delivered the opinion of the Court.
This was an action of ejectment by Papin against Boyce to recover a lot of ground in St. Louis. The suit originated in the Circuit Court of St. Louis county, but was transferred to the Court of Common Pleas, where a trial was had, resulting in a verdict and judgment for the plaintiff, Papin.
The plaintiff’s title was based upon a confirmation by the Recorder of Land Titles, by virtue of the act of Congress of 29th April, 1816.— This confirmation (as it may be termed since tbe act of 1816 approved it) is in a tabular form, and purports to be of a barn lot in St. Louis, claimed by reason of a possession prior to 1808, by Peter Papin under P. Chouteau, and granted according to possession of Chouteau, and to he surveyed. The plaintiff also gave in evidence a survey of this confirmation, made under the authority of the U. S.'Surveyor General for Illinois and Missouri, by which it appears that the claim is located in block 89, and is bounded on the north by a lot of the same dimensions, claimed by Gratiot under Rotier, east by Third,street, south by a lot of McNair’s, under Chauvin, being sixty feet fronting on Third street, running 120 feet in depth. The plaintiff then proved that defendant was in possession of this lot at the commencement of this suit.
The defendant gave in evidence two surveys made by order of the Court of Common Pleas. The one made by Eiler, deputy U. S. Surveyor, divided the block 89 into three lots, thus:—
*20Making the claim of Joseph Papin'under Hervieux, and Gratiot under Madame Rotier or Roquier, to cover the same piece of ground, and making the lot of McNair under Chauvin to embrace 120 feet front on Third street.
The survey by Smith, county surveyor, following that of DeWard,(the U. S. deputy Surveyor) divided the block into four lots, thus :—
The object of the remaining portion of the defendant’s evidence was to show that the survey by Eiler was correct, and that lots of J. Papin under J. B. Hervieux, and Gratiot under Rotier, conflicted with each other, and that the lot of plaintiff, under Chouteau, who - was assignee of Chancellier, was the lot immediately south of the Hervieux or Rotier lot, (supposed to be identical) consequently some si'xty-four feet north of where the plaintiff claims it to be and where De Ward’s survey places it, and not covering any of the ground occupied by the defendant.
For this purpose, the defendant produced sundry documents showing the titles of Hervieux, Rotier and Chancellier:
1. A concession was made to Hervieux by Piernas, on the 6th August, T773, of a lot seventy feet square, between the barns of Calvet and Chancellier. In 1808, Joseph Marie Papin claimed this lot as.assignee of J. B. Hervieux, before the board of commissioners. In 1810, a smv vey was ordered, to ascertain whether it conflicted with the claim of Charles Gratiot, under Mad. Rotier. In 1811, it was confirmed under the second section of the act of Congress of 3rd March, 1807.
2. A concession to Genevieve Roquier, widow of Louis Bissinett, of 60 by 150 feet on the hill west of St. Louis, adjoining the barn of Cerre on the one side, and that of Chouteau Cadet on the other, made on 27th August, 17.89. Charles Gratiot, as assignee, claimed this lot before the board in *211808, and in 1811, this claim was confirmed under the second section of the act of 1807.
3. Proceedings of the Recorder upon the claim of Pierre Papin, under Joseph Papin, assignee of P. Chouteau, consisting of conveyances from P. Chouteau to Joseph Papin, and from J. Papin to P. Papin, and a confirmation according to possession.
The defendant also read in evidence the record of a judicial salp of property of Louis Chancellier, by which it appeared that Madame Marie Chancellier, widow of Louis Chancellier, became the purchaser of the barn lot above mentioned; and deeds from Basil Loraque and wife, formerly Marie Louise Chancellier, Louis Chancellier and wife, Pierre Comegys and wife, to the plaintiff, dated St. Charles, 26th October, 1816, conveying to said Papin a lot in the town of St. Louis, on the hill, cn which the deceased Louis Chancellier had a barn, bounded (at the date of the deed) on the north by a lot of Joseph Papin, otherwise J. B. Hervieux, on the south by a barn lot of Jacques Chauvin, on the east by Third street, and on the west by the forty arpent lot — which lot belonged to the grantors, as having been purchased by Madame Marie Louise Chancellier, during her widowhood, at a public sale of the property of Louis Chancellier — and is the same lot which Pierre Chouteau gave and granted to Joseph Papin by deed of 16th June, 1809, and which the said Joseph sold to said Pierre Papin, by deed of 1st February, 1811.
The defendant also offered to read to the jury a transcript of the minrutes of the Recorder of Land Titles, purporting to contain the evidence taken by him under the act of May 26th, 1824, in relation to the town and village lots. This evidence was excluded, and an exception taken.
The defendant then proved by Pascal Cerre, that he first arrived in St. Louis in 1779, and has resided there ever since; that his father had a barn lot and barn thereon north of block 89; that his father’s lot was pne arpent square, and extended across Third street; that the barn of Madame Rotier of Roquier was on Third street, near the corner of Vine; that there was another barn south of that belonging to Chancellier, which was burnt down; that Madame Rotier was called Bijon, and sometimes. Bijon Bissonette; that her lot was in front of the lot of Hervieux, and Cal vet’s north of that of witness’s father. *
Joseph Papin, another witness, testified, that he was born in this country, and is the same who claimed and owned the Hervieux lot, and' that of Chancellier; that he built a house on the Hervieux lot, and occupied it several years. He saw Chancellier’s barn before it was burnt down and while it was burning — it was a little south of the Hervieux lot.— *22The witness got the Iiervieux lot from his father, and P. Chouteau, sr., gave him the Chancellier lot. The lots adjoined, as Mr. Chouteau told him, and he enclosed the Chancellier lot and used it as a garden. Madame Bijon’s barn was on Third street,' a little south of witness’s house, which was at the corner of Third and Vine, and the barn of Chancellier was south of that. Chauvin’s barn stood where Locust street now is.
Francis Fouche testified that he knew Chancelliér’s barn — it was about eighty feet south of Papin’s cake shop, which was at the corner of Third and Vine.
•The defendant also gave in evidence a transcript qf the proceedings of the Recorder of Land Titles on the claim of Alexander McNair, showing a notice of claim to four lots, one of them purchased from Jacques Chauvin, bounded on Papin (the plaintiff) northwardly by virtue of in-habitation and cultivation — which, cn the 27th December, 1813, was granted according to the possession of Chauvin.
The plaintiff then gave in evidence survey No. 351, as certified by the Surveyor General, purporting to be a plat and description of a lot confirmed to Alexander McNair, under Jacques Chauvin, representing the lot as fronting on Third street 64 feet, 8 inches, and running back on Locust street 171. feet, 4 inches, and lying immediately south of and adjoining to the lot as claimed by and surveyed for the plaintiff.
At the instance of the plaintiff, the court gave the following instructions to the jury:
1. That there is no evidence before the jury that' the lot in controversy, or any part of it, ever was in possession of Chauvin cr Alexander McNair, and that the confirmation to McNair under Chauvin cannot, under the evidence in this cause, be held to include any land north of the lot surveyed by the’United States authorities for McNair tinder that confirmation. ’ •
2. That if the jury find from the evidence that the lot surveyed for the plaintiff by the authorities of the United States, under the confirmation in his favor, was in possession of the defendant, Boyce, at the commencement of this suit, the title under the confirmation to McNair is no bar to the plaintiff’s right to recover. '
3. That the confirmation to plaintiff, and the survey by the United States authorities under that confirmation, are not to be questioned by the defendant on the ground that Chancellier’s barn was north of the lot as surveyed.
4. That the confirmation to the plaintiff, and the survey under such confirmation, are prima facie evidence of title in the plaintiff to the lot *23in controversy; and the plaintiff is not bound, in support of such title, to shew where Chouteau or Chancellier were in possession, nor can the defendant in this case resist the title of the plaintiff to the lot in-controversy, unless he has shown title in some other individual which actually covers the lot in controversy.
The defendant asked the following instructions, which were refused:
1. The grant or confirmation by the Recorder of Land Titles to the plaintiff, vests a title to the lot which it shall appear to the satisfaction of the jury was possessed by Pierre Chouteau.
2.,, The survey given in evidence by the plaintiff is not conclusive of the true location of the lot granted or confirmed to the plaintiff, ,and if it appears to the satisfaction of the jury that the lot granted or confirmed to the plaintiff is north of the lot in dispute, the verdict ought to be in favor of the defendant.
8-. The fact, if it appear to the jury that the grant to Gratiot arid the lot granted to the plaintiff cover the same ground, does not authorize the location of the grant to the plaintiff at a different place.
4. The grant or confirmation to the plaintiff is for the same lot which was claimed by Pierre Chouteau under Louis Chancellier, and the. true •location of that lot includes the barn of Chancellier.
5. The claim of the plaintiff, and the deeds exhibited by him to the Recorder, are to be taken as part of the description of the lot confirmed.
6. If the jury find that the lot claimed by the plaintiff, .under Joseph Papin, assignee of Pierre Chouteau, assignee of Mádame Chancellier, is the same lot confirmed or granted to him by the Recorder of Land Titles, then the true location of said lot ought to be according to the possession of Chancellier, including his barn.
7. If the jury find from the evidence that the lot claimed by and granted to the plaintiff, as possessed by Louis Chancellier and Chouteau and his assignees, prior to the grant by the Recorder, does not include the lot in dispute, or any part thereof, the verdict ought to be for defendant.
'8. That the confirmation to McNair is a complete title to the land therein described, whether possession he proved or not.
9. That the plaintiff cannot recover any land in possession of Boyce, if assigned to him by the Surveyor General,, unless such land was the land confirmed to him by the confirmation.
10, That if the Surveyor General assigned to the plaintiff a lot other- and different than the one confirmed to him, plaintiff cannot recover.
The defendant moved for a new trial, which was refused.
The record presents but a single question, and that is, whether the de*24fendant, under the circumstances of the case, could dispute the correctness of the survey made by the United States Surveyor of the lot confirmed to the plaintiff by the act of 1816. This was denied to the defendant by the instructions given by the Court of Common Pleas.
The defendant set up no title in himself to the premises in dispute, nor did he attempt to show a title' in any other, except the United States.— The confirmation to McNair under Chauvin was as indefinite as that to the plaintiff, and no evidence was given by the defendant to-show its locality. The only evidence on that point was the survey given in evidence by the plaintiff, and that survey located McNair’s lot so as not to conflict with the lot in dispute. All the defendant’s testimony was designed to show that the plaintiff’s confirmation was improperly located by the United States survey, and that the possession of Chouteau (upon which the confirmation was based) was at another and different part of the block from that where the public surveyor had placed it.
The defendant, it will be observed, did not dispute the confirmation. This was conceded, and it is very clear that, occupying the position he did, he could not, upon the principles settled by this court in Macklot vs. Dubreuil and several previous cases, be permitted to take advantage of any irregularities which may have occurred in the emanation and completion of the plaintiff’s title. The instructions of the Court of Common Pleas, however, went a step farther than the position of this court in the cases referred to, and held the defendant to be concluded by the location of this title authoritatively made by the officers of the Federal Government.
It is too late to question the right of the Recorder who succeeded the first Board of Commissioners to act upon village lots as well as upon-tracts of land submitted to him for confirmation. Numbers of town lots in St. Louis, supposed to be confirmed by the act of 13th June, 1812, were claimed before the Recorder and reported by him to Congress for confirmation. Whether the Recorder transcended his powers is of no consequence, as the subsequent sanction of the Government imparted unquestionable validity to his acts; and these confirmations of town lots under the act of 1816, are evidences of title to thoscwho choose to avail themselves of them, in preference to relying on the first section of the act of 1812. There can be no greater objections to them than would apply to the certificates of the Recorder under the act of 1824,-which have been held prima facie evidence of title.
The confirmation does not determine the locality of the lot. In this instance, the lot confirmed was a barn lot on the hill in St. Louis, and *25was to be surveyed according to the possession of Chouteau. The usual size of these lots was 60 by 120 feet, and the possession of Chouteau was to determine its position. The general principles applicable to surveys, as stated by the counsel for the plaintiff in error, are unquestionably correct. The Surveyor is not a judicial officer, by whom the question of locality is to be definitively settled, although it is a matter of fact to be investigated by him in the execution of his survey. His survey cannot therefore be generally conclusive of locality, because it belongs only to a judicial tribunal to determine the locality of title, after that title has emanated from the United States. It is prima facie evidence of locality, because it is the act of an officer entrusted by law with the performance of this work. There are cases in which the survey becomes the principal title paper, and cannot be disputed, as where the confirmation is upon a survey alone; but this class of cases has no connexion with the present.
Conceding the general principle as above stated, it is insisted on behalf of the plaintiff, that the propriety of this survey is a question between the United States and himself, with which this defendant cannot interfere, and in which he has no interest; that the ascertainment of Chouteau’s possession is expressly referred to the Surveyor General, by the act of 1824, and when the evidence is taken and the surveyor is satisfied, a stranger, who shows no title in himself or in another, should not be permitted to question its correctness.
To this reasoning, I confess myself unable to see any valid objection. The United States, as a great landed proprietor, has necessarily to dispose of her lands through the agency of officers appointed for that purpose. In attempting to carry out in good faith the treaty made with France, every disposition has been shown on the part of this government to do justice to the former inhabitants, and afford them every facility for acquiring complete title to their possessions. From the peculiar character of the laws and customs under which these inchoate titles originated, great difficulties had to be encountered by the officers to whom this subject was entrusted. To ascertain the locality of a barn lot, in 1842, depending upon a possession prior to 1804, where, perhaps, a barn has not stood for thirty or forty years, is a matter depending upon the fleeting memory of witnesses, and where the position of the barn a few feet north or south may vary the position of the lot. The agent of the United States has, in this instance, located the lot to the satisfaction of the claimant. Why should a stranger be permitted to question its propriety? *26Cui bono ? The proof offered would only show the lot vacant, or, in other words, would show that the title to it was still in the United States. But the proprietor has disclaimed title by the acts of its agent, and recognized the title' of the plaintiff} at the place designated. No one is injured by this mistake, if mistake it proves to be. We see no impropriety, therefore, in extending the doctrine held by this Court in Hunter vs. Hemphill, and in Maclclot vs. Dubreuil, to a case like the present.
But it has been suggested in argument, that there is an outstanding title to all the vacant lots in St. Louis in the public schools; and if this be so, there can be no doubt-that this corporation'will not be concluded by this survey. No instruction was asked from or given by the court below on this point, and no evidence was offered touching the title of the public schools to this lot. But we are called upon to take judicial notice that, after the passage of the act of Congress of June 27th, 1831, the legal title to all the lots in St. Louis, not belonging to private individuals, was vested in the board of public schools.
I am not prepared to say that the legal title to all the vacant lots in St. Louis was vested in the public schools by the act of 1831. That the act of 1831 vested in the public schools the legal title to all the lots, affected by that law, may be admitted. It was determined in the case of Hammond vs. the Public Schools, that the act of 1812 was obly a reservation. The act of 1824 then'declared it to be the duty of the Surveyor General to proceed, under the direction of the Commissioner of the General Land Qffie, to, survey', designate, and set apart the school lots, taking care to except such as the President might reserve for military purposes, and that the whole quantity of the lots so set apart should not exceed one-twentieth of the land included in the general survey of the town. The act of 1831 relinquishes the title of the United States to the lots reserved by the act of 1812. But until the Surveyor General has surveyed, designated, and set ¿part the lots, how are we to ascertain upon what the act of 1831 operates ? We cannot know judicially that all the vacant lots in St. Louis will not exceed one-twentieth of the land embraced in the survey of the town. When the surveyor has acted and set apart the lots, it may be that any intermediate title springing up after the passage of the act of 1831, and before the location by the surveyor, would be avoided, and in this way, that the title of the public schools would take date from the passage of the act of 1831, and not from the time of the location by the surveyor. But no question of this sort arises here. Nothing appears on the record to show that the lot in controversy *27has been set apart to the public schools, and therefore nothing can be determined in relation to their .title.
Judge McBride concurring,the judgment is affirmed.
Scott, J., dissents.