This was an-action of'ejectment brought by the defendant in error against the plaintiffs in error, to recover-a certain tract of land situate in the county of Baldwin, the • venue having been changed to the Circuit Court of Mobile.,
The questions for revision in this court arise solely out of a* bill of exceptions which was sealed by the presiding judge upon-the trial in the court below. The titles under which the parties respectively claim the land are set out, and the defendants below asked the court for several instructions to the jury, which were refused, and to which refusal they excepted,.as also to several charges which the court gave, involving the relative merits of the titles.
Before proceeding more particularly to notice the several charges refused and those given,, it will conduce to a better compre-. hensionof the easeand greater perspicuity in its decision, briefly-to state some principles applicable to it, which may be drawn from the decisions of'our own, and the courts of the United’ States, as also to collate the several statutes passed by Con-, gress, upon the construction of wdiich the titles are made to* depend.
And first,, we may remark,. that had the title of either party • been complete by grant from the crown of Spain, while the tern-. tory belonged to that country, then the party having such com-,, píete title could have asserted" it and made it available to defeat. *386-.any claim of title derived from the United States; for in such ■ •case, the land before the cession by the treaty of Ildefonso to France, arid by France to this government by the treaty of ' Paris, had become private ‘property, and*» cession of territory is not a cession of the property belonging to its inhabitants. “ The . king cedes that only which belonged to him. Lands which ho . had previously granted were not his to cede.” — Per Chief J. Marshall, United States v. Pecheman, 7 Pet. 87; Doe v. Eslava et al., 9 How. 445. As to the effect'of a failure to exhibit ?sueñ grants for registration, we will speak here after.
■ In respect to incomplete titles, it may bo safely asserted as a correct proposition, that if the claim was such as to have bound the conscience of the former sovereign to perfect the title, and to furnish the evidence necessary to support and maintain it, this government, having acquired the territory, would take it charged with the duty to carry out in good faith the obligation of the previous government existing at the time of the cession. In such case, the former government, never having parted with the title, it would devolve upon this government, but charged with the duty, on the part of the United States, of conferring it upon the person justly entitled. When perfected either by act of Congress, or the usual evidence of a grant, a patent, .this, and not the previous government, must be regarded as the source of title.
In the next place, we think it very clear- that in cases where the parties claiming land in the ceded territory must, in order to perfect their titles, or to obtain the evidence of title, appeal to the political power of the government of the United-States, that government has the right to prescribe the terms or conditions upon which such confirmation or recognition will bo made by it, provided those terms or conditions are not inconsistent- with the performance of the duties and the faithful discharge of the obligations imposed upon it by the transfer of the ceded country to it.
In order to ascertain what these obligations were, and to enable this government in good faith to meet and discharge them, ;.and further, to-enable it to proceed and make sale of the public land-without the hazard of invading the private rights of those «claiming under the former governments, by an indiscriminate ...sale of the whole, territory, it was iiecessary that stqps should *387Foe/taken to ascertain who laid claim to these lands, and the portions so claimed. It was also necessary to determine the chaiv acter of the claims so that it might be seen whether it was incumbent on this government to recognize or affirm them. To ascertain these titles and claims, the act of 1812 was passed, authorizing the appointment of commissioners and prescribing their duties. — rLaws of the United States by Story, p, 1285-
By the third section of this act, the commissioners were re-squired, after having attended a reasonable time in the respective parishes, to" establish offices in such districts respectively at some convenient point, of which they were to give public notice, and claimants were allowed to deliver the notices and evidences of .their claims within six months after the offices were established, and the claims should be placed in the same condition as if said evidences, &c., had been delivered while the commis - sioner was in the parish making his investigation.
The fourth section provides “ That every person claiming lands in tlio tract of country aforesaid, by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived .from the French, British or Spanish governments, shall deliver ,to the commissioner for land claims, when attending for the pur-nose in the parish where the land claimed may lie, a notice in writing, stating the nature and extent of his claims, together .with a plat (in case a survey shall have been made) of the tract . or tracts claimed; and shall deliver to the commissioner when attending as aforesaid, for the purpose of being recorded, every grant, order of survey, deed, conveyance, or other written evidence of his claim, and the same shall be -¡recorded by the clerk in hooks to he kept for that purpose, on his receiving from the warty or parties, at the rate of twelve and a! half cents for every hundred words contained in such written evidence of their claim; ,provided, however, that where lands are claimed by virtue of a complete French, British, or Spanish grant, it shall not be necessary for the claimant to have.,any other evidence of his claim entered at large upon the record, than the .original grant or parent, together with the order of sjnwcy and the plat; all of the ■other conveyances or deeds maybe abbreviated in the entry:; but the claim of title and the date of every, transfer, shall appear ..on .the record; and if such person shall neglect to 'deliver such ¡pojice in writing of .his, claim, together-with the jda.t, (incase *388the lands claimed shall have been surveyed) as aforesaid, or cause to be recorded such written evidence of the same within the time and times aforesaid, his claim- shall never after be recognized or confirmed by the United States; nor shall any grant, order of survey, deed, conveyance or other written evidence,, which shall not be recorded as above directed, ever after be considered or admitted as evidence in any court of the United States,, against any grant which may hereafter be derived from the United States.”
The fifth section empowers the commissioners to enquire into the justice and validity of the claims filed before them, the evidence relating to which is required to be recorded. By this section, it Avas made the duty of the commissioners to ascertain,. 1st, whether the lands claimed have been inhabited and cultivated; 2d, at Avhat time such inhabitation and cultivation commenced ; 3d, Avhcn, by Avhom, and under what authority, such land was surveyed; and they Avere further required to examine into every other matter affecting the justice and validity thereof,- and Avere invested Avilh the power of compelling the attendance of Avitnesses, and- of administering oaths,. &c.
The seventh section requires the commissioners to prepare abstracts from the records of the claims filed, which shall contain the substance of the evidence adduced in support of them, with such information and remarks as may be necessary to a proper decision thereon, Avhich abstracts were to be reported to the Secretary of the Treasury, and by him to be laid before Congress at the next session thereafter, for their determination thereon.
The eighth section requires the commissioners to collect and report to Congress a list of the actual settlers on the land, who have no claims to land derived under either- the French, British, or Spanish governments, and the time when such settlements were made. These are the important provisions of the act of 1812. The act of 18th April, 1814, extended the time for delivering notices,, and the evidences of claims, until the 1st September, 1814.. Under the provisions of these acts, commissioners were appointed, who proceeded to make the required investigations, and to-report to the Secretary of the Treasury, Avhich reports were submitted to Congress. — See S vol. of the American State Papers, p. G, ct seq. These reports, though submit*389ted to Congress on the 2nd of January, 1816, do not appear to have been finally acted upon until the 3rd of March, 1819.
In the report made by William Crawford, who was the commissioner charged with the investigation of claims to land East of Pearl river, he designates the claims presented under appropriate heads, classifying them in twelve lists or registers, according to the nature of the claims, and the action had upon them.
One of these contained a register of claims founded on private conveyances, which had passed through the office of the commandant, but founded, as the claimants supposed, on grants lost by time or accident. This register comprised sixty-seven claims for different quantities of land, and the opinion of the said commissioner which accompanied the report was, that although the grants upon which these claims were founded were lost, yet he conceived that the claims to such lands, not exceeding a reasonable quantity, as were inhabited and cultivated under the Spanish government, ought to be confirmed.
By the second section of the act of 1819, all claims reported as aforesaid in the several reports of the commissioners, founded on any order of survey, requette, permission to settle, or any written evidence of claim, derived from the Spanish authorities, which ought in the opinion of the commissioners to be confirmed, and which by the said reports appear to have been derived from the Spanish governments before the 20th day of December, 1803, and the land claimed to have been cultivated and inhabited on or before that day, shall be confirmed in the samo manner ns if the title had been completed; provided, that in all such claims where the plat and certificate of survey made prior to the 15th April, 1813, under the authority of the Spanish government, in pursuance of such claim, has not been filed with such commissioners, such claim shall not he confirmed to any one person for more than twel'Vo hundred and eighty acres ; and that for all other claims to land comprised in the reports aforesaid, and which Ought in the opinion of the commissioner to be confirmed, the claimant to such land shall be entitled to a grant therefor, as a donation. This grant, however, was not to be made to any one person for more than 1280 acres, and these confirmations and grants Were to operate only as a relinquishment by the government forever, on the part of the United States, of any claim whatever to the tract of land so confirmed or granted.
*390One of the alleged titles set up by the plaintiffs in error in"1 the Circuit Court, was reported upon by the commissioner in the report made in 1818, and the same is embraced in the register ' of claims,- founded on private conveyances which have passed through the office of the commandant above referred to. Tin claim is thus stated in the report, “ number of claim, 51;- by whom claimed, Daniel Johnson; original claimant, John Lyndcr; where situated, Mobile Day; quantity claimed,-5,000 arpéns;'' cultivation and inhabitation, formerly inhabited and cultivated by Lynder. The date of the bill of sale to Johnson, appears to have been altered.” — 3 vol. State Papers, 31. ■
The other claim set up-by the said plaintiffs in error, founded' on a title derived firm the Spanish Government" by Mad.- De ■ Dusseiy and the several mesne conveyances to Mr. Hall,- are attempted to be sustained independent of any action on the part of the government of the United States. Neither the alleged-grant and certificates of title and possession given' by the Span---ish authorities to Mad. De Lusser, nor the mesne conveyances-, . were presented either to the commissioner of land claims, or to the register and receiver of the land office at Jachson court house,-(who, under the provisions of the eighth section of the act' of 1819, succeeded to the powers and duties previously devolved upon the commissioners,) to be entered of record; as required by ' the acts previously noticed.
By the seventh section of - the act of 1819, persons who had"1 filed notices with the commissioner according-to the former laws upon the subject,-but who had- not exhibited sufficient evidence in support of them, and whoso claims had not been confirmed, were allowed to deliver other evidence by the first of July, 1820, • which evidence was required to be recorded as under the previous acts.
Under this last act, it appears that Thomas Byrne made known his claim before the register and receiver,-acting a3 land commissioners at Jackson court house, and the same is embraced in their'report upon the “'register of claims to land in the district east of Pearl river, in Louisiana, founded on orders' of survey, (requetts) permissions to settle, or other written evidence of claim, derived from either the French, British or Spanish authorities, which in the opinion of the register and receiver ought'to be confirmed.’.’ The claim is thus stated in-the abstract oaA *391register, number 2: “Number of claim, 3; bj whom claimed, Thomas Byrne; original claimant, Cornelius Dunn; nature of claim, and from what authority derived,. Spanish government; date of claim, 17th September, 1796; quantity claimed, unknown; where situated, Potatoe báyou; by whom issued, Petor Oliver ;• cultivation and inhabitation, from 1793 to 1804.5?: — 3 voh-Am. State Papers, 395. Notice of this claim was first filed before the commissioner Crawford' by Thomas Dunn, on the 25th day of June, 1813, but it does- not appear that any action was had upon it, under the claim asserted by Thomas, as the son of Cornelius Dunn, who had died. The notice of Byrne claims the land as the son-in-law of Cornelius Dunn, under a permit from Don Pedro Oliver, a Spanish commandant of the town and district of Mobile, “ to establish a cow pen-upon the southern bank of the bayou,-called Potatoe, on the east border of the river Tensas, carrying said cow range at least three miles above said bayou, reckoning to be from its mouth in ascending it.” This permit and the evidence in support of it appear to have been duly recorded.
The report of the register and receiver upon- the claim of said Thomas Byrne, was confirmed by Congress,-by the second sec~Lion of the act of 1822, “ in the same manner a» if the title had been complete,” such confirmation, however, to amount only to a-relinquishment forever of all claim on the part of the United . .States. — Story’s L. U. S. 1868. And by the fourth section of the same act, the said register andv-receiver were invested with power to direct the manner in which such lands should he located and surveyed, having' regard to the laws, usages, -and customs of the Spanish government on that subject; and in cases of interfering or conflicting claims, said officer's had power to decide between the parties, and were required-to ho governed in their decision by such conditional lines or boundaries as may have been -agreed on, cither verbally or in Writing, at any time before the passage of the act, between the parties. The same - act further-próvidos that, in cases of conflicting ;or interfering claims, where the parties interested have agreed on no conditional lines or. boundaries as to the manner of locating the same, the register and receiver of the district shall mak-aan equal division of the land-''claimed, so-as to allow each party hjs. or tlieir' improvements,' but-this was-not to he done- m-ftwor nf-an intru--*392der who had made his establishment after haring been forbidden to do so.
Under this provision of the act of 1822, the register and receiver proceeded to direct the location of Thomas Byrne’s claim, which was surveyed and located accordingly, and a patent issued therefor, embracing the law described in the declaration, up‘on their certificate of confirmation, and plat of the survey filed in the general land office. This .patent purports to be but a ■•quit claim of the United States to Thomas Byrue, in right df 'Cornelius Du.m, subject to any just claim or claims to all and every part thereof, of all and etfery person or persons, bodies politic or corporate, derived from the United States, or from either the British, French or Spanish authorities. The deed of Thomas Byrne and wife to the lessor of the .plaintiff, Chester Root, was duly proved.
This conotLfcatjd a summary of the legislation of Congress Upon the subject of these lands, and the action of the officers of the general government, in relation to the titles which are set up in the record before us.
In respect to the title set up, as derived from the Spanish authorities to Mad. Dj Lusser, and the evidence of that title, and of the mesne conveyances, &e., connecting the plaintiffs in error therewith, we are of opinion, that inasmuch as they were never presented to the board of commissioners as required by ' the several acts to which we have referred, they were improperly received as evidence, and could not operate to defeat a title derived from the United States. Not having been recorded, as provided for by these acts, they cannot “ ever after be considered or admitted as evidence in any court of the United States-, against any grant thereafter to be derived from the United States.” In Strother v. Lucas, 12 Peters, 410-448, Mr. Justice Baldwin, in speaking of the various acts limiting the time for filing claims before the commissioners, said, “ These are laws analogous to acts of limitations, for recording deeds, or giving t. fifict to the award of commissioners for settling claims to land under the laws of the States; the time and manner of their operation, and exceptions to them, depend on the sound discretion of the Legislature, according to the nature of the titles, the situation o'f the country, and the emergency which calls for theii enactment-. Reasons of sound policy have led to the general" *393■adoption of laws of both descriptions, and their validity cannot ■be questioned.” It may he said of such claims as these, as was remarked by Chief Justice Marshall in Henderson v. Poindexter’s Lessee, 12 Wheat, 543, when speaking of a failure to present a claim as required by the act of 3rd March, 1803, and the supplemental act of March 1801, “ claimants,” said he, “ could not complain, if the law which gave validity to then-claims, should also provide a board to examine their fairness-, and should make their validity depend on their being laid before -that hoard. The plaintiff in error has failed to bring his case before the tribunal, which the Legislature had provided for its examination, and has therefore not brought himself within the law.” In the case before us, however, it is insisted that the certificates or recognition of title by the Spanish and French authorities to Madame De Lusscr, gave her a complete title, which needed no confirmation by the United States to give it validity, ■and that it was not therefore necessary for those claiming under her to present the claim or evidences of title to the land commissioners to be recorded. It will be observed that the language of the act requiring this to ho done is general, and embraces ail grants either from the British, French or Spanish governments, whether complete or inchoate, providing in cases of complete grants, that the grant itself, together with the order of survey and plat, shall be recorded, and that the mesne conveyances may be abbreviated; “ but the claim of title and the date of every transfer shall appear on the record.” It is true, the act does not say, as some of the previous acts had said in reference to ■other portions of the territory acquired by the treaty of. Paris* that the right of the person failing to file the evidences of his claim, &c., shall become void, or shall be ever after barred; but as against any grant which may be derived thereafter from the United States, the grant, order of survey and conveyances* which the claimant fails to deliver for the purpose of being recorded, become wholly inoperative, inasmuch as they cannot he considered or admitted as evidence in any court of the United States.
I have seen no case which questions the authority of Congress to pass such statutes as the one above referred to. It was certainly of the last importance to the repose of society, and the ■ security of rubles, that such measures should be adopted as would< *394enable tbe government of tbe United States to determine whatr land was subject to its disposal. It*was further, as I conceive, -• the obvious duty of the government of the United States to re- • quire of persons claiming to hold under the governments which • previously owned this country, to make known in some appro- - priate manner the nature and extent of their claims, so that the occupants of the county might have the means of ascertaining who were the .proprietors, and of avoiding conflicts, as well as of protecting their improvements and-possession against dormant titles.—In Bagnell, et al. v. Broderick, 13 Peter’s R. 450, it was said that “ Congress has the sole power to declare the dignity and effect of. titles emanating from the United States;” and it has virtually declared that'its grant shall prevail over a claim of the character of Mad. De Lusser’s, the evidence of which has never been delivered to the appropriate offices for record. And we may safely conclude, that, if persons holding- grants from the ceding governments chose to withhold from being recorded the evidences of them-, and of the mesne conveyances, they elected to " submit to the alternative imposed by the act of Congress, and to have them rendered impotent as evidence when opposed by a title derived from the United States.
But it is objected that the title set up by the plaintiff below was not derived from the United States, but that he holds under the Spanish concession to Cornelius Dunn, which Congress has confirmed, and that therefore, the act which declares the unrecorded evidences of grants, conveyances, &c., shall not bo admitted or considered, &c., does not apply. We have anticipated this objection by the proposition stated in tho outset of this opinion, that in such cases, the government must be regarded as the source of title. The Spanish permit given to Dunn, to establish a cow pen on the Southern bank of Potatdé Bayou on the Pastern border of the river Tensas, carrying said cow range at least three miles -above said bayou, reckoning to be from its mouth-in ascending it,-did nob give him -a-title, but-the permission upon its false proposed £i that in the mean time he could obtain the corresponding title from the general government, after giving the proper information thereon.”-'. This permission was' never perfected into a title under the Spanish government, but after the cession to the United States, constituting as it did rath-cr an appeal to -the bounty, than a demand - upon »the justice of *395this government, it was confirmed as if the title had been complete; was located and'surveyed, and a" patent'issued for the’ same. The patent is qualified, it is true, but still it operates tcf pass the title from ‘the United Slates to the person to whom' it1 is given, and being thus’operative, must be regarded a grant' fforn the government, and the act of Congress which forbids that' the evidence of unrecorded grants from the ceding governments shall be admitted or' received against it in any court of the United States applies to it. '
Had the unrecorded evidence of a grant and mesne conveyances been introduced to show an adverse possession under color of title, so as to protect the party in possession under the statute of limitations, then they would have been 'properly allowed.—Doe. ex dem. Farmer’s heirs v. Eslava, 11 Ala. R. 1042; and same case, 9 How. R. supra. But such is not the effort in the case before us; the attempt'is to make them'operative as title' papers to defeat the patent from the government of the United States. '
The Do Lusser claim aside, we proceed to examine’the other set up by the defendants below.' This was founded, as the clai-" «hint alleged, on a Spanish grant lost by time or accident, given to John Linder, sen’r./by him bequeathed to his son, John Lin- " <ler, jr., and by him sold in 1808, to Daniel Johnson, with whom the tenant in posscssiofi connects himself by irrevocable power of attorney. ■
The first inquiry respecting this claim is, has it ever been'' confirmed 1 ' The report of the commissioner, it will be remembered, which was made upon this and ’similarly situated claims, ' recommended for confirmation such’ of' the claims"' for land as had been inhabited and' cultivated 'under' the Spanish government. The report says, this land Vas formerly inhabited and cultivated by Linder, but when it was so inhabited or’cultivated,' does ndt appear'either by the report or the evidence taken be-fóte the commissioner. "Wé cannot then, without doing violence to the report, consider this one of the claims recommended for confirmation. Bu't'if'we were to regard it as reebmmendfe'd' for confirmation, why then, it is duly confirmed “for a treasonable quantity,” which the act of confirmation says, shall not exééed 1280 acres, and'no‘location1 Or survey has ever been made in atíóór-" diitsue'with the statutes above cited.' So that in ally lightSfiil *396which we can view this claim, we think we should be wholly un7 authorized to give it the effect of defeating the claim of the plainr tiff, which, as we have said, is founded on the Spanish concession, presented to the commissioner, reported for confirmation by him, confirmed by the act of 1822, located and surveyed under the warrant of the register and receiver, and consummated by the evidence of the patent from the government.
But it is insisted by the counsel for tho plaintiffs in error, that conceding the defendants below showed no title, yet the title shown by tho plaintiff was not sufficient to maintain the action; and he makes several objections to it, all of which seek to go ber-hind the confirmation and patent. Now it is true, that where two claims to the same land are both confirmed by the government, as in the ease cf Doe ex dem. heirs of Farmer v. Eslava, supra, the parties are remitted to their rights derived from the former government; the effect of the confirmation being to place each party in equaüjure, so far as the action of the government was concerned. Hence, the effort in that case to show tho better title derived under the former government. But such is not the case here. We have shown that the claims set up by the defendants be'i.cw cannot be required; and the question then comes up, whether the land in controversy belongs to the plaintiff, or to the government of the United States, which must be regarded the owner of the fee, unless it he shown that the samo has been divested in some way. What is the effect of a confirmation of these incomplete or inchoate titles ?—In Eslava v. Doe, 7 Ala. 543, it is said ‘ ‘that the design of the various acts of Congress, confirming incomplete titles to land in Florida, it would seem, was not to legislate upon the title, but, by the disavowal of title in the United States, to remove all obstacles to tho settlement of controversies relating to the title by the judicial tribunals.” We dp not understand our predecessors, in tho opinion from which we have extracted a portion of the first bead note, to decide that the confirmation, location and survey, and the patent issued thereon, do not operate to vest the person in whose favor the confirmation was had with a title which will maintain an action against one who can show no title, or that the patent is wholly inoperative to convey a title from the United ’States, if the United States' at the time had any. They say the confirmation amounts to “ an admission hy the *397government, that tbe land so confirmed is private property, and is not a part of the public domain;55 that u it is not, and was not intended to be a guaranty of the validity of the title so confirmed, except as against the government,55 &c. Now we agree that it was not intended to confer on the confirmee any rights as against other claimants to the land, for these rights are expressly reserved; but as against the United States, there can be no doubt that the title passes, whether by w;ay of estoppel, cf by the operation of the confirmation, and the patent issued in accordance therewith as a conveyanc , makes no difference ;■ and the government having said by its solemn act, that the land be • longed to Thomas Byrne, in right of Cornelius Dunn, it is not for a stranger to say, that the conveyance is informal, or that the government has been imposed on, or that the survey and patent embrace land not coveréd by the original claim. Much less is it allowable to say that the confirmation should not operate in favor of the confirmee, because of some defect in the mesne conveyances from the original claimant to such confirmee. In the aspect in which we are considering this case, all these are questions between the plaintiff below and the government, and the persons whose rights are supposed to have been affected, which the defendants, being strangers, have no interest in. We say they are strangers, because the claim of Linder not having been confirmed, and failing to show any original grant to him, which can have the effect of severing the locus in quo from the public domain, they have no standing in court as against' the title exhibited by the plaintiff below./
In Strother v. Lucas, 12 Peters. 458, it was insisted, that the only objects of the acts of Congress being to ascertain what property had been acquired by individuals before the cession, the commissioners were to act only on original claims, and by confirming the rights of the original owner, to leave the derivative right under him entirely open between adverse claimants. The court, however, held, that this view of the case could not be sustained, and said, that it was inconsistent with all the acts of Congress which have organiz’ed board's of commissioners for adjusting land titles,- the proceedings of the board,-and the laws' which have confirmed them that’ it would defeat' the whole oh-' ject of these laws, and introduce infinite public mischief, to hold-that- the confirmations by the commissioners and Congress, made' *398expressly to those who claim by derivative titles, did pot operate to. their own use.
We. believe that,fwe have,. now considered all the questions . raised by the charges., which,,were given, and those which were .prayed,for but refused, and ..without prolonging this opinion, already too prolix, by an application of them to each charge, wc . conclude by saying that the- Circuit Court committed no error, which was prejudicial to the defendants below.