated by the Spanish and French law as a conveyance of his own title, the same as if he had signed the deed as grantor.
There are two answers to be given to the objection made to the ruling of the judge in the court below, in the view now presented. In the first place, that was no.t stated as the purpose for which it was offered, nor was it ahown that such was’ the operation of the deed thus witnessed by the Spanish or French law; and these being foreign laws, should have been proved. Thecourt cannot be charged with knowledge offoreign laws. But, in the second place, the record does not show that the judge was called upon to express any opinion with respect to the legal effect and operation, of the deed, or that the plaintiff had not the full benefit of its being considered his deed. And, indeed, it would seem.from the course of the trial, that it was so considered, or at all events the contrary does not appear from any question presented to the court on the subject.
Two other points have been made and argued here, which do not appear to have been raised in the court below, and which will be veiy briefly noticed.
It is objected on the part of the defendant that the plaintiff's claim, even from his own showing, is no more than an equitable right, for which an action of ejectment will not lie.
There is in the state of Missouri an act of the legislature regulating the action of ejectment, and enumerating various classes of cases of claims to land, where the action will lie; among which a claim under any French or Spanish grant, warrant, or order of survey, which, prior to the 10th of March 1804, had been surveyed by proper authority under the French or Spanish governments, and recorded according to the customs and usages of the country. Rev. Laws Miss. 343.
This would seem broad enough to embrace the claim now in question, and authorise the right to be tried in an action of ejectment in the state courts. How far the courts of the
United States will adopt such practice,. has come under the consideration of this court in several cases, Robinson v. Campbell, 3 Wheat. 212; De la Croix v. Chamberlain, 12 Wheat. 599; and the court has been strongly inclined against sustaining the action upon a mere equitable title, except perhaps where, by the statutes of a state; a- title which would otherwise be deemed merely equitable, is recognized as a legal title, or a title which would be yalid at law. We do not mean, however, to be understood as expressing any opinion upon this question in the present case. But as the cause has been tried upon the merits, and so argued here, we think best to decide upon the merits, without noticing the objection to the forms of the action.
An objection rather of a novel character has been made on the part of the plaintiff to the confirmation of the title in Choteau, because the defendant was one of the commissioners who confirmed the claim, and had purchased the lots of Choteau, before the confirmation. On reference to the proceedings of the commissioners, the allegation does not appear to be founded in fact: although he was one of the commissioners, he did not sit with them when this claim was confirmed. But it is a little singular that the plaintiff should himself give this confirmation in evidence in support of his own title, and then attempt to impeach it.
The main question in the cause, however, grows out of the instructions given by the court to the jury: and to a right understanding of that question, a brief statement of the case as it stood when the instruction was given becomés necessary.
The plaintiff as the origin of his title gave in .evidence two certified copies of' entries of surveys from what is called the Livre Terrien. The one, purporting to be an entry of a survey made for Rene Kiercereau of one by forty arpens: the other, a survey purporting t.o have been made for Joseph Gamache for the same quantity. On the 29th of January 1773, Gamache conveyed to Louis Chancillier one half of the lot surveyed for him, and on the 6 th of April 1781, Marie Rcneux Robillar (the wife of Rehe Kiercereau) conveyed to Louis Chancillier the lot surveyed for him.. Chancillier cultivated a part of these lots until his death in 1785; after his death, his widow, Madame Chancillier, became the purchaser of the one and a
half arpens of land, but did not take possession of or cultivate tnese lots; nor does it appear that she laid claim to them until about the year 1818; and in September 1828 she sold the lots to George F. Strother, who conveyed the same to the plaintiff. Soon after the death of Chancillier, and some time in the year 1785 or 17S6, Hyacinth St Cyr was put into possession of the two lots by the' syndic of the district, the fence in front not having been kept up; and from the proceedings of the commissioners introduced by the plaintiff himself, it appears that Kiercereau, on the 23d of October 1793, conveyed to St Cyr his claim to the lot surveyed for him, and on the same day Gamache conveyed to St Cyr his claim to the lot surveyed for him. And by the same proceedings, it appears that at a public sale in the year 1801 made of the property of St Cyr, Auguste Ohoteau became the purchaser of these lots, and on the 11th of January 1808, he conveyed the same to the defendant. St Cyr, from the time of his first entry on'the lots in 1785 or 1786, continued to cultivate and possess them, and keep up his part of the fence until the whole common field inclosu're was destroyed about the year 1798; and Chotean, from the time of his purchase in 18OI until he sold to the defendant, and the defendant from the. time of his purchase, have continued to occupy the same to the present time, and in the year 1820 the claim to the two lots was confirmed to Auguste Choteau by the commissioners.
From this statement of the case, according to the plaintiff’s own showing, there is a regular deduction of title or claim,
from
the persons for whom the lots .were surveyed to the defendant. But it appears that those persons, Kiercereau and Gamache, sold their' claim twice; in the first place to Louis Chancillier, under whom the plaintiff claims; and in the .second place to St Cyr, under whom the defendant claims. If these title papers were to be considered independent of the acts of congress and the proceedings of the commissioners, the plaintiff, being prior in point of time, would prevail, so far as depended upon the.deduction of a paper title, and independent of the question of possession.
It becomes necessary, therefore, to inquire how far the acts of congress apply to and affect any part of these title papers; keeping in mind that.it is all the plaintiff’s own evidence; he
having produced the proceedings before the commissioners, is not now at liberty to deny the facts therein stated.
No grant has been shown under which the plaintiff sets up his claim; his title was therefore incomplete, and by the fourth section of the act of 1805 (3 vol. L. U. S. 653), the person claiming the land was bound to deliver to the register of the land office, or recorder of land titles, within the district where the land lies, a notice in writing stating the nature and extent of his claim; and also to deliver to the said register or recorder, for the purpose of being recorded, every' grant, order of survey, deed, conveyance or other written evidence of his claim. And-the law directs that they shall be recorded by thqregister or recorder, &c. with a proviso, however, that where the lands are claimed by virtue of a complete French or Spanish grant, it shall not be necessary for the claimant to have any other evidence of his claim recorded, than rhe original grant or patent, together with the warrant or order of survey and the plat; but all the other conveyances or deeds Vnall be deposited with the register or recorder, to be laid betpre the commissioners. And the act then declares that if such person shall neglect to deliver such notice in writing of his claim, or cause to be recorded such written evidence of the same, all' his right, so far as the same is derived from the two first sections of the act, shall become void, and forever thereafter' barred. If any doubt should arise whether the .original right, claimed in this case, comes within the two first sections of the act, that is removed by the act of 1807 (4 vol. L. U. S. 112), which repeals the proviso to the first section of the act of 1805, and the power of the commissioners is enlarged. The fourth section declares that the commissioners shall have full power to decide, according to the laws and the established usages and customs of the French and Spanish governments, upon all claims to land within their, respective . districts, where the claim is made by any person or persons, or the legal representative of any person or persons who were, on the 20th oí December 1803, inhabitants of Louisiana, and for a tract not exceeding the quantity of acres contained in a league square, &c. which decision of the commissioners, when in favour of the claimant," shall be final against the United tates., And the time is-extended for delivering notices and evidences of
the claim, but declaring that the rights of such persons as shall neglect so doing, shall, so far as they are derived from or founded on any act of congress, ever after be barred and become void, and thé
evidences
of their claims never after admitted as evidence in any court, of law whatever. There is no evidence that notice of the claim, now set up, was ever given as required by these laws; or that the deeds from Kiercereau and Gamache to Chancillier were ever delivered to be recorded as required by the law. And Madam Chancillier, having slept upon this claim for so great a length of time, from the year 1785 to 1818, there is every reason, to conclude she had abandoned it; and these deeds cannot now, under the provisions of these laws, be received as evidence of any right to be established under the acts of congress. And it must have been understood, upon the trial, that the plaintiff sought to establish his right under these acts of congress, or he would not have produced the confirmation of the commissioners as evidence of his right. But having relied upon it in support of his own claim, he ought not now to be permitted to deny that it was one properly submitted to the commissioners. Had he rested his claim upon a title derived from Chancillier, without the aid of the acts of congress, the evidences of his title would not have been affected by those acts; but the defendant would, in that ease, have been fully protected by his length of possession. When, however, a part of the plaintiff’s evidence was the proceedings of the commissioners upon this very claim, this court must consider the instruction of the judge as referring only to the effect and operation of the confirmation under the laws in relation to such claims. And in that view of the case the instruction was perfectly correct.
There is, however, some obscurity in the application of the instruction given by the court; but from the evidence set out in the bill of exceptions, we cannot say there was any error. And the justice and law of the case, growing out of such a length of possession, are so manifestly with the judgment in the court below, if we look at the whole evidences on the record; that we feel disposed to give the most favourable interpretation to the instructions of the court. And we the more readily incline to think the light in which the instruction is here considered was that in which it was understood on the
trial, because the counsel for the plaintiff in error has contended on the argument here, that this confirmation enures to the benefit' of the owner of the claim: that the commissioners decide only the abstract right, as against the United States, without regard to the person who sets up the claim. And it is upon this ground only, that the plaintiff would have introduced in evidence the decision of the commissioners which was directly against his own right; he thereby probably expecting to destroy the effect of the adverse possession, and make the possession as well as the confirmation of the commissioners enure to his benefit. But this view of the case cannot be sustained; and the judgment of the court below must be affirmed.
This cause came on to be heard on the transcript of the record from the district court of the United States for the district of Missouri, and was argued by counsel; on consideration whereof, it is adjudged and ordered that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs.