
    Luke E. Lawless v. Jonas Newman.
    ,In ejectment. Plaintiff claimed under.one M. and proved possession in M. prior to 20th December, 1803, and gave in evidence conveyances from the heirs of JÍ. .to himself. Defendant deiived title from the widow of M. to whom the recorder,of land titles had confirmed the premises. The .p.ourt instructed the jury, that if they believed M. possessed the premises in dispute prior to 20th December, 1803, and that the deeds offered'by plaintiff were made by the heirs of M. plaintiff must recover. Held, that the instructions were erroneo.us, because they assumed that the.deeds conveyed the lands described iji the declaration, and that the same were village lot?, common field 1'otsor out lots, within the meaning of the act of Congress of 13th.June,.1812, both of which-should have beqp left.with the jury.
    APPEAL from the,circuit cqur,t of.§>t. Charles county.
    
      L. E. Lawless and H. S. Geyqr, counsellor appellant:
    The appellant, in support of his general propositions as to the error of the court in refusing and giving the' above instructions, will contend:
    1. That .the.deeds to the appellee, referred to in the in-structions_given, are mill.and void; and on this point refers the court to the “act regulating conveyances,” Rev,. Stat. Miss* ,p. .11,8; Mo. Rep. vol. 1, p. 583; Perry v,. Price, 4 Comyn’s Digest, (Day’s American edition,) title • “Fait,” pp. 270, 284, 285 — title “Grants,” p. 535; 4 Cruise’s. Digest, title “ Deeds,” pp. 225, 269; ,7 Peter-,dorfPs Com. La.w, title “Deeds,” pp. 671, ¡669.; ,7 John. Rep. 97.
    2. That inasmuch as .it appears from the .evidence in the case that the appellant is no.t tenant of,the ¡premises, but that his wife, Mrs. N- Lawless,,is tenant, and has the possession in her 'own right; the action- is wrongly brought against him- — see Tiilinghast’s Adams on Ejectment, p. 52, note 3, and to the authorities cited; .also, p. 55, and authorities cited; also, p, 300 and p. 306, inote.
    ,3. That the verdict and judgment are bad for uncer-thintyyand refers the court to 2 Wash. Rep.'p. 276; l‘ Mun. p. 162; 6 Mun. p. 25-; Tiilinghast’s Adams on Ejectment, p. 295, note 5.
    ■ 4; That no title to said premises, or any part"thereof, Has been shown in I. B. Mar-le and his heirs and assigns;, and on this point relies onpil The usages and customs of-France and Spain in upper Louisiana. 2. Th'e acts of; Congress on the subject of lands in upper Louisiana amd-Missouri, from I805'to‘l8'16j and particularly to the acts-' of 13th June, 1812, and'the pre-emption acts of Congress" referred to in the deeds to Jonas Newman, referred to in the instructions given. 3. To the case of Vasseur v. • Benton, 1 Mo; Rep.;'and the case of Salle clit Lajoye v. Brimm, 2 Mo. Rep. p. 529.
    5. The appellant will contend'that on the ground of. surprise, and the matters set forth in the affidavit and’ reasons filed, a new trial ought to be had in this case— see Tiilinghast’s Adams on' Ejectment" as to New Trial, p; 294, note 2. The court is also referred to Wheeler’s; Abridgment'of American Com. Law, vol. 7, p. 112, title “New Trial.” As to estoppels, whether by record or" specially, the court is referred to 1 -Saunders-on Pleading' and'Evidencé, an'd the authorities cited therein, pp. 46; to 52. As to admissions-by writings not under seal, the court is referred to l Shúndérs'Pleading and Evidence,: pp. 52-to 55;
    
      ,T. Spalding'miá- G. A. Bird, counsel for appellee:
    From the facts preserved upon.the récord, <the defend-1 aiit insists: _ ,
    1. That the verdict of. the jury was according to the" law and 'the evidence.,
    2.'That the court commttted.no error in instructing, the jury or refusing to give them instructions.
    3. That there "is nothing contained in the affidavit of Lawless which would‘justify the 'court in granting a new trial. As to new trials,-see
    4. That the premises in dispute were confirmed by the " act of Congress; of 13th June, 4 8’12.
    5. That the confirmation whs to the legal representa-" fives of Baptiste Maiié, who, according to the evidence, possessed the premises iti dispute as owner long prior to ' 20th December, 1803, and continued such possession un-" til his death, in 1805 or 6. Vasseur v. Benton’,'1-Mo. ■ Rep. 296'.; Sti’othér v. Lucas, Sup. Ct. D. S. -
    6wThe defendant' insists that the proceedings' of1 the 1 riaorde.ron-theclaim filed by ’’the widow-’ Marie, ¡wer-.«”> unauthorized by law, and of course void — see acts of Congress for the adjustment of land elaims; 2 Story’s U. S. Laws, p. 967-8; same, 1060-1; same, 1260,1306; 1 section of the act ot 1813.
    7. The proceedings before the recorder being coram, non judies, and the heirs of Marie not being party thereto, cannot be used as evidence against the defendant here. But the written notice of the widow Marie, filed before the recorder, and claiming the property in dispute as that of her husband, is an act inpais, which estops her and all claiming under her from saying that she was then the owner of the lot in question — see Salle v. Primm, 2 Mo. Rep. 529; Comyn’s Digest, title “Estoppel,” pp. 199 to 203, vol. 4.
    8. The right of the heirs of Marie to the lot in question, is evidenced by the long possession of Baptiste Marie, who possessed and cultivated the same under the eyes of the Spanish commandant.
    9. If it is a donation by the United States, then, as no title vested during marriage, it could not enter into community..
   Tompkins, Judge,

delivered the opinion of the court.

Newman sued Lawless in ejectment, and had judgment, to reverse which this appeal is prosecuted.

To show his right of action, the plaintiff in the circuit court, the appellee here, gave in evidence two deeds from the- several heirs of Baptiste Marie, and proved the possession of the premises sued for t® have been in the ancestor prior to the 20th December, 1803.

The defendant, appellant here, gave in evidence a confirmation by the recorder of land titles of a lot of ground in the south part of the city of St. Louis, 120 by 150 feet in superfices, which is proved to be the southeast quarter of square numbered 109, to Felicite Marie, widow oí Baptiste Marie, aforesaid. Several deeds were read in evidence by consent, showing conveyances of the same property, through several persons, from Felicete Marie to Thomas Biddle, his heirs, &c. to the use of Virginia Lawless, free and clear from all demands, &e. of 'her husband, the defendant in the circuit court and appellant here.

The circuit court, on motion of the plaintiff instructed the jury as follows, viz: If they believed from the evidence that Baptiste Marie possessed the premises in dispute prior to the 20th day of December, 1803, claiming. the same as his property, and continued to possess and claim the same until his death, and that the deed given in evidence was made by persons who are heirs of said Baptiste Marie, that they must find for the plaintiff.

The defendant moved the court to instruct the jury that the plaintiff has not shown such a possession of the premises in question in the defendant as will enable the ■plaintiff to recover in this action. This instruction the court refused to give. The material words in the first deed of Marie’s heirs to the plaintiff' are as follows, viz: Whereas we claim a piece or tract of land, as the heirs of Baptiste Marie and his wife, deceased, situate in the south part of St. Louis, by virtue of an actual settlement made on said land by our ancestors, according to the provisions of two acts of Congress, &c.; which land, so claimed by us, is claimed by virtue of a settlement made by our ancestors on or near blocks 109 and 78, as numbered on themap of the city of St. Louis, supposed to be on the southeast quarter of section No. 29, township No. 45, north, range 7, east. Now, know all whom it may concern, that we the undersigned, &c. do hereby, for and in consideration of the sum of one hundred dollars to us in hand paid by Jonas Newman, of, &c. give, grant, bargain, and sell, unto the said J onas Newman, all our right, title, claim and interest which we have or can have by virtue of said acts of Congress and settlement, or by virtue of any claim whatsoever, without any recourse,” &e.

The second deed, made by one only of the heirs and his wife, is as follows, viz: “ We, &c. heirs of Jean Baptiste,Marie and wife, deceased, do hereby, for and in consideration of the sum of thirty dollars, to us in hand paid by Jonas Newman, give, grant, &c. all the right, title, claim and interest which we have or can hold by virtue of a settlement made by our said ancestors on or near blocks 109 and 78, in the city of St. Louis, which land we claim by virtue of divers acts of Congress, and the settlement so made, as aforesaid,” &c.

The premises are thus described in the declaration: “A certain lot, in the city of St. Louis, enclosed on all sides, on which is a brick house, out buildings and garden, bounded northwardly by a lot claimed by one Hortiz, south by unenclosed land, eastwardly by Fourth street in •said city, and westwardly by Fifth street, being the same lot on which said defendant now resides, and the same that was occupied and possessed by Jean Baptiste Marie, deceased, previous to the 9@tb day of December, 1803.”

i‘h‘ejectment. fitf."claimed d'erone M. and proved possession 20th Dec. 1803, and gave in deuce eonveyan-of8At °to himsllfi Def. derived title from the widow of M, to whom the recorder of land titles had confirmed the premises. The court instructed the jury; that if * ossessetfthe^ M' premise* in die-pute prior to (l1® 20th Dee. deeds offeredVy* pltf. were made by the heirs of ihe lands tiori'and that The •jams were village ef. Held, that-' the instructions were erroneous, because they assumed that* the deeds conveyed lots, common field lots or out lots, Congress of 13th 1812, both whieh should the jury.

The act of Congress, of 13th June, 1812, confirms icP the inhabitants oi St, Charles, St. Louis, &c. the’ rights, • titles and claims-to town or village lots/out-lots, common field lots and commons,' which they had-inhabited, cultivated, or possessed, 'prior- to- the■ 20th day of December, 1803. No, confirmation, then, by1 the recorder of land titles df the same property'to afid-ther person, although ■ approved by a special act of Congress, can divest a tide' to a lot, acquired by virtue:of that act oí Congress. The misfortune of that species of title is,' that the person' claiming under it is- compelled'tO piav'e it'up in each new action; whereas, when aright to a'pátticular specified-lot is once ascertained' by an act of Congress,-or by a commissioner appointed by law, the owner has nothing-' more to do than to produce his patent, &c. The descrip-. tion of the land conveyed by these deeds'to the plaintiff is* very vague.

The circuit court instructed the jury, that if they be-’ from the evidence that Jean Baptiste Marie possessed the premises'in dispute prior to 20th December, • 1393 claimins-the same? as his property, and sb continued to possess and claim the same until his death, and tnat' deeds of the plaintiff given in evidence1 iri- this cause' were made by persons who are the hdiVsof said Jean Bap- ‘ tiste Marie, they must find for the'plaintiff. ■ The first deed' above mentioned as given- in-evidence by the plaintiff is' sa very vague, tliatit is contended, with some appearance' of correctness, that it conveys nothing. It is in these' words: “give, grant,-bargain and sell unto,--&c. all our right, title, -claim and interest which we have or can have’ by virtue of said acts'of Congre'ss and-settlement/’ But' ... _ admitting that the word “said” is-to be understood to the' w0>dsettlement,” and that it-should1 read thus, “all our right, title, &e. which we have or can have by virtue-of' said acts of Congress and said-settlement,” yet still it is" n©t apparent that the- land conveyed by these deeds is the ’ sa--me as that-described in the declaration.- The descrip-' tion of the premises' in the second deed is not more defi-' than that in.the first; yet the instruction given by the circuit courfassumes that the-deeds-convey.-lands by a description which necessarily includes the'premises" mentioned in the declaration. This fact, it séetns 'to tóe, > ought (as-it is contended by MrfGeyer-for the-defendant) -to have-b'een left to the jury to-find.- It was 'Contended' the defendant that the plaintiff-had-nófshown-such a-' possession in him as will enable him to'recover in this' action.,- It is true thatj'.by, the deed-of conveyancej-it-^

appears the legal estate was vested in Thomas Biddle, for the exclusive use of the wife of the defendant; the evidence, however, shows that the defendant lived on, and occupied, the premises with his wife. The statute permits the action to be prosecuted against the person in possession of the premises claimed; and also permits the person, from and through whom the defendant claims ti-tie to the premises, on motion, to be made co-defendant— see Digest of 1835, p. 234, title “ Ejectment,” sections 3 and 4.

It was also stated that the court assumed, in the struction above mentioned as given at the instance of plaintiff, that the premises ,in question did constitute, 1803, a village lot, out lot, or common field lot. If the plaintiff claims under the act of 13th June, 1812, he must certainly prove that the land contended for was, in 1803, either a village lot, out lot, or common field lot. Being, then, of opinion, that the circuit court ought to'have left the jury to find whether the premises described in the two deeds, given in evidence by the plaintiff, are the same with those described in the declaration, that court committed error in giving the instructions asked by the plaintiff, and its judgment out for that reason to be reversed. Such being the opinion of the rest of the court, it is reversed and remanded.  