— The counsel for the defendant in error, admits, that the title of the heirs of Farmer, rests entirely upon the'patent offered by them in evidence for the land in dispute, which issued on the 14th November, 1837. It recites, that it is issued in virtue of the provisions of the act of Congress of the 8th May, 1822, pursuant to a favorable report, made by the commissioners, appointed by the United States, in consideration whereof the United States released, quit claimed, &c., “ subject to any just claim, or claims, to all, and every part thereof, all and every person, bodies politic, or corporate, deri*553ved from the United States, British, French, or Spanish authorities, to have and to hold,” &c. It is in its essence a mere quit claim deed, and if the United States had nothing in the subjeet to grant, nothing passed by it.
The title of the defendant, is derived from a concession by the Spanish authorities in 1798, and he connects himself by several mesne conveyances, from the grantee to himself, and shows a continued possession of the lot, with the exception of a disturbance not necessary now to be noticed, from that time to the present. This claim was presented to the commissioner appointed by the United States, reported favorably on by him, and his report confirmed by the act of Congress of Sth May, 1S22.
The argument of the counsel for the defendants in error, is, that as both parties derive their title from the United States, and as their patent is evidence that the legal title is in them, they must prevail in this action ; and to this effect the Court below charged the jury.
The land in controversy, lies within the territory which, according to the uniform assertion of the United States, in every department of the Government, was acquired by the treaty of Paris in 1S03. It is, however, as it regards this question, quite unimportant, whether the title of the United States rests upon the cession made by the treaty of Paris, or by that made with Spain, in 1819, by which the Floridas were acquired; as in both, this Government came under the same obligations to respect the rights of private property.. Such would have been the law, if the treaty had contained no such provisions, or if the country had been acquired by conquest. [Perchieman’s case, 7 Peters, 51; Strother v. Lucas, 12 Peters, 438, and Innerrarity v. Byrne, 1 Ala. Rep. 672.]
By the 3d article of the treaty of Paris, the inhabitants of the ceded territory, were to be “protected in the free enjoyment of their liberty, property, and the religion which they profess.” What was meant by the term, “property,” in the treaty, has been frequently under consideration in the Supreme Court of the United States. In Soulard’s case, the Court held, that this term in the treaty, “as applied to lands, comprehended every species of title, inchoate, or complete. It is supposed to embrace those rights, which lie in contract; those which *554are executory, as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away.” To the same effect are, Smith v. The United States, 10 Peters, 326, and Strother v. Lucas, 12 Id. 440. The new sovereign, is merely substituted for the former, and is affected by the same considerations, which would operate on the conscience of the latter, to complete all titles which are inchoate, or informal.
The United States has, with the most perfect good faith, performed this stipulation, and has confirmed all titles emanating from the former proprietors of the country, having the semblance of justice. To ascertain what claims existed in favor of private individuals to land within the ceded territory, and to separate those claims from the public domain, was the obvious design of the different boards of commissioners, which have at different times been established, (7 Peters, 89,) and when so ascertained, have been recognized as private property, and confirmed by a public law.
What is the effect in law of this confirmation ? The act of 8th May, 1822, by which the claim of the defendant was confirmed, declares, that the confirmation “ shall amount only to a relinquishment forever, on the part of the United States, of all right, and title whatever, to the lots of land so confirmed.” This is nothing more than an admission by the government, that the land so confirmed, is private property, and is not a part of the public domain. It is not, and was not intended, to be a guaranty of the validity of the title so confirmed, except as against the government. It does not, and was not intended to confer, on the confirmee, any right as against other claimants to the same land, as is conclusively shown by the facts of this case — the government having confirmed the titles, both of the plaintiff, and defendant, to the same land.
It is then merely an admission by the government, that the land is private property, and cannot be considered as an adjudication by the commissioners, or Congress, of the claim so confirmed, as against other individuals, claiming title to the same lands. The confirmation is merely a disavowal by the United States, in favor of both the parties, of all right and title to the land in dispute; each, therefore, must rely on the *555strength of his own title, and in the contest with his adversary, neither can derive any aid from the fact, that the United States sets up no title to the land, which, in this case, is the whole eifeet of the confirmation, made in favor of both parties.
This controversy, has been previously before this Court. At the January term, 1833, it was here by the name of Hallett v. Eslava, 3 S. & P. 105 — Hallett relying on the title of the heirs of Farmer. At that time, each party produced in evidence a confirmation from the United States, to the land in dispute, and also a patent certificate from the register of the land office, and each endeavored to fortify the title derived from the confirmation, by producing the evidence of title on which the favorable report of the commissioner, and the act of Congress confirming his report, were based. The Court determined, that the confirmations balanced each other, and that the title produced by Eslava, independent of the confirmation, was superior to that of his adversary. The only difference between the case as now presented, and the question then before the Court, is, that the heirs of Farmer, have since then, procured ’a patent to be issued from the general land office, upon their patent certificate, and now rely upon that alone; In this state of the case, the Court below held, that the patent conveyed the legal title, and that the confirmation, and patent certificate of the defendant, was evidence of an equitable title only, and therefore, in a Court of law must yield to the former.
The terms, legal, and equitable, when applied to these incomplete Spanish titles, do not convey to the mind any very definite idea. If there be a valid title to land, derived from the former Government, and the United States does not assert any title to the land, by virtue of the cession, it is very unimportant what its particular form or designation is, or what would be its specific character, if it had originated under our laws. It is sufficient as against all others, that it is a valid subsisting title. In the case of Innerrarity v. The heirs of Mims, 1 Ala. Rep. 600, this Court held, that a possession commenced under the Spanish Government, and continued under ours a sufficient length of time to bar entry, was a valid title.
The charge of the Court not only asserts, that, in the case of *556these incomplete titles, the legal title was vested in the United States by the treaty, charged with the obligation to convey the fee to the true owner — but it also assumes, that the confirmation of such title still leaves the fee in the United States, which can only be divested by obtaining a patent.
We are not aware, that this question has ever been expressly decided by the Supreme Court of the United States, though numerous passages might be cited, which incidentally bear upon it. Indeed, it is extremely difficult to say, what is the law of that Court upon these treaties. In Strother v. Lucas, 12 Peters, at page 454, it would seem, from the opinion delivered on behalf of the majority of the Court, that a confirmation, such as this, was a statute grant, operating as á conveyance to the grantee; but whether that was a point necessary to be decided in the determination of the cause, and.acquiesced in by the majority, appears to be doubtful.
It cannot, we apprehend be questioned, that in the case of these incomplete titles, derived from the former proprietors of the country, the United States stands in relation to those claiming such title, precisely as the former governments would have stood, if there had been no cession of the soil. Such being the case, 'an admission by this Government, to one claiming title from the former proprietor, that the land is not part of the public domain, and that it acquired no title to it by the cession, must have the same effect, as if such a declaration had been made, by the former proprietor before the cession; which would certainly have divested the title of the sovereign, leaving the party claiming the land, at liberty to assert whatever title he could establish. Such, it appears to us, must be, and was intended to be, the effect of the confirmation in cases like the present. It was not, and does not purport to be, a donation from the Government. Doubtless, in the latter case, the title remains in the Government, notwithstanding the inceptive act may be performed by the donee, until the patent issues. Such was the case in Bagnel v. Broderick, 13 Peters, 436, where a subsequent fraudulent patentee, was held to have a superior legal title, to one claiming by virtue of a prior location, under a New Madrid certificate.
It was however, strenuously argued, that the United States had the right to impose such conditions, as it pleased, and that *557the grantee, can only take upon the performance of the condition. So far as this argument supposes, that this Government could assert any right to land, held under a title derived from the former Government of the country, merely because the title was incomplete, it is certainly untenable. But conceding, that this Government had the right to stipulate as the condition on which its disavowal of title was made, of the mode bji which the title of the claimant should be evidenced, what are the terms employed by it. The act of 1S22, 1 vol. Land Laws, 348, under which plaintiff claims, is as follows:
The first section confirms all claims contained in the report of the commissioners, founded on complete grants, which are recognized “as valid.”
The second section relates to claims established by written evidence, bearing date prior to the 20th?December, 1803, which are “ confirmed in the same manner as if the title had been completed.”
The third section is, “ That all the claims to lots, in the town aforesaid, reported as aforesaid, and contained in the reports of the commissioners, &c., founded on private conveyances, which have passed through the office of the commandant, or other evidence, but founded, as the claimants alledge, on grants lost by time and accident, and which ought, in the opinion of the commissioners, to be confirmed, shall be confirmed, in the same manner as if the titles were in existence: Provided, that in all such claims, where the quantity claimed is not ascertained, no one claim shall be confirmed for a quantity exceeding seven thousand two hundred square feet.” See, also, 3 vol. State Papers, page 32, where the report of William Crawford, the commissioner to which this section refers, will be found. To this class, we understand the claim of the plaintiff in error belongs, and it appears to us very clear, that nothing further was contemplated, to the complete investiture of the title. The language of the act is, that the claim is “ confirmed in the same manner as if the title were in existence.” If a complete grant, from one of the former governments existed, certainly no patent would be necessary from this; and where is the difference between the production of a grant, and the acknowledgment by the government that one formerly existed, and is now lost. If further confirmation of this view of the statute were *558wanting, it will be found in the .succeeding section, which provides for the class of occupants where no presumption of a previous grant could arise, there “ the claimant shall be entitled to grants therefor as donations.”
The fifth section confers on the registers and receivers at St. Helena and Jackson Court Houses, power to direct the manner in which the lots confirmed by the act, shall be located, and surveyed, and refers for the extent of their powers, to an act passed on the same day, which will be found at page 352 of the first vol. Land Laws. The fourth section of that act defines the power of the register and receiver, in relation to the mode of locating and surveying all claims to land, which were not founded on complete grants.
The fifth section declares that “ patents shall be granted for all lands confirmed by virtue of the provisions of this act, in the same manner as patents are granted for lands confirmed under former acts, to which this is a supplement.” ’ Upon reference to the act for adjusting the claims to land, &c., east of the island of New Orleans, passed 3d March, 1819, 1st Land Laws, 316, by the twelfth section, it appears, that the register was required to issue his certificate for claims confirmed by the act, as well as for donations, and pre-emptions to settlers, and that when properly issued, “a patent should be granted in like manner as for other lands of the United States.”
It is evident, from this collation of the laws of Congress, on this intricate subject, that a patent may issue, in all cases of confirmed claims to land, east of the island of New Orleans, upon the presentation of the certificate of the register; but we cannot agree that it is made a condition upon which the title is to be divested out of the United States. The act of confirmation does not only assume, but in fact admits, that the title was not in the United States, by the cession, as it admits that the land in question was separated from the public domain, before the treaty was made. The patent, therefore, when it issued would not convey the title, except as against the United States, it would therefore accomplish nothing more than was effected by the act of confirmation. And, in point of fact, the patent, when issued, merely conveys the right of the United States, reserving the right of all other persons.
In the city of New Orleans v. Armas and Cuculla, 9 Peters, *559224, the controversy, as here, was in the State Court, the defendant in the Supreme Court claiming title under a special concession, which was reported favorably upon by the United States commissioner, confirmed by an act of Congress, and a patent issued therefor. The city claimed the property as part of the quay, by a dedication from the King of France, The Court say, “ The controversy in the State Court was between the two titles; the one originating under the French, the other under the Spanish government. It is true, the successful party had obtained a patent from the United States, acknowledging the validity of his previous incomplete title from the King of Spain; but this patent did not profess to destroy any previous existing title, nor could it so operate, nor was it understood so to operate by the State Court. It appears from the petition filed in the District Court, that the patent was issued in pursuance to the act of the 11th of May, 1S20, ‘ entitled an act supplementary to the several acts for the adjustment of land claims in the State of Louisiana.’ -That act confirms the titles to which it applies, 4 against any claim on the part of the United States.’ The title of the city of New Orleans, would not be affected by this confirmation. But independent of this act, it is a principle applicable to every grant, that it cannot affect preexisting titles. The U. S. v. Arredondo, 6 Peters, 738.”
Language cannot well be more explicit than this, to show that the patent which issues upon a confirmed claim, does not affect a title which may exist to the same land, in another person, or oppose any obstacle to its assertion. The counsel, for the defendant in error,' aware of this, insists that in the case cited, the opposing title was a complete title, and does not apply to a case where the antagonist title is incomplete. But the question is not, which of two titles emanating from the same source, is superior in the estimation of a court of law, as in that case the legal title must prevail; it is, whether a title emanating from the United States, can operate on, or in any manner affect, a title in another person, previously derived from a source authorized to transfer the title, merely because it is inferior in dignity to that derived from the United States. In truth, however, the United States has never asserted title to the land in dispute, and the whole effect and design of the various acts of confirmation of incomplete titles, would seem to be not *560to legislate upon the titles, but by the disavowal of all title, to remove all obstacles to the settlement of controversies relating to them in the Courts of the country.
In this State, by statute, the certificate issued by the register upon a confirmed claim, is made evidence of the legal title. [Clay’s Dig. 341, § 157.] In Bagnel v. Broderick, 13 Peters, 450, it is denied, that the States have any right to declare the-dignity, and effect of titles emanating from the United States, and that a State law, declaring a certificate of the register evidence of legal title, will be disregarded by the Courts of the United States. The certificate in this case, does not come within the influence of the decision just quoted, because, as has been shown, the title is not derived from the United States. On the contrary, the act of confirmation, is a distinct admission, that the title never was in the United States, and certainly the States have the power to declare what shall be evidence of legal title to land, to which the United States never asserted title.
This conducts us to the conclusion, that the Court erred in its charge to the jury, that the patent conveyed the legal title to the heirs of Farmer, and. must prevail in a Court of law, over the title of Eslava.
The objection of the counsel for the plaintiff in error, that to ascertain who are meant by the term “ heirs of Robert Farmer,” in the act of Congress, reference must be had to the laws of the British Province of West Florida, the domicil of Robert Farmer, is, we think, untenable. The term “ heirs,” must, we think, be understood to be used in the sense affixed to the term in the United States. No reason has presented itself to our minds, that Congress had in view, by the use of this term, the English law of primogeniture. It was a mere act of grace, and was doubtless intended for the benefit of the heirs of Farmer, in the largest sense in which that term is understood, in the United States.
We have thus examined all the questions presented on the record, which were argued in this Court, except those relating to the validity of the title of Eslava. These, although examined here, by counsel, we shall decline the examination of. The charge of the Court below, virtually excluded all this evidence from the jury, and did not pass on its validity, declaring, that *561although it might be good in equity, at law the legal title of the heirs of Farmer must prevail.
In ordinary cases, we frequently endeavor to anticipate the future action of the primary tribunal, for the prevention of litigation ; but in this particular class of cases, our habit is, to decide nothing more than is necessary to the determination of the case before us, and having ascertained that the Court erred, we send the case back for another trial.
Let the judgment be reversed and the cause remanded.
Note. — Since the opinion in this case was written out, we have seen the report of the decisions of Grignon and others v. Astor and others, 2 Howard Rep. 319, and Choteau v. Eckhart, Ib. 395, from which it would appear, that the Court held, that a confirmation, by Congress, of an incomplete title, was equivalent to a grant to the confirmee. It is, however, worthy of consideration, whether there is not a difference between the condition of claimants to land in Missouri, upon these incomplete titles, and those in this State.