ERROR to the Circuit Court of the United States for the Eastern District of Missouri. This is an action of ejectment, brought Aug. 27, 1873, for part of a tract of land known as Survey 422, situate in the county of St. Louis, Mo. The parties claimed title under Auguste Dodier, and defendants relied also on the Statute of Limitations. On the 13th of October, 1800, Dodier asked of the then Spanish Lieutenant-Governor of Upper Louisiana a concession of five hundred arpens of land; and, on the 14th of that month, the Lieutenant-Governor ordered that he should be put in possession of the land requested. A survey and plat of the land soceded was made by Soulard, surveyor under the Spanish government, and certified by him Dec. 10, 1800, and recorded by him in the record-book of surveys. Dodier duly filed and presented his claim to the board of commissioners for adjusting land-titles in the District of Orleans, Territory of Louisiana, who, on the thirty-first day of July, 1810, issued to him the following certificate:––
The opinion of the court was delivered by: Mr. Justice Davis delivered the opinion of the court.
Commissioners' Certificate, No. 422, July 31, 1810.
'We, the undersigned, commissioners for ascertaining and adjusting the titles and claims to lands in the Territory of Louisiana, have decided that Auguste Dodier, original claimant, is entitled to a patent under the provisions of the second section of an act of the Congress of the United States, entitled 'An Act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the District of Louisiana,' passed the second day of March, 1805, for five hundred arpens of land, situate in the District of St. Louis, on Beaver Pond, as described in a plat of survey, certified the 10th of December, 1800, and to be found of record in book A, page 326, of the recorder's office, by virtue of a permission from the proper Spanish officer, and also of actual inhabitation and cultivation prior to and on the twentieth day of December, 1803.'
The land so confirmed was surveyed in 1817, by the proper surveyor of the United States, and is known as United States Survey No. 422; but the patent reciting the confirmation and survey was not issued until Aug. 9, 1873.
Dodier died in 1823, leaving heirs-at-law, under whom the plaintiffs claim title. Dodier and wife conveyed a part of the land by deed, bearing date Jan. 18, 1805, to Louis Labeaume, who died in 1821, having devised the property to his wife, by will made in 1817; and by mesne conveyances her title passed to the defendant Carter. He, and those under whom he claims, have been in the open, notorious, and undisputed possession of the demanded premises for thirty-five years before the commencement of this suit. In 1818, on the petition of Labeaume, partition was made between him and the heirs of Dodier; but the land in controversy is not within the boundaries of the tract described in the report of the commissioners in said partition suit to be set off to Labeaume.
In the year 1822, Susan Labeaume brought an action of trespass quare clausum fregit against Dodier's heirs, in the Circuit Court of St. Louis County, to which was pleaded the general issue, and liberum tenementum; whereupon the plaintiff replied to second plea by novel assignment (describing the close as in the report of commissioners in the above partition suit). On July 27, 1825, the defendants in said suit obtained a verdict and a judgment thereon, and the case was taken by writ of error to the Supreme Court of the State of Missouri, by which, on May 25, 1826, the judgment was reversed and the case remanded, and on May 8, 1827, defendants again obtained judgment in the said Circuit Court. From the record of the said Supreme Court in said cause, it appears that a transcript of the record of said partition suit of Louis Labeaume v. Dodier's Heirs, was read in evidence, but that the notice to defendants in said partition suit was not included in the bill of exceptions, and was not before the Supreme Court, and that the conveyance from Auguste Dodier and wife to Louis Labeaume, being admitted by defendants in said trespass suit, was also read upon the trial of said cause, and a copy thereof preserved in the bill of exceptions taken and filed in said cause.
Prior to and on Dec. 20, 1803, Auguste Dodier was an inhabitant of the village of St. Louis, possessed and cultivated the land known as United States Survey No. 422, and had a right, title, and claim thereto. It was an out-lot of the said village, within the meaning of the act of June 13, 1812, with definite boundaries and location, prior to and at the date of the acquisition of Louisiana by the United States.
These are the material facts found by the court below, which, by written stipulation of the parties, made a special finding of the facts.
The court gave judgment for the defendants; whereupon the plaintiffs sued out this writ of error.
Argued by Mr. Daniel T. Jewett for the plaintiffs in error, who cited Magwire v. Tyler, 8 Wall. 650; Gibson v. Chouteau, 13 id. 92; Guitard v. Stoddard, 16 How. 494; Clarke v. Hummerle, 36 Mo. 620; Glasgow v. ...