
    THE CARONDELET CASE.
    (9 Court of Claims R., 455: 92 U. S. R., 462.)
    The City of Saint Louis, successor, &c., appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      After the cession of Louisiana to the United. States the inhabitants of Carondelet claim 6,000 arpents of land, by virtue of a grant from Lieutenant-Governor Trudeau, dated December 7, 1796. In 1812 Congress pass an act confirming such grants, but requiring the boundaries to be officially ascertained, upon which the titles will become complete. In 1816, one Hector, a deputy surveyor, makes a survey, and deposits the field-notes in the office of the surveyor-general. In 1826 the Government enters and occupies a\tract, within the commons, under a deed from some of the inhabitants, for a nominal consideration. This tract, consisting of about 1,700 aeres, known as Jefferson Barracks, the Government still holds. In 1934 the surveyor-general orders one Brown, his deputy, to retrace the lines of Hector’s survey. It then appears that the common con tains about 9,000 acres, over 10,000 arpents. The surveys of Rector and Brown remain unconfirmed by the Secretary of the Interior, and it is questioned whether 
      
      Carondelet is entitled to the whole tractor only to 6,000 arpents. In 1854 Ca-rondelet executes a deed of the barracks to the Government for a nominal consideration. The Secretary of the Interior thereupon confirms the surveys and issues a patent. Carondelet now brings suit to set aside the deed, on the ground that it was ■extorted by the Secretary. The court below decide that the Secretary had power in 1854 to set aside any particular survey not yet confirmed, and that the deed'made by the town was for the settlement of a doubtful title, and valid. Judgment for the defendants. The claimant appeals.
    
    I. When the officers of the Land-Office are doing nothing, i. e., refraining from action, and a town desirous of procuring a patent to a tract of which it claims to he the absolute owner, offers to deed a portion thereof to the Government for a nominal consideration, and does so, receiving a patent for the residue, the transaction cannot be impeached for duress.
    II. If in 1854 the validity, of a title was not well settled, though well settled now, and the officers of the Land-Office claimed the power of setting aside a public survey and thus destroying the title, and the Government might have filed a bill to set aside the grant growing out of the survey as improvidently made, there existed sufficient elements of doubt to form the basis of a legal compromise whereby the claimant conveyed to the Government a portion of the tract for a nominal consideration and received a patent for the residue. And this where the officers of the Land-Office were not expressly authorized by law to make any such compromise, nor to withhold any portion of the tract then claimed.
    III. A deed to the Government is valid, though for a nominal consideration, if it be based upon an equitable compromise of a long-pending and doubtful question of title.
    
      The Reporters' statement of the case:
    As giving a comprehensive history of the title to a very large tract of land — over 7,000 acres — now within the city of Saint Louis, the findings of the court below are inserted at length, though the substance of them, so far as the present decision is involved, may be found in the opinion of the Supreme Court. The suit was of long standing, but jurisdiction was conferred by a special act. (17 Stat. L., p. 621.) The findings of the court below were as follows:
    1. On the 6th day of December, 1796, Jean JB. Gamache presented to Don Zenon Trudeau, lieutenant-governor of the western part of Illinois, in the then Spanish province of Upper Louisiana, a petition praying a grant of land to him in the vicinity of the village of Carondelet; and he designated the land which he prayed for 11 as the continuation of the lands, (common-fields,) taking for his limits the limit of Mr Constant, thence to the Mississippi a’ _(q the river Des Peres for limit, coming to the village of 0 .arondelet
    The exact position of ianq tpas sought by said G-amache does not appear; h1 dt it was north of the river Des Peres, a small stream runnr^ ^astwardly, and emptying into the Mississippi River aboiC,] ^Re mpe an(j a quarter south of the southern end of the vil’^gse of Carondelet as it existed in 1803.
    2. On th^j 7th of December, 1796, Lieutenant-Governor Trudeau indorsed on said petition the words following :
    “ The land demanded is within the limits of land reserved for the purpose of furnishing wood necessary for the use of the village of Carondelet, and the demand which is made by Mr. Gamache cannot take place, nor any other concession be granted in the direction of a line taken from the end of the field-lots of the village and running parallel with the Mississippi, farther down said river one hundred and fifty arpen ts.”
    3. On the 25th of December, 1797, Antoine Soulard made the following certificate:
    “ We, the undersigned, a surveyor commissioned by the government, do certify to all to whom it shall appertain, that on this 21st of December, in virtue of an order transmitted by the lieutenant-governor to Mr. De Treget, captain-commandant of the said village, enjoining upon the inhabitants to make known the line of a tract of land which was conceded to them on the 7th of December, 1796, which line must be parallel with those of Mr. Anto. Reihle and Alvarez. The said inhabitants, in presence of their commandant, have agreed upon causing their line to be drawn from the last bound placed at the extremity of the depth of their lands, which had formerly been surveyed by Mr. Pre. Chouteau, in virtue of an order from the lieutenant-governor. Having taken the bearing course of these same lands, I found that they ran south 28° west. I followed this same course 23 arpents 3J poles, at which distance I intersected the river Des Peres. The end of the line on the bank of the same river has been bounded with a stone, having for witness two flint-stones and one flattened lead bullet. The land of Mr. Alvarez must be distant from the said stone bound 21 feet in following the same line parallel. And in order that the said inhabitants may prove the same, I have delivered the presents.
    “ Saint Louis, of Illinois, the 25th of December, 1797.
    “ANTO. SOULARD.”
    21 S C
    
      4. On the 18th of February, 1806, the same Antoine Sou-lard, styling himself surveyor-general of the Territory of Louisiana, gave the following certificate:
    “ I do certify, wherever it may be needful, that the inhabitants of the village of Carondelet have requested me to measure, or cause to be measured by one of my deputies, in their behalf, a portion of land which was granted to them as a common by the lieutenant-governor, Don Zenon Trudeau. This land was to be surveyed by Mr. Bartholomew Cousin, who transported himself to the village of Carondelet for that purpose. But at the moment he would set his instrument, he found it out of order and no use to him — an inconvenience which did prevent the said survey to be then made; and the short space of time that was left to attend to it, again has hindered me from being able to satisfy to the calls made on me by citizens of the settlement of Carondelet. In faith whereof I have delivered the presents to the interested, that they may serve the same wherever needed.
    “ Saint Louis, 18th February, 1806.
    “ANTOINE SOULARD,
    “ Surveyor*General Territory Louisiana.”
    5. On the 7th of June, 1808, Baptiste Lajoye and Louis Menard, on the part of the inhabitants of the village of Caron-delet, gave notice to the recorder of land-titles for the Territory of Louisiana that said inhabitants “ claimed title to 6,000 arpents of land, situated adjoining said village, by virtue of a concession from Don Zenon Trudeau, lieutenant-governor of Upper Louisiana, dated the 7th of December, 1796.”
    As evidence of the alleged concession, they filed the aforesaid petition of Jean B. Gamache and the indorsement thereon made by said Trudeau.
    6. The said claim was rejected by the board of commissioners organized under the act of March 3, 1807, “respecting claims to land in the Territories of Orleans and Louisiana.”
    7.'In the year 1816 William Eector was surveyor of public lands in the Territories of Illinois and Missouri, appointed under the act of April 29,1816, (3 Stat. L., 326, chap. 151,) and Elias Rector was a deputy surveyor under him.
    8. In that year the said Elias Rector made a survey purporting to be of the out boundary lines of the Carondelet commons; the field-notes of which survey, signed “E. B.,” were deposited in the office of the said surveyor of public lands. It does not appear that said survey was made under the orders of said surveyor, William Eector; nor that it was ever approved by him, or by any of his successors in office; nor that any plat thereof accompanied said field-notes ; nor that any official use was ever made of those notes by any officer of the Government, until Joseph 0. Brown was required to retrace the lines of the Carondelet commons in the year 1834, as hereinafter found. But it does appear that on the 23d of April, 1829, Charles Biddle, who had previously applied to William McCree, then surveyor-general for Illinois and Missouri, for a survey of a tract of land which said Biddle had located under a New Madrid certificate, intended, owing to doubts entertained by said McCree in relation thereto, to submit the matter to the Commissioner of the General Land-Office, and, with a view thereto, requested said McCree'to inform him whether there were any documents officially known to him which showed that any claim for commons had ever been made by the people of Caroudelet; and, if so, whether any limits to their claims had ever been designated; and whether said McCree had any other official knowledge on the subject, except what was contained in the act of Congress passed the 13th of June, 1812. The said McCree, on the 25th ■of April, 1829, answered the inquiries of said Biddle in the following words:
    “In reply to these inquiries, I have to state that the only information possessed by this office, and on file at the date of your letter, concerning the Carondelet commons, was the law of the 13th of June, 1812, which confirms them as claimed, and a statement in the ‘Begister d’Arpentage,’ from which it appears that, by virtue of an order from the lieutenant-governor, a line had been run from the southwest corner of their lands 23 arpen ts 3¿ poles to the river Des Peres on course south 28° west, parallel to the southeast boundary-line of the claim of Alvarez, and distant from it 24 feet. This line purports to be a boundary to grounds conceded to the inhabitants of Carondelet on the 7th of December, 1796, and is, therefore, an intimation, however indefinite, of their claim in common in lands beyond and south of their village and common-field lots. '
    “During the conversation I had with you and General Ashley on the subject of the New Madrid certificate, (No. 338, ) I took it for granted that tbe location made under that certificate was-within the reputed limits of the Oarondelet commons; in which case I was (and still am) of the opinion that I could not with propriety cause it to be surveyed ; for if there were any facts- or any information whatever concerning those commons which might enable me to determine their boundaries, &c., as claimed before the board of commissioners, and which were of record in the recorder’s office, they constituted, in the contemplation of' the law, a part of the official information within my reach, and therefore virtually in the possession of this office.
    “ On the receipt of your letter of the 23d instant I addressed a note to the recorder of land-titles, requesting him to furnish me with such extracts from the records of his office in relation to-the Oarondelet commons as might enable me to ascertain their extent, boundaries &c., and in answer to that application I have received from him some extracts from the proceedings of the-board of commissioners, a copy of which is herewith inclosed for your information.
    “ Permit me to call your attention to the declaration of the lieutenant-governor, Zenon Trudeau, (which you will find among the extracts,) on the petition of Jean Baptiste Gamache for a-tract of land, which petition is refused for the express reason that the land requested ‘ is comprised in that which has been reserved to furnish the wood necessary to the village of' Oarondeletand the lieutenant-governor goes on further to say that the demand ‘ ne peut avoir lieu, ainsi que toutes concessions aceordées dans la direction de la ligue prisée au bout des terres du dit village et courant parallelement du Mississippi cent cinquante arpents plus bas.’
    “Now, a line running from the southwest corner of the common-fields 150 arpents, or, rather, the line which had been run from the southwest corner of the common-fields to the river Des Peres, if extended to 150 arpents in a direction parallel to the Mississippi Eiver, will include the greater part of the tract located under the New Madrid certificate No. 338.
    “The original merits of the claim to commons set up by the inhabitants of Oarondelet, the validity of the evidence, or genuineness of the documents adduced by them before the board of commissioners in support of their pretensions, were no doubt very proper subjects for the consideration of Congress prior to the passage of the act of 13th of June, 1812, confirming the claim; bub they are, I conceive, wholly irrelevant to the only question which the law leaves in any degree to my discretion, which is simply to find out and establish the boundary-lines of the tract as claimed before the board of commissioners, provided those boundaries can be established without interfering with any prior confirmed claim.”
    9. Ou the 8th of July, 1826, a deed was executed by twelve of the iuhabibants of Carondelet, in the words and figures following, to wit:
    “This deed, made and concluded this 8th day of July, in the year of our Lord onethousand eighthuudred and twenty-six, between Samuel D. Solomon, George Slmlts, Anthony Barada, Anthony Motie, Yasinto Pigion, Saint'Amant Michan, Louis Constant, Alexis Page, Joseph Menard, August Dulee, John B. ■Shults, and Dominique Huge, of the village of Carondelet, county of Saint Louis and State of Missouri, of the first part, and the United States of America, of the second part, widnesseth: That the said parties of the first part, for and in consideration of the sum of five dollars to them in hand well and truly paid by Joshua B. Brant, assistant quartermaster of the United ■States Army, the receipt whereof is hereby acknowledged, have remised, released, and quit-claimed, and by these presents do remise, release, and quit-claim unto the party of the second part all the estate, right, title, interest, and claim and demand whatsoever of, in, and to all that certain tract, piece, or parcel of land lying and being situate in the county of Saint Louis aforesaid, butted and bounded as follows, to wit: Eastwardly by the river Mississippi, northwardly by lands of Julien Chou-quette and Benjamin Patterson, sr., westwardly by the public ¡road leading from Carondelet to Herculaneum, and southwardly in part by the southern boundary-liue of the common of Oaron-delet and a tract of laud identified on the general plat under No. 3; and whatever quantity or number of acres may be contained within the boundaries aforesaid, it being part of a large ■quantity which the said parties of the first part claim as common belonging to the inhabitants of the village of Carondelet.
    “ To have and to hold the aforesaid tract or parcel of land and premises above mentioned unto the said party of the second part so long as it may be found useful and necessary for military purposes. It is covenanted, and the true intent .and meaning hereof is, or is intended so to be, that, whereas the right and title to the premises herein described is not finally decided upon, this deed is made without in any wise impairing the right and claim of either of the parties in the premises as-aforesaid; and further, that as soon as the United States shall cease to use the premises aforesaid for military purposes, the same shall revert to the parties of the first part, with the same right they now have, reserving to the said United States the right of disposing of such improvements as will be deemed by them necessary to their interest and benefit.
    “ In witness whereof the said parties have hereunto set their hands and seals the day and date first above written.”
    10. In the year, 1826 the military authorities of the United States sent a body of troops, commanded by Brigadier-General Henry Atkinson, and entered upon and took possession of a tract of land lying within the out-boundary lines of the Caron-delet commons, as surveyed by said Elias Rector, and within the limits of the tract described in said deed of July 8, 1826, and erected thereon the buildings known as Jefferson Barracks ? and the United States have ever since been in possession of said tract. Prior to the year 1826 there had never been any military or other post upon the land lying south of the river Des Peres, within said out-boundaries; nor does it appear that before the final decision of the Secretary of the Interior, in 1855, in regard to Brown’s survey, as hereinafter set forth, there ever was any entry or notation of the survey of the Jefferson Barracks tract upon the books of the surveyor-geueral’s office at Saint Louis, or upon the books of the General Land-Office, as a military reservation.
    11. In the year 1831 the inhabitants of Oarondelet petitioned the county court of Saint Louis County, Missouri, for incorporation as a town, and in their petition they used the following language : “That your petitioners labor under great inconveniences for the regulation and government of their village, and commons attached thereto, and bounded as follows: Beginning in the main channnel of the Mississippi River, on the Saint Louis commons; thence bearing north 57° 59' west to the line of the common-fields; thence south with the line of the common-fields to the river Des Péres; thence east with the-river Des Pferes to the main channel of the Mississippi; thence-up the main channel of the Mississippi to the place of beginning.”’
    
      The incorporation as a town was granted, in 1832, by said county court.
    12. On the 1st of March, 1851, the inhabitants of said town were, by an act of the general assembly of the State of Missouri, incorporated as a city, with the expressed power vested in the city council thereof to dispose, by ordinance, of the commons belonging to the town or village of Carondelet, in any manner said city council should deem proper.
    13. On the 10th of February, 1834, Elias T. Langham, surveyor-general at Saint Louis, placed in the hands of Joseph 0. Brown, a deputy surveyor under him, a copy of the field-notes of Elias Rector’s survey, and instructed him to retrace the lines and re-establish the corners of that survey, and connect it with adjoining public and private surveys. Under these instructions' the said Brown, in March, 1834, retraced the out-boundary lines of the Carondelet commons substantially in accordance with said Rector’s field-notes, and the said Brown’s survey was approved by said Langham on the 29th of July, 1834. The out-boundaries, as surveyed by said Brown, included the lauds of the Jefferson Barracks tract as possessed by the United States; but the lines of that tract were not shown on the plat of that survey.
    14. On the 22d of August, 1834, the recorder of land-titles in the State of Missouri issued the following certificate:
    “Office of the Recorder of Land-Titles,
    “ Saint Louis, Mo.,-,-.
    “ It is hereby certified that, under the provisions of the first section of the act of Congress approved on the 13th of June, 1812, entitled ‘An act making further provisions for settling the claims to land in the Territory of Missouri,’ and of the several acts of Congress supplementary or having reference thereto, approved on the 26th day of May, 1824, and the 27th day of January, 1831, the inhabitants in the village of Carondelet, in the county of Saint Louis, in this State, have been confirmed in their claim in common to six thousand arpents of land, being in townships 43 and 44 north, ranges 6 and 7 east of the fifth principal meridian; the same having been regularly surveyed, as appears by a plat and field-notes thereof returned to this office by the surveyor of the lands of the United States in the States of Illinois and Missouri, certified by him on the 29 th day of July, 1834, and numbered 2965, which accompanies this certificate, and to which I refer for a more full and complete description of the land above mentioned; containing, according to said survey and certificatej nine thousand nine hundred and five acres and twenty-nine-hundredths of an acre.
    “In testimony whereof I have hereunto subscribed my name this 22d day of August, A. D. 1834.
    “K. R. CONWAY,
    “ Recorder of Land-Titles in the State of Missouri?
    
    15. Up to the year 1839 no controversy arose in regard to Brown’s survey, but the same was generally regarded as final, and the town of Carondelet laid out and leased lands comprised within it.
    16. It does not appear that prior to that year Brown’s survey was known to the Commissioner of the General Land-Office. On the 18th of May, 1839, the surveyor-general at Saint Louis addressed a letter in relation to that survey to the United States attorney for the district of Missouri; the terms of which letter do not appear, but it was transmitted by the attorney to the Secretary of War, who, on the 19th of June following, wrote to the commanding officer at Jefferson Barracks, requiring him to inform the Department what quantity of land ought to be retained there for a military reservation; and, on the 22d of the same month, the Secretary addressed the following letter to the Commissioner of the General Land-Office:
    “War Department, June 22,1839.
    “Sir : I beg leave to call your attention to the subject of the accompanying letter of the surveyor-general of Missouri, dated Saint Louis, the 18th ultimo, addressed to the United States attorney for that district, relative to the Carondelet commons, and to request that you take measures to sell the land included within the lines marked with red on the accompanying plat, from the river Des Péres south, claimed as commons by the village of Carondelet, but believed to belong to the United States. The military reservation desired for the United States round the fort at Jefferson Barracks will be designated, whenever the Land-Office is prepared to sell the residue of this tract of land.
    “Very respectfully, your obedient servant,
    “J. R. POINSETT.
    “James Whitcomb, Esq.,
    “ Commissioner General Land-Office.”
    
      So far as appears, this letter gave to the General Land-Office the first information of Brown’s survey.
    § 17. To the Secretary of War’s letter of June 19,1839, to the commanding officer at Jefferson Barracks, that officer returned the following answer:
    “HEADQUARTERS FIRST DEPARTMENT,
    “Western Division oe the Army,
    
      “Jefferson Barracks, August 7, 1839.
    “Sir: I delayed answering your letter of the 19th of June last for the purpose of obtaining the best information in reference to the claims of the inhabitants of the village of Caron-delet to the commons that include the barracks at this post. On application to the surveyor-general at Saint Louis, I have been furnished with the accompanying papers, marked ‘A, B, and 0,’ which are no doubt correct representations. It seems to be the opinion of General Milburn, the surveyor-general, that the claims of the people of Carondelet are sustained by the acts of Congress of the 13th of June, 1812, and 27th of January, 1831, as expressed in his letter to me of the 1st instant, and which accompanies these papers.
    “For possession, we shall have to depend upon a cession of a part of the commons made by the authorities of Carondelet in 1826. The original grant of relinquishment is on file in the office of the Quartermaster-General, at Washington City, to which I beg leave to refer you as to our claim to the use of the grounds as long as the United States wants it for military purposes. The village, however, has been incorporated by an act of the legislature of this State since the grant was made by the authorities to the United States in 1826, and the corporate authorities now say that the authorities that acted in 1826 had no right to make the grant. Hence there is a probability of some difficulty arising as to the claim of the United States to the perpetual use of the ground under the grant made by the authorities in 1826. There will be no difficulty, however, I think, in obtaining a confirmation of the original grant by the present authorities, if the Quartermaster’s Department here were authorized to act in the case; to the propriety of which I call your attention.
    “Notwithstanding the opinion of the surveyor-general as to the legality of the claims of the inhabitants of Carondelet to the commons in question, it is the opinion of many legal gentlemen that their claims are not good, inasmuch as the requirements of the laws of Spain were not complied with by the inhabitants at the time their claims were first set up to the commons lying south of the river Des Peres. It seems that the surveys and returns required by the Spanish laws were not made and filed in the land-offices. I will endeavor to make myself better acquainted with the subject, and communicate further with you upon it.
    “The original grant begins on the Mississippi River and runs west with Julien’s line to the Herculaneum road, thence south with that road as far as their claim extended, embracing all the ground between said road and the river. These boundaries include as much land as the Government wants for military purposes at this post, but the limits cannot be curtailed without great inconvenience to the public service, (See the map as to our present boundaries.)
    .“ With great respect, sir, I have the honor to be your most obedient servant,
    “H. ATKINSON,
    
      “Brigadier-General, United States Army.
    
    “Hon. J. R. Poinsett,
    “ Secretary of War, Washington.”
    The papers referred to in this letter as marked A, B, and C were the notice of Baptiste Lajoye and Louis Menard, on the part of the inhabitants of Carondelet, dated June 7, 1808; the petition of Jean B. Gamache; the indorsement of Lieutenant-Governor Trudeau upon said petition, and the certificate of Surveyor Soulard, as the said several papers are hereinbefore set forth.
    17. The letter of the Secretary of War of June 22, 1839, to the Commissioner of the General Land-Office, was referred by the latter to Solicitor Burchard of that office, who, on the 6th of August, 1839, gave his opinion, in writing, that Brown’s survey included several thousand acres to which the village of Carondelet had no legal or equitable title; and that if such was the fact, there was no objection to a survey and sale, as public land, of all that part of the tract not needed for military purposes or covered by private claims; indeed, that was the proper course to pursue. And the letter of the Solicitor contained, also, the following words:
    
      “ I advise giving instructions to the surveyor-general to have the survey executed as required by law, viz, to retrace the exterior of the village, including the village-lots, common-field, and outlots and commons, giving the villagers the same linea which they had in 1803, and no more, unless, prior to the act of 1812, the eorpprate limits had been fixed beyond the limits of 1803.”
    18. On the 24th of September, 1839, Commissioner Whit-comb communicated to William Milburn, surveyor-general for Illinois and Missouri, the substance of the said request of the Secretary of War and of the said opinion of Solicitor Burchard, and at the same time gave said Milburn the following instructions :
    “ Concurring in the views of the solicitor', as stated, I request that you will make a thorough and careful examination into the whole matter, in order to determine the limits of the commons of Carondelet to which the villagers are legally entitled, and that you will cause a survey to be made accordingly; and that such lands as may not be found to be within the limits of the commons aforesaid, or covered by private claims, may be surveyed as public lands, and plats of the same duly returned.
    “You are requested to make a detailed report of all your proceedings, accompanied by copies of all the papers or records that you may be able to find having a bearing on the claim in question, with a diagram exhibiting the limits of the commons according to the evidences of title.”
    19. In compliance with these instructions, Surveyor-General Milburn made an extended report to the Commissioner of the General Land-Office, under date of April 15,1840, accompanied by a plat, marked “X,” a copy of which plat is subjoined to this finding of facts; and his conclusions, upon a review of the whole case, were stated as follows:
    “ From the facts here presented and the inferences which I have drawn, you will see that my construction of the law is distinctly in favor of the village to the extent of 150 arpents, from the southwest corner of the field-lands, and, were there no controlling circumstances, I would not hesitate to run the west boundary, as represented by the black dotted line c d on the plat X, (see copy of this plat hereto attached,) which is 150 ar-pents, parallel to the general course of the Mississippi; but when I take into consideration the operation of Soulard, in running the line o e north of the river Des Pbres, and the Spanish Calls for the limits and common of Carondelet, in the claims of Alvarez and Yalle, I am led to believe that it was the intention of the Spanish government to prolong the line c e to a, which is about parallel to the river for some distance; and that, as the act of Congress had in view the carrying out and fulfilling this intention of the Spanish government, as claimed before the board, it ought now to be adhered to, by adopting the line o a.
    
    “As no great injury can result from a short delay, I have thought best to submit this statement and the accompanying ■documents before ordering a survey, inasmuch as there seems to be a contrariety of opinion, and you have the controlling power in case of disagreement, and can understand the subject as well in its present condition as if a new survey was actually made.”
    20. Said Milburn’s report was referred to Solicitor McRob-erts, of the General Land-Office, who, on the 22d of October, 1840, in a communication to Commissioner Whitcomb, submitted the result of his examination thereof, in which he reviewed the whole subject, and expressed his conclusions in the following terms:
    “ From a full examination of the subject, I have come to the conclusion that the lands included in the survey (Brown’s) of the commons were not granted by the Spanish government to the inhabitants of Carondelet for the purpose contemplated, nor for any other purpose, and that the indorsement of Lieutenant-Governor Trudeau upon Gamache’s petition was not a grant of the land, and can only be treated as an intention to reserve apart of the lands south of the river; in his own words, ‘to furnish wood necessary to the village of Carondelet,’ and that the fee-simple of the soil did not and was not intended to pass out of the Spanish Crown ; and that the title to the land was in the Crown at the date of the cession, aud as such passed to the United States. 2d. That the act of Congress of June 13, 1812, did not confirm the land as surveyed by Mr. Rector, nor was it effected by the act of 27th January, 1831. I, however, believe that, in good faith to the citizens of Carondelet, and in fulfillment of what they were led to believe was the intention of the lieutenant-governor to do iu the premises, Congress will make a grant of some portion of the lands for the purpose contemplated. I therefore advise that the tract of land beginning on the Mississippi Eiver at the figure 6, laid down ou plat X, and near the northeast corner of Martigny’s survey, thence with the black dotted line to d; thence with the said line to the river Des Peres, and up the river to the line of Alvarez’s survey, and across the river to e, and said letter e to e, and on to the river with the present survey, be reserved for the future action of Congress. The quantity within these limits is about 7,700-acres, as estimated by the clerk of the surveys. Within this tract is also situated the Jefferson Barracks, in Missouri.
    “ By making this reserve Congress can grant the 6,000 ar-pents, which is all the inhabitants claimed, which is 5,104.20 acres, excluding all private claims, to the village of Oarondelet for a common, or in such manner as may be deemed proper, and can retain of the public lands 1,702 acres as a site for Jefferson Barracks, or for any disposition as may be judged expedient.
    “I further advise that the balance of the unappropriated lands without those limits and included in Eector’s and Brown’s surveys, and which amounts to several thousand acres, be surveyed and sold as public land.”
    21. On the 11th day of November, 1840, the Acting Commissioner of the General Land-Office communicated this decision of the solicitor to the Secretary of War, who, on the 16th of that month, transmitted it to the commanding officer at Jefferson Barracks, with instructions to cause 1,702 acres to be laid off as a site for the barracks and for military purposes connected therewith, and a plat thereof to be made and returned to the War Department as early as practicable.
    22. On the 20th of January, 1841, Commissioner Whitcomb sent a communication to Surveyor-Gen eral Milburn, at Saint Louis, transmitting a copy of Solicitor McRoberts’s report, and giving the following instructions to said Milburn:
    “Concurring in this report, I have addressed a communication to the honorable Secretary of the Treasury, with a view of having the matter brought to the attention of Congress for such action as may be deemed proper in the way of making a grant to the village of Oarondelet.
    “In the mean time you are requested to represent on your records the tract within the limits suggested by the solicitor and referred to in the foregoing as lands reserved for the purpose alluded to, and the balance of the unappropriated land without these limits, and included in Brown-Lector’s surveys, you are instructed to have surveyed as public lands, to the end that the same may be brought into market as such.”
    23. No survey was made by the surveyor-general for Illinois and Missouri in pursuance of these instructions.
    24. In the year 1844 the supreme court of Missouri, in the case of Dent v. Bingham, (8 Mo. R., 579,) rendered a decision adverse to the title of Carondelet to common, as defined by the limits assigned therefor in Brown’s survey.
    25. On the 1st of September, 1845, Commissioner Shields, of the General Land-Office, in reply to an application by Alexander Kayser that the surveyor-general for Illinois and Missouri should be directed to carry out the said instructions of January 20,1841, declined in the following terms to do so :
    “ I have carefully examined the claim, and have come to the conclusion that it would be inexpedient at present to direct the survey of those lands, nor until the further action of Congress on the subject.”
    26. In February, 1846, Hon. J. W. Tibbatts, a Representative in Congress, inclosed to Commissioner Shields a letter from P. B. Hockaday, asking for immediate action by the General Land-Office in relation to the Carondelet common; and on the 14th of that month the Commissioner answered as follows :
    “ I deem it inexpedient to interfere in any manner with the survey of that common as originally made by Elias Rector, prior to 1817, and retraced by Joseph C. Brown, deputy surveyor, iu March, 1834, more especially as the surveyor-general, in a certificate to a plat of this common, dated 15th April, 1840, ha.s reported to this office that, under an act of the legislature of the State of Missouri, passed in pursuance of the act of Congress approved January 27,1831, the corporate authorities of the town of Carondelet laid off into small tracts the land within Brown’s survey of the Carondelet commons, (except a portion around Jefferson Barracks,) and disposed of the same, or the greater part thereof, to private individuals. The lands within Rector’s and Brown’s survey are not subject to pre-emption or ordinary entries, as supposed by Mr. Hockaday, they having been reserved to satisfy this claim of the town of Carondelet. This office was not disposed to trouble Congress with the matter, supposing that it would be brought before that body by the parties interested; but, as Mr. Hockaday has requested prompt action, I would recommend, in view of all the facts, that the claim of the town of Carondelet to the whole common, as surveyed by Joseph 0. Brown, in 1834, be confirmed ; reserving as much as may be necessary for theUnited States post at Jefferson Barracks and all valid interferences.’’
    27. In the year 1846, Joseph Le Blond and others, inhabitants of the town of Carondelet, petitioned the President of the United States that the commons of Carondelet should be surveyed as established and recognized by Surveyors-General Hector, McCree, Milburn, and others; which petition was referred to the General Land-Office, and on the 9th of December, 1846, was answered by Acting Commissioner Piper, who referred to the report of Solicitor McEoberts the action of the General Land-Office of January 20, 1841, and the answer of Commissioner Shields to the application of Alexander Kay ser, as the said several matters are hereinbefore set forth; and, in reference to the decision on said Kayser’s application, said :
    “This decision, which has ever since been adhered to, will ■enable the town of Carondelet and the settlers on those commons to present their respective claims to Congress, who can best determine the meaning of the act of 27th January, 1831, and the extent of the grant to the town contemplated thereby.”
    28. On the 22d of August, 1848, Commissioner Young, of the General Land-Office, in answer to a communication of M. C. Jones, used the following language :
    “ On the 14th of February, 1846, this office decided that it would be inexpedient to interfere in any manner with that survey, (Brown’s,) and that the lands within it are not subject to pre-emption or ordinary entry, having been reserved to satisfy the claim of the town. Notwithstanding this decision, the land-officers, it is stated, have allowed entries within that survey ; and Wilson Primm, esq., in a letter of the 9th instant, requested that all such entries might be canceled.
    “In view of the decision above mentioned, this request will be complied with; but the question as to the extent of the grant for a common will be left for the decision of Congress.”
    29. On the 8th of November, 1861, the city council of the ■city of Carondelet passed an ordinance authorizing the mayor ■of said city, on behalf thereof, to employ an agent to proceed in person to the city of Washington at the next session of Congress, iu order to procure a confirmation of the common of Ca-rondelet, south of the river Des Peres, according to the lines of Brown’s survey of the same; and Wilson Primm was appointed such agent.
    30. On the 27th of December, 1851, the said city council passed an ordinance as follows:
    “No. 50.
    “An ordinance to convey certain lands in the common of Carondelet to. the United States.
    
      11 Be it ordained by the city council of the city of Carondelet as follows:
    
    “ Section 1. The mayor is hereby authorized to execute a deed to the Government of the United States for a tract of land in the common of Carondelet, south of the river Des Peres, known and designated on the plat of survey of said commons as the ‘Jefferson Barracks tract,’ which tract is bounded and described as follows, containing about seventeen hundred and two acres: Bounded on the north by a tract of land confirmed' to Julien Chouquette; on the east by the Mississippi River y, on the south by lots in the subdivision of the said common by Jasper Meyer, numbered one hundred and seventy-nine, one hundred and eighty, one hundred and sixty-one, one hundred and sixty-two, one hundred and sixty-nine, one hundred and seventy, and one hundred and seventy-one, (Nos. 179,180,161,. 162, 169, 170, and 171;) and on the west by lots of same sub-divisional survey, numbered one hundred and twenty-four, one hundred and twenty-five, one hundred and thirty-three, one-hundred and thirty-four, one hundred and thirty-five, one hundred and thirty-six, one hundred and thirty-seven, one hundred and thirty-eight, and one hundred and seventy-eight,. (Nos. 124, 125, 133,134, 135, 136,137,138, and 178.)
    “ Sec. 2. The deed shall be signed and acknowledged by the mayor, attested by the register, under his official seal of the city.
    “ Sec. 3. The deed, when executed, shall be transmitted by the mayor to the authorized agent of Carondelet in Washington City, to be retained by him until directed by the mayor, under a resolution of the city council, to deliver the same to the proper agent of the Government of the United States in Washington City.
    
      “ This ordinance to take effect from and after its passage.”
    31. On the 24th of January, 1852, the said city council passed the following ordinance:
    ;t No. 53.
    “An ordinance supplementary to an ordinance entitled ‘An ordinance to convey certain lands in the common of Carondelet to the United States,’ approved December 26, 1851.
    
      “Be it ordained by the city council of the city of Carondelet as follows:
    
    “ Seo. 1. The deed intended to be made to the United States by the provisions of ordinance No. 50, entitled ‘ An ordinance to convey certain lands in the common of Carondelet to the United States,7 approved December 27,1851, shall be a quitclaim deed, containing a reversionary clause, as follows: That so long as the United States Government shall use the said tract of land for military purposes, the title shall vest and remain in said Government; but when it ceases to be used for the purpose aforesaid, the title shall revert to the city of Car-ondelet.
    “ Sec. 2. Any ordinance or part of ordinance conflicting herewith is hereby repealed.
    “ This ordinance shall take effect and be in force from and after its passage.”
    32. On the 28th of February, 1852, a special meeting of aid city council was held, at which the president thereof stated that he had received a dispatch from the agent of Carondelet in Washington City, requesting that an absolute deed be sent to him for the Jefferson Barracks tract; whereupon, on the 18th of March, 1852, an ordinance was passed repealing the ordinance No. 53 of January 24, 1852.
    33. At the same meeting of said city council the following resolutions were passed:
    “ Resolved, That the mayor is hereby directed and instructed to retain the deed to the United States until advice can be received of a decision by the Department of the Interior in Washington City favorable to the claim of the common of Carondelet south of the river Des Peres.
    “ Resolved, That, as soon as such advice is received, the mayor is directed to transmit said deed without delay.”
    
      34. On the 4th of March, 1862, Commissioner Butterfield, of the General Land-Office, in answ.er to a communication from Messrs. Geyer, Primm, and Williams, (who represented Caron-delet commons,) asking that the orders and instructions of Commissioner Whitcomb to Surveyor-General Milburn, of January 20,1841, should be rescinded and set aside, answered as follows:
    “As the decision of the Solicitor and the instructions of Commissioner Whitcomb were not executed, I regard them as overruled by the subsequent action of Commissioner Shields, (acting) Piper, and Young, and that it has been settled that this office must not disturb or iu any manner interfere with the aforesaid survey by Brown, unless Congress shall otherwise order by further legislation ; but that the said survey is subject to such adverse valid rights as may exist under confirmed private claims, and also to the right of the United States in the military reservation for Jefferson Barracks, as had in virtue of law, and the rights the United States possess under treaty as the successor of Spain. I therefore regard this office, under existing laws, as having no further power or control over the subject.” '
    35. On the said 4th of March, 1852, Commissioner Butter-field made a report in regard to the Carondelet commons to the Committee on Public Lands in the Senate, concluding with these words:
    “ In view, then, of what has been done by Commissioner Shields on review, and by Acting Commissioner Piper, and by Commissioner Young, I hold it settled by them that we are to treat Brown’s survey of 1834 as showing the lands which this office must hold in reservation to satisfy the claims of the commons of Carondelet, subject to any adverse private rights, and to the military reservation, and also subject to any further action which Congress may be pleased to take in the way of passing an explanatory law, either for limiting the extent to a specific and reduced quantity, or confirming all the land in said survey, with special protection, if deemed necessary, of adverse claims.”
    36. On the 8th of June, 1852, Acting Commissioner Wilson decided that the survey made before 1817, which was retraced by Brown in 1834, should be adhered to under the stipulations specified in the Commissioner’s report of the 4th of March,
    
      1852, and that the General Land-Office was not authorized to order a new survey on the north boundary of the commons, as had been requested by the persons representing the city of Car-ondelet.
    37. On appeal from the decision of the Commissioner of the General Land-Office to the Secretary of the Interior, that officer, on the 25th of January, 1853, rendered the following decision :
    After careful consideration of this case, I am led to concur in the opinion expressed and judgment pronounced by the supreme court of the State of Missouri at the July term, 1844, in the,case of Dent v. Bingham, which involved the same principles which are at issue in this case.
    
      “ I am of the opinion that the refusal of the lieutenant-governor, Trudeau, on the 7th December, 1796, to make the grant asked for in the petition of Gamache, is not evidence of title. The answer of Lieutenant-Governor Trudeau is, at the most, merely evidence of an intention or purpose to make a grant, but certainly does not of itself constitute a grant. A proprietor ■may very properly assign, as a reason for not making a particular concession, his purpose to dispose of the property in another way, but the expression of such purpose vests no right or title, legal or equitable, in the party in whose favor this intention has been expressed. The only source from which the village of Carondelet can derive a title in this case is the confirmatory action of Congress. That action was founded on and limited by the claim set up by Carondelet. The confirmation was not intended to extend, and did not extend, beyond the claim asserted, and that claim was for 6,000 arpents, extending in a direction described in the claim as filed. It was not a claim by metes and bounds for an estimated quantity of land, for if it had been, then the boundaries and not the quantity would have governed; but it was a claim for a specified quantity of 6,000 arpents, without regard to the boundaries except on the side next the village, and extending from the boundary of the village as far as might be necessary to embrace the quantity of 6,000 arpents claimed.
    “This was the claim which was confirmed, and, in my judgment, the village can claim no more.
    
      “ If, therefore, that quantity can be had without interfering with the rights of others which had vested prior to the act of confirmation, the village of Carondelet is entitled to have it Md off. ■ *
    “The Land-Office will cause the necessary orders to be made to give effect to this decision.
    “A. H. H. STUAET,
    “ Secretary.
    
    “DEPARTMENT OP THE INTERIOR,
    “ Washington, January 25,1853.”
    38. On the 5th of February, 1853, the Commissioner of the General Land-Office made known the decision of Secretary Stuart to the surveyor-general at Saint Louis, and instructed him to cause a survey of the Carondelet commons to be executed in accordance with that decision.
    39. On the 23d of March, 1853, the surveyor-general requested of the Commissioner further instructions, which, however, were not given, and no survey was made as required by the Commissioner’s said instructions.
    40. On the 27th of June, 1854, the city council of Oaronde-let passed the following ordinance:
    “No. 152.
    “An ordinance to convey the Jefferson Barracks tract to the United States.
    “ Be it ordained by the city council of the city of Carondelet as follows:
    “ Section 1. The mayor is hereby authorized to execute a quit-claim deed to the Government of the United States for a tract of land in the common of Carondelet, south of the river Des Péres, known as the Jefferson Barracks, and more particularly described in ordinance No. 50, entitled ‘An ordinance to convey certain lands in the common’of Carondelet to the United States,’ approved December 27, 1851.
    “ Sec. 2. The deed shall be signed and acknowledged by the mayor, attested by the register under the official seal of the city, and shall be transmitted by the mayor to the Secretary of the Interior of the United States.
    “ SEC. 3. Ordinance No. 53, approved January 24, 1852, requiring such deed to contain a reversionary clause, is hereby repealed.”
    41. Some time between the date of this ordinanec and the 28th of the next month, but on what day does not appear, the corporate authorities of Oarondelet sent to the Commissioner of the General Land-Office a deed executed by said authorities, in pursuance of said ordinance, for the 1,702 acres of land held for the use of Jefferson Barracks; which deed the Secretary of the Interior, on the 28th of July, 1854, transmitted to the Secretary of War, with a letter, the concluding words of which were as follows:
    “As your decision as to the sufficiency of the deed for the full protection of the interests of the War Department in the tract in question [the Jefferson Barracks tract] may have a bearing upon a case now before this Department, I have most respectfully to request that I may be advised of the result of your deliberation on the subject.”
    The said deed was referred by the Secretary of War to the Attorney-General, who, on the 9th of October, 1854, recommended that, owing to defects therein, it should be accepted de bene esse and provisionally, and meanwhile another deed free from defects should be prepared and executed.
    42. This recommendation was complied with, and on the 25th of October, 1854, the following deed was duly executed by the mayor of Oarondelet and delivered to the Secretary of the Interior, and on the 9th of December following recorded in the recorder’s office of Saint Louis County, Missouri:
    “Know all men by these presents that the city of Oarondelet, pursuant to an ordinance of said city, entitled ‘An ordinance to convey the Jefferson Barracks tract to the United States,’ approved June 27, 1854, and in consideration of the sum of five dollars to said city in hand paid, has granted, remised, released, and forever quit-claimed, and does by these presents grant, re-mise, release, and forever quit-claim, and the undersigned, John Festor, as mayor of said city, hereby conveys unto the United States of America a certain tract of land lying in the county of Saint Louis, State of Missouri, within the common of said city of Oarondelet, south of the River Des Peres, and known and designated on the plat of survey of said common as the Jefferson Barracks tract, and which is bounded as follows, and contains seventeen hundred and two acres more or less, to wit: On the north by a tract of land confirmed to Julien Chouquette; on the east by the Mississippi River; on the south by lots in the subdivision of the said common by Jasper Meyer, numbered one hundred and seventy-nine, (179,) one hundred and eighty, (180,) one hundred and sixty-one, (161,) one hundred and sixty-two, (162,) one hundred and sixty-nine, (169,) one hundred and seventy, (170,) one hundred and seventy-one, (171;) and on the west by lots of the same subdivision survey, numbered one hundred and twenty-four, (124,) one hundred and twenty ñve, (125,) one hundred and thirty-three, (133,) one hundred and thirty-four, (134,) one hundred and thirty-five, (135,) one hundred and thirty-six, (136,) one hundred and thirty-seven, (137,) one hundred and thirty-eight, (138,) and one hundred and seventy-eight, (178:) to have and to hold the samé to the United States of America forever. .
    “In testimony whereof, under the provisions of said ordinance, the mayor of said city has hereto signed his name, and the register of said city has attested the same under the corporate seal of said city, this 25th day of October, A. D. 1854. *
    [SEAL.] * “JOHN FESTOR, Mayor.
    
    “ Attest:
    “ BERNARD . POEPPING, Register .»
    43. On the 12th of January, 1855, the Secretary of War informed the Secretary of the Interior that the terms of said deed were satisfactory to the War Department.
    44. In 1839, and again in 1845, the authorities of the town of Carondelet caused the commons south of the river Des Peres, which did not confiietwith the Jefferson Barracks tract or with confirmed private claims, to be laid off in small tracts and leased; and the leases contained a clause that the town would not be responsible in case of a failure of title, and a large number of persons became lessees of said tracts; and the action of the General Land-Office in regard to Brown’s survey caused a doubt in relation to the title of the lands so leased, greatly disturbing the lessees. In 1854 an attorney of one of the lessees was active in urging upon the mayor and members of the city council, of Carondelet that they should cede the Jefferson Barracks tract to the United States; and he represented to them that that was the only condition on which the confirmation of Brown’s survey could be obtained; that that survey had been set aside in 1841, or thereabouts; that without a re-establishment of it, Carondelet could not make out her title' to the common; that, even since that survey had been set aside, Carondelet had been in litigation with trespassers on the common; that Carondelet could never get a survey so long as the War Department opposed it, which it would do until Carondelet gave up the barracks tract, but that as soon as Carondelet gave that up, and the Secretary of War was satisfied, the Secretary of the Interior was ready to give a survey. The said attorney had been to Washington City several times to obtain a confirmation of said survey, and he represented to said mayor and members of the city council that he had talked with the Secretary of War and the Secretary of the Interior, and knew their views perfectly; and that the former wanted the barracks tract for the War Department, and he would not let the latter approve the survey of the common until that tract was given up to the United States. In consequence •of these representations — none of which appear to have been made by the authority or with the knowledge of any officer of the Government of the United States — the city council of Caron-delet passed the aforesaid ordinance of June 27, 1854.
    No money was paid by the United States to the city of Caron-delet as a consideration for the execution of the aforesaid deed of October 25, 1854, nor was any asked or expected.
    45. On ■ the 26th of March, 1854, the Commissioner of the General Land-Office addressed a letter to the Secretary of the Interior, asking what disposition should be made of the lands which might be detached by a new survey from Brown’s survey of the Carondelet commons, and which are not included in any other claim; and on the 2d of April, 1854, the Commissioner submitted to the Secretary of the Interior the communication above referred to, dated March 23, 1853, from the surveyor-general at Saint Louis to the Commissioner, asking further instructions in relation to certain points, in order to enable him to carry out the decision of Secretary Stuart above set forth.
    46. Secretary McClelland, of the Department of the Interior, answered these two communications of the Commissioner, as follows:
    “Department oe the Interior,
    
      “February 23,1855.
    “Sir: In your letter of 26th of March last, [error, the letter referred to was dated March 26,1853,] you ask what disposition is to be made of the lands which may be detached by a new survey from Brown’s survey of the Carondelet commons; and with your letter of the 2d of April last you submit a communication from the surveyor-general of Illinois and Missouri asking further instructions in relation to certain points named therein, in order to enable him to carry out the decision of my predecessor in the case.
    44 To arrive at a satisfactory conclusion on this subject, I found it necessary to examine the whole question involved, where it appeared that the decision of my predecessor was only partial and actually left the whole case open. I have, therefore, carefully examined it as one of original jurisdiction, and after having given due weight and consideration to all the evidence submitted, and to the arguments presented both for and against the claim of the inhabitants of Carondelet and the action heretofore had by this Department, I am clearly of the opinion that undue importance has been given to the decision had by the supreme court of the State of Missouri in the case of Dent v. Bingham, on which the decision of my predecessor is based, especially as that decision was arrived at through a division of opinion on the part of the three judges sitting in the case; two of those judges having come to the same conclusion on different and opposite grounds, and the third not only dissenting from the opinions expressed by a majority of the court, but also from the decision there made by them; and more especially as the concurrence of Judge Tompkins, one of the two judges above alluded to, was based on an opinion previously given by him 4 that the acts of 1812 and 1831 availed the claimants of village-lots, out-lots, and commons nothing, unless they presented their claims before the recorder of land-titles,’ which view has been subsequently overruled by the same court, and also by the Supreme Court of the United States in the case of Quitará v. Stoddard, (16 How., pp. 494 to 513.)
    44 Congress, by the act of June 13,1812, confirmed the right, title, and interest of the inhabitants of Carondelet to a common, and designated the principal deputy surveyor as the person who should determine by a survey the extent of that common, and this survey was made in 1816 or 1817, by the proper officer. On the 26th May, 1824, Congress passed another act requiring, among other things, that the surveyor-general should survey and designate the commons belonging to the several villages according to their respective claims and confirmations under the act of 1812, where the same had not already been done. Carondelet commons was ‘already’ surveyed, and was not, therefore, affected by the act of 1824. Ou the 27th Jauuary, 1831, Congress relinquished to the inhabitants of the several towns or villages all the right, title, and interest of the United States in and to the commons as confirmed to them by the act of 1812.
    “As Rector’s survey of 1816 or 1817 was made prior to the survey of the surrounding public lands, it was necessary, under the act of 1831, to connect it with such surrounding lands; and E. T. Langham, the then surveyor-general, by virtue of authority duly vested in him, instructed the deputy surveyor, Joseph 0. Brown, to retrace Rector’s lines of the Oarondelet survey and to connect it with the adjoining surveys by establishing the proper corners at the intersection of the lines thereof. Brown in 1834, under these instructions, retraced the Rector lines, and states in his returns to the surveyor-general that Rector’s corners and his western and southern boundaries were easily found and identified by him.
    “ Under this state of facts the question to be determined appears to me to be, does the act of 1812, the operations had under that act, and the subsequent acts of 1824 and 1831, of themselves constitute a title in Oarondelet to the whole extent of the survey made by Rector in 1816 or 1817, and retraced by -, 18341
    
    “ The Supreme Court of the United States, in Strother v. Lucas, says: ‘ A confirmation of a title by act of Congress not only renders it a legal title, but furnishes higher evidence of that fact than any patent, inasmuch as it is a direct grant of the fee by the Government itself, whereas a patent is only the act of its ministerial officers.’
    “ And in the case of Maehay v. Dillon, the same court says: 1 The act of Congress of 1812, confirming the claim to commons adjoining and belonging to the town of Saint Louis, did not define the extent and boundaries of these claims, nor adopt the evidence laid before the board of commissioners for that purpose ; the boundaries of the claims thus confirmed were designedly left open to the settlement of the respective claimants by litigation in the courts of justice or otherwise.’
    “ The act of 1831 was passed with a full knowledge by Congress of all that had been previously done in the case, to wit, the survey of Rector and the reservation of the Jefferson Barracks tract. Such is the legal presumption, and it seems to me sound. The reservation of the barracks, though not expressed, is implied, as in the case of Fort Saint Mark’s, Florida, for which see the case of Mitchell et al. v. The United States, (15 Pet., pp .
    “ In view, therefore, of all the facts and circumstances of this case and of the opinions expressed by the highest legal tribunals known to our laws, I am impelled to the conclusion that, as the surveys of 1816 and 1834 were executed by competent authority, were duly approved, and were for a series of years acquiesced in by the inhabitants of Oarondelet, both the Government of the United States and the inhabitants of Oarondelet are estopped and concluded thereby.
    “My decision, therefore, is that the survey of 1816 or 1817, as retraced by Joseph 0. Brown in 1834, should be sustained, excluding, of course, the 1,702 acres heretofore set apart and reserved for the use of the military post at Jefferson Barracks, and that the parties claiming adversely to Oarondelet should not be hindered thereby from establishing and settling their rights before the judicial tribunals of the country.
    
      “ You will furnish the surveyor-general of Illinois and Missouri with a copy of this decision, and instruct him to have the lines of the original reservation for Jefferson Barracks properly run and marked in the field, if'that has not already been done, and to make the usual and proper return thereof to your office, and to that of the register of the land-office at Saint Louis.
    “Very respectfully, your obedient servant,
    “B. MCCLELLAND,
    “ Secretary.
    
    “To the COMMISSIONER OP THE GENERAL LAND-OPPICE.”
    47. On the 26th of February, 1855, the Commissioner of the General Land-Office communicated this decision to the survey- or-general at Saint Louis, with instructions in conformity therewith.
    48. On the 6th of April, 1855, the Commissioner submitted to Secretary McClelland certain arguments and papers intended to show that the surveys of Rector and Brown were not substantially identical.
    Ou the 16th-of May, 1855, Secretary McClelland answered the Commissioner as follows:
    “ I have carefully reviewed the whole subject, and cannot resist tbe conclusion, heretofore arrived at, that Brown’s survey is a substantial retracement of Sector’s, and is to be taken and regarded as such. You will be pleased, therefore, to have the surveyor-general resume his operations, which were, under your direction, temporarily suspended during the pendency of this re-examination, and have him carry into effect the decision heretofore made.”
    49. In pursuance of this decision, the surveyor-general at Saint Louis caused a survey to be made of the Carondelet commons, showing the lines of the Jefferson Barracks tract, and of all confirmed private claims within the out-boundaries of Brown’s survey of said commons; and on the 8th of October, 1855, the said survey was approved by said surveyor-general, in the following terms :
    “ The above plat of survey No. 3102, in townships 43 and 44 north of the base-line, and ranges 6 and 7 east of the fifth principal meridian, of the tract of land confirmed to the inhabitants of the village of Carondelet by the first, section of the act of Congress approved the 13th of June, 1812, entitled ‘ An act making further provision for settling the claims to land in the Territory of Missouri,’ and showing the connections of that survey with the lines of the adjoining public and private surveys, is strictly conformable to the field-notes thereof on file in this office, which have been examined and approved. It was originally executed about the year 1817, by Elias Sector, deputy surveyor, whose field-notes are not dated, and its lines were subsequently retraced, between the 11th and 17th days of March, 1834, by Joseph C. Brown, deputy surveyor, under instructions of the 10th of the same month from Elias T. Langham, surveyor of the public lands for the district of Illinois and Missouri. The said survey, as retraced by the said Brown, was sanctioned by the decision of the Hon. B. McClelland, Secretary of the Interior, dated the 23d of February, 1855; which decision was transmitted to this office for its information and government. And pursuant to said decision there is hereby made a distinct and unqualified exclusion from the said survey No. 3102 of survey No. 3341, executed to the amount of 1,702.04 acres, (as shown by the field-notes furnished this office on the 28th March, 1855, by the Commissioner of the General Land-Office,) on the 3d December, 1840, by George W. Waters, under instructions from the War Department, of the military reserve at Jefferson Barracks, as the absolute property of the United States, set apart for their own special use, and in exclusion from any laws for the disposal of the public domain; and, in further pursuance of said decision, it is hereby declared that as regards the rights of all other claimants within the limits of said survey No. 3102, who hold adversely to Carondelet, this approved plat is in no manner intended, nor shall it be construed, to interfere with the rights of such adverse claimants as seek a judicial settlement of their several interests.
    “ JOHN LOUGHBOROUGH,
    
      “Survey or-General.”
    
    50. On the 25th of October, 1854, the land embraced in the Jefferson Barracks tract as laid down in the survey thus finally approved, was worth $172 per acre; and in the year 1859 it was worth $4(30 per acre; the valuation in each case being without regard to the improvements made on the land by the United States. No value later than 1859 is shown.
    51. The quantity of land embraced within the out-boundary lines of Brown’s survey, as finally approved, was 9,905.29 acres; and, after deducting from that quantity the Jefferson Barracks tract and all private confirmed claims, there remained at Ca-rondelet, as commons, about 6,050 acres, which is nearly 1,000 acres more than was originally claimed in 1808 by the inhabitants of Carondelet, namely, 6,000 arpents, equal to 5,104.20 acres.
    Upon the foregoing facts the conclusions of law are:
    1. That the Commissioner of the General Land-Office and the Secretary of the Interior had lawful power to set aside, in part or in whole, Brown’s survey of the Carondelet commons, and did set it aside as to the Jefferson Barracks tract, which they adjudged to belong to the United States.
    2. The deed made by the corporate authorities of Carondelet, to the United States was made with the full knowledge of all the facts of the case and of the previous decisions of the courts as to Oarondelet’s title, and for an advantage to Carondelet, under the existing circumstances, in the settlement of a doubtful title, which constituted a valuable consideration for said deed.
    
      Mr. Montgomery Blair for the appellant:
    I. The first conclusion of law found by the Court of Claims involves three questions: 1. Whether the Land Department had power to set aside the survey ? 2. Whether it did set it aside? 3. Whether it had power “ to adjudge the Jefferson Barracks tract to the United States?”
    In the discussion of the first question, the Court of Claims considers the survey of Elias Bector, made in 1816 or in 1817, and concludes that it ought to be disregarded because Surveyor-General McOree discusses the location of the commons in a letter dated 21st April, 1829, without referring to this survey, and because it was not shown that William Bector, who was surveyor-general when the survey was made, or any of his successors, had approved it.
    The letter of Surveyor-General McOree, to which the court refers, shows only that, in a personal interview with Messrs. Biddle and Ashley, he had refused to locate a New Madrid claim for them within the reputed limits of the Carondelet commons, and that the documents which he had subsequently received from the recorder of land-titles had confirmed him in the correctness of that decision. No inference can be drawn from this letter prejudicial to the Bector survey. While it may be inferred from it that he decided without examining the records of his own office, and for that reason did not know of the existence of Bector’s survey, it shows clearly that in his judgment the records furnished by the recorder required the survey to be made as Bector had made it; that the commons were not limited to the quantity of 6,000 arpents, but were confirmed according to the metes and bounds indicated by the indorsement of Governor Trudeau upon Gam ache’s petition, were bounded west by a line running parallel to the Mississippi Biver and extending 150 arpents from the point on the river Des Peres which Soulard had reached in the process of making the survey under the Spauish grant. A survey made in accordance with this decision of McOree could not have varied essentially from Bector’s. Indeed, all uncertainty in the grant indicated by Trudeau is removed by the beginning of the survey made by Soulard, which McOree and every surveyor-general since 1812 has adopted. That fixed the point on the river Des Péres from which the west line extended 150 arpents south and parallel to the Mississippi.
    But the discussion of the question of how the survey ought to have been made, into which the Court of Claims enters so largely, can have no legitimate bearing on any question in this case. Since the cases of West v. Ooehran, (17 How., 403,) and Willot v. Sandford, (19 How., 79,) it has been well settled that that is not a judicial question. The only question here is, was Rector’s survey withip the meaning of the act of 1812 ? ■
    It does not appear affirmatively that William Rector, the surveyor-general, approved the survey made by his deputy, Elias Rector. But it is well established that the present usage of the surveyor-general to indorse his approval formally on surveys was not then nor for many years afterward, in force \ and in the absence of such usage such indorsement would not be required, for the law does not ordinarily require express approval of the act of a deputy to make it valid. Such approval is implied unless the contrary appears. And accordingly, by the thirteenth finding.of the court, it appears that on the 10th of July, 1834, the surveyor-general, Langham, directed his deputy, Brown, to retrace Rector’s survey for the purpose of connecting it with the adjoining public and private surveys. This is conclusive evidence that the Rector survey was complete. An order by the surveyor-general to retrace a survey to connect it with the public and private surveys assumes the authenticity and completeness of the survey, and is record-evidence of the fact which the cases above cited hold to be conclusive on the judicial department of the Government. And it was accepted by the head of the Land Department. Under date of 23d February, 1855, the Secretary of the Interior says: “Tliis [the Rector] survey was made in 1816 or 1817, by the proper officer. When the act of 1824 was passed, Carondelet commons was ‘ already’ surveyed, and was not, therefore,, affected by the act of 1824. This court also passed on this precise point in the case of Oarondelet v. Saint Louis, (1. Black, 190.) “It is objected,” says the court, “ that the field-notes of Rector’s survey were not platted or recorded, and were found in an obscure box in the surveyor-general’s office, and that in fact there never was an approved survey. William Melburn, who was a clerk in the office as early as 1817, and had been surveyor-general, proves this objection groundless. * * It was established, as matter of fact and of law, that the survey had been made and the field-notes duly returned, and that Brown re marked the lines in 1834. It also appeared, as matter of fact and of law, from the records of the General Land-Office, by the decisions of the officers there, that the department administering the public lands had settled the question in regard to the regularity of Rector’s survey, its due return, and approval.
    This-survey is also affirmed in Dent v. Dmmeger, (14 Wall., 313,) where this court holds, citing Menard v. Massey, (5 How., 313,) that “ a survey made under the direction of the proper officer designated to have it made, and approved by him, was final and conclusive, unless an appeal was taken to the Commissioner of the General Land-Office.” There being no such appeal here, the court adds: “ The survey made by Rector in 1817, retraced by Brown, and approved by the surveyor-general in 1834, is binding on the village, and estops her from claiming any land beyond the town thus established. [Oarondelet v. Saint Louis, 1 Black, 179.) And those lines must necessarily be of equal validity as regards those claiming against her.” And the reason given for this in Menard v. Massey is “ that the claimant and the United States were parties to the selection of the land; for, as they agreed to the survey, (unless it was appealed from,) they are mutually bound and estopped by it.”
    The regularity of Rector’s survey, as matter of fact and of law, having been settled by this court and by the decisions of' the Department administering the public lands, which this court held to be final, and also declared to be “ the completion of the title,” it certainly could not be lawful for the Commissioner of the General Land-Office to set that survey aside in 1841, or afterward, more than twenty-four years after it was made, especially when by another act, that of 1831, (4 Stats., p. 435,) passed, as the Secretary of the Interior says, “ with a full knowledge of all that had been done,” Congress had vested the inhabitants of Oarondelet “with full property” in the commons, which their own officer had then ascertained by a regul r survey duly returned in accordance with law.
    Nothing is better settled, therefore, by the decis’ ns court, and of the Land Department itself, than that missioner of the General Land-Office and the “''"retar,, „„ one Interior had not the power to set aside Rector’s survey and Brown’s re-marking of it; and, hence, it was not set aside in law. And the idea that the Commissioner and Secretary of the Interior “ did undertake to set it (the survey) aside” in fact, is a total misconception of the proceedings of those officers. • The Secretary disclaims all power in his Department to set the survey aside, and an examination of his opinion will show that he did not intend to do so in fact. He undertakes only, as the Court of Claims says, “ to adjudge the barracks tract to belong to the United States.”
    Having decided that “ the survey of 1816 or 1817, as retraced by Joseph C. Brown, in 1834, should be sustained,” he adds the words “excluding, of course, the 1,702 acres heretofore set apart and reserved for the military post at Jefferson Barracks, and that the parties claiming adversely to Carondelet should not be hindered thereby from establishing their rights before the judicial tribunals of the country.” By this language it was not meant that the 1,702 acres shall be excluded from within the limits of the survey. This was a physical impossibility, as these limits extended beyond the tract on all sides. But the intention is that while the survey of the commons, which inclosed the tract in question on all sides, shall remain in all respects undisturbed, that, nevertheless, it shall be excluded from the legal operation of the survey.
    The decision of the Secretary is, therefore, that the act of 1812, the operations under that act, and the subsequent acts of 1824 and 1831 vested the inhabitants with full property in the commons to the whole extent of the survey, except as to the barracks tract, which the Secretary says was then reserved, not expressly, but by implication, from the grant by the act. It is not, therefore, in virtue of any power in his office to make the reservation that he undertakes to exclude it from the operation of the survey, but he adjudges that the reservation had already been made by operation of law, and he cites the case of Mitchell etal. v. The United, States, (15 Peters, 52,) as authority for this decision. Having expressly decided that the survey was beyond his control, and must stand, but that the law which had affirmed it had at the same time excluded from it the military reservation, his decision is that the survey of 1816, as retraced, should be sustained; excluding, of course, the military reservation which the law itself excepted from its operation.
    And, accordingly, in executing the order, the surveyor-general makes no new survey for the commons, excluding the barracks tract, but returns the old one.
    But the Act 13th June, 1812, (2 Stats., p. 748,) which made it the duty of the surveyor-general “to survey, or cause to be surveyed aud marked, the out-boundary lines of the said several towns or villages, so as to include the out-lots, common-field lots, and commons thereto belonging,” under which this survey was made, did not authorize the surveyor-general,' or any supervising executive officer, to “adjudge” the question of title to any tract of land lying within the out-boundaries which he was required by the act to survey and mark. He had the same right to “adjudge” between Carondelet and the (other) parties claiming (land within the survey) adversely to Caron-delet, which he refers to the courts, as he had to “adjudge” between Carondelet and the United States with respect to the barracks tract, which also lay within these out-boundaries. His authority extended only to the ascertainment of the out-boundaries of the lauds designated in the law.
    Moreover, the history of the case shows that this was a false pretense, not thought of when the controversy was commenced, and admitted to be a sham when finally adopted by the other steps which were then taken to secure the title from the recognized owner. The Secretary of War began the contest by informing the Land Department that the land claimed as commons south of the river Des Peres was public land, and by requesting him to have it all surveyed and sold as such, except what would be hereafter designated for a military reservation. He admitted that there was no such military reservation as the Land Department afterward invented, and this fact is also stated in the tenth finding, with the addition that there was no military post there till the United States troops entered under Oaronde-let in 1826, and no attempt to make a military reservation there at all till after this decision of the Secretary of the Interior in 1855. There was not only no military post at Jefferson Barracks prior to the grant of commons to Carondelet by the Spanish government, such as there was at Fort Saint Mark’s, the existence of which the court held, in confirming the grant in the ease of Mitchell v. The United States, (7 and 15 Peters,) authorized the court to reserve lands within 1,500 varas from the walls of the fort for military purposes, but if there had ever been a military post on the land, it belonged to the confirming power (exercised by the court with respect to Fort Saint Mark’s) and not to the surveyor to make the reservation. Hence the Secretary of War only insisted that the land was public land, and that it might be surveyed as such with a view to the -making of such a reservation at a future time.
    But the record shows that the Secretary who adjudged this reservation to have been made by operation of law had no faith in it himself, for before making it he had taken most extraordinary means to procure an absolute deed from Carondelet, and had sent it to the Secretary of War, saying: “As your decision as to the sufficiency of this deed for the full protection of the interests of the War Department in the tract in question may have a bearing on a case before this Department, I have most respectfully to request that I may be advised of the result of your deliberations.” Here is a declaration that he would await the decision of the Secretary of War upon “the sufficiency of this deed for the full protection of the interests of the War Department in the tract in question,” and in effect an avowal that he looked to the deed for the full protection of the Government in the tract in question, and it was not until it was decided that the deed was sufficient in itself for the full protection of the Government in the tract by the Secretary of War and by the Attorney-General that he decided the case before him. Nothing was said in communicating the deed to the Secretary of War or to the Attorney-General about any implied reservation of the tract from the grant to Carondelet. The Attorney-General certifies to the sufficiency of the deed, and thus recognizes the title to be in Carondelet alone, and the whole transaction demonstrates that all of these officers relied upon the deed alone for the title to the land.
    This brings us to the consideration of the second finding of law by the Court of Claims. It concedes that the only consideration for the deed was “ the settlement of a doubtful title,” and holds that an agreement between Carondelet and a public officer that the decision which had rendered doubtful the title to the commons generally should be revoked by him was a legal consideration for a conveyance to the United States.
    The fifteenth finding states that “ up to the year 1839 no controversy arose in regard to Brown’s survey, but the same was generally regarded as final, and the town of Carondelet laid out and leased lands confirmed within it.”
    
      To obtain title to the barracks tract, the Secretary of War, in June, 1839, requested the Commissioner of the General Land-Office to declare all the commons south of the village to be public land. When this was done, and ‘ ‘ when the action of the Commissioner became known,” says the court, “but more especially after the decision of the supreme court of Missouri, in 1844, in Dent v. Bingham, (8 Mo., 579) adverse to the title of Carondelet as defined and limited by Brown’s survey, the lessees were greatly disturbed, and without doubt endeavored to influence the authorities of Carondelet to take some action which would settle the dispute about the survey favorably to the title; ” and the court then proceeds to state the several offers of Carondelet to procure the re-affirmance of the survey in the years 1851, 1852, and 1854, first, of a deed for the land, with a reversionary clause when the Government ceased to use it for military purposes j and, when that offer failed to effect the settlement, of the deed in fee, which was accepted, and which the court finds was made upon the representations of the agent of Oaron-deletin Washington to the authorities of Carondelet; “that he had talked with the Secretary of War and with the Secretary of the Interior, and that the former wanted the barracks tract, and he would not let the latter approve the survey of the commons until that tract was given up to the United States.” The finding adds that these representations do not “appear to have been made by the authority or with the knowledge of any officer of the Government of the United States.” But this is not material. The finding of law under consideration, in assuming that the deed was the result of that negotiation, and that its consideration was the settlement of the title of Carondelet to the remaining land of the commons affected by the decision of the Secretary of the Interior on the 23d February, 1855, concedes that these representations were true in substance and effect, and were verified by the result.
    To maintain the power of the Commissioner, the court cites the case of Castro y.llenárteles, (23 How., 438,) declaring that the Commissioner “ exercised a supervision and control over subordinate officers charged with making surveys.” This is not denied. But is this supervision wholly unregulated % Is there no limit in time or condition upon its exercise? so that a Commissioner can in 1841 abrogate a survey made in 1816, retraced and connected with subsequent adjoining surveys in 1834, the lands subdivded, leased, &c., and no appeal taken, which of itself, speaking of this survey, in 14 Wall., at p. 313, this court said, made it u final and conclusive.” It was the survey which this court, in 1 Black, (Garondelet v. Saint Louis,) p. 189, held “ was the completion of the title,” and which, with the law, the court declared in Les Bois v. Brammell (4 H., p. 464,) “ made and located the (commons) title as effectually as a patent would have doneand Chouteau v. Bclchart (2 How., p. 344) is to the same effect. Even where a patent was required to complete the title, the court held, in the case of Lindsay v. Sawes (2 Black, 557) that the Commissioner could not, in an ex-parte proceeding, set aside a survey so as to affect the incipient title. By a recent decision of the circuit court of the United States for the district of California, decided in the case of Theodore Leroy v. Tolias Jameson and others, Mr. Justice Field presiding, it is held that a title, when completed by patent, is beyond the Commissioner’s power the moment the patent is recorded.
    If the Land-Office had power to set aside the survey, its restoration was not a valid consideration for the deed, because, 1st. The Secretary shows that this restoration was due to Car-ondelet as of right, and his decision proceeds on that ground only; and, 2d. No law authorized the Secretary to restore the survey in consideration of the deed, or upon any other terms of compromise.
    In the case of Cunningham v. Ashley, (14 How., 377,) the court held such a settlement by executive officers to be void, saying: “ The officers of the Government are the agents of the law. They cannot act beyond its provisions nor make compromises not sanctioned by it.” And this language is quoted and approved in Lindsay v. Haioes, (2 Black, 558.) But while the Secretary was prohibited by law from making his decision in consideration of the deed of Garondelet, and did in fact make his decision, when it was made, on the legal and proper grounds stated in the decision itself, the evidence shows that he obtained the deed by withholding this decison until the deed had been delivered, and referred to the Secretary of War for his decision upon “ its sufficiency for the full protection of the interests of the War Department in the tract in question,” with the avowal that he would await that decision, because it may have a bearing upon his own decision respecting the survey.
    The Court of Claims upholds this deed only upon the ground that the consideration of it was “ the settlement of a doubtful title.” It is not pretended that there was any other consideration, or that the deed is valid if the circumstances of the case do not-show it to have been made for the consideration of “the settlement of a doubtful title; ” in other words, a legitimate compromise between conflicting claimants. But “ an agreement made on the footing of a compromise of a right as doubtful cannot be supported in favor of the party who knew at the time that it had no existence.” (3 Leading Cases in Eq., 410.) Now, by the findings of fact, it appears the Secretary of the Interior knew and declared at the time the deed was given that Oarondelet’s title to the commons was not a doubtful title. His opinion is explicit. Nor had Carondelet had any doubt about her title. From first to last she maintained that her title was a complete legal title. The transaction was, then, in no sense “ the settlement of a doubtful title.” This language applies only when both parties are in doubt, and when there is room for doubt by reason of 'the decision being in the power of some umpire between them, and certainly not when both agree that the title belongs exclusively to one party, while the power to decide rests exclusively with the other.
    The language and reasoning of the court apply only to parties having an umpire over them in the courts. The books abound in decisions showing;that compromises can take place between private individuals only when the parties are on equal terms. See Adams’s Eq., 183; 2 Kent, 483; note “ d” ib., p. 246, as to advantages secured through contracts by persons holding fiduciary relations; also 1 Parsons’s Contracts, 5th ed., p. 86; 2 Bob. La. Bep., 556; Florence v. Adams, (27 N. Y.;) Oloott v. Railroad Company, (p. 565;) Thompson v. Havelock, (1 Camp., 527; 3 Camp., 43;) Michaud v. Cirod, (4 How., 503-552;) Bartholomeio v. Leach, (7 Watts, 473;) Conger v. Ring (11 Barbour, 356-363;)' Story’s Eq., § 322,323, § 315.)
    The nearest approach to this case to be found is the case of Wheeler v. Smith (9 How., 55,) where the compromise between devisees and the heir at law, by which the estate was applied to public objects, was set aside. The devisees were not culpable. They had no fraudulent intent or personal interest, but the parties were not on equal terms, the necessities of the heir at law being great, &c.
    Both of the law propositions of the Court of Claims depend upon tbe legal power of the Laud Departmeut to set aside the survey. Iu the first, it is only by virtue of this power that the legality of the reservation is claimed at all. And it is equally necessary to the second, for the only consideration claimed for the deed which that proposition upholds is the revocation of the order to set aside the survey. If that was an illegal order, i.ts revocation could not form a valid consideration for a conveyance.
    Low, the question as to the power of the Department to set aside the survey is not an open question. The case of Caron-delet v. Saint Louis, a case which has since been repeatedly affirmed by this court, turned upon this precise question, and the court then held “ that Lector’s survey and Brown’s re-marking of it concluded the Government, and bound the corporation of Carondelet to the whole extent of the surveyand the reason why the court held both parties to .be bound is that u it was established as matter of fact that the survey had been made and the field-notes duly returned, and that Brown re-marked the lines in 1834. It also appeared as matter of fact and of law, from the records of the General Land-Office, by the decisions of the officers there, that the department administering the public lands had settled the regularity of Lector’s survey, its due return, and approval. And the jury having found that the corporation of Carondelet had in various modes recognized, accepted, and held under Lector’s survey, as identified by Brown in 1834, we are of the opinion that the State court properly rejected the claim.” (1 Black, p. 191.)
    This decision is affirmed in the case of Dent v. Dmmeger, (14 Wall., 308.) The question there is exactly the same now presented, viz: whether the survey was ever set aside, and the evidence to prove it is the same presented here, viz: the documents relating to the surveys of Lector and Brown. Dent claimed under a confirmation of 1836, and, in order to get rid of the commons title, offered these documents to show that the survey had been sét asidé. The circuit court excluded the documents, and this court affirmed that decision, saying, “ as the right of the village, according to the judgment of this court in Carondelet v. Saint Louis, had been fixed by the survey of Brown in 1834, which was conclusive as regards all adverse individual claims, the testimony was clearly irrelevant and incompetent, and was properly rejected. The acts of 1812 and 1836 were inapplicable to the United States, and did not affect their rights.” The court here applies the estoppel declared in Garondelet y. Saint Louis to adverse individual claims only, and adds that the acts of 1812 aud 1836 were inapplicable to the United States. But there was no question before the court calling for this distinction, and it is not sustained by the case cited, for there it is expressly declared that the Government was itself bound by the survey, and it is inconsistent with a previous part of the decision in 14 Wall., which quotes Menard v. Massey, (8 How., 313,) establishing the conclusiveness of this survey against the Government. The same principle is also asserted in Guitard v. Stoddard, (16 How., 512.)
    In the case of Oarondelet v. Saint Louis, Oarondelet lost a large tract of land, now within the city of Saint Louis, of as great value, probably, as the tract here in question, although the proof showed conclusively that it ought to have been embraced in the survey, because the court held that the acceptance of the survey had concluded both the Government and Oarondelet. Besides that the decision expressly holds the Government to be concluded equally with Oarondelet, it is manifest it could not conclude Oarondelet unless it also concluded the Government, the other party to the survey. And the conclusiveness of the survey was the point, and the only point, ruled in the case. And its conclusiveness upon both parties was fixed by the acceptance of the survey by Oarondelet by acts antecedent to 1839, and, therefore, before the proceeding in the Land-Office in 1841, taken at the request of Poinsett, and under which alone title is claimed here for the Government. Hence there is no escape from the reversal of the decision of the Court of Claims in this case, except by the reversal of the case of Garondelet v. Saint Louis, and the series of decisions by this court which that case has governed.
    Summary. — (1.) The survey of the commons of Oarondelet by Beetor in 1816 or in 1817, as retraced by Brown in 1834, was the completion of the title and gave Oarondelet an indefeasible estate therein.
    (2.) The order of the Secretary of the Interior, of 1855, “adjudging” 1,702 acres of said commons to belong to the United States as a military reservation, was illegal and void.
    (3.) The order of Commissioner Whitcomb, of 1841, directing the surveyor-general to reserve 7,700 acres of said commons to enable Congress to satisfy the equitable claim of Carondelet for commons, and to enable him to set off 1,700 acres for a military reservation, and to sectionize the balance for sale as public land, was illegal and void.
    (4.) The revocation of said order, and thereby settling the disturbance it had caused to the title of the commons, did not constitute a valid or sufficient consideration for the deed given by Carondelet in 1854 to procure said revocation, and said deed ought to be declared inoperative and void.
    
      Mr. Solicitor- General Phillips for the appellees:
    Looking at the case in the light of justice alone, divested of all technicalities, it appears that the parties who are urging this claim have already received about 1,000 acres more than they were originally entitled to, i. e., 1,000 acres more than the United States were under any obligation of justice to convey.
    Upon the other hand, if technicalities may be resorted to, it appears that, as their title to the tract, the United States have a valid deed in fee-simple, executed by the claimants.
    In regard to the consideration of the deed, nothing appears to countervail a suggestion that the city of Carondelet, finding, in 1854, that by the survey of 1834 it had acquired a technical interest in some 2,700 acres of land more than it had just claim to, considered it prudent to silence all question as to such rights, as well as to its title to commons at all, by dividing such surplus with the United States, (the questioner,) surrendering to the latter all right to dispute the deed of 1826, and releasing, also, the very contingent reversion therein reserved, in consideration of an acknowledgment of its right to commons, including 1,000 acres of surplus.
    In speaking of the quantity of land beyond what Carondelet had just claim to as being only 2,700 acres, I take into consideration the circumstance that, by adverse title in private persons, that city in the end lost about 2,100 acres of the 9,905-acre tract.
    If the title of Carondelet to the surplus beyond 6,000 arpents were merely technical, depending upon the manner in which the words of a statute had operated upon the laches of certain subordinate officers of the United States, its action, in waiving the technicalities and discharging the United States from the consequences of sucb laches, cannot be undone. There is no tribunal having power to set up technical defenses once abandoned, or to restore a condition of things in which the efforts of public justice to administer cequum et bonum are obstructed by positive provisions of law, or by ill-advised action or inaction of parties. It is a piece of elementary information that all the tendencies in the administration of law are to the contrary; i. e., to avoid the force of mere technicalities and other things obstructing natural justice.
    Granting, then, that the effect of the act of 1812 upon the surveys of 1817 and 1834 was as claimed by the learned counsel for Saint Louis, and that it invested Garondelet with title to the 9,905 acres lying within those surveys, would a release by that village to the United States of the 4,800 acres therein, in excess of its just claim as defined byitself in 1808, have presented any feature to justify equity in decreeing the cancellation of that release, or to warrant the relessor in, claiming subsequently that the relessees should pay for the land so released? If, as seems plain, it would not, could any additional equity be imported into the case by showing that the relessor was in some degree quickened to make the conveyance by finding that certain high officials of the United States, when called upon, incidentally or otherwise, to recognize its title to the whole tract, refused to do so, and suggested that it was invalid, and sometimes even threatened to take steps to have it set aside ? If one has done an act (not merely void) which in conscience was proper to be done, will courts scrutinize the actual motives of the party in order to relieve him from its effects, or nicely inquire whether he did it upon collateral or less worthy considerations that turned out to be unfounded, or because of certain potent influences with which he thought it inconvenient to contend ?
    And in this connection, when duress is imputed because of relations occupied to a transaction, having the general features of this, by officials of theUnited States, may it not well be replied that the apprehension so excited comes strictly within that suspicio cujuslibet vani et meticulosi hominis to which the law pays no respect ? (Blackstone, 1,131.)
    Something more, however, may be suggested in reply to the clear and vigorous argument that has been submitted for the claimant, inasmuch as it does not seem necessary to admit that Carondelet bad a good title to tbe barracks tract at tbe time of tbe execution of tbe deed of 1854.
    In tbis connection, it should be remarked that tbe controversy which arose in 1839 before tbe Commissioner of tbe Land-Office, involving tbe survey of 1834, which, with varying fortunes, continued until 1855, ending in favor of Carondelet, was specifically as tó tbe sale of- tbe lands within that survey not included in the barracks tract. It was tbe survey and sale as public lands of tbe land excluded from the barracks tract, or,’ at least, of what was excluded from that tract and tbe 6,000 arpents originally claimed by Carondelet, that tbe Commissioner and Secretaries discussed and decided.
    It may be that their action upon tbis point is of no importance ; but whether so or not, it is plain that those who favored tbe survey of 1834 gave their decisions expressly reserving the rights of tbe United States to tbe barracks tract. If those decisions are cited for the claimant, they must be cited cum onere, which amounts to tbis: that it was held, as against parties wishing to make entries upon the tract outside of the barracks, that tbe survey of 1834 was valid, saving always to the United States a title to so much as lay inside thereof.
    Laying aside these decisions, therefore, as without effect in favor of tbe claimant, tbe question comes up as to tbe condition of its title at tbe time (1839) when the controversy above mentioned arose.
    At that time its title to commons, &c., rested upon tbe act of 1812, as carried into effect by the surveys of 1817 and 1834.
    I submit that the survey of 1834 was neither ordered nor made cum animo probandi, if I may use such an expression. Tbe surveyor at that time took up the old survey of 1816, with tbe purpose of connecting it with the surveys of the public lands, but did not intend or affect to pass upon the propriety of that transaction in connection with the act of 1812. The survey of 1834, therefore, lacks tbe necessary quality of an approval by tbe surveyor-general to give it effect under tbe act of 1S12. He neither approved nor disapproved of it. His mind was not upon that subject. His order to the deputy concerned tbe old lines of 1816 so far as they bore upon exterior tracts, not interior. He took for granted their operation upon what was within. If, however, any action upon bis part were necessary to give effect to that survey, it is submitted that the resurvey was not intended or then understood to give it; and, therefore, that to attribute such an effect is inadmissible.
    The survey of 1817 is liable to a similar objection. It was never approved.
    In Garonclelet v. Saint Louis, (1 Black, 179,) parol evidence of such approval seems to have been given, (p. 191.) There was no such fact established in the present case; and its establishment in a case heretofore reported can have no effect here. (Maclcay v. Daston, 19 Wall., 619.)
    Therefore, although as to all the purposes which were important in Carondelet v. Saint Louis, and the subsequent case of Dent v. JUmmeger, (14 Wall., 308,) (cited and relied upon by the learned counsel for Saint Louis,) the action of the claimant and also of the United States is bound by those surveys, because of subsequent acquiescence by the United States; yet for matters to which that acquiescence did not apply, it is submitted that those cases are no authority. They rely upon the effect of all that was uniformly done and omitted by the United States from 1817 to 1854. There is no such uniformity as to the matter now in hand, or, if there be, none that favors the case of the claimant. The United States are bound by a long course of action to admit that there are no public lands subject to entry within the lines of 1817 and 1834. But as to a military reservation there, the question is, for all that appears in the cases cited, open.
    The language of the deed of 1826 may also be cited to show that the inhabitants of Carondelet did not at that time rely upon the survey of 1817. What the United States then asked for, and what they gave, was a mere quitclaim to a tract described by bounds, and identified further only as u part of a large quantity which the said parties of the first part claim as common,” &c. Here is no reference to the survey of 1817, as would have been natural if it had been known to or relied upon by either party. It seems that, at this time, the higher officers of the United States did not know of the survey of 1817; and this quasi concealment of title by the claimant at a time when it was called upon to assert it is (under the later circumstances of the case) inconsistent with any title to the relief now demanded.
    When speaking of concealment I must be understood as dealing with a suggestion that the inhabitants of Carondelet have always, since 1817, relied upon the survey made in that year. If, however, in 1826 the existence of that survey was not known either to those inhabitants or to the United States, such circumstance seems not less significant as to its validity and authority.
    It seems clear that the doubts as to its title, which were expressed by Carondelet, whether in making leases or in its later dealing with the United States, did not originate, as is suggested by the claimant, in the hostile dealing of Secretary Poinsett and his colleagues and successors.
    Upon the whole it is submitted:
    I. That in October, 1854, at the date of the deed by the claimant to the United States, the title of the former to the barracks tract (or the reversion therein) was not only honestly doubted by both parties to that deed, but, as matter of fact, was really doubtful.
    II. That there is nothing in the original relation between the claimant and the United States as to the land now known as the barracks tract, or in anything that has happened subsequently, to justify the former in claiming to be paid therefor.
   Mr. Justice Miller

delivered the opinion of the court:

The subject of this controversy is the title to the land known as Jefferson Barracks, consisting of about seventeen hundred acres, five miles below the city of Saint Louis. It lies within the lines of a survey of the commons of Carondelet, containing a much larger quantity — nearly 10,000 acres.

The present suit was instituted in the Court of Claims in 1859 by the city of Carondelet. As the jurisdiction of that court was doubted, Congress, by the act of 1873, (17 Stat., 621,) specially authorized it to entertain jurisdiction of the controversy. The city of Carondelet having become merged in the city of Saint Louis, by an act of the legislature of Missouri, the latter city was substituted as plaintiff.

A deed conveying the land in controversy to the United States was made by the city of Carondelet on the 25th day of October, 1854, and it is not controverted that the authority under which this was done was sufficient. And if this deed be held to be otherwise valid, it decides the controversy in favor of the United States. Its validity is denied, however, on tbe part of plaintiff, on the ground that it was without consideration, and that it was improperly coerced from the authorities of Carondelet by the officers of the Government who had charge of the department of public lands, by an unjust and illegal exercise of authority in refusing to confirm, and threatening to set aside, the survey which we have already mentioned, of the Carondelet commons, and exacting this deed as the condition of their acquiescence in that survey. On the other side, the deed is supported as a just and equitable compromise of a long-existing controversy, both as to the correctness of that survey and the right of the Government to the ground known as Jefferson Barracks.

The origin of the claim of Carondelet was a concession of 6,000 arpents of land adjoining the village, made in 1796 by Zenon Trudeau, lieutenant-governor of Upper Louisiana. An attempt to give locality to this concession was made by Soulard, (who describes himself as a surveyor commissioned by the Government,) in December, 1797, but the first actual- survey was made in 1818, by Elias Eector, who was deputy under his father, William Eector, surveyor of public lands for the Territories of Illinois and Missouri.

The Court of Claims finds that, though the field-notes of this survey were filed in the surveyor’s-office, it was never approved by him.

But in the year 1834, Elias T. Langham, surveyor-general at Saint Louis, caused J. 0. Brown, one of his deputies, to retrace and re-establish the lines of Sector’s survey, and when the result of the work was returned to his office he approved the survey, and the same was duly filed in the office of recorder of land-titles in Missouri, who thereupon certifies that the title was by him duly confirmed of the village to their claim as commons of 6,000 arpents of land, as shown by that survey. Six thousand arpents are equivalent to 5,104 acres. The survey contained 9,905 acres, and the Court of Claims find that after deducting from that quantity the Jefferson Barracks claim and all private claims, there still remained nearly 1,000 acres more than the 6,000 arpents. There is no evidence that this survey was ever brought to the attention of the Land Department in Washington until June, 1839.

In that year the surveyor-general at Saint Louis seems to have called the attention of the district attorney of the United States for Missouri to the survey in connection with the location of Jefferson Barracks, and the letter having been transmitted to the Secretary of War, an investigation of the whole matter was instituted by the Commissioner of Public Lands.

This resulted in an order made in 1841, by Commissioner Whitcomb to Surveyor-General Milburn, directing a new survey of these commons, on the principle of reserving 1,702 acres for military purposes at Jefferson Barracks, allowing 6,000 ar-pents to Oarondelet for her commons, and restoring the balance, not covered by private claims, to sale as public lands.

It may as well be here stated that this order was never carried out.

In the year 1826 the military authorities of the United States, desiring to establish at that point a military post, procured from twelve inhabitants of the village of Oarondelet a deed conveying to the United States a described portion of the land which they claimed as part of the commons of the village, with a reversion to the village whenever -the United States should cease to use it for military purposes. From that time the Government has been in continued possession of the property.

It appears, by the findings of the court, that certain persons who had purchased lots of the city of Oarondelet, not conflicting with the barracks claim, and other citizens of Oarondelet, becoming uneasy about the condition in which the title to all the commons was left by the order of Commissioner Whitcomb, employed agents to procure a confirmation of the Brown-Bector survey. They appeared at Washington and a negotiation, remonstrance, and correspondence was carried on for several years, and divers opinions and decisions were had from Commissioners of the Land Office and Secretaries of the Treasury and Interior, none of which confirmed the survey as valid.

■ Finally, without any suggestions shown to come from the United States or its officers, the parties interested in the settlement of the title of Carondelet to the remainder of the commons, and the authorities of that city, conceiving that, if the title of the United States to that reservation was made good, the main difficulty in the way of this settlement would be removed, the authorities of the city made the deed we have already mentioned of October, 1854.

And, accordingly, on the 8th of October, 1855, another survey on the basis of Brown’s, but marking the barracks property as reserved, and giving its boundaries, was made and confirmed by the Commissioner of the Land-Office as the true survey of the Carondelet commons.

It is obvious enough from this imperfect sketch of the history of the controversy that the deed of the city to the United States and the subsequent confirmation of the survey were the result of a compromise of a long-pending contest between the parties to it. No fraud is found or suggested. The action of the city of Carondelet cannot be impeached on the ground of duress within any legal or equitable definition of that term as applied to contracts. It was a suggestion originating with Carondelet, designed to secure action which she desired. The officers of the Land Department were doing nothing in the matter. The order for the new survey, made in 1841, had never been executed, and, in 1845, Commissioner Shields had declared that there was no intention to carry that order into effect until further action by Congress, and this was repeated by Commissioner Young, in 1846.

If, as is now argued, Carondelet had a perfect title to the land in controversy, she had nothing to do but remain quiet or assert her title in the courts of law, which were open to her, for no officer of the Government, from 1841 to the date of this deed, a period of thirteen years, did anything to affect that title or to deprive her> of her rights.

But the opinion of all the officers of the Land Department was againt the validity of that survey, and of course against her title to any commons at all as being perfect. The supreme court of the State of Missouri had so decided in 1844 in the case of Dent v. Bingham, (8 Mo. R., 579.) It was known that the survey included nearly twice as much land as was originally claimed under the grant of Trudeau.

The Land-Office, while it declined to exercise it, had asserted the right to set aside that survey and order another, and was apparently only awaiting some action of Congress.

How can it be said under these circumstances, after a contest of thirteen years, that Carondelet, in proposing to release her claim to the 1,700 acres of the barracks reservation, in exchange for the quieting and perfecting of her title to the remainder of the commons, acted under duress 1 Or acted unwisely ? Or that the- compromise was as to her inequitable ?

It is said to be inequitable because it is now the settled law that, under the act of 1812, confirming the titles of the villages to their common lands, the title became perfect on the completion of the survey.

And we are not disposed to deny the doctrine, that when such a survey was made by the proper officers in 1839, and approved by the surveyor-general, such a survey constituted a title to the land.

But this doctrine was not so completely and fully settled at the date of this compromise as to be free from doubt. And if it were, there still remained the question of the power of the Commissioner of the General Land-Office to set aside a survey so made and order another — a power which undoubtedly exists as to all surveys made for many years past, however it may have been in 1841.

But it is important to consider that the Land Department then asserted such a power, and no decision had then settled the law to the contrary. It was, therefore, a proper element of doubt in considering the question of a compromise.

If, however, the Commissioner had no such power, and conceding that the approval of that survey by the surveyor-general completed the legal title to the land it included, there can be no doubt of the right of the United States, treating the same as if it were a patent, to file a bill in chancery to set it aside as improvidently made, and on the trial of this issue, the excessive quantity of the survey, the .reservation and long possession of the.barracks, and perhaps other circumstances, would have made the result doubtful enough to justify the authorities of Carondelet in compromising the matter in advance of such a suit.

In short, we are of opinion that the deed of Carondelet is valid, as based upon an equitable compromise of a long-pending and doubtful question of title, and that it excludes the plaintiff in this suit from any relief.

The j udgment of the Court of Claims is accordingly affirmed.  