
    Gurno v. A. & N. Janis, adm’rs of Janis.
    3.Tho certificate of the Recorder of land titles made in conformity with act of Congress of May 2b, 1824, is evidence of the facts contained in ruch certficite.
    2. Whenever the law requires an officer to give á certificate of the ex-i tenee of any fact, such certificate is evidence of the fact contained therein.
    3. The act of Congress of June 13, 1812, amounts to a statutory confirmation of the town or village lets, &c , in the respective towns and villages therein mentioned, to all persons who come within tifo provisions of the act; and tho ow ners or claimants of such lots, 4"0., have only to .'■how, whenever their rights or claims to such lots are in litigation, that their cases are embraced by said act. Tompkins Judge dissenting.
    4. The rule of (he ccmmenlaw, that the defendant, in an action of ejectment, may show an outstanding titloin a third person to defeat the suit of the plaintiff, is not changed by our statute, regulating the action of ejectment.
    5. Under the act of June 13, 1812, it is not necessary that the claimant Bhould have ii h .bitod &c. the K t claimed, at tho time ot tho passage of that act; I ut inhabit.) tion, &c. prior to 20th Dee. I8( 3, is «ufficient to pass the title from the U. 8. to tho claimant, without any regard to the fact, whether such inhabitation,&e. had continued up to the passage of the act.
    
      Coalter f.r FI'iff in error.
    
    
      I contend that the court committed error in refusing tho instructions.
    The second instruction supposes a state of feels, if possible, still slronger against the plaintiffs, for it supposes the s il Tous ant Lebeau to hare been the only person who so inhabited, cultivated, and possessed, the premises in question, prior to the ‘20th December, 1803.
    The question then i-, does this make a better title than the certificate of Recorder Hunt which is the only title shown by the plaintiff?
    Story’s laws page 1972.
    
      Geyer for PI’iff in error.
    
    1. Ihe certificate of the Recorder is not competent evidence. Revi ed code 1835, p. 234,251. Story’s laws U. S„ vol. 3. p. 1972.
    2. The act of Congress of 13th June 1812, confirmed the lot — leaving the courts to decide between conflicting claims; and a confirmation by the recorder of land titles could give no better title. Vassier v. Benton, I Mo. R. ' 96. Salle dit Lajoi 3d do. 529. See also Newman v.'Studley 5 \ol. 12 Peters 454. 6 Cranch 128.
    6.The instructions, p rayed for by the defendant, ought to have been given. If the facts stated hypothetically be (and that was a question for the jury,) the act of 13th June 1812, proprio vigere ii a grant to T oussant Labeau and his representatives, and no subsequent act of the grantor, or his agent, could divest that title. See authorities on 2d point.
    4. The Recorder, by the act of 26th May, 1821, was to ascertain, by ev idence, what lots had been confirmed; but he ■was not authorized to make a grant de novo — much less, could he divest the title which, for twelve years, liad been vested in another.
    5. The duty of the Recorder w»as to discriminate between the public and private lots, and when he ascertained that any lot was rightfully claimed, according to the act of 13th June 1812, he was to certify that it had been confirmed; but he could not decide between individual claimants, which this court lias decided as a judicial question. Vassier v. Benton? 1 Mo. R. 296.
    6. The evidence before the recorder, under the act of 1824, was ex parte and includes no one except the United States; the question between individual claimants is still to be decided by the courts, according to the evidence before them.
    7. If the act of the Recorder be regarded as a grant to Jams, still the prior grant of 13th June 1812 will prevail.
    8. If it be true that Labeau was the only person who inhabited, cultivated or possessed the lot in question, prior to 20th Dec. 1803. he and his representatives acquired a complete title on the 13th June 1812, by grant from the United States; and the Recorder could no more divest the title under that grant, than he could supersede a confirmation by the commissioners, or a patent deed of the United States. Act of 9th March, 1885, Rev. 234. Revised code pa. 251, see. 8.
    
      Campbell for Def ’ts in error.
    
    1st. The circuit court did not err in admitting the certifiCate °*"fion^rma^on °f Theodore Hunt, Recorder of land ti-ties, to Antoine Janis, dec. for the premises in controversy.
    2d. The Circuit court did not err in refusing to give the instructions prayed for by the defendants.
    3. The certificate of the Recorder ill this case is evidence Of titlej Conclusive against the United States, and prima facie evidence of title against all persons not lldving a better title. Mo. R. volt 4, page 458t Story’s laws of U. States vol. 2, page 1257; Voi. 3, page 1972. Morton vs. Blankenship, Mo. R. vol. 5 page 346. Mo. R. Yol. 1 page 296; do. vol. 2, page 529; do. 4, 458; do. 5. 236.
   Opinion of the Court delivered by

McGirk Judge.

Napton Judge not sitting.

Thé administrators of Janis brought an action of eject-inent, in the circuit court of St. Charles county, for a lot of grouiidin the town of St. Charles. The defendant pleaded not guilty. On the trial of the Cause the plaintiff had a verdict and judgment. The cause wás brought to this court the judgment was reversed, the cause remanded, and on the trial of the cause the plaintiffs again had judgment, to reverse which the cause is again brought here.

. On the trial of the cause in the circuit court, the plaintiffs gave in evidence a certificate of Theodore Hunt, Recorder of land titles for the State of Missouri, confirming this lot of ground to Antoine Janis the intestate. The defendant.objected to the giving this certificate in evidence; the objection was overruled, and the paper received and read to the jury.

Upon this evidence, after having proved the defendant in possession at the time of bringing the action, the plaintiff rested his case.

The defendant then gave evidence to show that, prior to the 20th December, 1803, one Toussant Lebeau possessed, inhabited, and cultivated the lot in question, and that he, the defendant, had a conveyance from a. portion of Lebeau’s heirs for their share of the lot, and that the right to the balance was yet in Lebeau’s heirs.

After the evidence was closed, the defendant moved the court to instruct the jury: 1st, that if they find from the evidence that Toussant Lebeau inhabited, cultivated and possessed the lot in question, prior to the 20th of December, 1803,- and that he was an inhabitant of the' village o'f St.Charles on the 13th day of June, 1812,- then the plaintiffs are not entitled to recover. .

Recorder of made^n'eon-gress of May the facts con-certificate?011

2d. Thai if I he jury find from the e’vide'nóe', that Lebeau was the only person who inhabited, cfiltivated, or po’ssessed the lot in question, prior to the 20th of December, 1803, and that he continued to be an inhabitant of St. Charles untilt and on, the l!»th of June, 1S12, the plaintiffs' are not entitled to recover.

The circuit court refused both these instructions, which refusal is assigned here for error.

The plaintiff in error, also, assigns for error, the reception of the Recorder’s certificate, made in pursuance of the act of Congress of May 26th, 1824. .

When this case was before this court on a former occasion, I wrote the opinion of the court, and gave toy own views of the act of Congress of J une 13th, 1812, (2 vol. Story’s L. U. S. p. 1257,) and also ray views of the act of 26th of May, 1824, 3 vol. Story’s laws U. S. p. 1972.)

The counsel for the plaintiff in error insists now, that the Recorder’s certificate is no evidence of any confirmation to Janis. First, Because it is no copy of any book, or paper* belonging to the office of the Recorder of land titles, and therefore does not come within the act of the General As* sembly of January 26th, 1835, Revised code p. 250. The 7th section of that act declares, that copies of confirmations had before the Board of Commissioners for the adjustment of land titles, or before the Recorder of land titles, &c., and certified by the Recorder, or other person having the lawful custody of the papers, &c., shall be evidence, &c. The objection taken by the counsel for the defendant is, that the certificate given in evidence is no copy of any confirmation, but is an original paper, and therefore is not within the law. To this Mr. Campbell, for the defendants in error, replies, that the paper is evidence as an original paper, the Recorder being required by the act of Congress of May 26th, 1824, to give a certificate of confirmation in each case of confirmation. Iam of opinion this is correct legal reasoning, and that t'he rule of law is, that whenever the- law requires ao oTicer to give a certificate of the existence of any fact, that t e certificate ro given is to be received in evidence of the existence of the fact.

Whenever the law requires ¡ n officer to give a certificate ol the existí nee of any fact, cuch ceit.fi cate is evi dence of the fuct contained then in.

The act of Congress of June 1 '•!, Ibl2 amounts to a statutory confirm: tion of the ti un or village lots, &e. in the re-spectivo towns and vil Jages therein mentioned, to all persons ■who cune within the provisions of the act; and the owners or clai rr.ants of such lots <5fc , h ive only to show, whenever their rights or aro iB tint tl»e:rca-^?t.

There is then no error on tki; point.

'Ihe next, point is, did the court err in refusing to give the instruction asked by the defendant? My opinion is,.that on this pc int there is error.

The o¡ iiuon in this case, heretofore delivered, established 1 he legal vah e of ihe lecotder’s ceitificate, as evidence to sustain the adion of ejectment on the [ art of the plaintiff.— But now the que th n is to le decided, what kind of title, on tl e ] ai t of Ihe de'enriant, is f ufleient to defeat the plaintiffs action, notwitii! landing the certificate of the recorder.

By the act of the I3th of June 1815?, it is enacted, by the Ift;edi<n ihertof, (2 vol. Story L. U. 1257): “That the rights, tilles, and claims to town or village lots, out lots, &o., in, ad oinirg tc, and belonging to St. Charles, &c., whii h li ts have been inhabited, cultivated, or possessed pri- or to the 2(Jlh day of December 1803, shall be, and the fi me aie heieb-v, confin ed to the inhabitants of the respec-ti\e towns aforesaid, according to their several right or rights in common thereto: provided this act shall not effect any c.cnfiimatK.n made by the board of commissioners for the adjustment of land claims, ” &e.

It was tl e opinion of this court in the case of Vassier vs. Penton, and in tins ca ;e vi hen it was up before, that the act of 1812 ¡-mounts to a statutory confirmation of the town lots in the respective villages of all those lots, and to all those persons who come within its description, and that the owners or claimants have nothing to do but to shew whenever their sights are disputed in courts of justice, that their cases are within the act.

The act of the General Assembly of Missouri, R. C. p. 231 sect. 1, declares, that the action of ejectment may be maintained in all caaes where the plaintiff is legally entitled to the posses: ion of the premises. This declaration throws but little light on the subject. But the 2nd section declares, that the action may also be maintained in all cases, where the plaintiff claims the possession of the premises, against any person not having a better title, thereto, by virtue of an entry with the register of public lands, a pre emption, a New Madrid location, and 4th, a confirmation made under the laws of the U. S. A.

Now in all these cases the jlaintiff may maintain hi? action of ejectment against any one who has not got a better title than his. But in every case where the defendant has a better title than his, the j laintifF cannot, as against that defendant, maintain his action. In this case the plaintiffs have, in my opinion, brought their case within the first part of the act of our legislature; they have produced a confirm uion, made to them by virtue of the act of Cong re ?s of the .6th May 1824. The defendant, however, shews that the same •lot of land was confirmed to him, and third persons, by the act of Congress, of 13th June 1212, nearly 18 years before •the plain tills confirmation took place. In this ca e the rule at law is the same as that in equity, which is, that he who 4s firnt in point of time, is be >t in right. According to this view of the laws, the defendant ha? a better title to the pre* mises than the plaintiff, notwithstanding the plaintiff has the confirmation of the recorder. In this case, however, the defendant, Gurno, has only shewn that he has purchased two shares, of the heirs of l.ebeau, and that as to the other shares as lidias no title thereto; and as the plaintiffs have a confirmation of the whole to their intestate, as to the -balance of the lot the plaintiffs insist they have a right to recover. This brings in question the doctrine whether the defendant can, to defeat the plaintiff', prove an outstanding title in a third person. My opinion is, that as to this rule of the common law the statute of ejectments has made alteration. Suppose a plaintiff on the trial, in any case, .proves his title by a patent of any given date, and then -defendant will shew that one,or ten years .before the plaintiff’s right accrued, a patent was made to a third person for the same land. In such a case, it is quite clear, the defendant has no-right to .the property. But it is equally -dear that the plaintiff has no right to recover, because, such-case, hohasuao title. Why -should heathen .recover '-the .defendant because’ the defendant has wad

The rule monlawjTlmt the defendant m an action of ejectment, oiitstandhig n title in a third person to defeat the s','^ fir-41!0 p lam tiff, is not changad uto?nreffuía-ting the a.o-nicnt.

act of Juné 13, I8id, it is not necessary that the have"inhahi• ted $-c., the lot ciaimod, at the time ofthe passage of that act; but inhabits.-or0tc^2ÓthP11" Dec., 1803, is sufficient to pass the title from the u. S. to the claimant, without the fact!" who° thor sueh in-^cm had” con-tmued up to ihe passage of the act.

Prom this view of the subject I conclude that the defendant may, as at common law, shew outstanding title to defeat the plaintiff, and that he is entitled to the possession against the right owner. In this case, then, a part of the title seems to be in the defendant, and a partin the heirs of Toussant Lebeau.

Mr. Campbell, of counsel for the defendant in error, insists, that at the time the act of 13th June 1812, was passed, there should not onlv have been inhabitation, cultivation, or * possession, on the part of any claimant, but that the same should have continued, and should have been in existence on the day of the passage of the confirming act of 13th June -iqio

I do not think this view of the law is correct. My opin- . , ■/ r ion is, that in every case, where the person inhabited, culti-Tatect or possessed a lot prior to the 20th Dec., 1803, the act of 1812, passes the fee simple from the U. S. into such possessor, without any regard to the fact whether this possession, &c. had continued up to the date of the act. It may be, that in some instances lots, so possessed were abandon-by tiie possessor. In every such case of abandonment ' 1 J property would be annexed to the public domain. But *n evei7 case wliat facts constitute an abandonment is matter of law, and the facts are to be proved and not to be pre- , Slltlied.

this case there is no proof .of an abandonment as un- , , , , derstood by the bpamsh law.

-^ie judgment of the court below is reversed, »nd the eause is remanded for a new trial.

s\ • • r Opinion of

m 7 • 7 7 1 omp/ems Judge

dissenting.

The Spirjt of the act of Congress of the 13th of June 1812, 1 . ° 7 required, in my opinion, the claimants of town or village l°ts, ^c”to a?pty to fhe recorder of land titles for the territory of Missouri, to ascertain as well that they were such persons as under that act were entitled to such lots, as to ascertain the particular lot to which each was entitled.— 1 The object of all the laws, passed by Congress for thead-justment of land titles, was to separate private from public property. For this purpose, the board of commissioners, established under the act of 1805, had been slothed with ara-pie powers; and by the act of 13th June 1812, the recorder of land titles had succeeded to all the powers and duties of that board: See the case of Newman vs. Lawless decided at this term. To attain the objects which Congress had view, it was no less necessary that each individual claimant should come in and make proof of his claim to a town or village lot, than it was for an inhabitant to come in and prove his title to a donation on account of habitation, cultivation, &c. The lands were required to be separated into public and private property, for the interest of the Treasury; and the town or village lots, claimed by private persons, were required to be ascertained, in order that it might be known what lots the President might under that act, appropriate to the use of the United States, and next, what would be left to each particular town or village for the use of schools. But because Congress did not declare in express terms that the claimants lots should come in and claim under the penalty of a forfeiture, it is contended that the claimants were remitted to the ordinary tribunals of the country, for the purpose of ascertaining the particular lots to which each individual might, by this bounty of Congress, be entitled. will here be recollected that he who had a title good and sufficient, from France or Spain, stood in no need of the aid of this act. , ■

No claimant of a tract of land, by right of settlement, could procure a confirmation, unless he made application: for, otherwise,, his claim would not be separated from the public lands, and would be liable to be sold. But the town or village lots, being already ascertained by survey, could be, and 'were, reserved from sale. This constitutes the sole difference betwixt a confirmation of a town or village lot, and a confirmation of a tract of land on account of cultivation, habitation, &c.; and the interest of the United States, and the policy of the law, as much required the Recorder to ascertain the proprietor of each particular town or village lot as the proprietor of each particular tract, of land claimed by virtue of cultivation, <&c,, and his powers and duties aliks exten^ec^io each- The act of the 26th of May, 1824, is supplementary to that of 1812. The Recorder was a different man, but he was the same oTicer, clothed with the same ■Powers> aad by the 3d section of the latter act, he waj re-to issue certificates of confirmation to all such as prove£| Up their claims befoiehim; and his certificates of confirmation are, in my opinion, conclusive evidence of pro] erty in the persons to whom they are issued. The Judgment of the circuit court then in opinion to be affirmed.  