Tyler v. MagwireAnnotate this Case
84 U.S. 253 (1872)
U.S. Supreme Court
Tyler v. Magwire, 84 U.S. 17 Wall. 253 253 (1872)
Tyler v. Magwire
84 U.S. (17 Wall.) 253
APPEAL FROM THE SUPREME
COURT OF MISSOURI
The Supreme Court of the State of Missouri, on appeal, dismissed a petition which sought to have the title to lands held by the defendant, under a patent from the United States, divested, and vested in the complainant. From this decree of dismissal a writ of error brought up the case under the twenty-fifth section of the Judiciary Act, the complainant claiming the land under a former patent from the United States.
This Court determined that the legal title to the premises was in the complainant under the second patent, reversed the decree, and remanded the cause "for further proceedings in conformity to the opinion of the court" ( 75 U. S. 8 Wall. 672). The opinion given declared also that on the merits (which were gone into, and in which utterance was given as to every point which it was necessary to decide in order to dispose of the case on them), the case was with the plaintiff or complainant.
On the presentation of the mandate to the supreme court of the state, they directed it to be filed, and entered up an order reversing their former decree, and the cause again coming up to be disposed of, the court decided that the legal title to the premises was vested by the second patent in the complainant, as declared by this Court, and that on such a title under the laws and practice of the state there was a plain and adequate remedy at law, and that equity bad no jurisdiction of the case made by the petition, and therefore decreed dismissing the petition.
To this decree the complainant sued out a second writ of error under the twenty-fifth section. Held:
That the legal sufficiency of the ground maintained by the supreme court of the state for its decree, to-wit that by the laws and practice of the state the complainant's remedy on a legal title was at law, and not in equity, is a question within the jurisdiction of this Court, and revisable under the twenty-fifth section on a second writ of error.
That whether the legal title was in the complainant and whether he had an adequate remedy at law are questions that could only have been properly made in the court of original jurisdiction, or
"perhaps before this Court on the first writ of error; but it is too late to raise such questions after the whole case had been decided, and the cause remanded for final judgment."
That under the Judiciary Act, as well as under that of the 5th February, 1867, amendatory of it, on a second writ of error to a state court, this Court "may proceed to a final judgment and award execution."
A decree was therefore entered up reversing the decree of the state court and declaring the title to the lands in controversy to be vested in the complainant and ordering a writ of possession to be issued by the clerk of this Court directed to the marshal thereof.
The Constitution of Missouri ordains:
"That the right of trial by jury shall remain inviolate."
The code of the same state enacts:
"There shall be in this state but one form of action for the enforcement or protection of private rights and the redress or
the prevention of private wrongs, which shall be denominated a civil action. [Footnote 1]"
"Suits may be instituted in courts of record by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and remedy sought"
&c. [Footnote 2]
"The first pleading on the part of the plaintiff is the petition, which shall contain (1) The title of the cause, specifying the name of the court and county in which the action is brought, and names of parties to the action, plaintiffs and defendants; (2) a plain, concise statement of the facts constituting a cause of action, without unnecessary repetition; (3) A demand of the relief to which a plaintiff may suppose himself entitled. [Footnote 3]"
"The only pleading on the part of the defendant is either a demurrer or an answer. [Footnote 4]"
"SECTION 6. The defendant may demur to the petition when it shall appear upon the face thereof either (1) that the court has no jurisdiction of the person of the defendant or the subject of the action or (2) that the plaintiff has no legal capacity to sue, or"
"SECTION 10. When any of the matters enumerated in section six (the last quoted section) do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action. [Footnote 5]"
This provision of the constitution and these provisions of the code being in force, one Magwire, on the 18th of September, 1862, filed his petition in the court of common pleas of St. Louis, Missouri, against Tyler and forty-three other defendants, stating that on the 1st of June, 1794, Joseph Brazeau had a grant of 4 x 20 arpents of land along the bank of the Mississippi River, near the Village of St. Louis; that on the 9th of May, 1798, he sold and conveyed 4 x 16 arpents, being, the northern part of the tract, to Louis Labaume,
reserving the 4 x 4 arpents at the southern end for himself; that he, Magwire, the plaintiff, by a chain of conveyances, became the owner of said 4 x 4 arpents; that Labaume, after purchasing the said 4 x 16 arpents, February 15, 1799, procured an extension of his limits west to the aggregate quantity of 360 arpents, and the same was surveyed to him April 10, 1799; that this survey was made contrary to the terms of the grant to Labaume, and so that, by mistake or design,, Labaume included in the survey of his enlarged grant the Brazeau tract, which he did not own; that on the 22d of September, 1810, the board of commissioners for the adjustment of land titles in Missouri confirmed to Brazeau his 4 x 4 arpents, and to Labaume his land; that afterwards, and notwithstanding the said 4 x 4 arpents justly and honestly belonged to the plaintiff, the defendants and others, in combination and confederacy, procured a survey to be made under the authority of the United States in such manner as to include the whole Brazeau tract in the claim of Labaume, and procured under like authority a patent to be issued granting the land covered by said survey to the legal representatives of said Labaume; that the said survey and patent of the Labaume confirmation were issued and procured by said defendants by fraud, covin, and misrepresentation; that on the 20th of May, 1862, the Brazeau confirmation of 4 x 4 arpents was surveyed inside the exterior limits of the survey and patent of Labaume, and on the 10th of June, 1862, a patent was issued to Brazeau, or his legal representatives, therefor; that each of the defendants claimed an interest in the said Brazeau tract, and was in possession thereof, and had received the rents and profits of the same; that everyone of them had notice of the rights of the plaintiff under Brazeau, and that all the defendants had confederated and combined to keep the plaintiff out of possession of the lands claimed, and the rents and profits; that the patent and survey to Labaume's representatives were older than the patent and survey to Brazeau's representatives; that defendants continually assert the validity of the Labaume title and the invalidity of the Brazeau title, and that the said patent and
survey for Labaume's representatives, so procured by fraud, covin, and misrepresentation, conflicted with the patent and survey for Brazeau's representatives, and constituted a cloud upon the plaintiff's title.
"Wherefore," -- thus ran the prayer of the plaintiff's petition -- "to the end that equity and justice may be meted out to the plaintiff, and that he may be protected in his just rights," the plaintiff prayed:
1. That the court would divest out of the defendants all right, title, and interest acquired or claimed by them and each of them under Labaume.
2. And would vest the same in the plaintiff.
3. And would put the plaintiff in possession.
4. And would cause an account to be taken of the rents and profits of the land, and give to the plaintiff judgment therefor.
5. And would give to him "such other relief as might be proper in the case."
The patent to Labaume's representatives granted all the land in its exterior limits, "saving and reserving any valid adverse right that might exist to any part thereof."
The patent to Brazeau's representatives granted all the land included in its exterior limits, "saving and reserving any valid adverse right which might exist to any part thereof."
The defendants answered on the merits of the case to the following effect:
1. That the 4 x 4 arpents confirmed to Brazeau were not properly located by the United States survey thereof inside of Labaume's survey.
2. That the confirmation to Brazeau was void.
3. That the survey for Brazeau's representatives was void for want of legal authority in the officers to make it.
4. That the patent to them was void for the same reason.
5. That the plaintiff, claiming under the confirmation and survey for Brazeau's representatives, was estopped to locate the land inside the Labaume patent, by matter in pais, long before their date.
6. That the survey and patent for Labaume's representatives vested a title in them in fee simple.
7. That the defendants had no notice of Brazeau's claim, and were innocent purchasers of the Labaume title.
8. That the plaintiff, claiming under Brazeau, was barred by the statute of limitations.
The defendants denied that any part of the 4 x 4 of Brazeau was inside the Labaume patent; that the patent or survey for Labaume's representatives was procured by fraud, covin, or misrepresentation; that the plaintiff had the Brazeau title to the 4 x 4.
They set forth a former suit and judgment against the plaintiff prior in date to the plaintiff's survey and patent, in bar of this suit.
And finally denied every averment in the plaintiff's petition in conflict with any part of their answer.
And "so having fully answered, the defendants asked for judgment and their costs."
"having been submitted to the court for a decision on the plaintiff's petition, and the answers of all the defendants and the exhibits and other evidence in the cause,"
the court found "all the issues in the cause for the plaintiff;" that the survey for Labaume in 1799 was made to include the Brazeau's land by mistake or design; that the land was situated inside of the Labaume survey and patent; and that the Labaume survey and patent were issued and procured by fraud and misrepresentation, and in combination and confederacy by the defendants to keep the plaintiff out of possession of his property, and its rents and profits.
The court then entered a decree extinguishing the claims of the defendants in these words:
"The 4 x 4 arpents is hereby decreed to the plaintiff, and all the right, title, and interest of each and everyone of said defendants in and to said tract of land is hereby divested out of said defendants, and each of them, and is vested in and passed to plaintiff, to have and to hold to said plaintiff, his heirs, and assigns,"
"it is ordered, adjudged, and decreed that plaintiff do have and recover of defendants respectively the rents
and profits accrued during the respective possessions, and for as much as the court is not advised what is the amount and other particulars thereof, Alexander Martin is appointed commissioner to take an account,"
As soon as this finding and decree was made, the defendants moved for a new trial because the court had improperly received or rejected evidence; because of an alleged erroneous holding which it had made about the power of a Secretary of the Interior, and because the decision was against law and equity and against the evidence and the weight of evidence. The motion for new trial was overruled and the defendants appealed to the Supreme Court of Missouri. That court reversed the judgment of the court of common pleas, and dismissed the plaintiff's petition. The grounds on which this reversal was made were not stated in the judgment as entered of record. [Footnote 6]
The plaintiff claiming under a former patent from the United States then brought the case here, [Footnote 7] as within the 25th section of the Judiciary Act, [Footnote 8] under the assumption, of course, that the Supreme Court of Missouri had passed on his title set up under the United States and had decided against it. It was here elaborately argued, and an opinion given by MR. JUSTICE CLIFFORD in behalf of the Court, in which it was decided
"that the legal title to the tract of 4 x 4 arpents remained in the United States till June 10, 1862, and that on that day, by virtue of a survey referred to and a patent of that date, Brazeau 'acquired the legal title to the tract.'"
The opinion went, however, largely besides into the merits of the case, any gave utterance upon every question at issue between the parties which it was necessary to decide to dispose of the case on their merits. These it declared were entirely with the plaintiff or complainant, who, it said, was justly and honestly owner of the land, and ended with an order of reversal of the decree of the Supreme Court of Missouri, "with directions to affirm the decree of the St. Louis court of common pleas."
Immediately upon the announcement of this order, Mr. P. Phillips, for the defendants in error, remarking to the Court that the mandate should be merely to reverse, and "to proceed in conformity with the opinion of this Court," moved to reform the order, and the question whether the order to "affirm" was a proper one was directed by the Court to be argued. It was afterwards argued at length, Mr. Phillips and Mr. B. R. Curtis contending that it was not; but, as already said, that the decree in this Court should be simply an order of reversal with directions to the Supreme Court of Missouri to proceed in conformity to the opinion that had been given here. The position of the counsel was that the answer of the defendants set up special defenses involving the statute of limitations, res adjudicata, bona fide purchase, and similar matters of a local kind purely, and over which the state court alone had jurisdiction; that the decree
of the Supreme Court of Missouri had been silent as to the grounds on which it dismissed the plaintiff's petition; that while if that court passed merely on the title derived from the United States (as in view of this Court's taking jurisdiction of the case was now to be assumed), this Court, under the twenty-fifth section, had authority to review and reverse it, yet that under no circumstances had this Court authority to pass on those defenses set forth in the record which were of a local nature only, and that no opinion of the judges of this Court, separately or collectively, bound by authority the state court of Missouri on those points, or could deprive the defendants in error of the right to have that court pass upon them. Any mandate, therefore (the learned counsel argued), directing the Supreme Court of Missouri "to affirm the decree of the St. Louis court of common pleas" would be a judgment by this Court upon questions upon which it had no authority to pass.
MR. JUSTICE CLIFFORD, delivering the opinion of the Court on this new matter of the propriety of the form of order, as he had delivered that on the principal case, stated that the Court, in the opinion delivered in that principal case, had "decided the following propositions," reciting numerous propositions pertinent to the merits, and reciting also, specifically, the decision as to the legal title's being in Brazeau. "Based upon these conclusions of law," the learned judge said, "the Court gave the directions recited in the order" objected to; but now, after the argument upon the question of its propriety had "come to the conclusion that a different direction would be more in accordance with the usual practice of the court."
The order was accordingly reformed, and changed into an order such as the counsel for the defendants in error had asked for -- that is to say, changed from an order "to affirm the decree of the St. Louis court of common pleas" into an order of reversal, with a remand "for further proceedings in conformity with the opinion of the Court." The learned Justice said, however:
"But the Court adheres to the several propositions of law
here recited and refers to the opinion of the Court delivered at the time the decree was entered as to the ground on which these conclusions rest."
The matter accordingly went back to the Supreme Court of Missouri on this mandate, upon which, as well as on the pleadings and proofs of record in the cause, it came on to be heard. Counsel for the defendant insisted that the Supreme Court of the United States having decided that the legal title was in the plaintiff, his only remedy was at law; that the whole scope and very prayer of the petition filed in the case was for equitable relief, and that the petition should therefore be dismissed.
Counsel of the plaintiff answered that the code of practice adopted by the State of Missouri would not countenance such an objection; that under it, there was no "bill in equity or other formal pleading;" that "justice was now administered without forms;" that the defendants having denied the plaintiff's right and submitted themselves to the judgment of the court, waived the plea of "remedy at law," even supposing the forms of equity pleading still to prevail in Missouri; that as the twenty-fifth section of the Judiciary Act gave the Supreme Court at Washington jurisdiction to pass on the questions involved in the construction of acts of Congress, that court had implied authority to pass also upon all incidental questions which were necessary to be determined in order to render a judgment in the case; that the said Supreme Court had done so, as would be seen by the report of the case in 8th Wallace, and that this concluded the Supreme Court of Missouri.
To this it was replied, that the Supreme Court of the United States had no more power to reverse a decision of the supreme court of the state on a local question than the latter court had to reverse a decision of the former court on a federal one; that while the court at Washington had assumed jurisdiction on a hypothesis that no other than a federal question had caused the decree in the Supreme Court of Missouri, and could assume it on no other hypothesis, that hypothesis as matter of fact was not true; that
the decree in the said court, which was the mere legal conclusion of the opinion, was based upon several matters of purely local jurisdiction; that the mandate of the Supreme Court of the United States was entitled not to a blind submission, but to an intelligent acquiescence, and that its meaning was to be ascertained by a careful examination of the facts in the case and the application of whatever opinion had been given to those facts. [Footnote 9]
The case having been fully argued before the Supreme Court of Missouri, Mr. Justice Wagner delivered the unanimous opinion of that tribunal. [Footnote 10] Having referred to the decision of the cause by that court here at Washington as reported in 8th Wallace, he said:
"The only question which it was competent for the Supreme Court of the United States to notice when the cause was removed there was the question of title arising out of the respective confirmations under which the parties claimed. Everything else set up in the bill was peculiarly and exclusively of local state jurisdiction, over which the national tribunal had no control and concerning which an adjudication here is final."
"* * * *"
"In conformity with the decision of the national court, the legal title is vested in the plaintiff, and his remedy is the next question to be considered."
"That ejectment is the proper and appropriate remedy, where a party has the title, to recover possession of real estate is a principle too well established to require argument or the citation of authorities. A bill in equity is not the proper remedy to recover the possession of lands, and where there is an adequate and complete remedy at law, a court of equity will not interpose unless upon some matters coming under some peculiar head of concurrent equity jurisdiction. [Footnote 11]"
"In those cases where it is permissible under the code to combine in the same proceeding or petition legal and equitable claim, the matter in equity and the action at law must be separately stated, and must necessarily be separately tried. Each
count must be tried by itself, according to the prescribed mode in such actions and suits. In an action at law, there is a constitutional right of trial by jury, which has no existence in equity. The courts in New York have held that an equitable cause of action to remove -- as a cloud upon the plaintiff's title -- a deed given by mistake by a third party to the defendants, under which, having fraudulently obtained possession by connivance with the plaintiff's tenant, he claims to hold as owner, and a claim to recover the possession of the premises, may be united in the same action and asserted in the same complaint. But it is also clearly held that where legal and equitable causes of action are united under the code, as to the former, on the trial of the causes, the issues must be submitted to a jury. [Footnote 12]"
"It has often been held in this court that in a bill to set aside a deed as fraudulent, the plaintiff cannot sue for the recovery of the possession of the land, and that proceedings instituted for the purpose of vacating title, vesting it in the plaintiff, and to eject a defendant and obtain possession, are fatally erroneous on writ of error or appeal, and cannot be sustained. When the decree is entered establishing the plaintiff's title, he must then pursue his remedy in ejectment for the possession. The defendant has a right to demand this. He has a right to have a jury pass upon the question of rents and profits, and upon other questions which may arise in that form of action."
"In like manner it has been held that a cause of action in ejectment cannot be united with a cause of action for partition of the premises sued for. [Footnote 13]"
"It is a grave error -- an entirely mistaken notion -- to suppose that all distinction between law and equity is abolished by our code of procedure. The line of demarcation -- the great and essential principles which underlie the respective systems -- is inherent, and exists in the very nature of things. Although legal and equitable cases are to a certain degree blended as to form, the principles remain the same, and the court will not interfere and exert its equity powers in a strictly legal action."
"This principle is almost daily acted upon in our courts, and
has been the uniform course of practice ever since the adoption of our new system. In all the states where the code has been instituted, the ruling has been harmonious in the same way. The statute enacts that"
"There shall be in this state but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a 'civil action.'"
"In providing that there shall be but one form of civil action, the legislature cannot be supposed to have intended, at one stroke or sweeping enactment, to abolish the well recognized and long established distinction between law and equity. Such a construction would lead to perplexities and difficulties infinite and endless in their character. The innovation extends only to the form of action in the pleadings. While the difference in form and the technicalities in pleadings have been dispensed with, and the party need only state his cause of action in ordinary and concise language, whether it be under assumpsit, trover, trespass, or ejectment, without regard to the ancient forms, still the distinction between these actions has not been destroyed, but remains the same. So cases legal and equitable have not been consolidated, although there is no difference between the form of the bill in chancery and the common law declaration under our system, where all relief is sought in the same way from the same tribunal. The distinction between law and equity is as naked and as broad as ever. To entitle the plaintiff to an equitable interposition of the court, he must show a proper case for the interference of a court of chancery, and one in which he has no adequate or complete relief at law. The judgment vesting him with the legal title shows that he has a complete, appropriate, and ample remedy at law by ejectment. These plain principles were entirely overlooked at the trial in the court of common pleas, but, as before remarked, according to the decision of the majority of the court, the case was instituted and tried upon a misapprehension."
"It results that so much of the motion as asks for an affirmance of the judgment of the court of common pleas will be overruled and, in accordance with the mandate, the judgment of this court will be reversed and the petition dismissed."
The decree itself, which as it was relied on here by the counsel of the plaintiff below, as "the crucial test" of jurisdiction
in this Court, it may be best to insert, was in these words:
"1. In conformity to the said mandate the judgment and decree of this Court therein mentioned is hereby reversed, and thereupon this cause remains to be proceeded with in conformity to the opinion of the Supreme Court of the United States and the laws of the State of Missouri."
"2. This court doth find, and adjudge, and decree, that under and in conformity with the laws of the State of Missouri, the said petition of the said Magwire is a proceeding to obtain equitable relief only in respect to the lands in said petition mentioned, and that no right or title to any equitable relief touching the said lands, or any part thereof, is shown by the said petition and the proofs adduced in support thereof."
"3. The court doth find, adjudge, and decree, that in conformity with the laws of the State of Missouri the legal title to said land cannot be tried and adjudged or determined under said petition, and the proceedings thereunder, there being a plain, adequate, and complete remedy by an action of ejectment in conformity with the laws of the State of Missouri in that behalf, and no relief in the proceedings in equity pending before this Court."
"4. The court doth find, adjudge, and decree, that in conformity with the laws of the State of Missouri, the petition of said Magwire is a proceeding for equitable relief only for the purpose of vesting the legal title by decree in said Magwire to the lands therein mentioned. The legal title to which was admitted by plaintiff in his petition to be held by defendants, and the only judgment that, under the laws of the State of Missouri, can be entered therein, if supported by the proofs in the cause, would be a decree vesting the title to said lands in said Magwire, and under said laws the right to recover in that suit the possession of the lands therein described could not be tried, adjudged, or determined under the said petition and the proceedings thereunder."
"5. This court doth find, adjudge, and decree, that in conformity with the laws of the State of Missouri, the petition of said Magwire is a proceeding for equitable relief only for the purpose of vesting the legal title to the lands therein described (the legal title to which was admitted by plaintiff in his petition
to be then in defendant), in said plaintiff, Magwire, and in conformity with said laws the right to recover in said suit the rents, issues, and profits of said lands, cannot be tried, adjudged, or determined, under the said petition and the proceedings thereunder."
"6. It is therefore considered by the court, and the court doth order, adjudge, and decree that the said"
"PETITION BE DISMISSED WITH COSTS."
From this decree Tyler now in turn appealed, and the case was here for the third time, having been already twice before the common pleas of Missouri and twice before the supreme court of that state.
The new writ of error, following the language of the twenty-fifth section, recited, that in the proceedings before the state court there
"was drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision was against their validity; or was drawn in question, the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their validity; or was drawn in question, the construction of a clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision was against the title, right, privilege, or exemption, especially set up or claimed under said clause of the Constitution, treaty, statute, or commission. "
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Power to reexamine, in a certain class of cases, final judgments and decrees in the highest court of law or equity of a
state, and to reverse or affirm the same upon a writ of error, was conferred upon the Supreme Court by the twenty-fifth section of the Judiciary Act, and the same section provides that the writ of error shall have the same effect as if the judgment or decree had been rendered or passed in the circuit court, and that the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, may, at their discretion, if the cause shall have been once before remanded, proceed to a final decision of the same and award execution. [Footnote 14] Where the reversal is in favor of the original plaintiff, and the damages to be assessed or matters to be decreed are uncertain, the Supreme Court will remand the cause for a final decision unless the same shall have been once before remanded, in which case the Court may, at their discretion, proceed to a final decision of the cause. Execution in that event may be awarded here, but the Court, in all other appellate cases, will send a special mandate to the subordinate court for all further necessary proceedings.
Such were the directions of the Judiciary Act, but the Congress, on the 5th of February, 1867, amended that section in several particulars and provided that the writ of error in such a case shall have the same effect as if the judgment or decree had been rendered or passed in a federal court, and that the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same and award execution or remand the same to the inferior court. [Footnote 15]
Titles to lands claimed by individuals in Louisiana, at the time the province was ceded to the United States, were in many cases incomplete, as the governor of the province never possessed the power to issue a patent. All he could do was to issue to a donee an instrument called a concession or order of survey, and as the claimants had never obtained patents from the supreme government, it became necessary for a plaintiff, in a suit to recover the land, to prove that his
claim had been confirmed under some act of Congress. Complete titles, of which there were a few at the date of the cession, required no such confirmation, as they were protected by the third article of the treaty of cession. [Footnote 16] It was stipulated by the treaty that the inhabitants of the ceded territory should be admitted into the Union as soon as possible and that in the meantime they should be maintained and protected in the free enjoyment of their property. Congress accordingly passed the Act of the 2d of March, 1805, to ascertain and adjust the titles and claims to land in the ceded territory. [Footnote 17] Prior to the passage of that act, however, the province ceded by the treaty had been organized by Congress into two territories, and the fifth section of the act to ascertain and adjust such titles and claims made provision for the appointment of commissioners in each of those territories to ascertain and adjudicate the rights of persons presenting such claims. Such commissioners were required by that act to lay their decisions before Congress, but a subsequent act provided that the decision of the commissioners when in favor of the claimant should be final against the United States. [Footnote 18]
Both parties in this case claim under the same concession, which was issued by the governor to Joseph Brazeau. On the 1st of June, 1794, he presented his petition to the governor, asking for a tract of land situate in the western part of the Town of St. Louis, beyond the foot of the mound called La Grange de Terre, of four arpents in width, to extend from the bank of the Mississippi in the west quarter, southwest, by about twenty arpents in depth, beginning at the foot of the hill on which stands the mound and ascending in a northwest course to the environs of Rocky Branch, so that the tract shall be bounded on the east side by the bank of the river and on the other sides in part by the public domain, and in part by the lands reunited to that domain.
Ten days later, the governor executed an instrument in which he declared that the tract belonged to the public domain, and certified that he had put the petitioner in possession of the same, specifying in a general way the boundaries of the tract and describing it as four arpents front by twenty arpents in depth. On the 25th of June in the same year, the governor issued a concession to the petitioner in which he formally granted to the donee in fee simple, for him, his heirs or assigns, or whosoever may represent his rights, a tract of land of four arpents front by twenty arpents in depth situate north of the town, to begin beyond the mound, extending north-northwest to the environs of Rocky Branch; bounded on one side by the bank of the river and on the opposite by lands reunited to the public domain through which the concession passes, of which one end is to be bounded by the concession to one Esther, a free mulatto woman. Five years before the treaty of cession, on the 9th of May, the donee, by a deed of that date, duly executed before the governor, sold, ceded, relinquished, and transferred to Louis Labeaume "a concession of land to him given" as aforesaid, consisting of four arpents of land, to be taken from the foot of the hill called La Grange de Terre, by twenty arpents in depth, bounded by the Rocky Branch at the extremity opposite the hillock, east by the river, and west by the land belonging to the royal domain, the said Brazeau reserving to himself four arpents of land to be taken at the foot of the hillock in the southern part of said land, . . . selling only sixteen arpents in depth to said Labeaume, who accepts the sale on those terms and conditions; and the record shows that the instrument was signed by both parties. Four by sixteen arpents were vested in the purchaser by that deed, but he desired to enlarge his possession, and he asked the governor to grant him an additional tract of three hundred and sixty arpents, including the tract he acquired by that conveyance, and the governor, on the 15th of February following, made the concession and directed in the same instrument that the surveyor should make out the survey in continuation of his antecedent purchase,
and that he should put the interested party in possession of the described premises. Pursuant to those directions, the surveyor made the requisite survey, but he included the whole of the former concession in the certificate, overlooking the undisputed fact that the grantor of the deed reserved to himself 4 x 4 arpents of the same, "to be taken at the foot of the hillock in the southern part of said land," which shows the origin of this long-protracted controversy. Special consideration was given to that survey in the first opinion delivered in this case, in which the court decided that such a survey, however the error may have arisen, cannot have the effect to enlarge the rights of the purchaser or to diminish or impair the rights of the donee of the concession, to the 4 x 4 arpents reserved in the said deed, and which were never conveyed to the grantee of the residue of the tract.
Enough has been remarked to show that the premises in controversy are the 4 x 4 arpents reserved in the deed from Joseph Brazeau to Louis Labeaume, and that the plaintiff claims title under the former and that the defendants claim under the latter. Conflicting claims to the premises existing, the plaintiff, on the 18th of September, 1862, commenced the present suit in the land court of the county, but the suit was subsequently transferred by a change of venue to the court of common pleas of the same county, the claim of the plaintiff being for 4 x 4 arpents of land, as described in the petition, and which, as alleged in the petition, was confirmed to the plaintiff by the land commissioners. Full description of the premises as confirmed to the donee is given in the petition, as follows:
"Beginning at a point on the right bank of the Mississippi River, the northeast corner of survey No. 3342, in the name of Esther, a free mulatress woman, or her legal representatives, and the southeast corner of Louis Labeaume, survey No. 3333; thence south 74