Opinion of the Court by
Napton, Judge.
This was an action of ejectment brought by the plaintiffs to recover a tract of land lying south of the city of St. Louis.
The plaintiff claimed title under a concession to him of about two hundred arpens, by metes and bounds, made by Charles Dehault Delassus in 1799; a survey made by Sou-lard of 288 arpens, in 1802; reported for confirmation by the last board of commissioners, and confirmed by the act of July 4th, 1836.
The first board of commissioners expressed an unfavorable opinion of this claim, intimating that it was ante dated. In 1813, the recorder confirmed 30 arpens of the claim, being all not included within the limits, or supposed limits of [11]*11the commons; that being abandoned by Mackay’s agent. In 1833, the last board of commissioners, after an tion of the claim and testimony relating thereto, pronounce it a good, one, and recommend it for confirmation, which was accordingly effected by the act July 4, 1836.
Two separate and distinct titles were relied on in defence. The defendant first claimed under a judgment and execution against the executor and executrix of James Mackay, and a sheriff’s sale and deed.
Secondly, defendant claimed under the confirmation of the commons of the town of St. Louis, by act of 13 June, 1812, and conveyance from the city authorities of St. Louis. The title to the commons was as follows: — A claim for 4293 arpens, situate adjoining the town of St. Louis, known by the name of the St. Louis commons, and said to have been granted by a decree of the Lieut. Governor Cruzat, in 1782, was filed in the office of the recorder. At the same time was filed a document containing the proceedings of certain inhabitants of St. Louis, for the appointment of Syndics, who had authority to regulate the police of the village and the inclosure of its commons. These Syndics, on the 22d Sept. 1782, with the approbation of the lieut. governor, proceeded to establish certain regulations concerning the enclosure of the commons, and these regulations were signed by the said Syndics, and the lieutenant governor himself.
A survey of the common was made by James Mackay, in 1806, at the request of the principal inhabitants; in the notes of which survey, Mackay states it to contain 4293 arpens ; and that, by the request of the inhabitants, he had marked down the pretensions of six individuals to lands within the commons, including his own.
In 1806, the claim was submitted to the board, and they reported it to be equitable under the Spanish usages. In 1812, a majority of the commissioners rejected the claim. On the 13th June, 1812, the act of congress was passed, by which the claim of St. Louis, and several other villages to commons, was supposed to be confirmed.
Evidence was taken before the commissioners, and also read on the trial in the circuit court, conducing to show the [12]*12USer ^ese commons f°r many years prior to the change government in 1804.
The treaty by which La. was acquired, imposed only a political ob-thegovíof'the to Por-ieottho titles, rights and the former trea& itself not- as ,iu Florida pur-“con^rmation. This potion^sacrei^as is> cannot ho enforced by the judic’i
[12]*12The plaintiff below applied to the court for the following instructions, the first of which was given, and others refused:
1. That the sheriff’s deed, and the proceedings in the case of J. & B. Pratte, against Mackay’s executors, be excluded.
2. That Mackay’s survey of commons, preserving Mack-ay’s claim on the n- east part thereof, is conclusive that the claim of commons did not extend over Mackay’s claim, as between those claiming the common ánd his heirs.
3. That Mackay’s survey of commons, including his claim, is good evidence to the jury that the claim of commons did not extend over, and cover Mackay’s claim.
4. That the deed from the city to Dent, conveyed no title under which the defendant can justify in this action.
At the instance of the defendant, the court gave the following instruction:
“That the claim of the inhabitants of ■ the town of'St. Louis to commons, as exhibited upon the copy of the claim given in evidence, was confirmed by the act of congress of the 13th June, 1812, to the inhabitants of said town according to the claim, and that the title to the had so confirmed, is a vested title against the title of the plaintiff under the confirmation of the act of congress of the 4th July, 1836.”
This instruction was excepted to by plaintiff, and the jury found a verdict for defendant.
The title of the defendant under the sheriff’s deed, having been excluded by the court below, was not therefore discussed at the bar, and. will not be noticed by the court. The title under the commons will alone be considered.
If it were conceded, that the act of 13th June, 1812, confirmed the claim of the inhabitants of St. Louis to the commons, as exhibited before the board of commissioners, there would be, I apprehend, but little room to question the propriety of the instruction given by the circuit court.
It appears to be well settled, that the treaty by which Louisiana was acquired, imposed only a political obligation » 1 - 1 ° upon this government to perfect the titles, rights and claims [13]*13originating under the former government. The treaty itself did not, as in the ease of the Florida purchase, operate as eonfh'malion. This political obligation, sacred as it is, not be enforced by any action of the judicial tribunals. legislation of congress, from 1804 to the present day on this o o j i ' subject, is obviously based upon this supposition. They have established, from time to time, tribunals to investigate these claims, and from time to time have confirmed such they thought just, and rejected such as were supposed to be unfounded. They have afforded every facility to claimants, and seemed anxious to retain the title themselves no longer than the conflicting rights of others could be examined and decided.
government exercises its powers, and confirms the must neeessa-oxUnotion*'of mere inchoate title in another. The oldest confirmation, like theoidest prevail’, atUSÍ “feet-roent.
1 he federal government, being unable to confirm the same land to two adverse claimants, must then, to some extent, determine between the conflicting titles.
Each claimant depends upon the justice or comity of the present government: and when the government exercises : a ° its powers, and confirms the land to one, it must necessarily be to the extinction of any mere inchoate title in the The oldest confirmation, like the oldest patent, must prevail, at least in an action of ejectment. 0
T£P . r Ir, therefore, the act -of 13th Jane, 1812, confirmed the claim of the inhabitants of St. Louis to 4293 arpens of commons, that confirmation must prevail over the confirmation to Mackay, in 1836, whatever may be the comparative merits of their respective claims under the Spanish , . . . „ , . r ° ment, except the interposition of this government was unnecessary to perfect the titles. J 1
The strength of the defendant’s title must rest on the supposed confirmation of the commons, by the act 13 June, 1812.
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Opinion of the Court by
Napton, Judge.
This was an action of ejectment brought by the plaintiffs to recover a tract of land lying south of the city of St. Louis.
The plaintiff claimed title under a concession to him of about two hundred arpens, by metes and bounds, made by Charles Dehault Delassus in 1799; a survey made by Sou-lard of 288 arpens, in 1802; reported for confirmation by the last board of commissioners, and confirmed by the act of July 4th, 1836.
The first board of commissioners expressed an unfavorable opinion of this claim, intimating that it was ante dated. In 1813, the recorder confirmed 30 arpens of the claim, being all not included within the limits, or supposed limits of [11]*11the commons; that being abandoned by Mackay’s agent. In 1833, the last board of commissioners, after an tion of the claim and testimony relating thereto, pronounce it a good, one, and recommend it for confirmation, which was accordingly effected by the act July 4, 1836.
Two separate and distinct titles were relied on in defence. The defendant first claimed under a judgment and execution against the executor and executrix of James Mackay, and a sheriff’s sale and deed.
Secondly, defendant claimed under the confirmation of the commons of the town of St. Louis, by act of 13 June, 1812, and conveyance from the city authorities of St. Louis. The title to the commons was as follows: — A claim for 4293 arpens, situate adjoining the town of St. Louis, known by the name of the St. Louis commons, and said to have been granted by a decree of the Lieut. Governor Cruzat, in 1782, was filed in the office of the recorder. At the same time was filed a document containing the proceedings of certain inhabitants of St. Louis, for the appointment of Syndics, who had authority to regulate the police of the village and the inclosure of its commons. These Syndics, on the 22d Sept. 1782, with the approbation of the lieut. governor, proceeded to establish certain regulations concerning the enclosure of the commons, and these regulations were signed by the said Syndics, and the lieutenant governor himself.
A survey of the common was made by James Mackay, in 1806, at the request of the principal inhabitants; in the notes of which survey, Mackay states it to contain 4293 arpens ; and that, by the request of the inhabitants, he had marked down the pretensions of six individuals to lands within the commons, including his own.
In 1806, the claim was submitted to the board, and they reported it to be equitable under the Spanish usages. In 1812, a majority of the commissioners rejected the claim. On the 13th June, 1812, the act of congress was passed, by which the claim of St. Louis, and several other villages to commons, was supposed to be confirmed.
Evidence was taken before the commissioners, and also read on the trial in the circuit court, conducing to show the [12]*12USer ^ese commons f°r many years prior to the change government in 1804.
The treaty by which La. was acquired, imposed only a political ob-thegovíof'the to Por-ieottho titles, rights and the former trea& itself not- as ,iu Florida pur-“con^rmation. This potion^sacrei^as is> cannot ho enforced by the judic’i
[12]*12The plaintiff below applied to the court for the following instructions, the first of which was given, and others refused:
1. That the sheriff’s deed, and the proceedings in the case of J. & B. Pratte, against Mackay’s executors, be excluded.
2. That Mackay’s survey of commons, preserving Mack-ay’s claim on the n- east part thereof, is conclusive that the claim of commons did not extend over Mackay’s claim, as between those claiming the common ánd his heirs.
3. That Mackay’s survey of commons, including his claim, is good evidence to the jury that the claim of commons did not extend over, and cover Mackay’s claim.
4. That the deed from the city to Dent, conveyed no title under which the defendant can justify in this action.
At the instance of the defendant, the court gave the following instruction:
“That the claim of the inhabitants of ■ the town of'St. Louis to commons, as exhibited upon the copy of the claim given in evidence, was confirmed by the act of congress of the 13th June, 1812, to the inhabitants of said town according to the claim, and that the title to the had so confirmed, is a vested title against the title of the plaintiff under the confirmation of the act of congress of the 4th July, 1836.”
This instruction was excepted to by plaintiff, and the jury found a verdict for defendant.
The title of the defendant under the sheriff’s deed, having been excluded by the court below, was not therefore discussed at the bar, and. will not be noticed by the court. The title under the commons will alone be considered.
If it were conceded, that the act of 13th June, 1812, confirmed the claim of the inhabitants of St. Louis to the commons, as exhibited before the board of commissioners, there would be, I apprehend, but little room to question the propriety of the instruction given by the circuit court.
It appears to be well settled, that the treaty by which Louisiana was acquired, imposed only a political obligation » 1 - 1 ° upon this government to perfect the titles, rights and claims [13]*13originating under the former government. The treaty itself did not, as in the ease of the Florida purchase, operate as eonfh'malion. This political obligation, sacred as it is, not be enforced by any action of the judicial tribunals. legislation of congress, from 1804 to the present day on this o o j i ' subject, is obviously based upon this supposition. They have established, from time to time, tribunals to investigate these claims, and from time to time have confirmed such they thought just, and rejected such as were supposed to be unfounded. They have afforded every facility to claimants, and seemed anxious to retain the title themselves no longer than the conflicting rights of others could be examined and decided.
government exercises its powers, and confirms the must neeessa-oxUnotion*'of mere inchoate title in another. The oldest confirmation, like theoidest prevail’, atUSÍ “feet-roent.
1 he federal government, being unable to confirm the same land to two adverse claimants, must then, to some extent, determine between the conflicting titles.
Each claimant depends upon the justice or comity of the present government: and when the government exercises : a ° its powers, and confirms the land to one, it must necessarily be to the extinction of any mere inchoate title in the The oldest confirmation, like the oldest patent, must prevail, at least in an action of ejectment. 0
T£P . r Ir, therefore, the act -of 13th Jane, 1812, confirmed the claim of the inhabitants of St. Louis to 4293 arpens of commons, that confirmation must prevail over the confirmation to Mackay, in 1836, whatever may be the comparative merits of their respective claims under the Spanish , . . . „ , . r ° ment, except the interposition of this government was unnecessary to perfect the titles. J 1
The strength of the defendant’s title must rest on the supposed confirmation of the commons, by the act 13 June, 1812. The proper construction of that act presents only difficulty in this case.
That the phrase “ rights, titles and.claims,” implies something more than grants or concessions, and will embrace such claims as rest on mere inhabitation, cultivation, and the usages and customs of the country, is distinctly declared by the supreme court of the United States in various decisions, and particularly reiterated in the case of Lucas v. Strother, [14]*14(12 Peters.) The existence of a commons in St. Louis, is clearly ascertained, as far back as 1782, when certain regulations were made by the Syndics, in conjunction with, and unc^er direction of the lieut. governor. The precise limits of the commons at this time were not so well established, jprom tjie testimony of the old inhabitants, as preserved in the ipffice of the recorder, and submitted to the jury who tried this case, it may at least be inferred, that from time to time the common was enlarged, as the increase of population required, and it was probably some years after the date of the regulations of Cruzat and the Syndics, that it reached the extent claimed in 1806. There is, however, abund- ' ant testimony that the boundary claimed in 1806 had been established before the transfer in 1804, though no survey had been made.
A mere claim, unsupported by any shadow or pretence of' right, is clearly not such a claim as any act of congress could confirm. The force of the term confirmation, of itself, implies some sort of a title in previous existence. Whilst the word claim could not be justly interpreted in so broad sense as this. Yet neither is it to be so restricted as to exclude every thing which the previous words “ rights and titles ” might embrace. Claims are doubtless mentioned, in order that the act might be sufficiently large to embrace every species of proprietary interest set up against the government, whether founded on concessions, grants, uses, or any other inchoate title by which, under the laws and customs of the Spanish government, property could be severed from the King’s domain, and equitable titles created.
The existence of a commons adjoining the village of St. Louis, of some extent, since the first establishment of a French post there, is undeniable. All the witnesses examined before the board concur on this point. The act of 1812, confirmed the claim of the inhabitants to commons; and the inquiry is, to svhat extent did that confirmation reach. Did it embrace the commons as they existed under Cruzat’s administration, or as defined in 1806 by Mackay, and submitted to the board and recorder, and rejected by the majority of the board 1 The claim was confirmed, and 1 [15]*15confess it is difficult to perceive how any other claim could have been contemplated than the claim to 4293 which had been urged upon their agents in this territory, and preserved in the official records of the government.
The act of congress of June 13,1812, confirmed the claim of the gt^Louis^to commons tow™á¿that of confirmation embraced the tj“ survey of' aT^a6rty' claiming un-derthe inhab-of St. Louis, must prevail over a party who a^'tuie^not confirmed by July, 1836.
The act of 1812 confirms the claims to town lots, out lots, common field lots, and commons, to the claimants, according to their several right or rights in common thereto.” It is supposed that this last clause is proof conclusive that only , , , , 7 ,. , , , such claims as were founded on right were designed to be confirmed. To this interpretation I have no objection, as it may be fairly presumed, in justice to our national ture, that unjust claims were not intended to be confirmed. But what tribunal can look behind the confirmation of . . .. ... r i • tv gress, and investigate the justice ot their grants. Here was an exercise of political power by the federal government, in the fulfilment of the treaty obligation; and the judicial tribunals of the country cannot inquire whether this power has been judiciously and honestly exercised. Con- , r- iii .,i-i i i gress may have confirmed the least equitable title; but ing done so, that title cannot be disturbed. °
. _ There is one view of this subject which appears to me strong]y to corroborate the idea, that the act of 1812 was designed to confirm the claim to the specific quantity of land, asked tor as commons by the inhabitants of St. Louis. If it were the design of congress to limit their confirmation to only so much land as might, upon judicial investigation, prove to be justly claimed of the Spanish government, either by user or grant, it seems very strange that a special act, or special provisions in the same act, were not framed to meet such a case. The words of the act which' was passed, are certainly general enough to embrace the whole claim as it was on file in the recorder’s office, and the United States must therefore have intended to part with all their title and claim to this tract of land.
I conclude, then, that the defendant claiming under the inhabitants of St. Louis, whose claim was confirmed 13th June, 1812, must prevail over the plaintiff who claims under a title which was not perfected until 1836.
Judgment affirmed.