source: Caselaw Access Project

author: ■Mr. Justice STORY

license: Public Domain

text:
    Lessee of George Clymer et al., Plaintiff in error, v. George Dawkins et al., Defendants in error.
    A court is not bound to give (instructions to the jury in the terms required by either party; it is sufficient if so much thereof are giren as are applicable to the evidence before the jury, and the merits of the .case as presented by the parties. ”
    The entry and possession of one tenant in common, is ordinarily, deemed the entry and possession of all the tenants; and this presumption will prevail, in favour of all, until some notorious act of ouster or adverse possession’by the party so entering is brought home to the knowledge or notice of the others. When this occurs, thé possession is from that period treated as adverse to the,other tenants.
    Such a notorious ouster or_adverse possession may be by any overt act in pais of which the other tenants, have due notice, or the assertion in any proceeding at law of a several and .distinct claim or title. If an attempt be made to Obtain a partition, although the legal proceedings by which it is effectéd may be invalid or defective, still, being a matter of public notoriety, the co-tenant, is.bound at his peril to take notice of the claim to adverse possession thus set up.
    If the tenants in possession only claim the undivided interest which was held by their immediate grantors, it is not adverse to the remaining part of the title, and such persons cannot defend themselves in ejectment by giving in evidence an outstanding title elder than that under which they claim; nor can they- avail themselves of the Statute of Limitations.
    But if the occupants entered into possession arid held .the lands for more than twenty years before the commencement óf the suit, by a purchase and claim thereof in entirety and severalty, and not an undivided part thereof in co-tenancy, it is an adversé possession, and the Statute, of Limitations is a good plea.
    This case was brought up by writ of error, from the Circuit. Court of the United States for the district of .Kentucky.
    There .were three tenants, in common of a'tract- of land in Kentucky, and the question .was, how far. thé possession of the occupiers,' holding under two o'f the three, constituted an adverse possession against the third, so as to entitle them to the benefit of the' Statute of Limitation.
    In 1806, a patent' was issued by the Governor of Kentucky to George Clymer for one-third, and Charles Lynch and John Blanton for two-thirds of a certain tract or parcel of land, containing eleven thousand acres by survey, bearing date the 30th of May, 1784, lying and being in the county of Jefferson, on the waters of Harrod’s creek, and bounded as follows, &c., &c.
    A division' of the land was made by commissioners and offered in evidence during the trial; and as thé various proceedings under •this commission ran through a long period of timerthe whole of them will be stated before passing on to other circumstances in die history of the case.
    “ Henry county, the first day of January, eighteen hundred and two.
    “We, William Neall and Isaac Forbes, having.been appointed commissioners by .the County Court of the said county of Henry,'in conformity to an act of the General Assembly of the state of Ken* tucky, for the purpose of making division of lands between residents and non-residents in the said county of Henry, , having been called on to divide a tract of eleven thousand acres on the waters of Harrow’s’ creek, in the name. of George Clymer for the one-third, and Charles Lynch and John Blanton two-thirds,-agreeably" to a patent .bearing date the 24th day of December, in the year of our Lord one •thousand eight hundred and six, "and of the commonwealth of Kentucky the fifteenth, arid signed by Christopher Greenup; the then Governor of Kentucky-. It being stated to us that thé said George Clymer-is a non-resident, we have gone on the "ground, and made - the following division, to wit: Charles Lynch and John Blanton’s portion is lót No. 1, .containing.seven thousand three hundred and thirty-three and1 one-third acres, agreeably to the plat hereby laid down, which is bounded as fojloweth, to wit: &c.,- &c.
    “ No. 2, on the plat allotted to .George Clymer on the division, is bounded as follows, to' wit, "containing three thousand six hundred and sixty-six and two-thir.d acres: Beginning, &c., &c., hereby"conveying and affirming the-foregoing" division, agreeable to the said allotment, to the said Charles Lynch and John' Blanton, for the two-thirds of said eleven "thousand acres, and the one-third to-the said George'Clymer, agreeably to the metes and bounds before described.
    “ Given.under our hands and seals as commissioners aforesaid, the day and date first above written.
    Will. Neale, [l. s.] Com’r.
    Isaac Forbes, [l. s,.] 'Com’r.
    “ Signed, sealed, and’delivered in presence of

      “Henry County Court, Clerk's Office, Jan. 1,1810.
    “ The within division of land was filed in my office, acknowledged by William Neale and Isaac Forbes, commissioners in said county for "the division and conveyance of .lands, parties thereto, as their act and deed, and admitted to record.
    “Att. Row. Thomas, C. C.
    “ Henry County, October Court, 1827.
    “An instrument of writing purporting to be a division of eleven thousand acres of land, in the county of Henry, between Charles Lynch, John Blanton, and" George Clymer, the same being made by William Neale and Isaac Fo'rbes, commissioners appointed for that purpose, was this day produced ’ into court, (the commissioners being absent,) together with the certificate of acknowledgment, en'tered and attested by Rowland Thomas, clerk. Whereupon, on motion of" Charles H. Allen, attorney for the parties, it is ordered that the same be now received and recorded accordingly, which was heretofore done.
    “Att
    Edmd. P. Thomas, C. By Will. Sharp, D. C.

      rt Henry County Gmrtj Clerk's. Office, Aug, 8, 1828.
    t£ I, Edmund P. Thomas, clerk of the County Court fot the county aforesaid,'do certify-,’that on the day of the-date hereof, the .foregoing commissioners’ report of lands, together with'.the certificates thereon endorsed, were filed in my-office and recorded.
    “ Att. • Edmd. P„ Thomas, C,”
    ■ In 18ÍB, George Clymer, one of the patentees, residing in- Philadelphia, made his will - and died. .' He devised his property to- certain persons in trust, for the payment of certain moneys, and these to be divided amongst his children and-grandchildren.
    Much evidence was given, in: the-court'below, to show the nature of the' title and possession under which .the occupants (residing entirely-upon, the part allotted tó Lynch and Blanton) held their lands. They all claimed under Lynch and.Blanton; and .the following is a summary of the evidence., It was proved that these persons entered upon and first improved, settled, and occupied, the' land; and they, ’ and those claiming' under them, have.held, claimed,'and occupied, 'the, land, as their own, for upwards of. twentyrfivé years before the commencement of this5 suit;; but mo evidence was .introduced by either of the defendants, conducing to prove that either of them, or any other' person, had- given any expres$ notice to the patentee, Clymer, in his lifetime, or either.of the trustees named in the will of said Clymer, that they, or any of them, held the land .adversely tó the claim dr right of Clymer; nor was any evidence given,, .tending to prove that notice of any. sort had ever been given to Clymer, or aiiy of the trustees -named in his will, by any of the defendants, or any other person undér whom any of-them claim, except the factswhich the evidence did conduce to establish, that the land in -possession' of. each defendant had been taken possession of, improved, and occupied by actual residence,' by each -.defendant, (or .at -first by.him of whom he derived his' possession and' claim, of right, and after-wards by.himself,) as all entirely his or their Own, and not as co-tenant with Clymer or his devisees, and had been so ever afterwards, held, for upwards of twenty years, and up to the commencement of. this suit.
    It did not appear by the evidence, that either of the defendants, or his predecessor in the possession, had any knowledge or notice, in fact, that Clymér was a co-partnér.with Lynch and Blanton, or had any interest in the land; 'and plaintiff’s counsel insisted only that they were bound to know and notice the right of Clymer, apparent on the patent.
    - Evidence' was also introduced to show that .most of the defendí-ante were within the boundary .of adversé patents,- elder in date than the patent to Clymer, Lynch’and Blanton, and-that some of them had contracted with the claimants of those elder pátents, for the land in' their possession, since they became possessed of it.
    The suit was brought in December, .1840, by the representatives of Clyinéf,' against sixty-three' occupants of the tract, which, as before stated, had been assigned, in the partition, to Lynch and Blanton.
    Upon the trial, the plaintiff.asked the court to instruct the jury:'
    1.' That if the jury believe, from.the evidence, that- the defendants, or others under whom they claim, entered upon the land in contest under the claim of Clymer, Lynch and Blánton, for eleven thousand acres, that such of the". defendants as the jury may find so entered,, by themselves, or others úrider whom they claim, cannot avail theniselyes of the elder patents read in -evidence, as to defeat the plaintiffin this action.
    2. That tiie defendants cannot defeat the plaintiff’s right to recover-, if the jury, believe, from the evidence^ the plaintiff ever had. right, by reason of the Statute of Limitation, provided the jury believe, from the evidence, that the defendants, or those under whom they claim, entered upon the'land in contest, under the title qf Cly-mer, Lynch and Blanton, for the eleven thousand acres patented to them.-
    : 3. That'if the jury find, from the evidence, that any of the defendants entered upon the land in contest, under a parol contract of purchase from the agent of Lynch and Blanton, who were tenants in common with Clymer in the eleven thousand acre patent, read in evidence ; and the jury also find- that such of the .defendants as so purchased .never notified the patentee Clymer, or the trustees named in his will, and codicil, or either of them, that .«they held adversely to Clymer’s title, that the defendants, as to whom the jury may so iind, cannot .avail themselves of the'Statute of Limitation in defence of this action. Also, _
    '4. That such defendants as the jury may find as above-men-^ tioned, if there be any. such, cannot avail' themselves of the outstanding conflicting, elder patents read in ¡evidence, unless the jury further find that such defendants, in the opinion of the jury,, have proved a connection with such elder patent or patents, by purchase, either : made by them or others under whom they claim.
    The court refused to give either instruction, as asked, but instead thereof gave to the jury the following instruction:
    “The court" instruct the’jury, that if they find, from the évidence, that-any of the defendants,'or those under whom they claimed, entered upon the parcebof the land in controversy in'their possession at the commencement; of' this action, under a contract, whether it was executed or executory, by parol or in writing, with the agent of Lynch and Blanton, or either of théir co-grántees with Clymer, of the eleven thousand acres, by the patent read by plaintiff, or any other person claiming under that patent,-whereby they purchased an ' individual two-thirds, or any other such part, and not the entire interest in such parcehor parcels of .the lfind,,thensuch defendants, or •those under whom they claimed, and who had so entered, did not, •by their entry into. the. possession, oust Clymer or his devisees of his or their undivided third thereof; but the entry of such purchasers and their possession was for him, Clymer, or his devisees, as well as for themselveá; and in the absence of all evidence of notice to Cly-mer, or those claiming under him, of a subsequent adversary holding by such occupants, their possession did not become adversary, in legal effect, to Clymer or his devisees; 'and no defendant, who so entered, can now avail himself of the' outstanding legal title by the elder patents to be read in evidence; nor can any such defendant prevail in his defence of this action by the length of his possession,' arid the Statute of Limitation; nor can any'defendant who entered, claiming the éntire estate in his parcel of the land, add to the length of his own possession that of any one under whom- he claimed and had succeeded, who had'so entered' under a purchase of ,an undivided. part, and was -so a co-tenant with Clymer or his devisees, and thereby make out the twenty years of adversary possession within '. the statute.”'
    The defendants moved the following- instructions, to find as in • case of a nonsuit as to all the defendants:
    That the plaintiff has shown title only to an undivided interest in the land, and that only one-fifteenth.
    To find in favour of all the defendants whose tenements fall within the elder claims of Tuttle and Howard.
    To find in favour of all whose' possession existed, and continued, ■and have been held as'their, own, for twenty years before the commencement of this. suit.
    To find in favour of those whose possession existed and continued under Lynch and Blanton, and adverse to Clymer, for twenty years before suit, brought.
    To find in favour of those whose pqgsession originated, and have been held as their own, twenty years before suit brought, under purchases from Lynch and Blanton; -or either of them, after the division made under the orders of the Henry county court.
    • The court refused to give either of the instructions, as moved by the defendants, b.ut in substitution.therefor gave the following instructions :
    “ The court instruct the jury, that their verdict ought to be for each ■defendant who, or whose predecessor in possession, from whom he had derived' his .possession and claim of right, had entered on the land in his possession at the commencement of the action, twenty years before that day, by a purchase and claim thereof in severalty, all as his own, and not an undivided part in co-tenancy with Clymer • or his devisees, but-adversely to him or them, , whether such pur-? chase was from Lynch or.Taylor, or Lynch and Blanton, or any other who had ever afterwards, up-to the commencement of this suit, continued thus to hold such possession.”
    To each opinion and .decision of the court, in refusing to give the instructions as moved-by the plaintiff and each of them, and in giving the instructions which were giren by the court in substitution, or instead thereof, the plaintiff at the time excepted. Also, the plaintiff excepted to the instruction which is given by the court in substitution of the "instructions' moved by die defendants, at the time the' instruction was given, and he,, now excepts to each opinion and decision, and prays that this his bill of exceptions be signed, sealed, and.enrolled, which is accordingly done.
    Thos. B. Moneoe, [l. s.]

      Crittenden foi the plaintiff in error.

      Tibbatts and Armstrong, (in a printed argument,) for the defendants in error.

      Crittenden made the following points:
    1. That the proceedings of the County Court of Henry county, and of the- commissioners for the purpose of making a partition of said land, were not authorized by any law, and the division was therefore null and void, because not conformable to the statutes on which-its validity depended. 1 LittelPs Laws of Kentucky, 691; Hood v. Mathers, 2 Marshall, 559; 3 Littell’s Reports, 40: Clay v. Short, 1 Marshall, 371.
    2. That the defendantshaving entered and held under the patent to Clymer,. Lynch, and Blanton, could not lawfully set up and rely for their defence upon any other outstanding adverse patents to bar the plaintiff’s recovery,, and especially as it was not shown to be a subsisting and available title.
    3. That the possession of the defendants having been acquired under Lynch and Blanton, or one of them, could not be considered as adverse to their co-tenant, Clymer, or allowed to operate as a bar to-the present action ;.and that this is especially true as to those defendants who showed no deed or written evidence of purchase.
    ' 1st. Eight years after the division was said to have been made, it was given to the clerk, and not to the court until 1827. The act of Assembly doe's "not say when it Jnust be recorded, but twenty-, five years is too long a time to elapse.-. The parties, might have had it in'their pocket afl this time. The courts in Kentucky have always construed such papers strictly. See the authorities above.
    2d. If the defendant has acknowledged the title of the plaintiff, " he cannot afterwards dispute it. 1 Caines’s Rep. 394, 444 ; 5 Cow. Rep. 129, et seq. 174; 4 Cranch, 419.
    • Nor can a defendant, whose predecessors had recognised the title of the plaintiff, afterwards. dispute it. 5 Cow. Rep. 129, 130; 4 Johns. 230; 1 Caines’s Rep. 394; 4 Munf. 473; 2 Johns. Cas. 353; 3 Peters, 50-; 3 Serg. & Rawle, 386;. 13 Johns. 116; 3 Martin, (N. S.) 11; 6 Johns. 34;- 7 Johns. 157; 19 Johns. 202; 5 C&w. .520; 3 Wash. C. C. Rep. 498.
    The .defendants also offered in evidence outstanding titles in strangers, which they alleged 'to be elder and better than the plain-' tiff’s title. Can they do this ? ^
    If it be admitted as the settled doctrine, that though the plaintiff in ejectment has a’title hotter than that of-the’defendant, yet that hé’is not entitled'to recover if the-defendant-Gamshow a superior title in' a third person, though he does not claim any privity with that third • person: If this be the.admitted- doctrine;, if is subject to a great many exceptions,- which destroy its general applicability, and those \ exceptions are supposed to include the present case. The instances ■ of sucbu'exceptions are numerous, namely:
    ’A mortgagor is never suffered to set-up the title of a third person against his mortgagee. Doe v. Pegge, 1 T. R. 758, nqte.'
    It'is established that a mortgagor cannot set up a prior mortgage to. defeat the recovery ..of á second.mortgage. .He-is barred by his .own act from averring that he had' nothing in the premises at the time of the second mortgage. The principle of this decision has
    ■ been repeatedly recognised. Lade v. Holford,- 3 Burr. 1416; New-hall v. Wright, 8 Mass.,Rep. 138,’153; Jackson v. Dubois, 4 Johns. Rep.-216.
    A lessee cannot do it against his lessor; 8 Mass.. Rep.-138,-153;.- • 1 Caines’s .Rep. 444.; 2 Caines’s Rep. 215; 7 Johns.- Rep: -186; but-it is needless tó cite authorities, on this point.
    ’ -So a person who has* entered’ into possession under another, and acknowledged his title,.cannot set up an outstanding-title in another.' Jackson v. Stewart, 6. Johns. Rep. 34; Jackson v. De Waltpj 7-Johns. Rep. 157; Jackson v. Henman, 10 Johns.'292..
    Nor can a person claiming the land under a-.tenant, set up an out- ■ standing title against the landlord. Jackson v. Graham, 3' Caines’s Repj 188.
    A-person.-who. has entered by permission under' one ■ tenant in . common, cannot, after partition made, set úp" an adverse title against, another tenant- in- cómmbn, to whose share the 'premises had fállén. Smith v. Burtis, 9 Johns. Rep; 174; Fisher y. Creel, ■ 13 Johns. Rep. 116.
    ' A mere intruder cannot prótecbhimself by setting up an outstand- - ing title. Jackson.v. Harder, 4 Johns. Rep. 202.
    But .if a defendant have acknowledged the title--.of the plaintiff, he cannot afterwards dispute it. Jackson ex dem: -Low Reynolds, 1. Caines’s Rep. 444;-Jackson ex dem. Smith'et al. v. Stewart, 6 Johns. Rep; 34; Jackson ex- dem. Davy «. De Walts, 7 .Johns. , Rep. 157; - Jackson ex dem. Browne Hanman, 19 Johns. Rep. -202. .
    And even where the predecessors , of the .defendant had acknowledged the title of the claimant, it "was held that the defendant was equally precluded from setting up. the defencé. of.adverse possession. Jackson ex dem. Van Schaick and others v. Davis, 5 Cow. Rep. 129,130. .

      ■ Where one takes by descent as a co-heir and tenant in common; he cannot-show (in ejectment by his. co-heir, or one claiming .under him) that the ancestor had no tide. Jackson ex,- dem. Hill v. Streeter, 5 Cow. Rep. 620.

      Armstrong, for defendants in error,
    státed the case and proceeded thus:
    The issue, then, in thi§'cause between the parties seems to be .on the question:-did the entry of- defendants on land to which plaintiff had right in common with their-vendor, notwithstanding their ignorance of that right, their want of intehtion to. enter, as tenants in common, and their express entry claiming and holding the land as their sole freehold, adversely to the whole world, .constitute them tenants in common with Clymer ?,
    It is not, I presume, necessary for me to; pite authority to show the intention with whiclTan entry is. made oh-land defines the nature of ..that entry. These defendants, and those under, whom they claim, entered under their purchase's as sole owners in fee of the whole lands held by them, and were' so possessed thereof fqi more than twenty-five years before the commencement of this suit.
    ■The counsel for defendants does not .deem it necessary to'consume-the time of the cqurty by using argument,.or citing authority," to prove that possession of land- by . a purchaser, under a contract for-the entire estate, without right- in the grantor, is adverse to the rightful owner; of that a person in possession of land may purchase, in an outstanding title to.protect that -possession', but will merely . call the attention of the court to the case of Jackson ex.dem. Preston, &c.; V-. Smith, in the; Supreme- Cobrt of New'York, 13 Johns. Rep. AO^as a -ease in. point. .There the -defendant held under a deed made by one out of nine tenants in common; but the . deed purported to be for the whole-fee. The court says, (page 411,) “ the deed,” under which defendant held, “ for the whole lot cannot control the possession of the defendant, and of his-father, so as to-make it the entry and possession of a tenant in common, merely because it gave title-to no" more than one-ninth part of the whole lotand again, (page 1.12,) “it is evident, therefore, that the doctrine in relation to tenants in common does not apply to this case. If might-as weÚ be urged as applicable to a conveyance made by a stranger of any lands held in. common, and it will not be questioned, that the purchaser under such a deed, .given without 'right on .the part of the grantor, would notwithstanding be adverse to the right- ■ ful owners, although held by them in common.”
    It is believed {he case cited presents the true law of this case; - and should the court deem it necessary, they are respectfully requested to examine the case referred to for themselves.

      Tibbatts, for the defendants in error, recited the facts and evidence. in the case with great particularity, and then added:

      Under this state of .the evidencie, on the part of the defendants, we contend that the law of the case-was for them, and .the verdict of the jury correct on the following grounds i
    1. Because the division was a good and valid division, and severed the estate of Clymer from that of his co-patentees.-
    2. Because, if it were- not good in its inception, it became good by the lapse of time, and the legal presumptions arising from the lapse of time.-
    3. Because the defendants held the land adversely to the right or title' of the lessor of the plaintiff, and their holding being adverse, his right of entry is' barred by the Statute of Limitations.
    .By the act of the legislature of Kentucky; approved December 19, 1792, (2 M. & B. 1Ó66,) it is enacted,- sect. 1, that if the owners of lands within, this state, who are non-residents, do not attend to have the same divided, where the same is held in conjunction with citizens of this commonwealth, or with other non-residents, where such non-residents may apply by themselves or agents to have the same divided, ór do not appoint agents to make such division within one year from the passage hereof, the courts of the. several counties within this state shall -appoint six-commissioners in each county, who, or any two of them, shall, when called upon for the. purpose by the citizens of this commonwealth, or thp owners of lands who are non-residents, or their agents, attend and make such division agreeable to the contract entered into by the parties, “ and such commissioners shall make return of such land by them so divided, with the quantity and names of the parties concerned, arid by whom called upon to do the business, to the county court of* the county where such land may lie, to be there recorded.”
    The requisitions of this act are,
    1. The appointment-of six commissioners by the court; which has been done.
    2. The return of the land, with the quantity and name’s of the parties concerned, and by whom called on, &c., which is construed to mean “ a description of thé boundaries of the whole tract, and of the particular lots divided, together with the names of each party - holding interests, so that it may duly appear who were parties to the partition;” Hood v. Mather, 2 Marsh, 560;- which has been' complied with.
    3. That the return shall be made to the county court of the county; and it is decided (Ibid.) that it will not be good to make the return to the clerk’s'’office, but that it must be made to the "county court.
    We contend that this condition has also been complied with; for though the division was first returned to the clerk’s office and acknowledged by the commissioners, yet it was afterwards presented to the court, which was good, because the statute does not require , that the commissioners shall present it in person, nor acknowledge it; it being an official act, such as the return of a summons by a sheriff) which, with the papers with the return written’thereon, maybe handed in person, .or sent by a third person, or by letter, &c.
    Nor does the statute fix any time in which the- division is to be returned; nor is there any thing to be done by the-' commissioners in court, or by the court itself, the law itself ordering what is to be done. Besides, it appears from the record of the court, that it was received and ordered to be recorded, on the motion of “ the agent of the parties,” which will include Clymer as well as the other, and will be so intended by the court. Vide Pringle v. Sturgeon, Litt. Sel. Cas. 112, and Parker’s Heirs v. Anderson, 5 Monr. 540. That if the division was not good in its inception, it-became good by the lapse of time, and the jury had -a right to presume every thing which Would be necessary to make it good, as a-deed of release,' or con.firmation from Clymer.

      “ Artificial or legal presumption is arbitrary, inflexible,, and conclusive. It is the policy of the law substituted for proof of facts, the establishment of. whieh by oral testimony, or written testimony, or written memorial,'is rendered impossible by. lapse of time.”
    • The presumption not absolutely conclusive is such, that after twenty year's a bond is paid off; a mortgage satisfied, the mortgagor remaining, all the time in possession; the equity of' redemption released, the mortgagee hiving, enjoyed the possession twenty years; or the legal title conveyed to the purchaser after twenty years’ possession, &c., &c. These may all be combatted by proofs or explanations, inconsistent with the inference' of reason; and from, the isolated facts-which of themselves would establish the presumption-. Hence their consideration belongs to the jury, to whom they will be left upon hypothetical instructions. The jury may presume a deed when neither the chancellor nor the common law judge will or_can. Starkie,.1216, 1227, 1235; Peake’s Ch. 25.
    A possession of thirty years or. less, by a purchaser who held a bond for a title, would be sufficient, in the absence of any controlling circumstances, to create a.legal.presumption of a conveyance from the possessor of the legal title. In such a case, it is . not only necessary for peace and justice, that such a presumption should arise, but is intrinsically probable that a deed was made. 10 Johns. 377; 11 Johns. 456; 3 Mass. Rep. 399; 5 Craneh, 262; Gaines v. Conn’s Heirs, 2 J. J. Marshall, .107.
    Although the Statute of Limitations will not run where the possession held is on pledge, mortgage, &c., yet, “ if possession had been of twenty years’ duration, it might have, justified the presumption, in case there were no repelling circumstances, that the testator relinquished the title to. the slaves in. satisfaction of-the debts, and a court of chancery would not then interfere ■ to disturb the possession. . Mims v. Mims, 3 J. J. Marshall, 106. •
    Without some opposing probability; the jury will presume a .deed after possession of twenty years, by one who had purchased- the land, which, in consequence of his pínchase, he shall have so long, occupied.- 2 Saund. 175 a.; Starkie, 502, 1243, 989; 7 Wheat; 59.
    . Grants may be presumed from lapse of time. 1-2 Co. Rep. 5: 2Hert.'& Munf. 370.
    Generally whatever will' toll the right of entry will create a presumption of thei conveyance of the legal title.
    Every thing necessary to the validity of a collector’s deed will.be presumed after twenty years, if it.be shownithat he was collector of taxes which were committed to-him. 14 Mass\Rep. 145; Ibid. 177; Fitzhugh v. Croghan, 2 J.. J. -Marshall, 436. '
    ' 3. But we contend further, that the defendants held the land adversely to the right or title of the lessor of .the- plaintiff,, and that their holding being adverse, the right of entry is tolled, and the plaintiff is barred by the Statute of Limitations.
    We admit, as a general .principle, that 'the possession of one tenant in common, or joint-,tenant, is the possession of the other.; Coleihan v. Hutchiiison, 3-Bibb, 209 ; and that the Statute of Limitations does not-run against one tenant in common in favour of another, unless there ha$ been an actual ouster and adverse holding. (Ibid.) But iA this case we contend that th'ere'has been bo,th; we show that the. defendants, ignorant of the rights of the ancestor of thelessor of the plaintiff, without any intention to enter as tenants in common, entered upon the land, expressly claiming and holding it-as théir. sole freehold, adversely to the whole world; they, and those under whom-they claim, entered under.their purchases, as sole-owners in fee of the whole land held by them,:and were so possessed for more than twenty-five years before the commencement of the suit. .
    The quo animo with which an entry is made on land, will,define the nature and character, whether friendly or adverse, and- extent-of the possession acquired by the entry; 1 Marsh..347 ;,Calk'i>. Lynn’s Heirs, 3 Marsh. 615; and whetherJhe possession of land is adverse, to a certain claim or not, is a question of fact to be found by the. jury; Bowles "Sharp, 4 Bibb, 550; or as the true doctrine is more-distinctly laid down in Barrett and wiferi. French, .! Copn. Rep.'. The possession of one tenant in comimpn recognising the title of Ins' co-tenants, is in legal consideration the. possession of .all; that persons under, the same title, without ’partition, cannot prescribe against each other. Broussard y. Duhamel, 3 Martin’s Rep. N-. S.<11. •
    That where “ two persons claim by the sáme title, there shall be . no adverse possession, so as to toll the -entry of the one, but. an entry of the other be at- all times lawful. 2 Esp.,N. P. 8; (old paging 434;) Carothers et al. v. The Lessee of Dunning et al.,’. 3 Serg. & Rawle’s Rep. '386.
    But that a person claims to hold land under, the same title, is no evidence that he holds amicably with the original holder of that title, or those claiming under him. The purchaser of land sold for the-non-payment of taxes .holds adversely to the former owner, and can consequently avail himself of, twenty years’ -adverse possession. Graves v: . Hayden, 2 Liit. 65. The court say, ‘f the circumstance. that the defendant claims- to hold the land in controversy under Martin’s title, was no evidence of his not holding adversely, nor’could it prevent the Statute of Limitations from running. Being a purchaser in fee, though he held under Martin’s title, he did not hold under Martin, but in his. own right, in virtue of his purchase, and must therefore, have continued- to hold adversely to Martin and. those deriving title through.him.’
    ■ So a purchaser under á sheriff’s sále — and
    Where a party had obtained'a decree,-though a void, one, for a conveyance in fee absolute, and a conveyance in pursuance thereof of the inheritance of his-, deceased wife, under the erroneous idea that he was heir of her son, who died ^shortly after his mother’s death, and had sold ,the land to one who retained the possession twenty years, such.alienee is protected in his title and possession by lapse-of time. Baseman’s Heirs u.’Bátterton et ah, .1 Dana, 432.
    So with the .defendants, notwithstanding they claim the same title, and-though the division máy have been void.
    Therefore, though, the possession of one tenant in common should be deemed-the possession also of his co-tenant, nothing to the con-. trary appearing; yet if a-tenant in cpinmon enter not as a tenant in common, but adversely to his co-tenant, his twenty years’ -possession ■ would not only be a' good' defence against/ but would in fact so invést him with the complete title, as to enable him to recover in ejectment against his co-tenant..
    £< That one tenant in common may oust his co-tenant, and hold, in severalty, is hot to’ he questioned. • But a silent possession, accompanied with no-act which can amount to an ouster; of give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an'adverse possession. McClung v. Rbss, 5 Wheat. Rep. 124, per Marsh.. Ch. J.
    The law. is, that, nothing but an- actual ouster by one tenant in common shall give him the exclusive possession. .Lessee of Empsom ~v. Shackleton, 5 Burr, 2604; Carothers; et al; v. The Lessee of Dunning et al., 3 -Serg. & Rawle’s Rep. 385.
    But if there has been an actual ouster and adverse holding, it is well settled, in numerous cases, that the Statute of Limitations will run,from the time of such ouster and adverse possession.. Coleman v. Hutchinson, 3 Bibb, 212; .and- vide Brackett i\ Norcross,. 1 Greeiil.- Rep.‘91; Russell’s Lessee v. Baker, 1 Harr. & Johns. 71; Lessee of Brandt ét ah v. Whitbeck, 6 Cow. Rep." 633; Van Dyck v. Van Burén, 1 Caines’s Rep. 84; Bryans-u. Atwater, '5 Day’s Rep. 188.
    ’ We contend that the division ofthe land, the marking the lines, the selling the entiré fee, amounted to an actual ouster — no actual force fvas necessary/ and none could have been used in this case, the land being wild land. To prové an actual ouster by one tenant in common against another-, it is not necessary to show that any real force was used; it is sufficient to show that the tenant in possession claims the whole, and denies the title of his co-tenant; McConnell v¿ Brown, Litt. Sel. Cas. 468; Adams on Eject. 56; and this rule ■ must work both ways.
    Where the defendant, having purchased a lot'of land, and received a deed for the whole lot, in which the grantor stated himself to be-the heir of the 'patente'e, and he entered into the possession under that deed, and it afterwards appeared that the grantor had title to one-ninth part of the lot only, as a tenant in common, this was held not 'to alter the character of the defendant’s possession, so as to prevent its being adverse, but that he must be deemed to have entered .under his deed, as.sole owner of the fed in the whole lot; and that possession of .land by a. purchaser under a deed for the entire lot, given without right in the grantor, is adverse to the rightful.owners, though . tenants in common with the grantor. Lessee of Preston et al. v. Smith, 13 Johns. Rep. 406.
    Anclan the case of Culler .et ah u.Motzer, 13 Serg. &Rawle, 356, it is held, that if one -tenant in common sell the whole tract, and possession be held adversely for twenty-one years,.the sale and possession amount to an ouster of the co-tenant, who is bound by the act of limitations.
    This case is fully in point: the court say, “'the possession here ■was for twenty-five years, in denial of the right-of thes other;, for the sale of the whole, and the possession under such sale,'would ¿mount - to an ouster.” .The purchaser,' who came into possession in 1800, came into .possession under a title adverse. Motzér could never be ■ considered as a co-tenant, and as the bailiff and -receiver of James Brówn, and as such accountable for the -profits in- an action for account render. - He nevert entered as a tenant in common; and- the charge of the court was altogether correct, for-this was an entire tract of land to which there was no adverse claim, and therefore the adverse claim was co-extensive with the claim. ■ That was the only right; and the possession there being no' adverse title, was according to that right. There ought not, consequently, to be 'made any deduction on account of James’s supposed outstanding title. Jackson ex dem. Preston v. Smith, 13 Johns. Possession of land by a purchaser, under a deed of an entire lot, is adverse to the rightful owner, though tenant in common with the grantor.-
    If, then, a tenant in common Or'joint-tenant cannot hold adversely to his -co-tenant, -and if the. holding of the' defendants amounts, as we contend it does, to ah ouster in contemplation of law, and they do hold adversely to the claim of Clymer, the lessor of-the plaintiff, then they can rightfully rely either upon the Statute of Limitations, or an'. outstanding elder, title, according as their circumstances may require . either defence; and there is no error in the proceedings of the Circuit Court, either in refusing to grant the instructions asked for by the couñsel for the plaintiff, or in giving the substituted instruction for the defendants, or in substituting the instruction for those asked for by the plaintiff.
   ■Mr. Justice STORY

delivered the opinion of the court.

' This is the case of a writ of ¡error to the Circuit Court of the district of Kentucky. The original suit .was añ ejectment for a. certain tract of land, in Kentucky, containing eleven thousand acres; and upon the trial, upon the general issue, a verdict was found for the defendants, upon which judgment passed for them. A bill of exceptions was taken by the plaintiff, to the opinions of the court at the" trial; and to revise those opinions, the-present writ of error is brought by the plaintiff.

On the 24th of December, 1806, a patent for the tract of eleven thousand acres of .land was granted by the. commonwealth of Kentuckyy'untó George Clymer, (under whose will the lessors of the -plaintiff make claim?) one-third, and unto Charles.Lynch and John Blanton, (under whom'the defendants make claim,)'two-thirds. In the year 1810, if not at án earlier period, (for there is some repugnancy in the various dates stated in the record,) Lynch and Blanton procured a partition of the tract to be made, by .the authority of the County Court of 'Henry, by certain commissioners, appointed pursuant' to the Kentucky statute of 1792, by which one-third was assigned ■in severalty to Clymer, (he being then a non-resident,) by-certain1 metes and ■ bounds; and the remaining two-thirds were assigned to Lynch and Blanton, by certain other metes and bounds. The return of the commissioners was filed, acknowledged, and admitted to record in the clerk’s office pf the county of Henry, in I8l0; but the Court of that county do not seem to have ordered the return to be received and recorded until 1827. How this delay took place, has not been' satisfactorily explained; and the omission has been insisted upon as an objection to the validity of the partition.

All the defendants appear, from the evidence, to have derived title to the lands in their respective occupation, and to have entered into possession of the same, after the partition was made, and by titles in severalty, derived exclusively from or under Lynch and Blanton; and the lands held-by them are situate exclusively within the tract as-, signed by the, partition to Lynch and Blanton. The main defence relied upon hy the defendants, at the trial, was an adverse possession to the title of Clymer, during the period prescribed by the Statute of Limitations of-Kentucky. To rebut this defence, the plaintiff insisted that the partition was void, and being void,- the defendants having entered into the land under the patent to Clylfier, Lynch and Blanton, who still, notwithstanding the partition, in point of law, remained ■ tenants in common of the land, were not at liberty .to set up an adverse possession against that title; nor at liberty to set up any outstanding superior title in any third person, under any elder patent offered in evidence, to defeat the plaintiff in the action.

The.plaintiff, upon the evidence, (which need not be here particularly recited,) moved the-court to instruct the jury as follows: [See fjie statement of the reporter.]

The defendants also moved the court to give certain instructions to the jury; which instructions the court refused to give, but gave the following instruction .in substitution thereof: [See. statement..]

To the instructions so refused as propounded by the plaintiff, and to the several instructions so given by the court, the plaintiff excepted; and the cause-stands before us for consideration upon the validity of these exceptions.

The first point made at the argument for the plaintiff; is as to the validity of the partition under the proceedings in the county of Henry. In our judgment, it is wholly unnecessary to decide whether those proceedings were absolutely void or not; for, assuming them to have been defective or invalid, still, as they were matter of public notoriety, of which Clymer was bound, at his peril, to take notice ; and. as Lynch and Blanton, under those proceedings, claimed an exclusive title to the land assigned to them, adversely to Clymer; if the defendants entered under that • exclusive title, the possession must be deemed adverse, in point of law, to that of Clymer;

And this leads us to the consideration of the instructions actually given by the court, which cover the whole ground in controversy, and, if correct in point of law, show, that the court rightly refused to give the instructions asked by the plaintiff, so far as they were not consistent with the instructions actually given. It is very clear that the court are not bound to give instructions in the terms required by either party; but it is, sufficient if so much - thereof are given as are applicable to the evidence before the jury, and the merits of the case, as presented by the parties.

The first instruction given by the court is as favourable to the plaintiff, in all its bearings, as the law either justifies or requires, and is in direct response to the substance of some of the instructions asked by the plaintiff. It in substance states that if the defendants entered under the title of Clymer, Lynch and Blanton, as tenants in common,- and did not claim any title except to two-thirds of the parcels of land respectively held by them, and not to the entirety thereof, ■. then their entry into the possession did not oust either Clymer or his devisees of his or their undivided third' part, and was not adverse 'thereto; and that the defendants so entering could not avail themselves of the defence of the Statute of Limitations; and they could not avail themselves of the outstanding legal title of third persons by any elder patent. So far as this instruction goes, it is manifest that-it was favourable to the plaintiff; and indeed it is not now per se objected to, but the objection is, that it does not go far enough, and thus wras to the prejudice of the plaintiff.

The real point in controversy turns upon the second instruction given Bythe court, in answer to the prayer of the defendants. • That instruction, in substance, states, that if any of the defendants entered into possession of the lands respectively claimed by them, and held the same for more than twenty years before the commencement of the suit, by a purchase and claim thereof in-entirety and severalty, and not for an undivided part thereof, in co-tenancy with Clymer or his devisees, -but adversely to them, then such defendant was entitled to a verdict.in his favour, whethér he held by a purchase from Lynch, or Blanton, or any other person who had ever after-wards, up to the commencement of the suit, continued thus to hold the possession. We see(no objection, to this instruction, which ought to prevail in favour of the plaintiff: on the contrary, we deem it entirely correct, and consonant to the principles of law upon this subject; It is true, that the entry and possession of one tenant in common of and into the land held .in common, is ordinarily deemed the entry and possession of all the tenants; and this presumption will prevail in favour of all, until some notorious act of ouster or adverse possession by the party so entering into possession, is brought home to the knowledge or notice of, the others. When this occurs, the possession is from that period treated as adverse to the other tenants, and it will afterwárds be as operative against them, as if the party had entered under an adverse title. Now such a notorious ouster or adverse possession may be by any overt act in pais, of which the' other • tenants have due notice, of by the assertion, in any proceeding at law, of a several and distinct claim or title..to an entirety of the whole land, or, as in .the present case, of a-several and distinct title to the entirety of.the whole of the tenant’s purparty under a partition, which, in contemplation of law, is known to the other tenants,. Upon so familiar a doctrine it scarcely seems necessary to cite any authorities.' So early as Townsend and Pastor’s case, 4 Leon. Rep. 52, it was holdeii in the Common Pleas, by all the justices, that where there are two co-parceners of a manor, if one enters and makes a feoffment in fee of the'whole manor, this feoffment not only passes the moiety of such coparcener, which she might lawfully part with, but also the - other moiety of the Other coparcener, by disseisin. This decision was fully confirmed and acted on, in the.recent case of Doe d. of Reed v. Taylor, 5 Barn. & Adolph. Rep. 575, where .the true distinction was stated, that although the general rule is, that where several persons have a right, and one of them enters generally, it shall be an entry for all; for the entry generally shall always be taken accord- • ing to right; yet that any overt act or conveyance, by which .the party entering or'conveying asserted a title to the entirety, would amount to á disseisin of the other parties, whether joint-tenants, or tenants in common, or parceners. Upon' the same ground, it was held, in New York, in the case of Jackson v. Smith, 13 Johns. Rep. 406, that a conveyance made by orie tenant in common, of the entire fee of the land, and an entry and possession by the purchaser, under that deed, is an adverse po~session to all the other tenants in common. To the same effect is the case of Bigelow v. Jones, 10 Pick. Rep. 161. The reason of both of these latter cases is precisely the sa~ne as in the case of -a feoffment, the notoriety of the entry and possession, under an~adverse title, to. the entirety Of the land.

Similar principles ha've been repeatedly recognised in thié court. In McClung v. Ross, 5 Wheat. Rep. 116, 124, the court said, "That one tenant in- common may oust another, and hald in severalty, isnot to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant, that his possession is adverse, `ought not, we think, to be éonstrued into an adverse possession." In the case of the Lessee of Clarke v. Courtney, 5 Peters, 319, 354, this court also held, that `cs~her~ a person enters into ..Iand under a deed or title, his possession (in the absence of all other qualifying or controlling circumstances) is construed to be co-extensive with his deed or title; and although. the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of suc,l'i deed or title.', This doctrine is strongly applicable to the possession under. the partition ~in the present case. There..are s~vera1 other `cases aIllrm'ing The same~doctrine, and especially Green v. Liter, 8 Cranch, 229, 230 ; Barr v. Gratz, 4 Wheat. Rep. 213, 223; and The Society for Propagating the Gospel v. The Town of Pawlet, 4 Peters, 480, 504, 506. The doctrine has been carried by this court one step farthei~; but at the same time one which is entirely consistent witlf the principles on which the general rule; and the exceptions. to it, are founded. In Blight's Lessee v. Rochester, 7 Wheat. Rep. 535, 549-550, it was held, that in cases of vendor and purchaser, although the latter. claimed his title under or through -the former, yet as between themselves,.the possession of the purchaser under the sale, whe~'e it `was absolute and unconditional, was adverse to that of th~ vendor, and he migh~t protect thai possession by the purchase of any other title, or by insisting upon the- invalidity, of the title' of the vendor, as the foundation of any suit against him. Now~üpon this last ground, the defendants were certainly at full liberty as absolute `puichasers in fee to maintain the3r adverse possession to the land, and the' bar of the Statute of Limitations against Lynch and Blanton, and àfo'rtio~i against Clymer..

Upon the ~yhole, we are entirely satis~Ied that th~ second instruction given by the court w'~s Córréct in point of law; and, therefore, the judgment of the Circuit Court ought to be £rmed with costs.


author: Mr. justice McLEAN

text:
    Robert Brockett et al., Appellants, v. William Brockett et al., Defendants.
    When an issue is directed by a court of chancery, to be .tried by a court of law, and in the course of the trial at law, questions are raised and bills of exceptions taken, these questions must be.brought to the nbtice and decision of. the court of chancery which sends' the issue.
    If this is not done, the objections cannot be taken in < dppellate court of chancery.
    If the chancery court below refers matters of account to • master, his report cannot be objected to in Uhe appellate court, unless exceptions to it have been filed in the court below in the manner pointed out in the seventy-third '.chancery rule of this court.
    This was an appeal from the Circuit Court of the United States for the "District of Columbia, in and for the county of Alexandria..
    The-case is-sufficiently stated in the opinion of the court.

      Neale and Bradley, for the appellants.

      Jones an(L.Brent, for the appellees.'
   Mr. justice McLEAN

delivered the opinion of the court,

This is a bill in chancery, brought here by an appeal from the-Circuit Court of the District of Columbia.

The complainants filed their bill, alleging themselves to be the .legitimate heirs of'Robert Brockett, deceased, and claiming as such one-half of the real and personal property of which he died'seized • and possessed. The defendants filed their answers, denying the allegations of the bill. An issue at law was directed to try the legitimacy of the complainants, and after hearing the evidence, the jury found a verdict in their favour.

Several exceptions'were taken to the rulings of the court, in the admission of evidence to the jury, and to the refusal-.of the court to admit evidence offered by the defendants, which appear in two bills of exceptions. And these decisions, in relation to the trial ■ of the issue, constitute the principal ground of controversy in the case.

It does-not appear that any questions were raised on the chancery side of the court, growing out of .these exceptions. And this not having been done, it is proper to inquire" whether the exceptions ean be considered in this court.

It is contended that as the'same judges sat in the court of law as in the court of chancery, that it could not be necessary to bring before them as chancellors what they bad decided .in a court of law. Had the court Of law been held by different persons from those who sat as chancellors, it is admitted that it would have .been necessary to bring before the latter the points ruled in the trial of .the issue. But is not the principle the same in both cases? The capacities in whieh the same tribunal acts on such occasions, are as dis-dnet as "if the same duties had been performed by different tribunals. The distinction is the same as where a judgment at law is entered by a court which also exercises chancery-powers; and which powers are invoked against its own judgment. In such a case it might as well be said, as in the present one, why may nqt the same court, whether acting at law- or in chancery, having possession of the cause, finally decide it.

The bills of exceptions are copied into the record; but they do not properly constitute a part of. it, as-they were not brought to the notice and decision of the court sitting in chancery. . An issue' in part is directed by a court of chancery to inform its conscience. To bring the fact or facts before the jury at law, a feigned issue is made by pleadings, as. at law; and if the pleadings of the jury be unsatisfactory to tine court of chancery', .either on account of the admission of incompetent evidence, the exclusion of evidence which is com-, petent, or by a mistake of the facts by the jury, the court of chancery will order another trial of the issue.- By the consent of-parties these issues are sometimes tried without the ■ formality of pleading. But in all cases where objections, exist to the verdict, thtey must'be brought before the court of chancery which ordered the issue. And where this is not done in an inferior-court, the. objections cannot betaken 'in the appellate court of chancery. It is a general rule of practice, that no point arising on -the pleadings or evidence in an appellate court shall be made which was not brought to the notice of the inferior^court. And we think in this case, that the exceptions taken on the trial of the issue'at law not having, been, acted on by the court of. chancery below, cannot be insisted on in this court.

Being satisfied of the legitimacy and consequent heirship of the complainants, from the verdict of the jury, the court below referred tea master the rents received by the defendants, and other matters of account pertaining to the .estate. And to some of the items allowed by the master^ objections are made before this court. But it does not appear that these objections were brought before the lower court by exceptions to the master’s report.' The seventy-third chameeryr.ule is decisive, on this subject. .It provides that “the párties-shall have one month from the time of filing the master’s report, to file exceptions thereto, and if no exceptions are within that period filed' by either party, the report shall stand confirmed on the next rule-day-after the month is expired.” No exceptions having been filed in the Circuit Court to the report of the master, none can be heard in this court.

The verdict and .the report of the master, which constituted the basi^ of the decree of-the-court below, not having been objected to in that court, cannot be objected to here, and consequently the decree of the Circuit Court is affirmed with costs.


author: Mr. Justice CATRON

text:
    John McDonogh, Plaintiff in error, v. Laurent Millaudon and others, Defendants.
    The treaty by which Louisiana was ceded to the United States recognised complete grants, issued anterior to the cession, and a decision of a state court against the validity of a title set up-under such a grant, would be subject to revisal by this1 court under the 25th section of the Judiciary Act.
    But if the state court only applies the local laws of the state to' the construction' of. the grant, it -is not a decision against its validity, and this court has no jurisdiction.
    Congress,; in acting upon complete grants, recognised them as they stood ; and the act of 11th May, 1820, confirming such as were recommended for confirmation by the register and receiver, had no reference to any particular surveys.
    A decision of a state court, therefore; which may be in opposition to one of these surveys, is not against the validity of a title existing under an act of Congress, and this court has no jurisdiction in such a case.
    Where a cause has been pending in this court for two terms, a writ of certiorari sent down at the instance of the defendant in error, to complete the record, ' and the defehdant in error then moves to dismiss the case upon the ground that the clerk óf a State court issued the writ of error, and one of the judges-of that court signed the citation, the motion comes .too late.
    This case was broüght~up by writ of error, under the 25th section of the Judiciary Act, from the-' Supreme Court of the state of Louisiana.
    The decision of this court being against its juris'diction, it seems best to give the opinion of the Supreme Court of Louisiana, as the facts in the ease and the points decided by that court are stated with great clearness.
    “Supreme Court of the state-of Louisiana.
    “ The court met, Monday, April 26th, 1841.
    “Present, their honours Henry A. Bullard, A.' Morphy, E. Simon, and Rice Garland. His honour Judge Martin is absent on account .of indisposition.
    «LaurentMillaudonetal.,appellees^Appeal from ,the District CoIU,t for tbe John McDonogh, appellant. j . '^rst District.
    “ The plaintiffs (Millaudon and others, who were plaintiffs in the original action) allege • that they, with Henry T. Williams and Charles F. inpel, purchased a large tract of land of A. F. Rightor, being a portion of a claim or grant generally known as the Houmas, in the parish of Ascension. They took possession With the intention of dividing it into smaller tracts and selling them at auction, to effect a partition ; but were prevented from doing so by the acts and conduct of the defendant, who publicly declared that he was the owner of a large portion of the land, and slandered their title. They say they have requested him to desist his slanders, or to bring suit to assert his title, which he declines. They pray that he be compelled to set-forth his title, if he has any, and if he fail to do so, that they be quieted in their possession against his claims and pretensions ; that he be enjoined and ordéred to desist therefrom; and,, further, that they hare judgment for fifty thousand dollars damages for the tortious acts of the said defendant. .. »
    ‘“The defendant pleads a.-general denial; then specially that the plaintiffs have no title; he further avers he is the true and lawful owner of the land by-good and sufficient titles, and concludes by a demand in reconvention, in which he prays the plaintiffs may be - cited to.answer;-that.they be compelled to produce and exhibit their titles, and that he be quieted and maintained in his possession of the land.
    “ The plaintiffs, for answer to this récon vention' demand, plead the general issue,.and called on A. F. Rightqr, as their warrantor, to maintain and defend their title against that of McDonogh. Rightor answers the call in warranty by a plea of the general issue; secondly, that the. plaintiffs are not entitled to the remedies against him, which . they claim; thirdly,that they had a perfect knowledge of the character and extent of the defendant’s claim when' they purchased, and, therefore, have no right to call on him as warrantor. He further says, the plaintiffs have a good and sufficient tide; that McDo-nogh.has none at all; and if he has, he is bound to sue the plaintiffs to establish it, or abandon his claim. .He prays that McDonogh be compelled to exhibit his title; that it be rejected; and he concurs in the prayer of the plaintiffs against him, (McDonogh.)
    “ It-is further prayed that the cause be tried by a jury; but, subsequently,, the parties agreed to submit the question of titles to the court, reserving the damages to a trial before the jury:
    “ The issues in this case are somewhat complicated; it has been ■ argued at great length and with eminent ability. ■ A variety of questions have been raised by -bills of exceptions,-which, with the evidence, have swelled the record to a great size; and both plaintiffs and defendant evidently desire the court to go much, farther into an investigation of, and decision upon, their- respective titles, than, .is necessary for the settlement of the controversy between them. . We. think we can see difficulties enough likely to arise out of both these claims, in Which persons -not now before us may be interested. We shall not anticipate the points that may hereafter be made, and will now only decide what is indispensable to tibe adjustment of the difficulty between the parties before us.
    “ The first question is, upon which party lies the burden of proof as to the title of the land. The defendant says, it rests, upon his adversaries and their ■warrantor. We think differently. The reasons given by the district judge, in his judgment, have, not been refuted, and are, in our opinion,, unanswerable. He says,- the demand of the plaintiffs in their, original petition does not constitute a petitory action. ■ It is destitute of the first requisite of that action, not being brought against a party allégéd to be-in possession. Code of Pract. art, 43. On the contrary, the plaintiffs allege they were in possession* and are disquieted' and prevented from making a legitimate use and profit out of their possession and titlé, by the word's and acts of the defendant; for which cause they ask for damages* and that he be enjoined from setting up any claim for the fixture,.unless -he do it at once, either in the present action or by another suit. It is true, the défendant says he is in possession also; and had he rested his case upon that allegation, it is possible the question would have been limited to that inquiry, according to art. 49 of the Code •of Practice. But the defendant has gone further; without excepting to the- form of the action, he comes up to the mark, sets up title in himself, and institutes a reconventional demand, asking that the property be adjudged to.him. This reconventional or cross action, which is by the Code of Practice consolidated with the principal or original’suit, is-clearly petitory, and imposes on. McDonogh the obligation of making thé proof requisite to sustain his demand. So fully does this seem to have been understood by the parties originally,'that all the subsequent proceedings are in accordance with the idea of the original defendant having become pro hác vice the plaintiff. The plaintiffs cite their, vendor, Rightor, in warranty, to defend their title, according to Code of Practice, article 379, et se-quitur. Every provision of that code assumes that the warrantor is a defendant in the issue.
    “ There are various decisions of this court, and we hold it well settled, that- the last warrantor is the real defendant in a suit against his vendee» — not only against the party who cites him, but more .particularly against the original actor. That person in the present suit, so far as Rightor is concerned;- both in' substance and form, is McDonogh, whose pretensions he is called upon by his vendees to resist. This question has been heretofore decided by this court, in 9 Martin, 656, and 11 Louis..Rep. 188; and wé see no reason for changing the precedents.
    “McDonogh, holding the. affirmative .of the issue, offered in evi-. dence a certified copy.from the register or record of complete grants iri.the Land-office in New Orleans, by which it,appeared that on the 3d of April,-1769, the French governor of Louisiana granted to Pierre Joseph Delille Dupard, pére, a tract of. land having thirty ar-pens front on the Mississippi river, with all the depth which might be found to Lake Maurepas, of the land where formerly, stood two villages of the Gollapissa Indiáns, situated about sixteen leagues above the city, on the same side; to take from the plantation of a person named-Allemand, and .join that of a free mulatto named Joseph Lacomh. The usual stipulations and reservations are made in this grant. .To. its reception in evidence various objections were made,-'which were overruled, and bills of exceptions taken by Rightor, and the grant attached after it.was received as being a nullity on various grounds. . It is not necessary iii the present case to decide any of these questions.
    . “The counsel for Rightor,'on whom devolved the whole defence of this case, (the plaintiffs not appearing at all, further , than-to join issue with ’ McDonogh,) insists that, supposing the grant to Delille; Dupard to be genuine, given by competent authority,- and all the rights of the grantee, vested in his opponent, (all of which he.specially denies, however,) that then this action cannot be maintained; because, hq says, it being for a certain front and depth, and it not being specified that the lines are to open' or close in any manner, it must be located by parallel lines; and the evidence shows conclusively that, if so located, it will not touch any portion of the land claimed by the plaintiffs. But the counsel for McDonogh insist,. the lines should open upwards of twenty degrees, and endeavour to prove that it has been located, and should, so continue, as to let the lower line touch the western shore of Take Maurepas, and the upper running westerly strike the Amite river at a distance of about nineteen miles from the Mississippi, and nearly that distance fr.om the point where the lower line touches the lake. Nothing is said in the. grant about the Amite river,-nor is it shown that the lines should open in this manner, so as to include the sites of the two Indian villages mentioned in. it. If this location were to be- sanctioned, the Dupard claim would cover somewhere about one hundred thousánd arpens of land. =■
    “ To sustain their position, the counsel for McDonogh insist strenuously on what ihey call a plat made by Don Carlos Trudeau, in 1790, which they say indicates the partition of. the tract among the •heirs and legal representatives of Delille Dupard, as on it it is said the lines open in the rear as claimed.- This document wras objected to as evidence by the counsel of-Rightor, but received by the.court, with the exception of a written memorandum upon it, and a bill of exception taken, which we consider it unnecessary to decide on, as we think the paper does not prove what is alleged,-nor is it entitled to any weight as evidence. It is neither a survey, or plat, or a copy properly -authenticated, showing how the partition was made. • On the face, it is apparent a partition had been made previously, and there is evidence in the record showing it must have been made several years previous, as-one of the heirs sold her portion to Fonteneau, in 1784. This plan is evidently nothing more than a sketch • made by Trudeau to represent the front of the tract, which it seems had’increased from thirty hrpens front, in 1769, to upwards of forty arpens, in 1790. There is not about it that particularity and neatness which marks the operations- of the former surveyor-general of the province of Louisiana. The lines drawn seem to be experimental or provisional. None of those funning out from the river have any length -marked, and out of fifteen lines drawn or dotted, but six have any bearing indicated, and that is different on each of them. The statement in writing, on the face of the sketch, indicates its true character. It is not in the form of a procés verbal, but is stated to be a note which says that the land belonging to the succession having been asserted to have thirty-five arpens front, according to the declarations of the parties interested, and "conformably to the writing and sales passed by the heirs'in favour of Henry Fonteneau, Gelar Pedro Le Bourgeois, Alexandre' Lange,', mulatto, and Don Francisco Dupard, the son, the only one who had not sold his portion ; but from the verification that was had in the month of March, 1787, repeated this day, the 10th of August, in the current year, the same was found to coiitain forty arpeiis and twenty-three toises front, on the Mississippi, measured upon the lines marked (punteasJ a, b, . c, &c., &c. This is dated the 10th of August, 1790, and signed by ■Carlos Trudeau. In no part of this note pr statement does he assume any official character. If this' plan or sketch was of any validity at all, if would perhaps prove more for the defendant than he wishes, as it fixes this claim in thé parish of St.. John the Baptist, instead of the county of Acadia. In connection.with this plan.,; we find.another in the record, which is authentic, that differs from it.in various particulars.,. It. appears that Henri Fonteneau, in 1784, purchased" of Mad’e Macnainora, one of the heirs of Delille Dupard, her portion of the land,'being, one-fifth. • In. the act of sale made, in pre-' sencé of the commandant of the port or parish of St. John the Baptist, the'land is described as a tract in that parish, having seven arpens front on the river, by thé ordinary depth, (profondeur ordi.mire.) Not a word is said about the lines extending to the lake, or their opening. On the 24th of September, in.the year 1790, Trudeau makes-a survey of this land, places it in 'the parish aforesaid, gives it a front of eight arpens, four tóises, and three feet, front, and states the lower side line to run north eight degrees and fifty minutes east, and the upper, north ten. minutes west, according to the needle, without attending to the variation. JVorte ocho grados cinquenta minutas este de la actual' aguja sin atiendes a la variación. This paries widely from other plans and surveys submitted to us; it in fact differs frpm any other piat that we see in the record, and it is the only authentic, one of the lower portion of the Dupard claim made by authority of the Spanish government. We have no other evidence of- any well founded claim to an opening towards the rear, until McDonogh and Brown became interested in the land. They purchased upwards of eighteen arpens front, by eighty in depth, of Pierre Le Bourgeois, the 3d of Marcn, 1806; and in the act of sale there is nothing said of the lines extending beyond that depth, or opening in any manner; but it is mentioned that two plats of survey exist, and were delivered by the vendor to the purchasers, paraphed by the notary, neither .of which are produced. < ■

    “ When the inventory of Delille Dupard’s estate was made in 1776, the land is represented as extending to Lake Maurepas, but not a word said of there being an opening towards the rear. Some time after McDonogh and Brown purchased of Le Bourgeois, they presented the claim for confirmation to the commissioners of the United States, in the eastern district of' Louisiana, and represented it as' having a front of eighteen arpens, .three toises, and three feet, front, by eighty arpens deep, and having an opening of twenty degrees' and seventy-one minutes towards the rear; and with the exception of a small portion, it was confirmed to that extent. ;2 Am. State •Papers, Public Lands, '332. This claim was based upon a grant of the Spanish' government to Le Bourgeois, nothing being said about a grant to Dupard..
    “Another portion of this claim was derived from Dupard, through L. H. Guerlain, agent of the Eastern-Shore of . Maryland Louisiana Company^ We have carefully examined this branch of the- title, and find nothing to prove the claim had any opening, until sometime after it was recognised by the United States. In 2 American State Papers, relating to public lands, p. 297, this claim was presented for confirmation, and described as ‘situate on'the east side of the Mississippi river, in the county of Acadia, containing ten ar-pens and seven toises in front, and a depth extending to Lake Mau-repas, bounded on one side by McDonogh and Brown, and on the other by land of Antoine Tregle.’ Not a word is said about an opening. The claim is confirmed for a depth of forty arpens, and rejected for the remainder. On pages 300 arid 343 of the same volume, it will be seen these claims were again under the consideration of the' commissioners, and rejected. An examination of the title of the remaining portion of this claim, which comes through Tregle, establishes the fact that the idea of the Dupard grant opening towards the rear was of modern origin. It is certain that McDo-nogh did not consider it as extending to the Amite river previous to 1806, as he was himself established on that stream some years previous, Under a different title, or as a trespasser.
    “We have been thus particular in the examination of all these circumstances, to show that the effects of the, subsequent action on the claim are not such as contended for.by the defendant.
    - “In 3 American State Papers, relating to the public lands, p. 254, and from the record, we ascertain that McDonogh & Co. again applied to the register of the Land-office and receiver of public moneys in New Orleans, to report on this claim, under the provisions of the act of Congress, passed the 27th January, 1813, enti- ■ tied ‘An act giving further time for registering claims to land in the eastern and western district, of the territory of Orleans, now state of Louisiana.’ It-is described as ‘ atract of land situated in the county of Acadia, on the east shore of the Mississippi, sixteen leagues above New Orleans, containing thirty-tyro arpens' front, with a depth extending as far as Lake Maurepas. ■ This tract has formerly been claimed before the board of commissioners, and the depth extending beyond forty acres rejected by them for. want'of evidence of title; But'the claimants have since produced a complete French title for the whole quantity claimed, in favour of Delille Dupard* under whom they claim, dated the 3d of April, 1769.’. His claim is placed by the register and receiver in the first class; which, they say, comprehends such claims as stand confirmed by law. It will be observed that the grant to Delille Dupard is now spoken of for the first time; his claim, whenever mentioned previously, was described as one derived from the' Collapissa Indians, yet' no mention is made in this report of its haying any opening in the'rear. That difficulty is met by the defendant by the production of a' paper which, he says, is a survey and plat of his claim made by F. V. Potier, a United States surveyor, which it is certified was offered as- part- of the evidence in support of the claim, when last presented for the action of the United States commissioners; and- it is alleged that as the claim was confirmed, it must necessarily be so to the extent mentioned in the plat, it being a portion of the evidence. ■ Admitting for a moment - that this plat is valid, we are not prepare/} to say. that the proposition is true to the extent stated. ¡One piece of evidence does not fix the •extent and character of a decision, but We must look to all that is offered, and the amount demanded. There is nothin» in what- is said by the register and receiver, which authorizes a belief that ány opening was claimed, or any was intended to be confirmed. McDo-. nogh & Co. simply say they claim a ‘front of thirty-two arpens, with a depth extending as far as Lake Maurepa.s,’ under a complete title to Dupard, and the commissioners say it is a claim that stands confirmed by law. .
    “ The omission-to mention any thing about the plat, goes to show it was not regarded,, or had .but little weight5 and we. can scarcely suppose that so important an opening, as is claimed, would have been passed” over in.silence; if it had been seriously pressed.
    “We are of opinion, that the plat, even if admissible as evidence,, is not entitled to any weight as establishing the extent of the claim. Although Potier says he is a sworn surveyor, commissioned by the surveyor-general of the United States, we know of no right thát gives him .to run out cláims under the direction of individuals merely, and fix the boundaries of those -not recognised by the govérnment. It is not pretended he acted under any authority from his superior in.making what is-called a survey; it never was.presented to the surveyor-general for his approval, nor does it seem to have had the legal sanction of any one' authorized to act in the premises. Potier does not pretend it- is'a regular survey; he calls it ‘plan ■extrait ,des minutes dé nos operations djarpentage faite dans les années 1.806, 1808, et -1812,- lesquetles lignes en divers terns ont été parcourues jusqu’ci la riviire Amite et demarqué conformémení aux lignes duplan.’ He then, goes on to say, Delille Dupar.d had described his title .from the. Collapissa. Indians, and sold it to various persons.- He does not seem- even to have heard of a grant from the French government in 1769, or attempted a location in conformity to it. '
    “The defendant further states that his claim has been located by the United'¡States since its confirmation, and surveyed in the manner claimed by him.' To establish this, he offered in evidence copies of three township plats, to wit: tdwnship No. 10 south, ranges five and- six east,- and township No; 11 south, range 5 east. To the introduction- of these plats as evidence Rightor objected, because the papers are not, nor do they purport to be, copies of the original plats of those townships, and for other causes mentioned in his bill of; exceptions. Thé district judge admitted them in evidence, in which we think he erred. The papers are copies of copies, and it is á well settled rule of evidence that they are not admissible as testimony when bettér évidénce can be procured. It is further apparent, from the certificate of the register of the Land-office, that .they are not correct copies. The claim of McDonogh is represented on these copies in a manner differing from that in which it appears on the plats in the register’s office. The register states on one of the plats, that on the original ‘ section No. 1 is not coloured,? but that he had ‘ represented it as it now appears, at -the request of John McDonogh, Esq.’ Tie colouring of these-maps was, perhaps, not. intended to - deceive or impose on any person, but when it is recollected that surveyors represent private claims properly located on their plats in a colouring different from public lands or doubtful rights, such a representation is calculated to make an 'erroneous impression. But the objection.most fatal to the reception of these plats as evidence, is that they are .certified by a person not the keeper of the original. The surveyor-general of the United .States for this state is. the officer who has charge of the public surveys, and he is the proper person to certify, the township maps. 2 Land Laws, 294, sect. 6. The copres of public surveys deposited in the office of the register of the Land-office are placed -there for his government, and to enable him to perform the duties imposed by ' law, but he has not' legal authority to certify copies so as to make them legal evidence. The law intrusts that .power 'to another person.
    “ Although we are of opinion these plats were improperly received in evidence, .we have examined them with a view to see if the pretended survey would justify the claim of the defendant. We do not find in the record the slightest evidence of authority from any officer of the United States to locate this claim in- any manner. The acts of Congress of the 12th of April, 1814, and the 3d of March, 1831, direct the mode-of locating private claims. l'Land Laws,: 652, sects. .3, 4; 2 Land Laws,, 294, sect. ,6-'
    There are also other acts of Congress' in relation to. the location . of particular classes of claims, but the defendant does not come within the'provisions of any of them.
    “ It has been decided that the court and jury will look beyond the confirmation of a claim by the land commissioners of Congress, emanating from the former .governments of Louisiana, in order to ascertain the extent and boundaries'óf the land claimed. 11 Louis. Rep. 587. We have acted on that principle in this case, and see no' reason to depart from our previous decision, that when the expressions in a title only convey a certain front and depth, the grantee or purchaser cannot claim by diverging lines to the rear, and thereby obtain more than the superfices contained in a parallelogram, unless there be something in the grant to authorize the opening, or, from the peculiar position of the claim, it shall be necessary to give the superficial quantity. ' That does not appear necessary in the case before us.
    “We repeat, that it is not our purpose to decide in any manner upomthe validity of the Humas’ grant, under which the plaintiffs claim, nor cto-we decide any thing more in relation'to that alleged to be in favour of Delille Dupard, under which-the defendant claims, than to •say, whether it is for thirty or forty arpens front, and is éighty arpens or moré in-depth, it must "be located by parallel lines, unless the confirmation to McDonogh and Brown, for eighteen arpens, three toises,nnd three feet, front, by eighty in depth, should for that quantity authorize the opening mentioned in the report on the claim, but it cannot extend beyond it.
    “ It is clear from the evidence before us, that the claim of the defendant, if.located in the manner specified, cannot in any way interfere with the land claimed by the plaintiffs as shown by the plats laid before us.
    “ The judgment of the District Court is therefore affirmed, with costs.”'
    To review this opinion, under the 26th section of the Judiciafy Act, a writ of error was sued out, by which the case was brought up to this court.

      Jones and Meredith, for the plaintiff in errór. .

      Cox'e and William Cost Johnson, for the defendants in error.
    A motion had been previously made and argued on the part of the defendant in- error, to dismiss the case upon three grounds.
    1. That the writ of error .had been irregularly issued.
    ■ 2. That no jurisdiction was shown by the- record to exist under the 25th section of the Judiciary Act.
    3. That the judgment of the court below was not final;
    The writ of error was issued by A. Cuvillier, Clerk of Supreme Court of Loüisiana, eastern district.

      Coxe, in support of the motion to dismiss, referred to 2 Dallas,' 401, and said that in consequence of this decision, an act of Congress was passed in May, 1792, (1 Story, 260.) In 8 Wheat. 312, 324, it was held that the 9th section of the act of 1792 applied tó bringing up cases from the Circuit Courts of the United States, and also from the highest tribunal of -a state, when this court can take jurisdiction under the 25th section. ,4 Dallas, 22; 9 Peters, 602; McCollum v. Eager, 2 Howard;. 7 Wheat. 164; 12 Wheat. 117; 2 Peters,-380; 3 PeterS, 392; 10 Peters, 368 ; 9 Peters, 224; 7 Peters, 41; 11 Peters, 167.
    Meredith, in reply, said that there' was a difference which must be borne in mind, between the English system and ours: In Eng-. land the writ was an original writj issuing out of the court.of chancery, which .had a double nature. -It was a certiorari to remove the record, and a commission .to the superior court to affirm or reverse the judgment. 2 Saund. Rep. 100, (1.)
    Under our judiciary system, it is nothing mdre than a certiorari to remove the record. It imparts, no authority to this court. It , gives no'jurisdiction. • The President'of the.United States, in whose name the writ issues'here, has no power to-confer jurisdiction upon this court, as.the king has in England, in whose name the writ issues there. Here it is given solely by the Constitution and laws. It is a mere -instrument in aid of the revising and appellate power, but is not indispensable. ■ Its sole purpose is to bring,the record into court; and if the record is in court, or a copy properly, certified and brought" there by the party aggrieved by the judgment, with due .notice to the other party, there can be no difficulty in proceeding to exercise the-appellate power. In order to show that if a copy of the record be iri possession of the court, the mode of its removal • will not be inquired into, it may be mentioned that a large portion of the cases brought here under the 25th' section, -are brought with.out writs of error, viz., chancery cases and. admiralty decrees, which are brought simply by á prayer of appeal with citation .; and yet the 25th section requires a writ of error in all cases, decrees as well as judgments. In Martin «. Hunter, the state court refused to make return to the writ, and the plaintiff in error procured an exemplification of the record and brought it himself into this court. ' 1 Wheat. 349;. 6 Wheat. 264.
    If a. writ of error is a mere mode, of removing the record, and if the mode, of removal is form arid not substance; if it gives no jurist diction'to the court, but is a mere instrument to facilitate the exercise of the appellate power, then we contend that any defect in the writ, itself, or any irregularity in issuing it; is immaterial.
    1. It may be waived. The general rule is, that irregularities and defects in the process or pleadings may be waived.
    A writ issued' with an illegal teste, may be waived. 2 Pick. 592, and the cases referred to in p. 595."

      21 Pick. 535. The action was against a deputy sheriff.. The writ was served by a coroner; service bad,- but cured by appearance.
    1 Mete. 508. A motion to'dismiss the action, or quash the writ, if not.founded on matter of exceptions, which show want óf jurisdiction of the court, comes too late after pleading to the action.
    In this case the facts show a waiver. The record was filed 24th October, 1842. There was an appearance. This is the third term the case has been here. There was a. motion for certiorari at last term. All which make a strong case of implied waiver.
    2. If not waived, the defect is cured by the- 32d section of the act of 1789. 1 Paine, 486.
    But we contend that the writ was regularly issued. The record' shows a petition signed by the counsel of the plaintiff in -error, and addressed to the Supreme Court of Louisiana, assigning reasons why a writ of error would lie, and praying .that it may be allowed. ■Upon which, that court issued the following order:

      “ Let the writ of error be allowed according to law. The petitioner to give bond and security in the sum of five hundred dollars.
    (Signed) “F. X. Martin.”
    .From these proceedings it is manifest that the state judge thought he had authority to issue the writ. See dictum of Johnson, J., 1 Wheat 379.
    There is nothing prohibitory in the section. It says “ upon a writ of error,” but does not Say when or how. it is to be issued. The provision respecting a citation shows- that.it was the design of the law to promote the convenience of suitors. To allow the suitor to apply to a state judge for a citation, and yet compel him to go to the Circuit Court for the writ, would conduce nothing to his convenience.
    It may be said that our construction would lead to the anomaly of a court issuing a mandatory writ to itself. But, in fact, this is no anomaly in our legislation. - By the act of 1792, sect. 11, (1 Story, 260,) the writ of error is directed to be issued out of the Circuit Court, under its seal, returnable to this court.
    2d. The judgment is said not to be final. (Mr. Meredith's argument upon this point is omitted.)
    3. As to the jurisdiction of this court, A classification of the cases in which .jurisdiction is conferred, is made in 10 Peters, 398; Í6 Peters, 285.
    What appears then from the record, and the decision of the court ?
    It is-apparent that McDonogh relied upon the .confirmation of his title, by the report of- the register and receiver, and the act of Congress.
    The district judge decided that his claim was not embraced by the, act; that there had been no confirmation.
    If the writ of error had been taken to this, judgment, there could have been no doubt of the jurisdiction.

      A construction of the act was directly drawn, in question; and the decision was against the right and title specially set up and claimed by McDonogh, under the act
    The writ of error, howeyerfis to the judgment of the Supreme Court.
    It is apparent that in that court also, McDonogh relied upon the confirmation of his title, by the act of Congress.
    What title ?
    A title to • the whole extent ef his claim, as established by the evidence of a survey before the register and receiver, and by them-so confirmed.
    Whatever they reported was confirmed by the .act. And in the absence of all evidence of a prior title out of the United States, the report and confirmation were conclusive. Strother v. Lucas, 12 Peters, 410; Grignon v. Astor, 2 How. 319; Boatnerw. Walker,-11 Louis. Rep. 582. But the Supreme Court decided, that assuming the confirmation of the act of Congress, it was a confirmation of the bare title, without any ascertainment of location. And that although no title was shown 'by Rightor, they had a right to look beyond the ■confirmation, and ascertain the extent and boundaries of the claim.
    .Now here again, the construction of the act of- Congress was drawn in question: for McDonogh relied on it as a confirmation of-his title for the whole, quantity of land,, cláimed before the register and receiver.'
    But the court gave a different construction of the act; and therefore decide against the right and title speciálly set up under it by McDonogh.
    It is a case then clearly’' within the 25th section.
   Mr. Justice CATRON

delivered the opinion of the court.

The question in the Supreme Court of Louisiana was- one of boundary. The court passed on the grant to Dupard only,-and not on the opposing claim: if the lines of the former did not open in their production from the Mississippi, towards Lake Maurepas, then the land claimed under Millaudon’s title was not embraced by Dupard’s grant, and no necessity existed for the examination of Millaudon’s. Dupard’s. was made in 1769, “for thirty arpens of front to the river Mississippi, upon the whole depth that shall bé found, unto Lake Maurepas,-of the land where heretofore were two villages of the Collapissa savages; to take from the plantation of one AUemand, unto its junction with that of a person named Joseph Lacombe.” The front being ascertained, the-court below held that, the extension back must be on parallel lines. As this construction excluded the land claimed by Millaudon, it ended the controversy in his favour. .

Did this final judgment draw in question the construction -of a treaty or statute of the United. States; or of an authority exercised under the same: and was the decision'against the validity of either; or against the title, or right set up or claimed under either? If these questions are answered in the negative, it follows we have no jurisdiction to re-examine, or reverse the judgment under the 25th section of the Judiciary Act; as no other error is within the cognisance Of this court.

1. The treaty with France, of 1803, gave.mo further sanction to the boundary of McDonogh’s title than it had by the grant; in respect to its validity, the decision of the state court supported the claim to the same extent that the treaty protected it, and therefore the decision was not opposed to the treaty. A question partly involving this consideration was adjudged in The City of NewOrleans, v. De Armas, 9 Peters, 225, to which we refer.

2. Was the decision of the. Supreme Court of Louisiana opposed to any act of Congress ? Dupard’s grant was completed as early as 1769, and presented to the register, arfd receiver as a complete

. title; was thus reported on by them to the General Land-office, and by that department the report was laid before Congress ; it is as follows:

“No. 406.
“John McDonogh & Company claim a tract of land situated in the county of Acadia, on the east shore of the river Mississippi, sixteen leagues above New Orleans, containing thirty-two arpens front, with a depth extending as far as Lake Maurepás.
“ This tract of land has formerly been claimed before the board of commissioners,, and, the depth extending beyond forty acres, rejected by them, for want of evidence of title; but' the claimant has -since produced a complete French title to the whole quantity claimed, in favour of Pierre Dejille Dupard, (under whom he claims,) dated 3d day of April, 1769.”.

On the report at large, embracing many claims, Congress proceeded ; and by the act of May 11th, 1820, declared, “ that the claims to lands within the eastern district of Louisiana, described by .the register and receiver of said district in their report to the commissioner of- the General Land-office,^ bearing date the 20th day of November, 1816, and recommended in said report for confirmation,be, and the same are hereby confirmed, against any claim on part of the United Státes.’’

McDonogh’s claim, No. 406, is of class first, species first, in the report, including twenty-one grants, of which the. register and receiver say: “ All the preceding claims, being founded on complete titles, are in our opinion confirmed by law.” 3 Am. State Papers, 255. This is explained in page 267, where it is again said: “ Those claims which are found under species first of the first class, being founded on complete grants of former governments, we think are good in themselves on general principles, and therefore require no confirmation by the government of the United States to give them validity.”

■ Many incopiplete titles were recommended for confirmation, and confirmed by Congress, but in these cases the former governments had not parted with the ultimate interest in-the land,, and the fee was transferred to the United States by the treaty, with the equity attached in the claimant,, which equity was clothed with the fee1 by the confirming act. The perfect title of McDonogh being clothed with the highest sanction, and in full property, on the change of governments an'assumption to confirm.it would have been pregnant with suspicion that it required confirmation by this government, in addition to the general law of nations and the treaty of 1803, which secured in foil property such titles. That the grant stands recognised as complete and valid against, the UnitecI States, and any one claiming under them, by the proceedings'had before the register and receiver and by Congress, we have no doubt; further .than this, the government has not acted - on i.t. In such sense similar titles have been treated, as will be seen bythe'two acts of May 8th, 1822 — the first confirming lots in the town of Mobile and claims, in West Florida.; the second, sanctioning the reports of the registers and receivers .of the land-offices at St. Helena Court 'House and at Jackson Court House, in the districts east and west of Pearl -river; in regard to which reports, Congress says: That all complete titles (reported on ■ as such) be, and ithe same are, recognised as valid and complete agáinst the United States, or, any right derived under them.

But in McDonogh’s case, as in other similar ones, referred to above,- the recognition extended only to the boundaries the grants themselves furnished, according to their landmarks, and true construction' under , the local laws in virtue of which they were obtained.

3. To overcome this objection, it is insisted,- on the' part of the plaintiff in error, that. McDonogh & Company filed plans of survey and descriptions of the. land with the register and receiver, and especially that of F. V. Potier, as part of their title, giving the boundaries as they were claimed before the Supreme Court of Louisiana; that these were confirmed by Congress; that the confirmation, .to the extent it was made, is binding on the United States,' as the opposing claim of Millaudon was not drawn in controversy below, and the lands claimed-treated as unappropriated, by individuals.

If-the fact assumed was true, that thé plans and descriptions had been confirmed,'and boundary given to the title according to them by the United States, then the decision would be .opposed to the confirmation, and jurisdiction exist in this court.

There can be no doubt such .plans and descriptions were filed and . recorded in due time, but no evidence is found in the record that the register and receiver acted' on them; or that they were presented to Congress even as documents accompanying the report; if they were, it is' manifest that they were disregarded, for two reasons: first, because Congress did not' assume the power to deal directly with this title at all; and, secondly, because the report had reference' singly to .the face of the grant, regardléss of private surveys made subsequent to its date, at the instance of the successive owners.

The state court held McDonogh’s title to' be valid to every extent that it has been recognised-by the United States, and only applied the local laws of Louisiana in its construction, so far as they had a controlling influence on the-manner in whi'ch the side lines should be fextended from the Mississippi river towards Lake Maurepas; and as,, in so doing, neither the treaty of 1803, nor any act of Congress; or authority exercised under the United States, was drawn in question, this' court has no jurisdiction to revise the decision of that court; for which reason, the-cause must be dismissed.

The clerk of the Supreme Court of Louisiana issued the writ of error,.and one of the judges) of that court-signed the citation; and, on the ground that such writ could not remove the record, it was moved on a former day of the term to dismiss the cause. It has been here for two terms; a writ of certiorari has been sent down, at the'instance of the defendant in error, in whose behalf,the motion is made, to complete the record; he now moves to dismiss for the first time, and we think he comes too late. If errors had been assigned by the plaintiff here, and joined by the defendant, no motion to dismiss for such a cause could be heard; and as no formal errors are usually assigned in this court, and none were assigned in this cause, wé think ..the delay to make the motion is equal to a joinder in error, even if the clerk of the Supreme Court of Louisianá had no authority to issue the Writ, on which we at present express no opinion.