Opinion of the Court delivered by
McGirk Judge. Napton Judge not sitting.Thé administrators of Janis brought an action of eject-inent, in the circuit court of St. Charles county, for a lot of grouiidin the town of St. Charles. The defendant pleaded not guilty. On the trial of the Cause the plaintiff had a verdict and judgment. The cause wás brought to this court the judgment was reversed, the cause remanded, and on the trial of the cause the plaintiffs again had judgment, to reverse which the cause is again brought here.
. On the trial of the cause in the circuit court, the plaintiffs gave in evidence a certificate of Theodore Hunt, Recorder of land titles for the State of Missouri, confirming this lot of ground to Antoine Janis the intestate. The defendant.objected to the giving this certificate in evidence; the objection was overruled, and the paper received and read to the jury.
Upon this evidence, after having proved the defendant in possession at the time of bringing the action, the plaintiff rested his case.
The defendant then gave evidence to show that, prior to the 20th December, 1803, one Toussant Lebeau possessed, inhabited, and cultivated the lot in question, and that he, the defendant, had a conveyance from a. portion of Lebeau’s heirs for their share of the lot, and that the right to the balance was yet in Lebeau’s heirs.
After the evidence was closed, the defendant moved the court to instruct the jury: 1st, that if they find from the evidence that Toussant Lebeau inhabited, cultivated and possessed the lot in question, prior to the 20th of December, *3331803,- and that he was an inhabitant of the' village o'f St.Charles on the 13th day of June, 1812,- then the plaintiffs are not entitled to recover. .
Recorder of made^n'eon-gress of May the facts con-certificate?0112d. Thai if I he jury find from the e’vide'nóe', that Lebeau was the only person who inhabited, cfiltivated, or po’ssessed the lot in question, prior to the 20th of December, 1803, and that he continued to be an inhabitant of St. Charles untilt and on, the l!»th of June, 1S12, the plaintiffs' are not entitled to recover.
The circuit court refused both these instructions, which refusal is assigned here for error.
The plaintiff in error, also, assigns for error, the reception of the Recorder’s certificate, made in pursuance of the act of Congress of May 26th, 1824. .
When this case was before this court on a former occasion, I wrote the opinion of the court, and gave toy own views of the act of Congress of J une 13th, 1812, (2 vol. Story’s L. U. S. p. 1257,) and also ray views of the act of 26th of May, 1824, 3 vol. Story’s laws U. S. p. 1972.)
The counsel for the plaintiff in error insists now, that the Recorder’s certificate is no evidence of any confirmation to Janis. First, Because it is no copy of any book, or paper* belonging to the office of the Recorder of land titles, and therefore does not come within the act of the General As* sembly of January 26th, 1835, Revised code p. 250. The 7th section of that act declares, that copies of confirmations had before the Board of Commissioners for the adjustment of land titles, or before the Recorder of land titles, &c., and certified by the Recorder, or other person having the lawful custody of the papers, &c., shall be evidence, &c. The objection taken by the counsel for the defendant is, that the certificate given in evidence is no copy of any confirmation, but is an original paper, and therefore is not within the law. To this Mr. Campbell, for the defendants in error, replies, that the paper is evidence as an original paper, the Recorder being required by the act of Congress of May 26th, 1824, to give a certificate of confirmation in each case of confirmation. Iam of opinion this is correct legal reasoning, and that t'he rule of law is, that whenever the- law requires ao *334oTicer to give a certificate of the existence of any fact, that t e certificate ro given is to be received in evidence of the existence of the fact.
Whenever the law requires ¡ n officer to give a certificate ol the existí nee of any fact, cuch ceit.fi cate is evi dence of the fuct contained then in. The act of Congress of June 1 '•!, Ibl2 amounts to a statutory confirm: tion of the ti un or village lots, &e. in the re-spectivo towns and vil Jages therein mentioned, to all persons ■who cune within the provisions of the act; and the owners or clai rr.ants of such lots <5fc , h ive only to show, whenever their rights or aro iB tint tl»e:rca-^?t.*334There is then no error on tki; point.
'Ihe next, point is, did the court err in refusing to give the instruction asked by the defendant? My opinion is,.that on this pc int there is error.
The o¡ iiuon in this case, heretofore delivered, established 1 he legal vah e of ihe lecotder’s ceitificate, as evidence to sustain the adion of ejectment on the [ art of the plaintiff.— But now the que th n is to le decided, what kind of title, on tl e ] ai t of Ihe de'enriant, is f ufleient to defeat the plaintiffs action, notwitii! landing the certificate of the recorder.
By the act of the I3th of June 1815?, it is enacted, by the Ift;edi<n ihertof, (2 vol. Story L. U. 1257): “That the rights, tilles, and claims to town or village lots, out lots, &o., in, ad oinirg tc, and belonging to St. Charles, &c., whii h li ts have been inhabited, cultivated, or possessed pri- or to the 2(Jlh day of December 1803, shall be, and the fi me aie heieb-v, confin ed to the inhabitants of the respec-ti\e towns aforesaid, according to their several right or rights in common thereto: provided this act shall not effect any c.cnfiimatK.n made by the board of commissioners for the adjustment of land claims, ” &e.
It was tl e opinion of this court in the case of Vassier vs. Penton, and in tins ca ;e vi hen it was up before, that the act of 1812 ¡-mounts to a statutory confirmation of the town lots in the respective villages of all those lots, and to all those persons who come within its description, and that the owners or claimants have nothing to do but to shew whenever their sights are disputed in courts of justice, that their cases are within the act.
The act of the General Assembly of Missouri, R. C. p. 231 sect. 1, declares, that the action of ejectment may be maintained in all caaes where the plaintiff is legally entitled to the posses: ion of the premises. This declaration throws but little light on the subject. But the 2nd section declares, that the action may also be maintained in all cases, where the plaintiff claims the possession of the premises, against *335any person not having a better title, thereto, by virtue of an entry with the register of public lands, a pre emption, a New Madrid location, and 4th, a confirmation made under the laws of the U. S. A.
Now in all these cases the jlaintiff may maintain hi? action of ejectment against any one who has not got a better title than his. But in every case where the defendant has a better title than his, the j laintifF cannot, as against that defendant, maintain his action. In this case the plaintiffs have, in my opinion, brought their case within the first part of the act of our legislature; they have produced a confirm uion, made to them by virtue of the act of Cong re ?s of the .6th May 1824. The defendant, however, shews that the same •lot of land was confirmed to him, and third persons, by the act of Congress, of 13th June 1212, nearly 18 years before •the plain tills confirmation took place. In this ca e the rule at law is the same as that in equity, which is, that he who 4s firnt in point of time, is be >t in right. According to this view of the laws, the defendant ha? a better title to the pre* mises than the plaintiff, notwithstanding the plaintiff has the confirmation of the recorder. In this case, however, the defendant, Gurno, has only shewn that he has purchased two shares, of the heirs of l.ebeau, and that as to the other shares as lidias no title thereto; and as the plaintiffs have a confirmation of the whole to their intestate, as to the -balance of the lot the plaintiffs insist they have a right to recover. This brings in question the doctrine whether the defendant can, to defeat the plaintiff', prove an outstanding title in a third person. My opinion is, that as to this rule of the common law the statute of ejectments has made alteration. Suppose a plaintiff on the trial, in any case, .proves his title by a patent of any given date, and then -defendant will shew that one,or ten years .before the plaintiff’s right accrued, a patent was made to a third person for the same land. In such a case, it is quite clear, the defendant has no-right to .the property. But it is equally -dear that the plaintiff has no right to recover, because, such-case, hohasuao title. Why -should heathen .recover '-the .defendant because’ the defendant has wad
The rule monlawjTlmt the defendant m an action of ejectment, oiitstandhig n title in a third person to defeat the s','^ fir-41!0 p lam tiff, is not changad uto?nreffuía-ting the a.o-nicnt. act of Juné 13, I8id, it is not necessary that the have"inhahi• ted $-c., the lot ciaimod, at the time ofthe passage of that act; but inhabits.-or0tc^2ÓthP11" Dec., 1803, is sufficient to pass the title from the u. S. to the claimant, without the fact!" who° thor sueh in-^cm had” con-tmued up to ihe passage of the act.Prom this view of the subject I conclude that the defendant may, as at common law, shew outstanding title to defeat the plaintiff, and that he is entitled to the possession against the right owner. In this case, then, a part of the title seems to be in the defendant, and a partin the heirs of Toussant Lebeau.
Mr. Campbell, of counsel for the defendant in error, insists, that at the time the act of 13th June 1812, was passed, there should not onlv have been inhabitation, cultivation, or * possession, on the part of any claimant, but that the same should have continued, and should have been in existence on the day of the passage of the confirming act of 13th June -iqio
I do not think this view of the law is correct. My opin- . , ■/ r ion is, that in every case, where the person inhabited, culti-Tatect or possessed a lot prior to the 20th Dec., 1803, the act of 1812, passes the fee simple from the U. S. into such possessor, without any regard to the fact whether this possession, &c. had continued up to the date of the act. It may be, that in some instances lots, so possessed were abandon-by tiie possessor. In every such case of abandonment ' 1 J property would be annexed to the public domain. But *n evei7 case wliat facts constitute an abandonment is matter of law, and the facts are to be proved and not to be pre- , Slltlied.
this case there is no proof .of an abandonment as un- , , , , derstood by the bpamsh law.
-^ie judgment of the court below is reversed, »nd the eause is remanded for a new trial.