By the Court,
Cole, J.A tribunal was instituted by an act of Congress, approved February 21st, 1823, constituting a board of commmissioners for the purpose of "ascertaining and deciding on the rights of persons claiming lands at Green Bay, Prairie du Chien, and the county of Michilimackinaw.” The powers and duties of the commissioners as defined by the act were, to ascertain and decide on the rights of persons claiming land in those.districts, and transmit their report, containing transcripts of their decisions to the Secretary of the Treasury, to be laid before Congress. The 5th section of the act designates who might be claimants, in the following language:
"That every person who, on the first day of July, one thousand eight hundred and twelve, was a resident of Green Bay, Prairie du Chien, or within the county of Michilimack-inaw, and who on the said day occupied and cultivated, or occupied a tract of land, which had previously been cultivated by said occupant, lying within either of said settlements, and who has continued to submit to the authority of the United States, or the legal representatives of every such person, shall be confirmed in the tract so occupied and cultivated,” &c.
*303Pierre Challefoux, the father of the complainant Challefoux, and from whom the complainants claint title, hied before the commissioners, pursuant to the act, a claim to lot No. 27, at Green Bay, and proved by two witnesses, Baptiste Brunette and Jean Baptiste Broder, that he occupied and cultivated the tract on the 1st of July, A. D. 1812, and had submitted to the authority of the United States.
The defendant Susan La Rose or Susan Ducharme, from whom all the defendants claim title as purchasers, (except Mary Grignon, who is a nominal party), also claimed the same tract before the commissioners, as grand-daughter and-heir of Augustin Ashwabunay. She proved likewise by two witnesses, Pierre Cousey and Joseph Roy, that Ashwabunay occupied and cultivated the land on the 1st of July, 1812, and submitted to the authority of the United States,
The commissioners decided in favor of both claims, and confirmed them, and in their report recommend both for confirmation. Congress, by an act approved April 17, 1828, confirm “ the claims purporting to be confirmed or recommended for confirmation by the commissioners.” A patent for the land was issued to Susan La Rose on the 5th of November, 1829. Susan went into actual possession of the land some fifteen years ago, or more; the exact time when she went into possession does not very clearly appear, neither is it material in the disposition of the cause. On the 31st of October, 1842, Susan La Rose sold and conveyed the north half of the tract to Ephriam Shaler. and the other defendants derive title through this purchase. The complainants file their bill, praying that this patent issued to Susan La Rose may be delivered up to them, and that the defendants be decreed to quitclaim their interest in the premises. And the position upon which the complainants’ rely to sustain, their cause, is that it is proved that Ashwabunay was an Indian and therefore that he could not receive or transmit *304any right under the act of 1823, and that the title under the grant and patent enured to the benefit of their ancestor Pierre Challefoux, senior. Considerable testimony has been taken to establish the fact that Ashwabunay was an Indian, and also to show that Challefoux, senior, did not occupy and cultivate the land on the 1st of July, 1812. The view however which we have taken of the case relieves us from the necessity of entering upon an examination of the testimony to ascertain what facts are, or are not, established by it, for we are of the opinion that we cannot go behind the decision and report of the commissioners and the confirmation of that report by Congress, and inquire into the sufficiency and nature of the evidence introduced before them.
Congress, well aware of the condition of the country and the nature of these claims, saw fit to establish these boards of commissioners to examine into and decide upon the rights of the claimants. Reasons of sound policy have led to the establishment of these boards of commissioners, to settle claims to land from time to time, and courts have uniformly approved of the laws, and sustained the acts of the commissioners, when acting within the scope of their authority. 12 Wheat, 520-601; 6 Peters, 763 ; 7 id.,51; 12 id.,410; 2 How., 344. Notwithstandingtheactof 1823 (or more properly the acts of March 3d, 1807, April 23d, 1812, and May 11th, 1820, all of which have to be looked into in determining the powers and duties of the commissioners) empowered the commissioners to decide upon the rights of the claimants, yet their decisions were not final until approved by Congress. The primary object for which the board of commissioners was appointed, seems to have been to examine into and report to Congress such claims as ought to be confirmed. In the discharge of this duty, they had, to a certain extent, to act judicially upon evidence and facts tried before them. They were to decide whether a claim was supported by competent evidence under *305the law, and this decision, when approved and confirmed by Congress, we think, must be considered final and conclusive.
It is admitted by the counsel for the complainants, that the decision of the commissioners upon any fact, as for instance, whether a claimant occupied and cultivated his claim on the 1st of July, 1812, or not, must be considered conclusive, and that no evidence can be now received cbntradictory of the proofs made before them. But he insists that their decision is not conclusive upon the question as to whether a person was competent to take under the law or not. In other words, that we may inquire into the question as to whether Ash-wabunay was an Indian, but cannot, as to whether Challefoux occupied and cultivated the land on the 1st of July, 1812. We are unable to make a distinction between the cases ; we think that if we are permitted to go back of the decision of the commissioners, and the confirmation of that decision by Congress, and inquire into the question of the citizenship of a claimant, we may upon the same principle inquire into any other fact passed upon by the commissioners. It is not by any means clear that Congress intended to confine the benefits of the act to citizens of the United States. The language of the law is very comprehensive “ that every person who resided at Green Bay, &c., and occupied and cultivated his claim, on the first day of July, 1812, and submitted to the authority of the United States, might be a claimant for six hundred and forty acres.” There might perhaps have been some Indians, abandoning the wild and savage life of their people, who had become permanent inhabitants, occupying and cultivating the soil, submitting to the authority of the United States, and who would have been entitled to take claim under the liberal provisions of this act.
However, it is not necessary for us to decide whether Congress did or did not intend to discriminate in this respect; we must consider the decision of the commissioners upon a claim *306as correctly made upon good and sufficient evidence. It seems that any other rule would at once disturb and throw open to litigation those old claims, that Congress has been so sedulous in quieting and forever putting at rest. Considering, then, the decision of the commissioners, and the confirmation of that decision by Congress as conclusive of the rights of the parties, how then does this case stand ? Challefoux and La Rose make a claim to the same tract of land, their claims are both confirmed by the commissioners and recommended for confirmation in their report; Congress acting upon their report, also confirms the claim ; in other words, grants the land to two persons equally competent to take under the grant; for it has been held, that a grant may be made by a law as well as by a patent, pursuant to law, and that a confirmation by law is as fully, to all intents and purposes, a grant, as if it contained in terms a grant de novo, 12 Peters, 454; 2 Howard, 372. Such being the case, Challefoux and La Rose took an undivided moiety of the land as tenants in common.
It was contended that the confirmation of Challefoux’s claim by the commissioners was conditional, “ that it should not conflict with any confirmation previously made by them,” while the confirmation of Susan’s claim was absolute, and in point of time, prior to Challefoux’s. There are several answers to be given to this argument, besides stating that it assumes, as proved, a controverted fact The commissioners had no power to grant title to the land ; that was an act of sovereign power, and could only be done by Congress by general or special legislation. The grant was made by Congress eo instanti to both Challefoux and La Rose; that disposes of the objection. It might properly be observed that the commissioners frequently qualified their confirmation as in this case, and that even, if it were admitted that a confirmation of a claim by the commissioners, would, under the act of Congress, pass the title, yet that Susan La Rose cannot *307draw an inference from that circumstance, favorable to her rights, without showing that her claim had been previously confirmed; but this it is impossible to do. In the report made by the commissioners, her claim comes first in order; her claim, that of Challefoux, and a great number of others, purport to have been examined and confirmed the same day, but it is unreasonable to suppose that they were all acted upon and confirmed on that day; the position of a claim in the report is accidental merely, and will not warrant a conclusion from it one way or the other.
Several other objections have been raised against the complainants* right to relief, which will be summarily disposed of
It was insisted that the complainants were barred of' their right of action by the statute of limitations, or by the adverse possession of the premises by Susan La Rose for twenty years before the filing of the bill.
According to our view of the case, Challefoux, senior, and Susan La Rose, took the land under the act of Congress as tenants in common, and the title under the grant of the patent enured to their common benefit. In that case the possession of Susan La Rose, one of the tenants in common, is the possession of the other. 4 Kent Com., 370; Adams on Eject, 55. It is true that one tenant in common may oust his co-tenant and hold in severalty, but a silent possession accompanied with no act which can amount to an ouster, will not be construed into an adverse possession. McClung vs. Ross, 5 Wheat., 124. It does not appear from the evidence that Susan La Rose took actual possession of the premises, claiming to hold them by the patent covering the whole tract, for twenty years, before the bill was filed. So that we do not think that the complainants have been guilty of such gross laches in asserting their rights as to be barred by loss of time.
But they must be content with the measure of relief which this court upon equitable principles is able to give. We can*308not grant a decree against Ephraim Shaler, or any purchaser under him ; he purchased the north half of the tract in 1842; he has set up in his answer that he was an innocent purchaser for valuable consideration, without notice of complainants’ rights ; he must prevail upon this defence.
At the time he purchased, his grantor had actual possession of the land; the evidence of her title was the patent issued to her by the government of the United States, embracing the whole tract It does not appear that he had any knowledge whatever of the report of the commissioners, and that report was not notice per se, to him of the complaints’ rights.
The act of Congress confirmed the claims contained in volumes one, three, six, eight and nine of the reports. Had the acts of Congress contained or designated the names of the claimants, it might have been plausibly argued that it would have been noticed. But it is necessary to refer to the report to ascertain the names of the claimants, and the act is unintelligible without this report.
Under such circumstances we are unable to hold that the report of the commissioners or act of Congress, was either constructive or actual notice to the defendant Shaler and his grantees. They entered into possession of their land with a feeling of security which the possession of Susan La Rose and the patent in her name, were well calculated to inspire. They have or some of them have, made valuable improvement?, and they ought now to be protected in their title.
The complainants must therefore take the south half of the tract, covered by the patent as their moiety of the premises, relinquishing all claim to the north half which has been conveyed to Shaler.