Strother v. Lucas
37 U.S. 410 (1838)

Annotate this Case

U.S. Supreme Court

Strother v. Lucas, 37 U.S. 12 Pet. 410 410 (1838)

Strother v. Lucas

37 U.S. (12 Pet.) 410

Syllabus

Ejectment for two lots of ground in St. Louis, Missouri. The plaintiff had brought an ejectment, which was before the Court on a writ of error, in 1832, and the judgment in favor of the defendant was affirmed. 31 U. S. 6 Pet. 763. He afterwards brought another action of ejectment for the same land. By the Court --

"Had this case been identical with the former, as to the merits we should have followed the deliberate opinion delivered therein; but as one judgment in ejectment is not conclusive on the right of either possession or property in the premises in controversy, the plaintiff has a right to bring a new suit, and the Court must consider the case even if it is in all respects identical with the former, though they may hold it to be decided by the opinion therein given. It is otherwise when the second case presents a plaintiff's or defendants right, on matters of law or fact, material to its decision, not before appearing in the record; it then becomes the duty of the Court to decide all pertinent questions arising on the record in the same manner as if the case came before them for the first time, save such as arise on evidence identical as to the merits. In this case, we deem it a peculiar duty, enjoined upon us by the nature of the case, the course of the able and learned arguments as to the law of Spain and her colonies, in its bearing on the interesting question before us, together with a view of the consequences of our final decision thereon. Were we to leave any questions undecided which fairly arise on the record, or to decide the cause on points of minor importance only, the value of the premises would justify future litigation, which no court of chancery might think proper to enjoin so long as new and material facts could be developed or pertinent points of law remain unsettled."

The State of Missouri was formerly a part of the territory first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803 in full propriety, sovereignty, and dominion, as she had acquired and held it; 27 U. S. 2 Pet. 301, by which this government put itself in place of the former sovereigns and became invested with all their rights, subject to their concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected even in the case of a conquered country, and held sacred and inviolable when it is ceded by treaty, with or without any stipulation to such effect, and the laws, whether in writing or evidenced by the usage and customs of the conquered or ceded country, continue in force until altered by the new sovereign.

This Court has also uniformly held that the term "grant" in a treaty comprehends not only those which are made in form, but also any concession, warrant, order or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession, and that in the term "laws" is included custom and usage, when once settled, though it may be

"comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the common law code, which is so justly venerated."

No principle can be better established by the authority of this Court than

"that

Page 37 U. S. 411

acts of an officer to whom a public duty is assigned by his King within the sphere of that duty are prima facie taken to be within his power. . . . The principles on which it rests are believed to be too deeply founded in law and reason ever to be successfully assailed. He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burden of showing that the officer has transcended the powers conferred upon him, or that the transaction is tainted with fraud."

Where the act of an officer to pass the title to land according to the Spanish law is done contrary to the written order of the King, produced at the trial, without any explanation, it shall be presumed that the power has not been exceeded; that the act was done on the motives set out therein; and according to some order known to the King and his officers, though not to his subjects, and courts ought to require very full proof that he had transcended his powers, before they so determine it.

Even in cases of conquest, the conqueror does no more than displace the sovereign and assume dominion over the country.

"A cession of territory is never understood to be a cession of the property of the inhabitants. The King cedes only that which belongs to him; lands he had previously granted were not his to cede. Neither party could so understand the treaty. Neither party could consider itself as attempting a wrong to individuals condemned by the whole civilized world. 'The cession of a territory' should necessarily be understood to pass the sovereignty only, and not to interfere with private property."

No construction of a treaty which would impair that security to private property which the laws and usages of nations would without express stipulation have conferred would seem to be admissible further than its positive words require.

"Without it, the title of individuals would remain as valid under the new government as they were under the old, and those titles, at least so far as they were consummate, might be asserted in the courts of the United States independently of this article."

The laws of Spain as to the disposition of the royal domain in Louisiana while Louisiana was held by Spain.

In the treaty of cession of Louisiana no exceptions were made, and this Court has declared that none can thereafter be made. 33 U. S. 8 Pet. 463. The United States must remain content with that which contented them at the transfer when they assumed the precise position of the King of Spain. The United States has so remained, as appears by its laws. By the acts of 1804, 1805, 1807, and 1816, it recognized the laws, usages, and customs of Spain to be legitimate sources of titles, and by the act of 1812 confirmed to the inhabitants of St. Louis and other villages, according to their several right or rights of common thereto, the rights, titles, and claims to town or village lots, out lots, common field lots, and commons, in, belonging or adjoining to the same, which titles depended on parol grants and local customs. The same recognition extended to grants to actual settlers, pursuant to such laws, usages and customs; to acts done by such settlers to obtain a grant of lands actually settled, or persons claiming title thereto, if the settlement was made before 20 December, 1803.

The unwritten law of Louisiana before the cession of the territory to the United States.

In favor of long possession and ancient appropriation, everything which was done shall be presumed to have been rightfully done, and though it does not appear to have been done, the law will presume that whatever was necessary has been done.

A grant may be made by a law as well as a patent pursuant to a law, and a confirmation

Page 37 U. S. 412

by a law, is as fully to all intents and purposes a grant as if it contained in terms a grant de novo.

The acts of the commissioners appointed to adjust and settle land titles in Louisiana under the acts of Congress authorizing and confirming the same are conclusive as to all titles to lands which have been confirmed according to the provisions of the different acts of Congress on the subject.

It is inconsistent with all the acts of Congress which have organized boards of commissioners for adjusting land titles, the proceedings of the board, and the laws which have confirmed them, that the confirmations of the commissioners shall enure to any other uses or to any other person than the person or persons claiming the confirmation; it would defeat the whole object of these laws and introduce infinite public mischief were the Court to decide that the confirmations by the commissioners and Congress, made expressly to those who claim by derivative titles, did not operate to their own use.

The counsel for the plaintiff in error, exhibited the following statement of the case:

"This was an action of ejectment brought by Daniel F. Strother, of Kentucky, against Jno. B. C. Lucas, of Missouri, to recover a tract of land particularly described in the declaration, as follows:"

" Lying and being in the City and County of St. Louis, State of Missouri, containing two arpents in breadth, by forty in depth, or eighty superficial arpents, French measure, one of which arpents by forty was granted to one Rene Kiersereau and his heirs, by the proper authority, and the other, to-wit, the northern of said two arpents, was originally granted to one Gamache and his heirs, and which said two arpents by forty are bounded on the north by a forty-arpent lot originally granted to one Louis Bissonet, and on the south by a forty arpent lot, originally granted to one John Baptiste Bequette, and which said two forty arpent lots so above bounded have been confirmed by the authority of the Congress of the United States to the legal representatives of the said Rene Kiersereau and Gamache respectively."

"The defendant pleaded the general issue, and the cause was tried at the September term, 1835, when there was a verdict for the defendant, and judgment rendered thereon, to reverse which this writ of error is prosecuted."

"By the evidence, it appears that in 1764, the post of St. Louis, in Upper Louisiana, was first established by the French under M.

Page 37 U. S. 413

Laclede. In May, 1770, the Spaniards, under the treaty of 1762, took possession of St. Louis and Upper Louisiana. Between the year 1764, and 1772, divers grants of land in Upper Louisiana were made by the French and Spanish authorities, respectively. Amongst those grants were some forty or fifty, containing each from one arpent by forty, to four arpents by forty, located in the prairie immediately west of the then Village of St. Louis and extending some distance north and south of it. These lots extend westward to the uniform depth of forty arpents, being parallelograms whose opposite sides are on the north and south, forty arpents in length, and on the east and west from one arpent to four arpents."

"Sometime in the year 1772 a survey was made, as above described, of these lots by Martin Duralde, the authorized surveyor of the post of St. Louis."

"About that time, a fence was established on the eastern boundary of the above range of lots, which separated them from the village and what was called the commons; there was no division fence, nor any fence on the western boundary; the lots were contiguous to each other, but each lot was held separately and cultivated separately by its proprietor or occupant, who was bound by the regulations of the post to keep the fence in front of his lot (or of whatever number of lots he occupied) in good repair."

"The surveys so made by Duralde were entered in a book called the Livre Terrein."

"Amongst the lots so surveyed and entered are the two lots in question, described and bounded as in the declaration in this cause. The surveys so entered, and the grants by virtue of which said surveys were made, were solemnly recognized and affirmed by the Spanish lieutenant governor, Don Pedro Piernas, and by his predecessor, the French commandant, S'Ange de Bellerive."

"The entry in the Livre Terrein, No. 2, p. 68, which contains this recognition of said grants and surveys, has been printed by authority of Congress, and is to be found in Gales & Seaton's American State Papers, vol. 3, 677. In the entry in the Livre Terrein of the survey of Gamache's arpent, the grantee is called 'Joseph' Gamache. This was a mistake, as is shown fully by the evidence in the cause. It is conclusively proved that the name of Gamache, the grantee, was John Baptiste Gamache, and that no such man as 'Joseph' Gamache existed at that time in Upper Louisiana. "

Page 37 U. S. 414

"The defendant admits upon the record that the grantee, Gamache, was known as well by the name of John Baptiste Gamache, and of Baptiste Gamache, as Joseph Gamache, but the fact, as proved in evidence, is that his name was John Baptiste Gamache and none other."

"Immediately after the grants so made to Kiersereau and Gamache, they took possession of their respective lots and commenced the cultivation thereof as acknowledged owners and proprietors by virtue of said grants and surveys. John Baptiste Gamache continued to occupy and cultivate until about January, 1773, when Louis Chancellier took possession, and Rene Kiersereau until about the year 1780, when the said Louis Chancellier succeeded him in the occupation and cultivation of his lot. Louis Chancellier continued in possession and cultivation of both these lots, claiming the same as proprietor thereof by purchase from the original grantees, until his death in April, 1785. Previous to his death, on his marriage with Marie Louise Dechamp, a marriage contract was executed between him and said Marie Louise by which a communaute (partnership) according to the Spanish law was enacted between them. On the death of her husband, the said Louis Chancellier, the widow, by virtue of her rights under the communaute, was in lawful possession of the common property of herself and husband, and consequently of the two arpents by forty in question. On the 8th June, 1785, an appraised inventory 'of all the property, moveable and immovable, which is ascertained to belong to the said deceased (Louis Chancellier) and to his wife, Dona Louise Dechamp' was made in due form of law by the Lieutenant Governor, Don Francisco Cruzat."

"In this inventory, the two arpents in question are described by their metes and bounds -- that is to say, 'two arpents and a half of land in the prairies, bounded on the one side by land of Bequette, on the other by land of Mr. Bijou.' The names of Bijou or Louis Bissonet are admitted and proved to mean the same individual."

"On 11 June, 1785, a petition was presented to the lieutenant governor by said widow and Charles Tayon, the guardian of the property of the infant son of said Louis Chancellier and Marie Louise, praying that said property 'in their possession' should be sold at public sale, and on the same day, in pursuance of said petition, an order of sale was made, and on the day following, to-wit, 12

Page 37 U. S. 415

June, 1785, the Lieutenant Governor, Cruzat, proceeded to sell the property described in the inventory, and did actually sell a considerable quantity thereof, and amongst other property, the two arpents described as above were sold and adjudicated to the said Marie Louise Chancellier for the sum of one hundred and fifty-five livres."

"At the same sale, on the same day, was also sold the slave Fidel, belonging to said estate and described in the inventory, to one Hyacinthe St. Cyr, whose security for the payment of the purchase money (two thousand one hundred livres) was August Choteau, the former signing by his mark in the margin of the sale, the latter signing his name in full thereon. The first article sold was said Fidel, and the sixth was the two arpents in question. The sale is declared to have been made at the dwelling of said widow, 'in whose possession are all said goods' ('bienes' in Spanish, which means 'property' generally). Afterwards, by order of 14 June, 1785, the sale was suspended for want of competent purchasers, and the balance unsold ordered to be delivered to the widow at the valuation on condition that she be charged with the same on final partition between her and her son."

"On 8 June, 1786, on petition by the said widow and guardian, a partition was ordered to be made between the widow and said infant, and accordingly an account and partition was made whereby it appears that said widow was charged with the sum of one hundred and fifty-five livres, being the price of said two arpents by forty by her purchased at the sale of her husband's property. It appears that the balance coming to the minor, amounting to six thousand three hundred and thirty-four livres, seven sous, six deniers, was duly paid over to his guardian; said Charles Tayon, and the sum of three thousand dollars (including said lots, valued at one hundred and fifty-five livres) duly paid to said widow."

"This final settlement and partition was made on 13 September, 1787, in pursuance of the decree of the Governor General, Don Estaban Miro, bearing 25 February, 1787, all which is set out at large upon the record."

"Thus it appears that in pursuance of a final decree made by the supreme authority in Louisiana, the widow of Louis Chancellier was declared and adjudged to be the lawful owner and possessor of the said two arpents, bounded as described in the declaration in this cause, and that the judgment of partition and final settlement so made in

Page 37 U. S. 416

favor of said Maria Louisa Chancellier, bears date 13 September, 1787."

"In addition to the above proof of the title of Marie Louise Chancellier to said two lots, the plaintiff gave in evidence:"

"1st. An authentic deed of exchange between Jno. B. Gamache, and said Louis Chancellier, bearing date 23 January, 1773, acknowledged and executed in presence of Don Pedro Piernas, Lieutenant Governor of Upper Louisiana, whereby said Jno. B. Gamache, as original grantee of said one by forty arpents, conveys the northern half thereof to said Louis Chancellier, in exchange."

"2d. An authentic deed, dated 6 April, 1781, acknowledged in presence of Francisco Cruzat, Lieutenant Governor of Upper Louisiana, whereby Marie Magdalene Robillard conveying to said Louis Chancellier one arpent by forty, bounded by Jno. B. Bequette, and by Jno. B. Gamache's arpent, being the same granted to Rene Kiersereau. In this deed is signed the name of Rene Kersereau, as 'assisting witness,' and his name also as a party witness, is mentioned in the body of the deed."

"It is in evidence that no other man than the grantee existed in Upper Louisiana of the name of Rene Kiersereau, and that Marie Magdalene Robillard, was the wife of said Rene. Besides this, the signature of said Rene Kiersereau to this deed is duly proved, as is also that of the lieutenant governor to this deed, and also to that of Jno. B. Gamache. It is fully proved that said Rene Kersereau ceased to occupy or cultivate his lot from the year 1780, and that Louis Chancellier immediately succeeded him in the possession and cultivation thereof, and, as above stated, remained in possession till his death in April, 1785."

"In September, 1788, the widow of Louis Chancellier intermarried with one Joseph Beauchamp and removed to St. Charles, about twenty miles from St. Louis, on the left bank of the Missouri River."

"Some time after the removal of said Beauchamp and wife to St. Charles, (about 1790), Hyacinth St. Cry, the same who purchased the slave Fidel at the sale of Louis Chancellier's property, entered upon the two arpents in question and commenced the cultivation of the same by permission is said Marie Louise, which permission, according to the testimony of said Marie Louise, was given by her said second husband, Joseph Beauchamp, and according to the testimony of Madame St. Cyr, the widow of said Hyacinth St. Cyr, the

Page 37 U. S. 417

syndic authorized said St. Cyr to occupy and cultivate, and that afterwards her husband had his deeds from Kiersereau and Gamache, as her husband told her."

"In 1797 or 1798, the eastern and only fence of those forty arpent lots fell down, and they again became a wilderness, unoccupied and uncultivated by anybody until some time in the year 1808, when the defendant took possession of them and enclosed a part of the eastern end thereof under a deed of conveyance from Augustus Choteau, the same who signed as security for St. Cyr on the margin of the record of sale of Chancellier's property, as before stated."

"In 1815, under the Act of Congress of 1812, the above two lots were confirmed to the legal representatives of the original grantees, and in said confirmation the recorder makes special reference to Livre Terrein No. 2, pages 11 and 12, in which the surveys in favor of Kiersereau and Gamache are recorded."

"In 1816, by Act of Congress of 29 April, 1816, sec. 1, the aforesaid confirmations are ratified."

"The plaintiff then gave in evidence a deed of conveyance from Augustus Gamache, the survivor of the two sons and heirs of John B. Gamache, of his estate, whatever it might be, in said one by forty arpents granted to his father, John B. Gamache, to Basil Laroque and Marie Louise Laroque his wife. Basil Laroque was the third husband of said Marie Louise, the widow of Louis Chancellier. The plaintiff then gave in evidence deeds of conveyance duly acknowledged from said Basil Laroque and Marie Louise, of the said two by forty arpents to George F. Strother, and a deed from said Strother to plaintiff."

"Here the plaintiff closed his case, and the defendant then gave in evidence: "

"1st. Two deeds, bearing date same day, 23 October, 1783, the one purporting to be a conveyance by said Rene Kiersereau to said Hyacinth St. Cyr, of the one by forty arpents granted to said Rene Kiersereau; the other purporting to be a deed from 'Joseph' Gamache, of the one by forty arpents granted to Gamache; and which deed is signed 'Batis X Gamache.'"

"In both those deeds it is recited, that for several years previous to their date, said St. Cyr had been in possession and was then in possession of the lots in question."

"The defendant then gave in evidence certain proceedings, dated

Page 37 U. S. 418

in 1801, in the matter of Hyacinth St. Cyr, a bankrupt, by which it appears that amongst the property sold by the syndic on that occasion,"

"two arpents of land in the first prairie of St. Louis, near the tower, by forty arpents in depth, bounded on the one side by the widow Bissonet and on the other by Mr. Hortiz,"

"were adjudicated to Mr. Auguste Choteau for twelve dollars."

"The defendant then gave in evidence extracts from the proceedings of the board of commissioners, of which board said defendant was a member, purporting to be a confirmation of said two arpents by forty to Auguste Choteau as assignee of Hyacinth St. Cyr, assignee of said original grantees."

"He also gave in evidence a deed dated 11 January, 1808, from said Auguste Choteau and wife to said defendant purporting to convey in fee to said defendant said two arpents by forty,"

"of which forty arpents have originally been ceded to Rene Kiersereau, and the other forty arpents have been originally ceded to Joseph Gamache, the whole bounded by a tract of land originally conceded to John B. Beguette, and by another tract originally conceded to Louis Bissonet, the whole belonging to us (the said Choteau and wife) as having become the purchasers of it at the public sale of the property of Mr. Hyacinth St. Cyr."

"The defendant then read to the jury certain extracts from the proceedings of the board of commissioners, of which he was a member, by which it appeared that the said board met at St. Charles on 3 August, 1807, and held their session there until the 8th of the same month and year."

"The defendant lastly read in evidence an extract from the record of a judgment in an action of ejectment for said lots in the district court of the United States in which the said Daniel F. Strother was plaintiff and said John B. Lucas was defendant, and there closed his case in defense."

"The plaintiff in reply proved by extracts from the records of the board of commissioners that the defendant was a member of the board before which Auguste Choteau filed his claim as assignee of St. Cyr, assignee of the original grantees, and that while said claim was pending and before any action of the board was had upon it, Lucas being still a member of the board, took the deed of conveyance aforesaid, of 11 January, 1808, from said Auguste Choteau."

"It is admitted on the record that the plaintiff is a citizen of Kentucky

Page 37 U. S. 419

and that the premises in dispute are worth more than two thousand dollars."

"The case being closed on each side, the plaintiff then moved the court to instruct the jury as follows: "

"1. That there is evidence before the jury of the possession and title of Rene Kiersereau and John B. Gamache, as absolute owners and proprietors of the two forty arpents lots described in the declaration."

"2. That there is evidence before the jury of the possession and title of Louis Chancellier, as owner and proprietor of the two forty arpents lots in question, as assignee of said Rene Kiersereau and said John B. Gamache, respectively."

"3. That there is evidence of the actual possession after the death of said Louis Chancellier by his widow, said Marie Louise, of said two forty arpents lots, claiming the same as absolute owner thereof."

"4. That the plaintiff has established his title as assignee of Marie Louise Chancellier, to the estate and interest vested in her and her heirs, in and to the two forty arpents in question."

"5. That the deed given in evidence by plaintiff from Auguste Gamache to Bazil Laroque and Marie Louise, his wife, enures to the benefit of the plaintiff."

"6. That if the jury shall be of opinion from the evidence that Hyacinth St. Cyr originally obtained possession of the lots in question as tenant of Marie Louise, the widow of Louis Chancellier, or by virtue of a permission to occupy and cultivate, given to said St. Cyr by the syndic of the Village of St. Louis, the possession of St. Cyr so obtained shall be taken by the jury as, in law, the possession of said Marie Louise."

"7. That the confirmations of the board of commissioners, on 23 July, 1810, of which the defendant was a member, could at most only operate as a quitclaim by the United States in favor of the original grantees, and could not decide the question of derivative title under said original grantees."

"8. That the mere fact of the land described in the confirmation to Choteau, and the land described in the confirmation given in evidence by the plaintiff, and the declaration being identical, does not entitle the defendant to a verdict in his favor."

"9. That no forfeiture or disqualification has accrued against Madame Marie Louise, the widow of Louis Chancellier or against her assigns under any act of Congress whereby she or they are barred

Page 37 U. S. 420

from asserting their legal and equitable rights to the lots in question before this Court."

"Which instructions were given by the court."

"The plaintiff also moved that the following instructions be given to the jury: "

"1. That the sale and partition and final decree, of which duly certified copies have been given in evidence by the plaintiff, establish the title of the widow of Louis Chancellier, Madame Marie Louise Des Champs and her heirs to the land described in said sale and partition, as sold and allotted to her, part of which said land consists of the two arpents by forty in the declaration described, bounded by Bijou on the one side and by John B. Bequette on the other."

"2. That independently of the title of Rene Kiersereau and John B. Gamache, there would be sufficient evidence before the jury to establish a title by prescription in Louis Chancellier and his heirs, and Marie Louise, his widow and her heirs, to the two forty arpents described in the declaration."

"3. That Hyacinth St. Cyr took no title by prescription in and to said lots."

"4. That if the jury shall be of opinion that Hyacinth St. Cyr had notice of the sale of said lots to Marie Louise by the proper Spanish authority, as given in evidence by the plaintiff, the possession of said Hyacinth St. Cyr of said arpents was not such as could be adverse to said Marie Louise, or could create an estate by prescription in favor of said St. Cyr."

"5. That if the jury shall be of opinion from the evidence that St. Cyr was a purchaser at the public sale of the property of Louis Chancellier, or signed his name, or made his mark as purchaser on the margin of said sale, these facts are prima facie evidence that said St. Cyr had notice of the title of said Marie Louise as purchaser at said sale of the lots therein described as sold to her."

"6th. That the deeds given in evidence by the defendant from Rene Kiersereau, bearing date 23 of October, 1793, conveyed nothing to St. Cyr, being made by a person out of possession, and whose conveyance for the same land by another person to Chancellier was upon record, and who therefore was guilty of the crime of 'Estelionato,' punishable by fine and banishment, by the Spanish law then in force."

"7th. That the deed given in evidence by defendant from Joseph Gamache to Hyacinth St. Cyr, dated 23 October, 1793, is void on

Page 37 U. S. 421

the ground of 'Estelionato' in Batis Gamache, supposing that he made the deed; 2d, on the ground of uncertainty in the deed itself, in this, that it purports to be a deed of Joseph Gamache, and is signed 'Batis X Gamache.'"

"8th. That August Choteau took no estate by prescription in either of said forty arpent lots in question."

"9th. That there is no evidence of possession whatever, adverse or otherwise, by Auguste Choteau, of said two forty arpents lots or of any part thereof."

"10th. That if the jury shall be of opinion from the evidence before them that the said Auguste Choteau had notice of the public sale of said lots to Madame Marie Louise Chancellier, his possession or claim to said lots under Hyacinth St. Cyr is fraudulent and void as against said Marie Louise and her heirs and assigns."

"11th. That the certified copy of the proceedings and sale by the syndic in the matter of Hyacinth St. Cyr, a bankrupt, is not evidence either of St. Cyr's title to either of the lots in question or that the same were sold by said syndic to said Auguste Choteau as part of said St. Cyr's property."

"12th. That the defendant has shown no title by prescription under the Spanish or civil law, or by the statutes of limitation (in bar of plaintiff) under the Anglo-American laws to the lots in question."

"13th. That the title of the defendant, as assignee of August Choteau, is vitiated by the fraud which vitiates the title of Choteau and of St. Cyr."

"14th. That the deed from Auguste Choteau and wife to Lucas, of the lots in question, dated 11 January, 1808, is void for fraud if in the opinion of the jury it was a sale and conveyance to Lucas of a claim and interest pending before said Lucas himself for adjudication."

"15th. That if, in the opinion of the jury, the claim was pending before Lucas as commissioner when he bought it, the adjudication or confirmation of it on 23 July, 1810, by the board of commissioners, of which Lucas was a member, is fraudulent and void at law and in equity."

"16th. That neither the statute of limitation nor the Spanish law of prescription can avail the defendant Lucas independently of the possession of St. Cyr and Choteau."

"17th. That the orders of survey given in evidence by the defendant, and made by himself and his two colleagues in favor of August Choteau, bearing date June 10, 1811, was fraudulent and

Page 37 U. S. 422

void if the jury shall be of opinion from the evidence that the claims therein ordered to be surveyed, had been sold to said defendant by said Choteau previous to the date of said order, and while said claims were pending for adjudication before said defendant as a member of the board of commissioners in said order mentioned."

"18th. That if any penal effect resulted from any act of Congress to Mad. Chancellier and her assigns, or to the legal representatives of Rene Kiersereau and J. B. Gamache, the Act of Congress of January, 1831, entitled 'an act further supplemental to the act entitled an act making further provisions for settling the claims to lands in the Territory of Missouri,' passed 13 June, 1812, remits the parties to their original legal and equitable rights and titles as if no such penal acts had ever been in force."

"19th. That upon the case made by plaintiff, he is entitled to a verdict for all that part of the two forty arpents lots in question, situated west of 7th Street in St. Louis, and all the lots east of 7th Street, according to the admissions of defendant as above."

"20th. That in this case there is no law or binding ordinance of the Spanish government by which Madame Chancellier and those claiming under her could be deprived, according to the state of the evidence in this case, of whatever title she acquired to the land in question under the purchase made of it by her as the property of her husband."

"21st. That if the jury believe from the evidence that St. Cyr ceased to cultivate and be in actual possession of the premises in dispute from 1797 or 1798, prescription ceased to run in his favor, and that of those who claim under him from that time."

"Which instructions the court refused to give, but instructed the jury in relation to the matters referred to in the first instruction above refused:"

"that the sale, and partition, and final decree, the record of which certified copies have been given in evidence by the plaintiff did pass the title of Louis Chancellier, mentioned in said proceedings of sale, such as it was at the time of his death or such as it was in his heirs at the time of said sale to Madame Marie Louise, his widow, mentioned in said proceedings, and her heirs to the lands described in said record of sale and partition, as sold and allotted to her."

"And further instructed the jury, in relation to the matters mentioned in the fifth instruction above refused:"

" That if the jury should

Page 37 U. S. 423

be of opinion that St. Cyr, under whom the defendant claims, was a purchaser at said public sale of the property of said Louis Chancellier, or did sign his name or make his mark on the margin of the record of said sale, these facts or either of them is evidence proper for them to consider in ascertaining whether said St. Cyr had notice of the said title of said Marie Louise as purchaser at the said sale of the lots described in the record thereof as sold to her."

"And further instructed the jury in relation to the matters referred to in the eleventh instruction above refused:"

" That the certified copy of the proceedings and sale by the syndic of the property and estate of St. Cyr as a bankrupt was not evidence of a title to said St. Cyr to the lots in question, or either of them."

"And further instructed the jury in relation to the matters referred to in the twelfth instruction above refused, and to the statutes of limitation referred to in that refused instruction: 'that the defendant had shown no title to the lots in question, nor any bar to the plaintiff's recovery under any statute or statutes of limitation.'"

"And further instructed the jury in relation to the matters referred to in the sixteenth instruction above refused 'that the statute of limitations could not avail the defendant Lucas, either with or independent of the possession of St. Cyr.'"

"And further instructed the jury in relation to the matters referred to in the eighteenth instruction above refused:"

" That although the Act of Congress of the 31 January, 1831, referred to in said refused instruction last mentioned, does not remit the penalties as in that refused instruction is supposed by the plaintiff, yet that in fact no penal effect results from any act of Congress which bars or stands in the way of plaintiff's recovery in the present action or which in any manner affects his title or evidence of title under or to be derived from said acts or any of them under the admissions of the parties in the present case."

"The counsel for the plaintiff excepted to the opinion of the court in refusing to give the several instructions; as well as to the opinion of the court in giving the instructions which they did give."

"The defendant then moved the court to instruct the jury as follows: "

"1st: That if the jury find from the evidence that Hyacinth St. Cyr, and those lawfully claiming under him, have possessed the two arpents by forty, surveyed for Gamache and Kiersereau, without interruption,

Page 37 U. S. 424

and with claim of title for thirty years, consecutively, prior to 1818, the plaintiff is not entitled to recover in this action."

"2d. If the jury find from the evidence that Hyacinth St. Cyr, and those lawfully claiming under him, possessed the two lots in the declaration mentioned for ten years consecutively, prior to and until 23 July, 1810, and that the lands confirmed to Auguste Choteau on that day are the same lands in the declaration mentioned, the plaintiff cannot recover in this action."

"3d. If the jury find from the evidence that the defendant possessed the lots of land in the declaration mentioned for ten years, consecutively, prior to 1 October, 1818, the plaintiff cannot recover in this action."

"Which instructions the court gave to the jury, with the further instruction"

" That the possession mentioned must be an open and notorious possession, and that if they should find such possession, it gave title under, and according to the Spanish or civil law, which was in force in Upper Louisiana at the date of the treaty by which Louisiana was acquired by the United States, and remained in force and unabrogated by any law of the District of Louisiana or of Missouri down to a period as late as October, 1818. That the possession of ten or thirty years would give a title, the one period or the other, according to the circumstances under which the possession was obtained. That the ten years possession which would give a prescriptive title must be a possession under a purchase made in good faith, and where the purchaser believed that the person of whom he purchased had a good title, and where the owner of the title prescribed against resided in the same country during the said ten years. That if the jury believe from the evidence that the possession of St. Cyr, under whom the defendant claims, was obtained under a purchase made by him in good faith, and under the belief that the person of whom he purchased had a good title, and that the possession of Choteau, under whom the defendant claims, was obtained in like manner, and under a purchase made with the like belief, and that they had the possession mentioned in the second instruction asked for on the part of the defendant, and that the said Marie Louise was in the country during the said ten years, the plaintiff cannot recover in this action."

"And further instructed the jury in relation to the possession mentioned in the third instruction asked for on the part of the defendant"

" That to make the possession there mentioned a bar to the plaintiff's

Page 37 U. S. 425

recovery in the present action, the possession of the defendant must have been obtained under a purchaser, where he believed that the person of whom he purchased had a good title, and that the said Marie Louise was in the country during the said ten years, which, unless the jury believe, they cannot find for the defendant upon such possession."

"To which opinion the plaintiff excepted."

"Afterwards the judge, of his own motion, further instructed the jury as follows: "

"That the possession which the said Louis Chancellier had at the time of his death passed to his heirs, and afterwards to his widow, the said Marie Louise, under the purchase made by her at the said public sale of the estate of the said Louis, and that the possession of the said Marie Louise would be presumed to continue in her and her heirs, until an adverse possession was shown, and would continue in her, her heirs or assigns, until an adverse possession was actually taken."

"And further instructed the jury that if they should find from the evidence that said St. Cyr took possession, or was in possession of the lands in controversy, or any of them, under the said Marie Louise or as her tenant, his possession, so taken or held, would be the possession of the said Marie Louise, and would not be a possession in St. Cyr, available by him or those claiming under him, under the law of prescription mentioned. But that if the jury should be of opinion that said St. Cyr came to the possession of the land in controversy not as the tenant of the said Marie Louise or under her, but under a claim and title adverse to her, such adverse claim and possession would constitute a possession upon which a prescription, by the Spanish or civil law referred to and then in force, would begin to run in favor of him and those claiming under him, if such possession was actual, open, and notorious, and that such possession, so commenced, would constitute and preserve to said St. Cyr, his heirs or assigns, a possession, available under the law of prescription referred to, notwithstanding said St. Cyr, or those deriving title from him, should leave the actual possession or cease to occupy and cultivate, if that abandonment of the actual possession, occupancy, or cultivation was with the intention to return, and without any mental abandonment of the possession."

"And further instructed the jury that if it should be of opinion from the evidence that Rene Kiersereau, under whom the parties

Page 37 U. S. 426

claim, did attest the sale of the lot in controversy, which both parties in the present case claim under him, alleged to be made by Marie Reno Robillia to said Louis Chancellier, by becoming a subscribing witness to the instrument of sale in evidence on behalf of the plaintiff, and purporting to be signed by said Marie Reno Robillia, and that said Rene Kiersereau, at the time of becoming such subscribing witness, was the husband of said Marie Reno, the title of said Rene Kiersereau would, from his presumed assent to said sale and presumed receipt of the consideration expressed in said instrument, as the husband of said Marie Renno, in presumption of law, pass by said sale to Louis Chancellier. That the subscribing witnesses to a sale in writing, made before a notary or other officer acting as such, are presumed to have been informed of the contents of the written instrument of sale, because, by the civil or Spanish law referred to, which was in force in Louisiana, it was the duty of the notary or other officer to make known to the witness, as well as to the parties, the contents of the writing which they attested and subscribed. But that the jury would consider, from the evidence and the circumstances in evidence in this case, whether the said Rene, being the husband of the said Marie Reno, did become the subscribing witness to said instrument. And if they should be of opinion that he did not or that the same is fraudulent as against him, his title was not passed by the alleged sale. That if the jury find that the title of said Rene Kiersereau did pass by said sale to said Louis Chancellier, and that the land so acquired by him, and also the land derived by the plaintiff under said Gamache, are the said lands mentioned in the declaration, they will find a verdict for the plaintiff for those lands or so much thereof as are described in the declaration, unless they find that the title has been lost by him or those under whom he claims by prescription according to the principles already stated by the court."

"And further instructed the jury that if they should find from the evidence that the residue of the land mentioned in the declaration, or any part thereof, was in the possession of Louis Chancellier at the time of his death, and that he and those claiming under him had such possession for thirty years, consecutively, they would find for the plaintiff, for such residue, so possessed unless they should find that his right so acquired had been lost by prescription under an adverse possession according to the principles already stated. "

Page 37 U. S. 427

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