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    John Doe, ex dem. of Catharine Louisa Barbarie, Ann Billup Barde, Daniel R. Brower and Ann B. Brower, his Wife, Curtis Lewis and Isabella Lewis, his Wife, John T. Lackey and Margaret Lackey, his Wife, Heirs and Legal Representatives of Robert Farmer, deceased, v. The Mayor, Aldermen, and Common Council of the City of Mobile, and Joseph Clements.
    Under the two acts of Congress passed on the 8tli of May, 1822 (4 Stat. at Large, 700 and 708), the register and receiver of the land office were not empowered to settle conflicting titles but only conflicting locations.
    In this case they'did not describe a boundary line by visible objects, but called to bound upon another line. ■
    The authority given to these officers was to be exercised only in cases of imperfect Sants, confirmed by the act of Congress, and not cases of perfect title. In these ey had no authority to act.
    Hence, where á State court left the question of location - to be-settled by a jury, this court will not disturb the judgment of thé State court founded upon such finding.
    This case was brought up* from the Supreme Court of Alabama, by a writ of error, issued under the twenty-fifth section of the Judiciary Act.
    It .Was a branch of the preceding case of the same plaintiff against Eslava. In the statement of that case, it is mentioned that the suit was brought against all the defendants conjointly, but that the city of Mobile obtained leave to sever in their plea. This case, is the result of that severance.
    The title of the plaintiff is set forth in extenso in the report of the preceding case, and need not be-here repeated.' The defendants, produced no official survey or patent for the lot in question, but relied exclusively upon the act of'Congress passed on the 26th of May, 1824 (4 Stat. at Large, 66).
    The bill of exceptions states all the points in which this case differs from the preceding one.

      Bill of Exceptions. ’

    “ Doe, ex dem. Farmer’s Heirs,' v. Roe, Mayor and Aldermen of; the city of Mobile, and Joseph Clements, Tenant, &c. >
    Ejectment.
    “ Mobile Circuit Court.

      “ Be it remembered, that, on the tri^l of this cause, the plaintiff,,to maintain .the issue oil» his part, produced and read to the court and jury from the third volume of the American State Papers, title Public Lands, page 18, an abstract of the title to the lessors of the plaintiff, being claim No. 45, and which it is agreed may be read from the said book on the hearing of the cause in the Supreme Court of .this State,.or the United States, if it shall be carried thither. He likewise read to the court and jury the act of Congress passed the 8th day. of May, 1822, confirming said claim. He further read to the court and jury a patent from the United States, issued in pursuance thereof, dated the 14th day of November, 1837, for the premises in question, granted to the heirs of the said Robert Farmer, in right of Philip Gonjon de Grondel, wherein the said premises are described as follows, to wit: — Beginning at a post on the line of the claim of William McYoy, at the distance of twenty-four feet north of the northeast angle of Government Street and Emanuel Street; running thence north sixty-nine degrees east (with the line of McVoy), eighty-nine feet seven inches to a stake, the southeast angle of a brick cotton-shed, bearing north seventeen degrees west, distant forty-two feet one inch; thence north seventeen degrees forty minutes west, two hundred and twenty-four feet, to the south.boundary of the bakehouse lot; thence .with sai3 south boundary, south seventy-five degrees fifteen minutes west, eighty-nine feet six inches, to the east boundary of Emanuel Street; thence with said street, south seventeen degrees forty minutes east, two hundred and thirty-four feet, to the place of beginning; containing twenty thousand four hundred and ninety-five superficial feet English, and being a lot in the city of Mobile, and State of Alabama, in township four south of range one west, in the district of lands subject to sale at St. Stephen’s, Alabama, a copy of which patent is hereto attached as a part of this record. The plaintiff proved the defendants in possession of the premises, the particular location thereof, the heirship of the lessors, &c. And it was further proved on the part of the plaintiff, that Robert Farmer was a British' subject, a native of North America, and died in Mobile about the' year 1780 or 1781, as appears from the deposition of Madame Beaumont hereto attached as a part of this record ; that he was an officer of the British army at the time of his death; that the family, shortly after the conquest by Spain of that Province, removed from the Province, and none of them returned during the whole period of the Spanish supremacy. And that De Vobiscey, father of one of the lessors, came to Mobile in 1818 or 1819, to set up the claims of the family. The defendants, for the purpose of maintaining their issues, introduced the act of Congress of- the 26th of'May, 1824, entitled ‘ An act granting certain lots of ground to the corporation of .the city of Mobile, and to certain individuals of said city;’ and claimed the lot in dispute as a portion of the bakehouse lot specified in said act.
    “ The defendants produced.no official survey nor patent from the land office for the lot, but relied on said act alone. To establish the boundaries of the said lot, they had the depositions of Catharine Walters, Thaddeus Saijdford, and Nicholas Weeks, taken by commission issued and executed regularly, which said depositions are hereto attached as a part of this record. The plaintiff objected to the reading of the depositions, because the evidence .was irrelevant, incompetent, and improper under the issue, and went to contradict, to vary, and to change the legal import and terms of the patent introduced by the plaintiff.
    “'The court overruled the objection, and suffered the depositions to be read, to which the plaintiff excepts. The defendants called a number of witnesses, and examined them as to the marks and memorials that existed of the bakehouse lot,1 as it was used and occupied in Spanish times, and as to those which remained after the departure of the Spanish government, (hone of which appeared in the patent under which the plaintiffs claimed, either as landmarks or- otherwise, nor are they now visible,-nor did any of the witnesses swear that they were the lines of the lot aforesaid, nór was it proved who put them there, or when they were put there,) and proved the facts of the .possession by the adjoining proprietors, Joaquin de Orsono and Miguel Eslava, in Spanish times; and that in 1824, when the lot was taken by the defendants, the mayor and aldermen of said city leased a portion to third persons, without objection by the plaintiff’s lessors, or the heirs of Eslava, that the witnesses knew of (four of these witnesses were members of the corporation in 1824), bdth of whom claimed the lot south, and bounding on the king’s bakehouse, and that no suit had been brought before this suit for the same; that the witnesses knew of no written evidence of any suit that'was before the jury; that improvements had been made on- the lot by the defendants, on the line as now claimed by them.
    “ The object of all this testimony on the part of the defendants being to show that the king’s bakehouse lot was as it is claimed to be by the defendants', and to show that the defendants are not in possession of any lands that did not form a portion of the said lot, and that the courses and distances laid down in the patent conflict with the right of defendants, which evidence' was objected to by the plaintiff as- irrelevant, improper, and incompetent, which exceptions were Overruled' by the court. The defendants, further to establish their southern boundary line, proved that the next lot was claimed by Joaquin de Orsono in Spanish times, and was used and improved by him; that he parted with his possession and title to Miguel Eslava, who was at the time commissary and storekeeper for the Spanish troops at Mobile, who was in possession when De Tobiscey came to the State, and who has been controverting the right of Farmer’s heirs ever since, and that his heirs are now in possession of the said lot, and have been for more than twelve years. The defendants proved that their claim to the possession was not. disputed by said Eslava or his heirs; further, the defendants produced the book, of translated Spanish records, from the County Court of Mobile County, and offered to read a deed from Francis Fontanella to Joaquin de Orsono, on record in said book, for the lot south, calling for the bakehouse lot as the northern boundary, bearing date in 1801, and a copy of which is attached as part of this record. The plaintiff’s counsel objected to this deed because the same was irrelevant,- and incompetent, and because there was no evidence that the same had ever been offered to any commissioner appointed under the acts tif Congress for th ¡ examination of private land claims, under the treaty between the United States and France. The court overruled the objections, and the deed was read to the jury, to which the plaintiff excepts. The French grant to Grondel, calling for the bonlangerie du roi for its northern boundary; was before the jury, and. read by defendants’ counsel. There was no evidence that the claim to possession was ever disputed by Eslava or his heirs, but there was evidence that the. corporation, shortly after they took possession of the lot (as testified by Josiah .Wilkins, who was a member of- the corporation at the time), procured the fence that bounded the bakehouse lot on the south to be .moved in the night-time, some thirty or thirty-five feet south, upon the premises-claimed by the plaintiff, while the said Tobiscey, one of the heirs of Farmer,' was in possession thereof. This was the. substance of all the evidence given, before the jury retired to consult on their verdict. The court read to the jury, as a part of. its charge, a statement and opinion of the Supreme Court of the State of Alabama, in this same case, reversing the judgment heretofore rendered in this court in favor of the plaintiff, which statement and opinion is in these words and figures, (see the manuscript hereto appended, marked A,) and instructed the jury, that the said statement and opinion were the correct and true law of the case, to which the -plaintiff excepted. The court in its charge to the jury further instructed them, that the act of Congress of the 26th May, 1824, conferred upon the defendants as perfect and conclusive a title, and their claim and title, to the bakehouse lot was precisely equal in every respect under said act, as the plaintiff’s title was under the patent on which he claimed, and was of equal dignity with the same. After the' charge had been delivered by the court to the jury, and before they retired from the box, the plaintiff requested the court to instruct the jury, that the act of Congress of the 26th May, 1824, granted to the said defendants the bakehouse lot as a mere donation lot, and that the register and receiver at St. Stephen’s were authorized, under the act of Congress of the 8th May, 1822, and other acts of Congress, to direct the manner and mode of surveying and making the location and division between these'parties; and having done so, no parol evidence is competent to set aside, to vary, or change the location so made under their direction and set forth in the patent; which instruction the court refused to give, and to which the plaintiff excepts. The plaintiff further requested the court to instruct the jury, that no survey, plat, or other description of the premises in question, can outweigh or supersede the survey set forth in the patent under which the plaintiff claims, unless it be shown by the defendants in a patent, or an instrument of evidence of equal grade and authority with a patent; which instruction the court refused to give, and to which the plaintiff by his attorney excepts. To all which charges and refusals to charge, the plaintiff by their counsel excepts, and prays that his exceptions may be sealed and made a part of the record, which is done accordingly.
    “ G. Bragg, [seal.] ”
    The following is the extract from the opinion of the Su-preme Court of Alabama, which was declared, in the above exception, to be the law of the case;
    “ Mayor and Aldermen of Mobile v.' The Heirs of Farmer.
    “ 1. The power given to the registers and receivers, by the different acts of Congress, to determine between conflicting and interfering claims, and to direct the manner of locating and surveying them, applies only to confirmations of imperfect grants by the former proprietors of the country. These officers have, therefore, no power to locate and direct the survey of a disputed line, where one of the parties claims by virtue of a complete and., unconditional-grant, as in the case of the donation to the corporation of Mobile of the hospital and bakehouse lots by the act of the 26th May, 1824.
    “Error to the Circuit Court of Mobile. Ejectment.by the defendants in error against the plaintiffs in error.
    “ The plaintiff below, to sustain his case, introduced in evidence a patent from the United States to the lessors of the plaintiff, for certain lands in the city of Mobile, and proved that the premises sued for were within the lines of the patent.
    “ The plaintiff also read the deposition of James Magoffin, and certain proceedings of the land office at St. Stephen’s, in relation to the boundary of the lot known as the ‘ bakehouse lot,’ and other testimony proving the heirship of the parties, which need not be stated.
    The defendants relied on the act of Congress of the 26th May, 1824, entitled, ‘ An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city ’; and offered to prove that the lines of the bakehouse lot in the city of Mobile, at the date of the act, comprised the locus in quo. The plaintiff objected to this evidence, on the ground that the transcript of the record ■ attached to the evidence of James Magoffin, in which the limits of the bakehouse lot had been ascertained by him, was conclusive. The court sustained the objection and excluded the evidence, and charged the jury that the heirs of Robert Farmer were entitled to the property described in their patent; that the corporation was entitled to the bakehouse lot; but that the decision of the officers of the land office at St. Stephen’s was conclusive of the question. To which the defendant excepted, and .which he now assigns for error.

      “ Campbell, for the plaintiff in error.
    “ The title of the plaintiff in error arises under the act of 26th May, 1824, by which the bakehouse lot is vested in him. This act amounts to a complete grant, and any question arising upon it is a judicial, and not a political question. What lands are included in the grant is not a question for the land office, but the court. 6 Cranch, 128 ; 8 ib. 244, 249; 6 Peters, 741; 12 ib. 454; 14 ib. 414,-3 Dali. 456.
    “ The defendants’ title is inferior. The patent bears date in 1837; the terms of renunciation are in presentí, arid no evidence of title prior to 1824 is presented.
    “ The register and receiver at St. Stephen’s were not authorized to settle conflicting boundaries. Their power is exhausted by the settlement of the question of location for the purposes of the land office. Whether that location is accurate, so far as third persons who cláim by grant previous to the act of location are involved, is a question which can only be settled by the parties themselves, or by courts of justice. Instructions and . opinions of the land office, Part [ 1 1445, <§>§ 5, 6; 6 Peters, 735.
    • “ Phillips, for the defendants in error. ■
    “ The title of the heirs of- Farmer i's derived from the act of 1822. Under that act, the certificate of the register and receiver was made and confirmed by Congress, and the plat of survey made the title. It is therefore older than that of the plaintiff in error, which commenced in 1824.
    “ The effort now is, to show that the north line, as fixed by the plat of survey confirmed by the act of 1822, was too far to the north. If, instead of being specifically located, the confirmed report had described it generally as the lot' of Farmer’s heirs, and in 1824 the donation to the plaintiff as the lot known in Spanish times as the ‘ king’s bakehouse lot,’ reserving the rights of others, under such circumstances, an inquiry ordered by the common grantor, and his decision thereon as to the boundary, ought to be conclusive, as a mere declaration of a fact which always existed; the more especially as the. opposite party submitted to the jurisdiction, examined witnesses, and contested their rights.
    “ Ormond, J. By the.act of the 26th May,T824, the United States granted to the mayor and aldermen of the city of Mobile all right and cláim of the United States to the lots known as the hospital and bakehouse lots, containing about three fourths of an acre in the city of Mobile.’ 1 Land Laws, 398.

      “ On the 14th of November, 1837, a patent issued from the General Land Office in favor of the heirs of Robert Farmer, upon a confirmation of a claim made by virtue of the act of the 8th May, 1822 (1 Land Laws, 352); which, among other designated boundaries, calls for the south boundary of the ‘ bakehouse lot ’ as one of the boundary lines of the land conveyed by the patent; and the controversy in this case is, What is the south boundary of the bakehouse lot ? To establish this boundary, the plaintiffs rely upon a decision made by the register and receiver at St. Stephen’s, which they insisted, and the court below held, to be conclusive of the'fact.
    “ The right of these officers to determine this question is attempted to be derived from the various acts of Congress giving them power to determine between conflicting and interfering claims, and also to direct the manner of locating and surveying the lands the title to which had been confirmed. (See Land Laws, Part 1, 348, 352, and 455, and other acts, to which these are supplementary.) 1 There can be . no doubt that Congress may attach to a pure donation such terms as it pleases, and may invest the subordinate officers of the United States with power to determine questions of fact, and to ascertain and settle conflicting claims. Of this the different preemption laws-furnish examples. Whether it has such power in relation to the confirmation of imperfect titles derived from the former proprietors of the country, is a question which does not arise in this case.
    “ The power conferred on the registers and receivers to decide upon conflicting claims relates only to the confirmation of imperfect titles derived from the French, British, and Spanish governments; but the grant of the bakehouse lot to the corporation of Mobile was an unconditional donation of all right and title of the United States in and to the thing granted, which immediately passed to the grantee. The previous acts of Congress, .therefore, giving to the receiver and register power to ascertain and settle the boundaries of conflicting confirmed claims have no application, and it was not competent for Congress to attach such a condition to it subsequently, and it has made no such attempt. The description of the thing granted in the act is sufficient to distinguish it from other lots in the city, and by the aid of extrinsic testimony its boundaries may be ascertained. Blake v. Doherty, 5 Wheaton, 359..
    “ By the treaty, the United States acquired all the title of the crown of Spain to these lots as public property. The question then is, What was the boundary of these lots in Spanish times ? .This is a question of fact, and if a controversy should arise in relation thereto between the corporation and others claiming title to the adjoining lots,, it can only be settled by those tribunals appointed by the constitution and laws for that purpose, -unless the parties interested should voluntarily submit to some other mode.
    “We are relieved in this case from the necessity of considering whether the recital in the patent of Farmer’s heirs of the boundary line would be conclusive, because the patent does not profess to locate the north boundary line other than by calling for the ‘ south boundary of the bakehouse lot.’ The precise location must therefore be ascertained by testimony, showing where the south line was when in the occupancy of the crown of Spain. Such as its limits then were, it passed by the treaty to the. United States, and with those limits it was granted to the corporation.
    “ It results from this examination that the court erred in determining that the decision of the register was evidence of the boundary line of the bakéhouse lot, and its judgment is therefore reversed, and the cause remanded.”
    The above was the extract from the opinion of the Supreme Court of Alabama, which was given in charge to the jury by the Circuit Court of Mobile County. Under these instructions, the jury found a verdict for the defendant. The case was then carried to the Supreme Court of Alabama, upon the bill of exceptions above recited, and that court affirmed the judgment of the Circuit Court.
    Th.e plaintiff sued out a writ of error, and brought the case to this court.
    It was argued by Mr. Phillips and Mr. Coxe, for the plaintiff in error, and Mr. Campbell and Mr. Sergeant, for the defendants in error.

      Mr. Phillips, for the plaintiff in error,
    made the following points: —
    The title of the plaintiff1, originating in the French patent to Grondel, was presented by the heirs of Robert Farmer, who claimed to hold under it, to the board of commissioners, and appears in the report of 1816 without any proof of inhabitation or cultivation. (3 State Papers, 32.)
    This claim is renewed, and appears again in the report of 1820, in the register of claims to lots in the town of Mobile (Vol. III. p. 398, No. 27), when the proof of inhabitation and cultivation seems to have been made.
    By the act of 1822, Congress confirmed this claim, reserving to the tribunal organized for that purpose the right “ to direct the manner in which all lands confirmed by this act shall be located and surveyed, and to decide between the parties in all conflicting and interfering claims.” (Act of 1822,'<§> 5.)
    The patent which issued upon this claim on the 14th of November, 1837, recites the deposit in the land office of the certificate of the register and receiver, with a plat of survey, under the provisions of the act of 1822, in favor of- the heirs of Farmer, in right of Philip Gonjon de Grondel, being No. 27 in abstract No. 7.
    The king’s bakehouse lot (boulangerie du roi) had been occupied by the Spanish authorities, under, what title does not appear, and upon the change of government was regarded .as public or unappropriated land.
    Congress, by the act of 1824, without asserting any title' to the lot, by the most cautious terms vested in the mayor, &.C., “all their right and claim to the-lot known as the bakehouse lot, containing about three fourths of an acre of land.”
    Language could scarcely be more guarded 5 yet they further expressly provide in the second section, “ that nothing in this act contained shall be construed to affect the claim, if any such there be, of any individual, or any body politic or corporate.” (See Act of 1824, 1 Land Laws, p. 885.)

      If Congress, therefore, confirmed the plaintiff in his claim by virtue of the act of 1822, and reserved in the same act the right to determine its precise admeasurement by a survey thereof, it cannot be intended that two years afterwards it voluntarily donated the same lot of land to another. United States v. Arredondo, 6 Pet. 739.
    The case presented is one where the common grantor has made two grants, and conclusively defined the limits of one of them.
    The survey made by the government, and upon which, the patent issued, is a complete one, all the lines being ascertained and closed, and it is not true, as the Supreme Court of Alabama has erroneously .supposed, that one of the lines called for “is the south boundary of the king’s bakehouse,” on the understanding that this was a well-ascertained line.
    The description of the premises in the patent refers to an actual survey upon the ground, made by the United States surveyor under the act of Congress, and which was duly deposited in the General Land Office. The Courses and distances and the length of each line are accurately given, and the lot is declared tp contain “ 20,495 superficial feet.”
    It is urged by defendants, that, as the line running north is described as “ 224 feet, to the- south boundary of the bakehouse lot,” the course and distance must yield to the line called for.
    The general rule is admitted to be “ that the most material and certain calls shall control those which are less material and less certain ” ; and that therefore' “ artificial or natural boundariescontrol course and distance.” Barclay v. Howell’s Lesseé, 6 Pét. 499. See cases collected, 1 Met. & Perkins’s Dig., ■§> 20, p. 474.
    But this rule as to artificial and natural boundaries is not an inflexible one; but when no mistake could possibly occur in the “ course and distance,” the reason of the rule failing, the rule falls with it. Davis v. Rainsford, 17 Mass. 207; Fulwood v. Graham, 1 Richardson, 491.
    There is no fixed line to the bakehouse lot which would raise such a case of contradiction to the “ course and distance ” as to raise the question of preference. Neither under the Spanish or American governments had the lot been surveyed, nor is there any evidence that it had ever been inclosed, or that the community had in any way ever fecognized the location of its southern boundary.
    This government was the absolute owner, as successor to. Spain, of this lot, and held the legal'title (as may be-conceded for this argument) to the adjoining lot of Farmer. Having confirmed the title of Farmer’s heirs in 1822, and by its subsequent patent described the precise extent of its confirmation, it certainly could not have intended, by a pure donation in 1824, to grant to another a portion of these very premises.
    Where a vendor holds two tracts adjoining, and sells a certain' quantity by metes and bounds, though the deed call for one tract, the purchaser shall hold according to .the metes and bounds. . Wallace v. Maxwell, 1 J. J. Marsh. 447 ; Mundell v. Perry, 2 Gill & Johns. 206.
    In this case, the survey having be.en made by act of Congress to constitute the foundation of a patent, and adopted by the government for this purpose, the extent of the grant must be determined by the actual location upon, the ground. Machias v. Whitney, 4 Shep. 343 ; Lewen v. Smith, 7 Port.- 428.
    The construction of these boundaries was a question of law for the court, and not of fact for the jury. Doe v. Paine, 4 Hawks, 64; Cockrell v. Mcduin, 4. Monr. 63; Hurley v. Morgan, 1 Dev. & Batt. -425.

      Mr. Campbell, for the defendants in error,
    made the following points.
    The lessors of the plaintiff claim, that a parcel of land in the possession of the defendants is contained within the limits of a lot surveyed and patented to them by the United States. Two questions arise on the record: —
    1. What is the construction of the patent, from the United States to the lessors of the plaintiff?
    2. What is the effect to be given to that patent, as compared with the act of Congress of May 26, 1824, under which the defendants claim the lot ?
    1. The line which affords the subject of dispute is found in the patent as follows: — “ From a stake, thence north 17° 40' west, 224 feet, .to the south boundary of the bakehouse lot; thence with said south boundary, south 75° 15' west, 89 feet 6 inches, to the east boundary of Emanuel Street.”
    . The plaintiff contends that these lines are to be ascertained from the courses and distances specified in the patent, and that the south boundary of the bakehouse lot is to be sought and established.from those data. We contend that the south boundary of the bakehouse lot is regarded in this patent as a fixed and well-known line, and that there was no intention on the part of the government to interfere with - it. The controlling call in the patent is the boundary of the bakehouse lot, and not the course or distances returned by the surveyor.

      . The line of a tract of land may as well be the subject of a call as a natural objects Carroll v. Norwood, 5 Har. & Johns. 163; 1 Taylor, 163. It is as certain as a tree. Pennington v. Bordley, 4 Har. & Johns. 457.
    Where land is described as running a certain distance by measurement to an ascertained line, though without a visible boundary, such line will control the admeasurement and determine the extent of the grant. 6 Ala. 738; 8 Ala. 279; Flagg v. Thurston, 13 Pick. 145; 5 Har. &. Johns. 163; 13 Wend. 300.
    ■ When the lines or courses of an adjoining patent, being sufficiently established, are called for in a patent’or deed, the lines shall be extended to them without regard to distance. Cherry v: Slade, 3 Murph. 82.
    When a patent calls for the lines of another patent; it must stop at the first intersection with the latter. Miller v. White, 1 Taylor, 309; 16 Ohio, 428; Gilchrist v. McLochlin, 7 Iredell, 310.
    Grants of. adjoining land by the State, and occupation under them, and subsequent conveyances, referring to monuments not existing at the time of the original grants, are admissible in evidence for the same purpose. Owen v. Bartholomew, 9 Pick. 520.
    In locating lands the following rules are resorted to, and generally in the order stated: — 1st. Natural boundaries ; 2d. Artificial marks; 3d. Adjacent boundaries; 4th. Course and distance. Fulwood v. Graham, 1 Richardson, 491; 3 Gill & Johns. 142-150.
    The decisions of the Supreme Court, in so far as they bear upon this subject, are in' coincidence with them. 6 Wheat. 582; 7 Wheat. 7; 6 Peters, 498; 3 Peters, 96.
    2. We contend that the United States, having made an absolute grant to the defendants of the bakehouse lot, all questions relative to the extent and boundaries of that lot were placed beyond the control of the land office'. The government may grant lands twice. The effect of such grants must be determined, not by the officers of the land office, but the parties claiming under them may assert their rights in-courts of justice, and claim their judgments upon them. .
    The boundaries of the bakehouse lot were ascertaiuable by the party to the grant. If they assumed to control lands without the proper boundaries, their grant did not protect them. What land was included within the bakehouse lot was a question for a jury whenever a controversy arose concerning them, which became the subject of a suit in court.

      The officers of .the land office could, not inquire whether the defendants were intruders or otherwise. Fletcher v. Peck, 6 Cranch, 87; 8 Cranch, 244; 6 Peters, 741; 12 Peters, 454; 14 Peters, 414; 2 Howard, 319; 7 Howard, 586.

      Mr. Sergeant, for the defendants in error,
    made the follówing points.
    1. That there is no error in the judgment of the Supreme Court of Alabama.
    For this general position, the points and authorities of . the . defendants’ counsel below, and the Supreme Court of Alabama, are here adopted, and submitted to the court as sound and correct.
    2. That there is no question in the caae cognizable by this honorable court.
    It is true that both parties claimed under acts of Congress, and that the plaintiff claimed under a patent from the United States, and alleged that he had a right which derived from the exercise of a United States authority. But it is also true, that, in point of law, neither of these claims was necessarily or at all involved in the cáse, or in its decision.
    The plaintiff’s patent calls for the “south boundary of the bakehouse lot ” as its boundary on the north, and “ thence with said south boundary”; so that one line was common to both lots, and was the boundary line between them. Neithér could pass beyond it. There was, therefore, no • interference between them.. If either of them claimed beyond it, it must be under some other right. It could not be under the right derived from the United States^ being inconsistent with its express terms, and contradictory to them.
    This line was an established and existing line, as the line of the bakehouse lot, before any of the grants. It is recognized by the act of 6th May, 1824, which grants the “ bakehouse lot ” as a known and defined thing. The plaintiff’s patent recognizes it as a fixed and established line. It is also recognized in the plaintiff’s original French grant, dated in' 1757. This lot, thus known and recognized,'was granted by the United States to' the city of Mobile in 1824. All grants afterwards made are of course subject to it. Besides, the patent of the plaintiff is only a release, and that release expressly subject to prior claims. The certificate of the register and receiver, too, expressly recognizes the south boundary of the bakehouse lot as an existing'laiown boundary;
    The question, then, is a mere question of fact, namely, Where was and is the south boundary of the bakehouse lot ?

      If it should be alleged that this question was before the reg<ister and receiver, and decided by them under an authority derived from the United States, there are several answers: —
    1. That the question was never submitted to them.
    2. That they never assumed jurisdiction of any such question, nor pretended to decide it.
    3. That there was no subsisting case upon which they had any authority to act.
    The case, therefore, was a mere question of boundary. That was a question for the jury, and the- jury have, decided it. Kennedy’s Executors v. Hunt, 7 How. 586, 593; McDonogh v. Millaudon, 3 How. 693; Mackay v. Dillon, 4 How. 447.

      ■Mr. Coze, for the plaintiffs in error,
    made the following points.'
    The case depends upon the true construction of the act of 26 th May, 1824. This is to be gathered from the' language of the statute and the construction given to it by this court. 1 Land Laws, 398. The first section grants all. the right and claim of the United States to the lots known as the hospital and bakehouse lots, containing about three fourths of an acre of land, &c.: piso, the right and claim of the United States to all the'lots not sold or confirmed to individuals either by this or any former act, and to which no equitable title exists in favor of any individual under this or any other act, &c., to the city of Mobile. The second section grants the right of the United States in certain lots whereon improvements have been made.
    Upon this statute the defendant rests his entire claim.
    The plaintiff’s claim is founded upon a title originating under the former government, which had been submitted to the commissioners authorized to examine it, and confirmed by the act of May 8, 1822, (1 Land Laws, 348,) and finally evidenced by the patent, 14th November, 1837.
    A comparison of these acts can leave little doubt upon this question. In the act of 1822, certain titles derived from French, British, and Spanish authorities are in-terms confirmed. These titles had originated in the public acts of the functionaries of these governments; they in granting, and the individuals in accepting them, had acted in good faith, believing, without any thing to awaken doubt, that the existing governments possessed perfect titles. Such titles, therefore, commended themselves to the justice, equity, and honor of the nation, and these claims had been recognized and confirmed by repeated acts of legisla-, tion. 14 Peters, 365, 377, &c. In the arrangement made with Georgia, they had been to a certain extent secured, and Congress, in carrying out the provisions of that arrangement, had even exceeded in liberality the obligation which it had assumed. While, therefore, these inchoate or imperfect titles were confirmed, the limitation was imposed that they were to be regarded as confirmations, not new grants.
    The fifth section .contains a most important provision. It enacts that the registers and receivers of the land offices shall have the same powers to direct the manner in which all lands confirmed by this act shall be located and surveyed, and also to decide between all conflicting and interfering claims, as are given by another act passed the same day, although it appears later in the statute book. 3 Statutes at Large, 707, c. 128; 1 Land Laws, 352, c. 273 ; see also § 4.
    It will be observed,.that the words of confirmation are in the present tense ; but that the precise location of the land the title to which is confirmed is subsequently to be made by the officers of the government. When thus made, the particular bounds must be carried back to the date of the confirming act. It must also be remembered, that, so far as regards this case, the only party with whom any conflict could arise as to the boundaries of the land was the United States, finder whom, by a subsequent act, défendants claim title. The authority of Congress, therefore, to prescribe the officers whose decision was to fix the lines and extent of these confirmations, while sufficiently clear as to individuals holding conflicting claims, is beyond all possible doubt, as regards the government itself. The patent shows that this authority was exercised, and the United States admit it to have been properly exercised.
    In this view of the case, then, it would seem clear that, under and by virtue of the act of 1822, the plaintiffs were presently confirmed, as against the United States, to the property claimed by them, to the full extent of the lines subsequently to be ascertained by the register and receiver, and included in their patent; and that -this title, thus defined, could not be ques ioned or controverted by any party subsequently deriving title from the United States. This is the first proposition maintained on behalf of the plaintiff in error.
    If this proposition needs corroboration, it is apprehended it will be found in the language of the act of 26th May, 1824, two years subsequently.
    1. At that date, what title had the United States to the premises in question, which could be granted ?
    2. What do the United States profess to grant ?
    It has already been shown, that two years before this period Congress had, in the most solemn and precise manner, confirmed the plaintiff’s title, and had intrusted to the officers of the government the power to locate the land and establish its boundaries, so far as either the government itself, or individuals claiming under a similar title, were concerned. The patent contains the most conclusive evidence that these officérs executed the authority thus delegated, and. that it received the sanction of the government.
    Under this state of circumstances, Congress passed the act of May 26, 1824. (1 Land Laws, 39S.) It grants to the city of Mobile the right and claim of the United States to two certain lots by name, estimated to contain about three fourths of an acre, but without any designation of the boundaries' or extent of either. No official survey or location of these lots has ever been made ; no boundaries have ever been officially ascertained ; no action of any public functionary has been‘produced : no action by the land office has been had ; no patent has been issued. Independently of the guarded language employed in the first section, and which, it may be argued, extends only to the general grant of “ all the lots ” there mentioned, the second section contains a distinct proviso, “ that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.”
    In Lessee of Pollard’s Heirs v. Kibbe, 14 Peters, 361, this court says, in speaking of this act’ of 1824, “ It being a private act for the benefit of the city of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of such individuals, and. the situation of the land embraced within the law at the time it was- passed.” “If the second section applies to the lot in question at all, it is-excepted out of the first section.” (p. 362.) “ It is not to be presumed that Congress would grant, or even simply release, the right of the United States to land confessedly before granted; this would be only holding out inducements to litigation.”* (p. 366.)
    This case seems, then, definitively to settle these points ; — that the grant to Mobile was a mere donation by the United States of its right and title, whatever that might be, to the city of Mobile ; that it operates no injury whatever to any claim or title, whether those comprehended in ithe second section-, or, still more obviously, such as hqd been previously recognized and confirmed : and that no construction ought to be given to the act which would make it enure in any way to the detriment of any other claim of any individual.
    The city of Mobile, the' recipient of this bounty, now assumes, under color of this statute, a higher position than the United States have ever assumed in regard to this property; arrogates the right to fix, according to her own will, the extent of the property gratuitously bestowed upon her, when her pretensions come in conflict with grants, the equity, at least, of which the United States have ever recognized; disclaims the authority reposed in intelligent public officers, to whom the government had previously, delegated the authority to decide upon the extent of the confirmations it had made; and repudiates the action of the Land Office and the patent emanating from the President.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The original action in this case was ejectment for part of a lot of land situated in the city of Mobile.

The plaintiff contended, that the piéce in controversy belonged to the tract which he claimed in the preceding case against Eslava, and to which he had the evidence of title shown there under a French grant in 1757, confirmed by an act of Congress of May 8, 1822, and a quitclaim patent for it issuing November 14, 1837. On the contrary, the city contended, that this piece belonged to what was termed the bakehouse lot, and into which it entered in 1824, under a grant from the United States by an act of Congress'at that time, conveying all their title to it (4 Statutes at Large, 67); and that this bakehouse lot, having been known by that name for near a century, and used by the Spanish authorities for baking bread for their troops, was a public lot at the period of the cession of the country in 1819, and hence passed to the United States, and a complete title to it was made from them to the city by the grant before named. Since the trial in the State court, we have, in the preceding case of Farmer’s Heirs v. Eslava, so held as to show that those heirs axe not entitled to any portion of the lot .which is here in controversy, and have thus rendered.a decision in this case not very important, except as regards costs. ., But as the judgment there is not between the same parties as here, it may not in point of law settle this case, and we must therefore dispose of it on its own facts and merits.

For the purpose of the trial in the State court, whose judgment this writ of error is' brought to reverse, it seemed in the end to be conceded that the plaintiff might have a just claim, so far as respects the city, to the extent of the true boundaries of the lot confirmed to him, and that the defendants might have a like claim to all which really was embraced in the bakehouse lot. But the plaintiff maintained that the southern boundary of this last lot did not extend so far south as the defendants contended. And if it should extend in'that direction no further than the plaintiff insists, the piece of land in controversy here would clearly belong to him.

Looking at the case first in this aspect, the trial in the State court was ultimately only a, trial of the true boundary of the south side of the bakehouse lot; and any instructions by the court which are -there excepted to on the evidence, whether parol proof could control written, or monuments restrain distances, &c., would not be revisable here under the twenty-fifth' section of the Judiciary Act. They would depend on common law principles, or the peculiar laws of the State, and not on any acts of Congress, or doings of our public officers.

But' the ' plaintiff insisted, that,' when a conflict b'egan concerning this line and the title to this piece of land, the register- and receiver heard the parties, and being by the two acts of Congress of May 8, 1822 (4 Statutes at Large, 700, 708), authorized to decide on such claims, they settled finally, then and for ever, both the title and location, including the true southern boundary of the bakehouse lot.

The State court does not seem to have concurred in this view, but allowed the parties before them and the jury to examine into the true line of the bakehouse lot on general principles ; and it was settled against the plaintiff, so as to cover by that lot what the defendants occupied. This course by the court certainly overruled the right set up under the supposed decision of those, public officers of the United States concerning the title, and hence, so far as regards that -ruling, the judgment is subject to our revision.

In Eslava’s case, however, we have just, decided that those public officers were not empowered to settle conflicting titles, but only conflicting locations ; and if they made a location here of the lot claimed by Farmer’s heirs, so as to embrace this strip or piece of land, which is not improbable, it would leave the title unsettled, and not thus vested in the. plaintiff. Or if they went further and had a right to go further, and decided that the title in this piece was in Farmer’s heirs, we think it by no means certain that the description in the patent, which is the whole evidénce in the record before us as to their decision, would show this result with such clearness as to justify following it.

The 'northern - line of Farmer’s lot is still in their survey described as “■ the south boundary of the bakehouse lot.” To be sure, if from the preceding corner you go,' as directed, 224 feet, this strip-would be included in Farmer’s lot. But this distance, if overreaching the true south boundary of the bakehouse lot, must yield to that as a monument, as was the instruction of the court, and as the jury have found in this instance it did. Preston v. Bowmar, 6 Wheat. 582; 6 Peters, 449; 7 Peters, 219; 13 Pick. 145; 13 Wendell, 300.

Had this line on the north been described by the local officers, not only by saying it bordered on. the south boundary of the bakehouse lot, but by specifying where that boundary was, by stakes and stones, or trees, or some other monument, the legal difficulty and doubt might have been overcome, in fixing with sufficient certainty, that they intended to indicate the exact place of that line, and that it was where the plaintiff contends. °

But they did not do so, and beside these objections to their want of power to settle finally the conflicting claims as to title in any case as specified in Barbarie et al. v. Eslava et al., it is veyy obvious that it was not meant to be extended to any conflict growing out of a title like that of the defendants. From the nature of the subject-matter and language of the acts of Congress, their authority embraced only those conflicts arising in cases of imperfect grants made before the cession of the country, and .not a perfect grant like this to Mobile, from the United States alone, made since the cession.

The words of the first act give power to those officers to decide, even on locations, only as to “ all lands confirmed by this act ” (§ 5, ch. 122). But the bakehouse grant was not one of those “ confirmed ” by that act, and was not granted to the defendants till near two years after.

The fourth section of the other law (ch. 128), which is also to regulate their powers as to the location and survey of conflicting claims, specially excepts cases of perfect title, and includes only such as are confirmed,” &c., manifestly not embracing subsequent grants, like those of the United States to Mobile, never confirmed by commissioners, and hence to be adjudicated on, when in controversy, only by the proper judicial tribunals. 14 Peters, 414; 6 Peters, 741.

Such a title, too, is one of the highest character, and one which Congress by legislative grant, when owning the soil, is fully competent to give; and which needs not the aid of any patent. 6 Cranch, 128; Strother v. Lucas, 12 Peters, 454; United States v. King, 3 Howard, 773; United States v. Gratiot, 14 Peters, 529.

Hence the State court acted properly in considering the question of title still open, and balanced by the evidence, except as to the. place of the true boundary on the south side of the bakehouse lot. That boundary it tried, and it was triable without any appeal to us. ■

It is not for us to interfere with its rulings or opinions on points belonging to the cognizance of State tribunals, though on the main controversy it might not be very difficult to decide, whether it erred or not, considering that the original patent in 1757 of Farmer’s claim was on one side to be “ of the depth which remains of the éstablishment of the king’s bakehouse ” ; that the next conveyance' by the patentee to Guichandene, in the same year, uses like words for that®boundary, being “with the depth which remains after that of the king’s bakehouse,” and that this boundary is similarly described in all the subsequent conveyances; and considering that the bakehouse lot should therefore bé first satisfied, and distances in deeds or patents yield to monuments; and considering that the line adopted was by much evidence shown to be the ancient line on that side by the ancient fence, and thus, too, giving to it a uniform instead of irregular shape, and not taking from it, as this claim does, near one third of- its supposed size.

Finally, on what is properly before us under the twenty-fifth section, we think that the defendants, as grantees from Congress of the “ hospital and bakehouse lots,” (Act of 26th May, 1824, in 4 Statutes at Large, 67,) should not be disturbed in their occupation of the latter lot, with the limits settled to be the 'true ones in the State court.

Judgment affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the. judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Chief Justice TANEY

text:
    John Goodtitle, ex dem. John Pollard, William Pollard, John Fowler and Harriet, his Wife, late Harriet Pollard, Henry P. Ensign and Phebe, his Wife, late Phebe Pollard, George Huggins and Louisa, his Wife, late Louisa Pollard, Joseph Case and Eliza, his Wife, late Eliza Pollard, Heirs and Legal Representatives of William Pollard, deceased, Plaintiff in error, v. Gaius Kibbe.
    The decision of this court in Pollard v. Hagan, 3 Howard, 212, reexamined and affirmed.
    By the admission of the State of Alabama into the Union, that State became invested with the sovereignty and dominion over the shores of navigable rivers between high and low water mark. Consequently, after such admission, Congress could make no grant of land thus situated.
    This case was brought up from the Supreme Court of Alabama, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    It involved the same principle decided by this court in the case of Pollard v. Hagan, reported in 3 Howard, 212. It is not necessary, therefore, to set forth the facts and title any further than they are stated in the bill of exceptions which was taken to the opinion of the Circuit Court for Mobile County. The action of ejectment was brought by the lessee of Pollard’s heirs in 1838, and was tried in 1845.

      Bill of Exceptions.

    On the trial of this cause the plaintiff produced the following grant:—
    “ To the Commandant.
    “ William Pollard, an inhabitant of this district, states to you with all respect, that whereas he has a mill situate on his place of abode, and frequently comes to this place, with planks and property from his mill, therefore he wishes to have a situation favorable to the landing and safety, thereof, and there being a vacant piecé of ground at the edge of the water, between the canal called John Forbes’s and the wharf of .this place, he prays you to grant him said piece of ground at the edge of the water, the better to facilitate his business. A favor w;hich he hopes to obtain from you.
    “William Pollard.
    “Mobile, December 11th, 1809.”
    “Mobile, December 12th, 1809.
    “ I grant to the petitioner the piece of ground which he asks for at the edge of the water, if it be vacant.
    “Cayetano Perez.”

      The plaintiff next read the act of Congress, passed 2éth May, 1824, entitled “ An act granting Certain lots of ground to the corporation of the city of Mobile, and to certain individuals in said city,” and an act of Congress of 2d July, 1836, entitled “An act for the relief of William Pollard’s heirs,” and a patent of the United States in pursuance of the said act, for the lot in controversy, to the lessors of the plaintiff; the plaintiff further proved, that, in the year 1813 or 1814, some wreck and drift wood was removed from' the place where the premises in question now are, by.the hands of William Pollard, the grantee.
    It was proved that in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title, took possession of and filled up east of Water Street, and from it eighty feet east, and to the north of Government Street; that Lewis remained in possession about nine months, when he was ousted in the night by James Inerarity, one of the firm of Panton, Leslie, & Co., and of John Forbes & Co., its successor, claiming .the land under the Spanish grant hereto attached, who improved the lot by the erection of a smith’s shop. That shortly afterwards, Curtis Lewis recovered the possession under a forcible entry and detainer proceeding, and remained in .possession for several years, during which he and Forbes & Co. were engaged in a lawsuit.
    The whole matter was terminated by the purchase, in 1829, by Henry. Hitchcock, of the title of Forbes & Co., of Curtis Lewis, and of the Mayor and Aldermen of Mobile. Henry Hitchcock remained in the possession of the property till 1835, when he sold to the defendant for $ 28,000.
    The defendant produced the original Spanish grant and the English copy thereof, for the premises in dispute, with the certificate of confirmation, and produced the conveyances aforesaid, showing the title under which he claims.

      He proved that Panton, Leslie, &• Co., and Forbes & Co., have had possession of the lot specified in their grant from its date ;■ that they fulfilled the conditions which are specified therein; that to the east of the present site of Water Street, they'had a canal extending into the river, through which their boats came up; that there was an embankment on both sides of this canal, on which their goods were landed, and from which their shipments were .made. The fillings up done by Lewis were done by sinking flat-boats in this canal.
    The particular lots now sued' for lie south of the canal and-embankment aforesaid, and are between the king’s old wharf and Forbes’s canal; they lie to the east of Water Street, and fall within the lines laid down in the patent.

      The particular land in this writ was never improved until Curtis Lewis made the fillings up. It was further in proof, that previous to 1819, then, and until filled up, the lots claimed by plaintiff were at ordinary high tides covered with water, and mainly so at all stages of water; that the ordinary high tide at that time, flowing from the east, reached to about the middle of what is now Water Street. That in the Spanish times the eastern part of the lots to the west of Water Street was subject to be covered by water at ordinary tides by a flow of water from the river. That what is Water Street at this time was a natural ridge, which was not usually overflowed except at high tides ; but there was a'depression to the north of the lot of defendant, across which it flowed around upon the eastern parts of the lots lying to the west of the lots sued for. This ridge was about fifteen feet wide; Water Street was laid out in 1820, and is-sixty feet.
    That no one had possession of the premises in question before 1826, except as before stated. The lines of the lot in the Spanish grant, being extended to the river, include the premises in dispute.
    It was further in evidence that Mr. Pollard died in 1816.
    Test & Phillips, for Plaintiff.

    J. A. Campbell,
    Stewart <fc Easton, for Defendant.

    And upon this evidence the court gave the -following instructions to the jury, to wit: —
    Plaintiff claims under a Spanish grant by Cayetano Perez, óf date December 12, 1809, act of Congress confirming the same, July 2d, 1836, and a patent from the United States in pursuance thereof, dated March 15th, 1837.
    “ Defendant insists th&t plaintiff’s title is not good, because the Spanish grant of itself is incomplete and invalid, and although it was confirmed by act of Congress in 1836, yet, the premises sued for being the shore of a navigable river, lying below high-water mark at the time the State of Alabama was admitted into the Union, Congress, at the time of the act of confirmation, had no control over the subject, and was powerless to add any thing or impart any vitality to the Spanish grant.
    “ The plaintiff" replies and says, that, by the treaty of 1819 with Spain, Spanish grants of the character of that under which the plaintiff claims were recognized by the United States, who assumed the obligation that said grants should1 be satisfied and confirmed. This obligation the plaintiff contends is tp be con-' sidered as a contract with the persons holditig, these grants; and no legislation of the United States, without the consent of such persons, can impair this obligation, or excuse the performance of the duties it clearly imposes. .
    “ From this .statement of the case, the first question that naturally presents itself is, What was the character of the interest the United States had in the premises in 1836, or had they any interest at that time in the soil ?
    “ In March, 1819, Congress passed an act to enable the people of Alabama Territory to form a constitution and State government, and . for the admission of such State into the Union on. an equal footing with the original States. That act declares that all navigable waters within the said State shall for ever remain public highways, free to the citizens of said State and the United States. What is the footing on .which the original States stand in regard to the shores of their navigable rivers, and. the soil covered by them ? That footing is certainly the perfect and absolute control of the shores of those rivers in the respective States, except so fat as the United States government may find it necessary to use them in the legitimate exercise of its constitutional rights. For the purpose of enabling itself to do this, so far as Alabama is concerned, it has not thought proper to assert any rights of ownership in the shore, but has rather relinquished the idea of such ownership in itself, and recognized it in the State, by stipulating for a free use of said shores by the citizens of the United States.
    “ What has been said is based upon the assumption that, by the treaty with Spain, the United States acquired the same property in the shores of navigable rivers that Spain had, and that they had, by the.act of 1819, transferred the rights acquired Udder the treaty to the State of Alabama, reserving only the easement of navigation to the citizens of the United States. The question, then arises, Could the United States, in contravention of the obligation they had incurred under the Spanish treaty, ratify and confirm these Spanish grants?'
    “If Spain could have granted the shores'of navigable rivers, and the same power that Spain had had been conferred upon the United States by the treaty of 1819, and in pursuance of that treaty, and the pledges therein given; the United States had confirmed this grant prior to the admission of Alabama into the Union, there can be no doubt that the plaintiff’s title would have been valid; but this was not done.
    “ Before it is done, the United States place themselves in a position where they cannot do it. Whether they ought to have placed themselves in that position, or what are the consequences of this act, so far as the Spanish government is concerned, or the inviolability of the treaty between the two nations, it is needless now to inquire. If wrong has been done, the law of nations indicates the remedy. We must look at things as they are, and so viewing, the court is impelled to the conclusion-, that if, at the time of the admission of the State of Alabama into the Union, the land described in plaintiff’s declaration was-below ordinary high-water mark, there was no interest in the same' in the United States in 1836, and that the act of confirmation, and the patent in pursuance thereof, could not aid plaintiff’s title, and thaf the same is invalid and unsound.”
    To. which charge the plaintiff excepts, and prays the court to sign, seal, and certify this bill of exceptions, which is done.
    Under these instructions, the jury found a verdict for the defendant, and, the case being carried to the Supr.eme Court of Alabama, -that court affirmed the judgment of the Circuit Court.
    A writ of error then brought the case up to this court.
    It was argued by Mr. Phillips and Mr. Coze, for the plaintiffs' in error, and Mr. Campbell, for the defendant in error.
    It is not thought necessary to insert those parts of the arguments of counsel relative to the effect of the admission of Alabama into the Union upon the subsequent power of Congress to grant land between high and low water mark upon navigable. rivers. The court, in its opinion, considers that point as settled in the case of Pollard v. Hagan, 3 Howard, 212. The counsel for the plaintiff in error, however, drew a distinction between that case and the present, as follows.
    The case as now presented, however, differs materially from the case of Pollard v.-Hagan, in. 3 Howard. The Spanish concession was not then before the court, and the acts and patent relied upon were all subsequent to the daté of admission..
    The concession to Pollard, made while Spain -was in the undisturbed possession-of the territory, by every principle, either-of national or municipal law, gave him a claim of title upon this government, which it was bound in good faith to perfect. It is true that, if the political departments refused to .discharge their obligation, the courts of justice could not enforce it; but the want of this sanction in no wise impaired its obligatory force.
    Having by the treaty with France, in 1803, acquired, our titled and by the treaty with Spain, in 1819, termed on its face a treaty of cession, confirmed our possession to this territory, treaty stipulations and the law. of nations arose to control the action of the government as strongly as if the duties were imposed by constitutional provision.
    The annexation of .this acquisition to the Mississippi Territory by the act of 1812 did not obstruct the exercise of those high duties, nor did the' authority given by Congress that the State of Alabama might be carved out of it produce this' consequence. The people of that State would have spurned an advantage, founded upon a violation of national faith.
    That Pollard’s title was ‘the subject of a confirmation by Congress is expressly ruled, when this case was first presented, in 14 Peters, the court there citing the decision of Judge Marsháll in Dé la Croix v.' Chamberlain, “that the United States had never, as far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in actual possession, from concessions of a similar character made by Spain within the acknowledged limits.” The court, therefore, concluded that Pollard’s claim was within the exception of the act of 1824, reserving all cases where the Spanish' government had made a “ new grant ” during the time at which they had the- “ power ” to grant the same (p. 364).
    All the circumstances constituting the history of the times justify the declaration that, in the admission of the State, neither of the contracting parties understood that the political obligations resting upon this government, as the successor of Spain, to perfect the titles of individuals acquired in good faith under Spanish dominion, were at • all. impaired ; the more especially as it is not pretended that their fulfilment would in any manner work an injury to any public or private interest.
    That the proprietorship of the soil between high and low tide belongs to the public, and may be acquired by individuals either by grant or prescription, is a doctrine of the common law, taught by Sir Matthew Hale in his treatise De Jure Maris (1 Hargrave’s Law Tracts, p. 37), citing Bracton, who, in turn, quotes the Roman civil law from Justinian’s Digest. Constable’s case, 3 Co. 105, 107. There being but this distinctipn between the common and civil law, that the former confines this right to the “ sea-shore, arms of the sea, bays, and rivers . where the tide ebbs and flows,” while the. latter extends tlie right to include all “ navigable rivers.” Ingraham v. Wilkinson, 4 Pick. 273.
    •The. government, therefore, had the right to grant to Pollard the fee of the soil, subject only to the restraints imposed by the' public interest and convenience. Blundel v. Collvel, 5 Barn. & Ald. 267; Browne v. Kennedy, 5 Har. & Johns. 195, Hagan v. Campbell, 8 Port. 9; Mayor v. Eslava, 9 Port. 596.
    The counsel for the defendant in error noticed this subject in his third and sixth points.
    3. The decisions of this court reported in 3 Howard, 212, and 16 Peters, 367, are directly against the right of the United States to grant the shore after the admission of Alabama into the Union. Such being the law upon this question, the only-inquiry is, whether the production of an incomplete Spanish title (a mere permit to occupy) can change the result. This court has repeatedly decided that such a paper can give the party no standing in the court, no matter when it was executed. 12 Wheaton, 599; 4 Howard, 449.
    This court has also decided, that a complete grant bearing date at the time this does (1809) can give the party no right to be heard in the courts of the United States. Foster v. Neilson, 2 Peters, 253; 12 Peters, 511.
    The party cannot, then, rest upon his Spanish title.
    6. The opinion of the Supreme Court, reported in 3 Howard, 212, was very deliberately given. A motion for a rehearing was refused. The opinion comprehends within its principle property to a very large amount, and possessions and contracts have been made with respect to it.
    In the State of Alabama, the Supreme Court has repeatedly acted in accordance with it, and has regarded it as the settled law of the land.' An opinion so given, entering so far into the law of property of the country, cannot be questioned without producing great confusion. 8 Ala. 909, 930 ; 7 Ala. 883.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an action of ejectment brought by the plaintiff in error to recover a lot of ground in the town of Mobile, in the State of Alabama. . The plaintiff claimed title under an inchoate Spanish grant, dated, December 12, 1809, and'an act of Congress confirming this title, passed July 2, 1836, and a patent from the United States, dated March 15, 1837, which issued in pursuance of the act of Congress.

The validity of this title was disputed by the defendant, upon the ground that the premises were a part of the shore of a navigable tide-water river, lying below high-water mark, when the State of Alabama, was admitted into the Union in 1819; and that therefore, at the time of the passage of the act of Congress, the sovereignty and dominion over the place in question were in the State, and not in. the United States. And the court instructed the jury, that, if the land described in the plaintiff’s declaration was below ordinary high-water mark at the time Alabama was admitted into the Union,-the confirming act of Congress and the patent conveyed no title to the patentee.

The question decided in the State court cannot be regarded as an open one. The same question upon the same act of Congress and patent was brought before this court in the case of Pollard v. Hagan, at January term, 1845, reported in 3 Howard, 212. That case was fully and deliberately considered, as will appear by the report, and the court then decided that the act of Congress and patent conveyed no title. The decision of the Supreme Court of Alabama, from which this case has been brought .by writ of error, conforms to the opinion of this court in the case of Pollard v. Hagan. And it must be a very strong case indeed, and one where mistake and error had been evidently committed, to justify this court, after the lapse of five years, in reversing its own decision; thereby destroying rights of property which' may have been purchased and paid for in the mean time, upon the faith and confidence reposed in the judgment ■ of this court. But, upon a review of the case, we see no reason for doubting its correctness, and are entirely satisfied with the judgment then pronounced.

It has been supposed, in the argument for the plaintiff, that the proceedings in. Congress upon the report of the commissioners in relation to the title claimed under the Spanish authorities, which have now been referred to, distinguish this case from that of Pollard v. Hagan. But this Spanish title wgs acquired in 1809, and it has been repeatedly decided that a Spanish grant in this territory, whether inchoate or complete, made after the treaty of St. Ildefonso, in 1800, did not convey any right in the soil to the grantee. And this subject was again considered and decided, after careful research and examination, at the present term, in the case of Reynes v. United States, arid the former decisions reaffirmed. Undoubtedly, Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became a State. But. this was not done. And the existence of this imperfect and inoperative Spanish' grant could not enlarge the power of the United States over the place in question after Alabama became a State, nor authorize the general government to grant or confirm a title to land when the Sovereignty and dominion over it had become vested in the State.

The. judgment of the Supreme Court of Alabama is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Justice GRIER

text:
    Lessee of Isaac Atkinson, Plaintiff in error, v. John Cummins.
    Thé rule of evidence, as stated by Tindal, Chief Justice, in the case of Miller v. Travers (8 Bingh. ¿44), sanctioned by this court, viz.: — “In all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised.”
    Therefore, where the sheriff sold a tract of land under, & fieri facias, and made a deed of it to the purchaser, and it appeared afterwards that the debtor had two tracts near to, but separated from each other, and the sheriff’s, deed described one- tract accurately except that it called to bound upon two parcels of land which were actually contiguous to the other tract, and the purchaser took possession of that to which the description was mainly applicable, and retained possession for nearly twenty years, parol evidence was admissible to show that the levy and sale applied to one tract only, and not both.
    This case came up, by writ of error, from the Circuit Court of the United States for the Western District of Pennsylvania.
    It was an action of ejectment brought in the Circuit Court by Isaac Atkinson, a citizen of Ohio, to recover a tract of land in Derry township, Westmoreland County and State of Pennsylvania.
    The whole case was stated in the bill of exceptions, which it is only necessary to recite.

      Copy of Bill of Exceptions.

    “In the Circuit Court of the United States, Western District of Pennsylvania.
    “Richard Smith, Lessee of Isaac Atkinson, a Citizen of tips State of Ohio, v. William Stiles, with Notice to John Cummins, a Citizen of the State of Pennsylvania.
    “November Term, A. D. 1846.,— Action of Ejectment.
    “ Be it remembered, that at the November, term, A. D. 1846, of the said court, before the Honorable R. C. Grier, an associate justice of the Supreme Court of the United States, and the Honorable Thomas Irwin, judge of the said District Court, judges holding said court, at Pittsburg, in said district, the parties in this cause were at issue upon a plea of not guilty in manner and form as the said plaintiff hath thereof in his decla- ' ration complained; by said John Cummins, who' had entered into, and filed in said cause the common consent rule, confessing lease, entry, and ouster, &c., as appears of record in the same ; and therefore a jury was, called, and regularly and legally impanelled and sworn to try said issue; and on the trial thereof, the plaintiff, to prove the same on his part, gave in evidence the record of a judgment in the Court of Common Pleas of Westmoreland County, Commonwealth of Pennsylvania, in favor of- Thomas Pumroy, for the úse of John Sloan, junior, against George Pumroy, on the 5th day of September, 1820, for the sum of four hundred dollars debt and costs; also a writ of fieri facias, issued on said judgment from said court, dated December 2d, .1820, directed to we sheriff of said Westmoreland CoUnty, a levy by John Klingensmith, sheriff of said county, of said writ, on all the right, title, and claim of Geo'rge Pumroy, of, in, and to a certain tract of land, situate in Derry township, adjoining land of James Henry, Nathaniel Doty, William Reed, William Bell, Robert Thompson, James Wilson, and others, containing 400 acres, more or less, about sixty acres cleared, thirty acres of which is in meadow, having thereon erected a grist-mill, sningle-roofed log dwelling-house, shingle-roofed log barn, with an apple-orchard thereon growing ; and also of such further proceedings in the premises as showed a legal .and valid sale by said sheriff of the premises so levied upon, as aforesaid, on the 18th of February, A. D. 1822, to one John Rhey, for the sum of fourteen hundred and one dollars; also a deed from said sheriff to said Rhey, for said premises so levied! upon and sold as aforesaid, duly acknowledged in said court on the 9th day of April, 1822; and also evidence that, at the time of said le\y and sale, said George Pumroy was the ■ owner of said premises described in the plaintiff’s declaration, and sought to be recorded in this action; also a conveyance in fee of said premises by said John Rhey, on -the 16th of June, A. D. 1841, to said Isaac Atkinson.’ And the plaintiff, on said trial, for the purpose of exhibiting and defining what he claimed as embraced in-said levy, sale, and conveyance to said Atkinson, as aforesaid, gave in evidence the plot or draft marked on the outside ‘A, November ISth, 1846,’ hereto attached, and herewith incorporated as a part of this bill, and claimed before said court and jury that said levy, sale, and conveyance to said Rhey embraced and contained the said land represented in said plot or draft by the black lines, embracing 326|- acres, and also 158| acres, and gave evidence that William Bell and William Reed, two of the persons named as adjoiners of the said 158| acres, as indicated on said plot or draft, are not adjoiners of any part of the 326-| acres. The defendant, on the contrary thereof, insisted and claimed that said levy and sale did not embrace or contain any part of the land described in the plaintiff’s declaration (which is the same marked 158| acres on the plot), but, on the other hand; was limited and confined to that' marked on the said plot 3261 acres, &c.; and thereupon, after giving evidence to show that the improvements on the said last-mentioned tract of 3261 acres, &c., corresponded with the description in the levy, that the tract in dispute contained upwards of one hundred acres of cleared land, with an apple-orchard, a shingle-roofed log'dwelling-house and barn and stable thereon erected, and that the said two tracts were entirely ’distinct, separate, and disconnected from each other, in order further to prove that said levy and sale did not embrace or contain any part of the land described in plaintiff’s declaration, but, on the other hand, was limited and confined to that marked on the plot 326| acres, called John Klingensmith, Esq., late sheriff of Westmoreland County, by whom the levy and sale in the case were made,- and proposed to prove by him as-follows : — That he went to the land of George Pumroy, in 1821, to make the' said levy ; that the said George Pumroy furnished- him with the adjoiners of both tracts; that, upon inquiring of said Pumroy whether the description furnished embraced more than one tract, and learning from hjm that it covered both, he objected-to making the levy in that way; that the said Pumroy acquiescing in his decision, he then struck off, as well as he could, ■ the names given to him as adjoiners exclusively of the tract in dispute in this action, and supposed that he had* stricken them all off; that on the inquisition held upon the levy, indorsed on ' the fi. fa., the laud in dispute was not"submitted to the jury, ' or acted upon by them, but only what was calied the mill tract, or, in other words, that upon which the purchaser entered after the sale ; that at the sale, upon a representation made to him by s'ome of the bystanders that’ there was'ah ambiguity, ih the description of the land which rendered it uncertain whether one. or both tracts were included within it, he stated, in the presence and hearing of John Rhey, that he was selling only the mill tract, and that bidders must govern themselves accordingly ; that he made the same representation to Paul Morrow, by whom the property was purchased, as the agent and for the use of said Rhey; that, after the said sale, he was directed to execute the deed to said Rhey, which was accordingly done; that, at the time of the execution thereof, it was again represented, and perfectly understood by both parties, that the property conveyed in said deed embraced only the mill tract, and not the land in dispute ; and that at a subsequent period, not very remote from the time of the said sale, upon a representation to him by some of the neighbours that the said Rhey was asserting his claim to the property in dispute under said sale, he took occasion to inquire of him whether the fact was as represented, to which the said Rhey replied that he might have said so in a jocular manner, but that he never intended to claim both tracts, for that he knew that he never bought both tracts, and that he never paid for both tracts, and to claim them now (then) would be too much like putting his hand into another man’s pocket and robbing, him.
    ' “ To the admission of which testimony of said Klingensmith, proposed to be given by the defendant as. aforesaid, the plaintiff objected, and insisted that the same could not be legally admitted for the purpose aforesaid.
    “ Whereupon said court did overrule said objection, and admitted said testimony of said Klingensmith so proposed to be given as aforesaid, and the said plaintiff' here in court, and during the trial of said cause, excepts to the judgment, opinion, and determination of said court in admitting said testimony; and as the facts aforesaid do not appear of record, the said plaintiff prays .that this bill of' exceptions may be certified, signed, and sealed by the judges of said court, that the same may become part and .parcel of the record in said case. By the court allowed and ordered to be lodged on file.
    “ R. C. Grier, [l. s.]
    Thomas Irwin, [l. s.]”
    The jury found a verdict for the defendant.
    Upon a writ of error sued out by the plaintiff, the case was brought up to this court.
    It was arghed by Mr. Cooper, for the plaintiff in error, and Mr. Wylie, for the defendant in error.

      Mr. Cooper made, the following points.
    The court érred in admitting the testimony of John Klingensmith to contradict, vary, and limit the description of the bond as .recited in. the levy, jñer¿ facias,- venditioni exponas, and deed of the sheriff to the purchaser.
    ■I. The levy, fieri facias, venditioni exponas, sheriff’s deed, and acknowledgment thereof, are records, and parol evidence is not admissible to contradict, vary, or limit the description of the premises contained in them. The extent of the grant' is only to be ascertained by levy, fieri facias, venditioni exponas, and deed. Sergeant v. Ford, 2 Watts & Serg. 126; Woodward v. Harbin, 1 Alabama, 104; Hobson v. Doe, 4 Blackf. 487; Hellman v. Hellman, 4 Rawle, 448, 449; Patterson v. Forry, 2 Barr, (Pa.) 456; McClelland v. Slingluff, 7 Watts & Serg. 134; Aulenbaugh v. Umbehauer, 8 Watts, 50; Beeson v. Hutchison, 4 Watts, 442-444; Streaper v. Fisher, 1 Rawle, 155; Grubb v. Guilford, 4 Watts, 223; Haynes v. Small, 9 Shepley, (Me.) 14; Lawson v. Main, 4 Pike, (Ark.) 184.
    II. Natural monuments, clearly visible, such as a road, a stream, adjoining farms or lands, prevail over other marks, such as quantity, improvements, &c., and even over courses and distances. Cox v. Couch, 8 Barr, (Pa.) 147; Howe v. Bass, 2 Mass. 380-384; Pernam v. Wead, 6 Mass. 131-133; Wendell v. Jackson, 8 Wendell, 185-190; Jackson v. Moore, 6 Cowen, 706; Newton v. Pigon’s Lessee, 7 Wharton, 7, 11; Cronister v. Cronister, 1 Watts & Serg. 442; Hare v. Harris, 14 Ohio, 529.
    III. George Pumroy, and Cummins, the defendant, who claims under him, being pijvy in estate, were in default in, permitting the sheriff’s deed to be acknowledged. Having stood by in silence when they should have spoken out, they are estopped from alleging that all that was levied- upon and conveyed to' the plaintiff by deed was not sold. This is also so in relation to the sheriff. Zeigler v. Houtz, 1 Watts & Serg. 540; Sergeant v. Ford, 2 ib. 127; Streaper v. Fisher, 1 Rawle, 161; Thompson v. Phillips, 1 Baldwin, 271.
    IV. ' In cases of ambiguous or doubtful description, the .court adopts the construction most liberal to the purchaser. This is true of purchasers at judicial- as well as other sales. 1 Sheppard’s Touchstone, 82, 83; Jackson v. Blodget, 16 Johns. 178, 179; Jackson v. Gardner, 8 ib. 394—406; Doe v. Dixon, 9 East, 15, 16; Palmer’s Case, 2 Coke, 74; Inman v. Kutz, 10 Watts, 90-100; Strein v. Zeigler, 1 Watts & Serg. 259, 260.

      Mr. Wylie, for. the defendant in error,
    made the following points.
    1. In Pennsylvania there is no court of equity, but equitable principles are applied, under the direction of the courts of law, in the same manner as legal principles. Kuhn v. Nixon, 15 Serg. & Rawle, 118; Hawthorn v. Bronson, 16 ib. 278; Torr’s Estate, 2 Rawle, 252. Ejectment is a substitute for a bill in equity, and may be defeated by the same considerations which would defeat a bill for a specific performance in a court of equity. Pennock v. Freeman, 1 Watts, 408.
    2: Equity will not permit a party to enforce compliance with a deed or contract, when such compliance would work a fraud on the other party. Woollam v. Hearn, 7 Ves. 211; 2 Atk. 98; Story’s Eq., § 769. And parol evidence is admissible to show the fraudulent purpose. Bowman v. Bittenbender, 4 Watts, 290; Oliver v. Oliver, 4 Rawle, 141; Hultz v. Wright, 16 Serg. & Rawle, 345; Mitchell v. Kintzer, 5 Barr, 216; Greenl. on Evi, § 248. And it is an admitted principle, that courts of law have concurrent jurisdiction with courts of chancery, in cases of fraud. Gregg v. Lessee of Sayre, 8 Peters, 244.
    3. The evidence was for the purpose of applying the deed to its proper subject, and therefore competent. 1 Greenl. on Ev., § 301.
   Mr. Justice GRIER

delivered the opinion of the court.

The single question in this case arises on a bill of exceptions to the admission of certain testimony. In order to judge of its correctness, we must ascertain what was the matter in dispute before the jury at the time the testimony was offered and received.

The action was ejectment for a tract of land containing 1582-acres. In 1822, George Pumroy was owner of this tract, and also of another of 3262 acres, lying n„ar to it, but not adjoining. A judgment had been obtained against Pumroy for the sum of $ 400, and an execution issued, on which the sheriff returned that he had levied on “ a certain tract of land, situate in Derry township, adjoining lands of James Henry” (and a number of others), containing 400 acres, more or less, of which 60 acres were cleared land, and 30 acres of meadow, and on which were erected a grist-mill, dwelling-house,” <fcc., &c. A sale was made by the sheriff under a writ of venditioni exponas, and a deed delivered by him to John Rhey, legally conveying to him the- tract of. land as described in the levy. Under this deed, Rhey took possession of the tract of 3262 acres, on which the grist-mill was erected, and has held it from the year 1822 till the present time. In 1S41, he made a conveyance to Isaac Atkinson, the plaintiff’s lessor, a citizen of Ohio, in whose name tlie present ejectment, was' instituted for the other tract, owned by Pumroy, of 1582 , acres, and now in the possession of the defendant, Cummins.

The only evidence offered in support of the plaintiff’s claim was, that two of the adjoining tracts, called for as boundaries in ■his deed, did not adjoin the mill tract of 326£ acres, but were contiguous to, and adjoined the tract of 158J acres. It was admitted, that all the other parts of the description correctly applied to the larger tract, but it was contended that, if this portion of the description applied only to the other, the levy and deed for this reason included both.

The defendant, on the contrary, insisted that the levy and sale did not embrace any part of the land in dispute, and gave evidence to prove that it was a distinct and separate tract of land, having'a house, barn, orchard, and 100 acres of cleared land, not occupied or used in connection with the larger or mill tract. They contended, also, that the deed called for but one tract of land, which was well described, except in this one particular, which was evidently an ambiguity, caused by a mistake of the sheriff in making his levy.

The defendant might, perhaps, have safely rested his case on the evidence as it now stood, but, in order to remove all possible doubt, he offered to prove by the sheriff how the mistake in the description occurred ,• and that the purchaser and other bidders at the sale had remarked this ambiguity in the descrip- • tion, and were informed how it happened, and were perfectly aware that but one tract was levied on and offered for sale, called the mill tract. That Rhey, the purchaser, was fully aware of it, and accordingly claimed and took possession of the mill tract only ; that the sheriff, having afterwards heard a report that Rhey was asserting a claim to the property in dispute, took occasion to inquire of him if it was true ; and that Rhey replied, £ that if he had said so it was only in jest j that he had bought and paid for one tract only, and to claim them both would be too much like putting his hand in his neighbour’s pocket and robbing him.’ ”

To the reception of this testimony the plaintiff’s counsel Objected, and the admission of it by the court forms the subject of the bill of exceptions now under consideration.

It is contended that this testimony ought not- to have been received, because “the levy, fieri facias, venditioni exponas, sheriff’s deed, <fcc., are records, and parol evidence is not admissible to contradict, vary, or limit the description of the .premises contained in them.”

This proposition is undoubtedly true. But it assumes the very fact in dispute, and on which the jury were about to pass, on parol proof given by both parties. It is true that, if a sheriff levies on a whole tract of land, and, describes it accurately in his levy and deed, parol testimony cannot be received to show ■that he intended to sell less than his deed describes, ob that he excepted a part of the premises at the time of the sale.

But that is not the case before us. The testimony offered is not to contradict the levy and deed, but to explain and confirm them. The plaintiffs testimony had shown that there was a latent ambiguity on the face of his deed. It purported to convey a single tract of land; it described one tract completely, with a single exception which applied to another. It might be void for uncertainty, if its description equally applied to .two tracts, while it clearly purported to convey but one. It might convey one, and the part of the description which did not apply to that would be rejected as falsa demonstratio, or misdescription. Or it might possibly be intended to convey both ; but in the present case the latter supposition had hardly a shade of probability to support it.

It would be of little profit to notice the infinite variety of cases on this subject, or to seek for one precisely in point with the present. The general rule .is well stated by Tindal, Chief Justice, in the case o'' Miller v. Travers (8 Bingh. 244), that “ in all cases where a difficulty arises in applying the words of a will or.deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really-intended to be .granted or devised.”

The deed in this case called for but a single tract of land, the purchaser had himself taken possession and held up to certain boundaries for near twenty years, and had thus by his acts given his own construction of an ambiguity in his deed which he now showed by extrinsic evidence to exist. The evidence offered tended to confirm what appeared on the face of the deéd; that but one tract was sold ; that the practical location of his grant made by the purchaser was correct; that he had not acted under a mistake of his just rights, but had a due appreciation of the merits of the claim now set up to the land, in-question, This testimony may have been superfluous and unnecessary, but was not irrelevant or illegal. It' did not contradict the record or deed, under which the plaintiff -claimed', but. showed the gross injustice of the claim now attempted to be established under coyer of an ambiguity in their terms.

The judgment of the Circuit Court is therefore affirmed.

. Order.

This cause came on to be heard .on the transcript of the record from the Circuit Court of the United States for the Western District of Pennsylvania, and was argued by counsel. .On consideration whereof, it is now here ordered and adjudged by 'this coujrt, that the judgment of the said. Circuit Court in this cause be, and the same is hereby, affirmed, with costs.