Strother v. Lucas (37 U.S. 410)

[Syllabus from pages 410-412 intentionally omitted]

IN error to the district court of the United States for the district of Missouri.

The counsel for the plaintiff in error, exhibited the following statement of the case:--

'This was an action of ejectment brought by Daniel F. Strother, of Kentucky, against Jno. B. C. Lucas, of Missouri, to recover a tract of land particularly described in the declaration, as follows: 'Lying and being in the city and county of St. Louis, state of Missouri, containing two arpents in breadth, by forty in depth, or eighty superficial arpents, French measure; one of which arpents by forty was granted to one Rene Kiersereau and his heirs, by the proper authority; and the other, to wit, the northern of said two arpents, was originally granted to one Gamache and his heirs; and which said two arpents by forty are bounded on the north by a forty arpent lot, originally granted to one Louis Bissonet; and on the south by a forty arpent lot, originally granted to one John Baptiste Bequette; and which said two forty arpent lots, so above bounded, have been confirmed by the authority of the congress of the United States to the legal representatives of the said Rene Kiersereau, and Gamache, respectively.'

The defendant pleaded the general issue, and the cause was tried at the September term, 1835, when there was a verdict for the defendant, and judgment rendered thereon; to reverse which this writ of error is prosecuted.

By the evidence, it appears that in 1764, the post of St. Louis, in Upper Louisiana, was first established by the French, under M. Laclede. In May, 1770, the Spaniards, under the treaty of 1762, took possession of St. Louis, and Upper Louisiana. Between the year 1764, and 1772, divers grants of land in Upper Louisiana were made by the French and Spanish authorities, respectively. Amongst those grants were some forty or fifty, containing each from one arpent by forty, to four arpents by forty, located in the prairie immediately west of the then village of St. Louis, and extending some distance north and south of it. These lots extend westward to the uniform depth of forty arpents, being parallelograms whose opposite sides are on the north and south, forty arpents in length; and on the east and west from one arpent to four arpents.

Some time in the year 1772, a survey was made, as above described, of these lots, by Martin Duralde, the authorized surveyor of the post of St. Louis.

About that time a fence was established on the eastern boundary of the above range of lots, which separated them from the village, and what was called the commons; there was no division fence, nor any fence on the western boundary; the lots were contiguous to each other; but each lot was held separately, and cultivated separately, by its proprietor or occupant, who was bound by the regulations of the post, to keep the fence in front of his lot (or of whatever number of lots he occupied,) in good repair.

The surveys so made by Duralde, were entered in a book called the Livre Terrein.

Amongst the lots so surveyed and entered, are the two lots in question, described and bounded as in the declaration in this cause. The surveys so entered, and the grants by virtue of which said surveys were made, were solemnly recognised and affirmed by the Spanish lieutenant governor, Don Pedro Piernas; and by his predecessor, the French commandant, S'Ange de Bellerive.

The entry in the Livre Terrein, No. 2, p. 68, which contains this recognition of said grants and surveys, has been printed by authority of congress, and is to be found in Gales & Seaton's American State Papers, vol. 3, p. 677. In the entry in the Livre Terrein of the survey of Gamache's arpent, the grantee is called 'Joseph' Gamache. This was a mistake, as is shown fully by the evidence in the cause. It is conclusively proved that the name of Gamache, the grantee, was John Baptiste Gamache, and that no such man as 'Joseph' Gamache, existed at that time in Upper Louisiana.

The defendant admits upon the record, that the grantee, Gamache, was known as well by the name of John Baptiste Gamache, and of Baptiste Gamache, as Joseph Gamache; but the fact, as proved in evidence, is that his name was John Baptiste Gamache, and none other.

Immediately after the grants so made to Kiersereau and Gamache, they took possession of their respective lots, and commenced the cultivation thereof, as acknowledged owners and proprietors, by virtue of said grants and surveys. John Baptiste Gamache continued to occupy and cultivate until about January, 1773, when Louis Chancellier took possession; and Rene Kiersereau until about the year 1780, when the said Louis Chancellier succeeded him in the occupation and cultivation of his lot. Louis Chancellier continued in possession and cultivation of both these lots, claiming the same as proprietor thereof by purchase from the original grantees, until his death, in April, 1785. Previous to his death, on his marriage with Marie Louise Dechamp, a marriage contract was executed between him and said Marie Louise, by which a communaute, (partnership) according to the Spanish law, was enacted between them. On the death of her husband, the said Louis Chancellier, the widow, by virtue of her rights under the communaute, was in lawful possession of the common property of herself and husband, and, consequently, of the two arpents by forty in question. On the 8th June, 1785, an appraised inventory 'of all the property, moveable and immovable, which is ascertained to belong to the said deceased, (Louis Chancellier,) and to his wife, Dona Louise Dechamp,' was made in due form of law, by the lieutenant governor, Don Francisco Cruzat.

In this inventory, the two arpents in question are described by their metes and bounds; that is to say, 'two arpents and a half of land in the prairies, bounded on the one side by land of Bequette, on the other by land of Mr. Bijou.' The names of Bijou, or Louis Bissonet, are admitted and proved to mean the same individual.

On the 11th June, 1785, a petition was presented to the lieutenant governor, by said widow and Charles Tayon, the guardian of the property of the infant son of said Louis Chancellier and Marie Louise, praying that said property 'in their possession,' should be sold at public sale; and on the same day, in pursuance of said petition, an order of sale was made; and on the day following, to wit, the 12th June, 1785, the lieutenant governor, Cruzat, proceeded to sell the property described in the inventory, and did actually sell a considerable quantity thereof; and amongst other property, the two arpents described as above, were sold and adjudicated to the said Marie Louise Chancellier, for the sum of one hundred and fifty-five livers.

At the same sale, on the same day, was also sold the slave Fidel, belonging to said estate and described in the inventory, to one Hyacinthe St. Cyr, whose security for the payment of the purchase money, (two thousand one hundred livers,) was August Choteau; the former signing by his mark in the margin of the sale, the latter signing his name in full thereon. The first article sold was said Fidel, and the sixth was the two arpents in question. The sale is declared to have been made at the dwelling of said widow, 'in whose possession are all said goods,' ('bienes' in Spanish, which means 'property' generally). Afterwards, by order of the 14th June, 1785, the sale was suspended for want of competent purchasers, and the balance unsold ordered to be delivered to the widow at the valuation, on condition that she be charged with the same on final partition between her and her son.

On the 8th June, 1786, on petition by the said widow and guardian, a partition was ordered to be made between the widow and said infant; and accordingly an account and partition was made, whereby it appears that said widow was charged with the sum of one hundred and fifty-five livres, being the price of said two arpents by forty, by her purchased at the sale of her husband's property. It appears that the balance coming to the minor, amounting to six thousand three hundred and thirty-four livres, seven sous, six deniers, was duly paid over to his guardian; said Charles Tayon, and the sum of three thousand dollars, (including said lots, valued at one hundred and fifty-five livers,) duly paid to said widow.

This final settlement and partition was made on the 13th day of September, 1787, in pursuance of the decree of the governor general, Don Estaban Miro, bearing 25th February, 1787, all which is set out at large upon the record.

Thus it appears, that in pursuance of a final decree made by the supreme authority in Louisiana, the widow of Louis Chancellier was declared and adjudged to be the lawful owner and possessor of the said two arpents, bounded as described in the declaration in this cause; and that the judgment of partition and final settlement so made, in favour of said Maria Louisa Chancellier, bears date the 13th day of September, 1787.

In addition to the above proof of the title of Marie Louise Chancellier to said two lots, the plaintiff gave in evidence:--

1st. An authentic deed of exchange between Jno. B. Gamache, and said Louis Chancellier, bearing date 23d January, 1773, acknowledged and executed in presence of Don Pedro Piernas, lieutenant governor of Upper Louisiana; whereby said Jno. B. Gamache, as original grantee of said one by forty arpents, conveys the northern half thereof to said Louis Chancellier, in exchange.

2d. An authentic deed, dated 6th April, 1781, acknowledged in presence of Francisco Cruzat, lieutenant governor of Upper Louisiana, whereby Marie Magdalene Robillard conveying to said Louis Chancellier, one arpent by forty, bounded by Jno. B. Bequette, and by Jno. B. Gamache's arpent, being the same granted to Rene Kiersereau. In this deed is signed the name of Rene Kersereau, as 'assisting witness;' and his name also as a party witness, is mentioned in the body of the deed.

It is in evidence that no other man than the grantee existed in Upper Louisiana of the name of Rene Kiersereau; and that Marie Magdalene Robillard, was the wife of said Rene. Besides this, the signature of said Rene Kiersereau to this deed is duly proved; as is also that of the lieutenant governor to this deed, and also to that of Jno. B. Gamache. It is fully proved that said Rene Kersereau ceased to occupy or cultivate his lot, from the year 1780; and that Louis Chancellier immediately succeeded him in the possession and cultivation thereof; and, as above stated, remained in possession till his death, in April, 1785.

In September, 1788, the widow of Louis Chancellier intermarried with one Joseph Beauchamp, and removed to St. Charles, about twenty miles from St. Louis, on the left bank of the Missouri river.

Some time after the removal of said Beauchamp and wife to St. Charles, (about 1790,) Hyacinth St. Cry, the same who purchased the slave Fidel at the sale of Louis Chancellier's property, entered upon the two arpents in question, and commenced the cultivation of the same by permission is said Marie Louise; which permission, according to the testimony of said Marie Louise, was given by her said second husband, Joseph Beauchamp: and according to the testimony of Madame St. Cyr, the widow of said Hyacinth St. Cyr, the syndic authorized said St. Cyr to occupy and cultivate, and that afterwards her husband had his deeds from Kiersereau and Gamache, as her husband told her.

In 1797 or '98, the eastern and only fence of those forty arpent lots fell down; and they again became a wilderness, unoccupied and uncultivated by any body, until some time in the year 1808, when the defendant took possession of them, and enclosed a part of the eastern end thereof, under a deed of conveyance from Augustus Choteau, the same who signed as security for St. Cyr, on the margin of the record of sale of Chancellier's property, as before stated.

In 1815, under the act of congress of 1812, the above two lots were confirmed to the legal representatives of the original grantees; and in said confirmation, the recorder makes special reference to Livre Terrein, No. 2, pages 11 and 12, in which the surveys in favour of Kiersereau and Gamache are recorded.

In 1816, by act of congress of the 29th April, 1816, sect. 1, the aforesaid confirmations are ratified.

The plaintiff then gave in evidence a deed of conveyance from Augustus Gamache, the survivor of the two sons and heirs of John B. Gamache, of his estate, whatever it might be, in said one by forty arpents granted to his father, John B. Gamache, to Basil Laroque and Marie Louise Laroque his wife. Basil Laroque was the third husband of said Marie Louise, the widow of Louis Chancellier. The plaintiff then gave in evidence deeds of conveyance duly acknowledged from said Basil Laroque and Marie Louise, of the said two by forty arpents to George F. Strother, and a deed from said Strother to plaintiff.

Here the plaintiff closed his case, and the defendant then gave in evidence:

1st. Two deeds, bearing date same day, the 23d October, 1783, the one purporting to be a conveyance by said Rene Kiersereau to said Hyacinth St. Cyr, of the one by forty arpents granted to said Rene Kiersereau; the other purporting to be a deed from 'Joseph' Gamache, of the one by forty arpents granted to Gamache; and which deed is signed Batis X Gamache.

In both those deeds it is recited, that for several years previous to their date said St. Cyr had been in possession, and was then in possession of the lots in question.

The defendant then gave in evidence certain proceedings, dated in 1801, in the matter of Hyacinth St. Cyr, a bankrupt; by which it appears, that amongst the property sold by the syndic on that occasion, 'two arpents of land in the first prairie of St. Louis, near the tower, by forty arpents in depth, bounded on the one side by the widow Bissonet, and on the other by Mr. Hortiz,' were adjudicated to Mr. Auguste Choteau for twelve dollars.

The defendant then gave in evidence extracts from the proceedings of the board of commissioners, of which board said defendant was a member; purporting to be a confirmation of said two arpents by forty to Auguste Choteau, as assignee of Hyacinth St. Cyr, assignee of said original grantees.

He also gave in evidence a deed, dated 11th January, 1808, from said Auguste Choteau and wife to said defendant, purporting to convey, in fee, to said defendant, said two arpents by forty; 'of which forty arpents have originally been ceded to Rene Kiersereau, and the other forty arpents have been originally ceded to Joseph Gamache, the whole bounded by a tract of land originally conceded to John B. Beguette, and by another tract originally conceded to Louis Bissonet; the whole belonging to us, (the said Choteau and wife,) as having become the purchasers of it at the public sale of the property of Mr. Hyacinth St. Cyr.'

The defendant then read to the jury certain extracts from the proceedings of the board of commissioners, of which he was a member; by which it appeared that the said board met at St. Charles on the 3d of August, 1807, and held their session there until the 8th of the same month and year.

The defendant lastly read in evidence an extract from the record of a judgment in an action of ejectment for said lots, in the district court of the United States, in which the said Daniel F. Strother was plaintiff, and said John B. Lucas was defendant; and there closed his case in defence.

The plaintiff in reply, proved by extracts from the records of the board of commissioners, that the defendant was a member of the board before which Auguste Choteau filed his claim as assignee of St. Cyr, assignee of the original grantees; and that while said claim was pending, and before any action of the board was had upon it, Lucas being still a member of the board, took the deed of conveyance aforesaid, of the 11th January, 1808, from said Auguste Choteau.

It is admitted on the record, that the plaintiff is a citizen of Kentucky, and that the premises in dispute are worth more than two thousand dollars.

The case being closed on each side, the plaintiff then moved the court to instruct the jury as follows:

1. That there is evidence before the jury of the possession and title of Rene Kiersereau and John B. Gamache, as absolute owners and proprietors of the two forty arpents lots described in the declaration.

2. That there is evidence before the jury of the possession and title of Louis Chancellier, as owner and proprietor of the two forty arpents lots in question, as assignee of said Rene Kiersereau and said John B. Gamache, respectively.

3. That there is evidence of the actual possession after the death of said Louis Chancellier by his widow, said Marie Louise, of said two forty arpents lots, claiming the same as absolute owner thereof.

4. That the plaintiff has established his title as assignee of Marie Louise Chancellier, to the estate and interest vested in her and her heirs, in and to the two forty arpents in question.

5. That the deed given in evidence by plaintiff from Auguste Gamache to Bazil Laroque and Marie Louise, his wife, enures to the benefit of the plaintiff.

6. That if the jury shall be of opinion from the evidence, that Hyacinth St. Cyr originally obtained possession of the lots in question, as tenant of Marie Louise, the widow of Louis Chancellier, or by virtue of a permission to occupy and cultivate, given to said St. Cyr, by the syndic of the village of St. Louis; the possession of St. Cyr, so obtained, shall be taken by the jury as, in law, the possession of said Marie Louise.

7. That the confirmations of the board of commissioners, on the 23d July, 1810, of which the defendant was a member, could, at most, only operate as a quit-claim by the United States in favour of the original grantees; and could not decide the question of derivative title, under said original grantees.

8. That the mere fact of the land described in the confirmation to Choteau, and the land described in the confirmation given in evidence by the plaintiff, and the declaration being identical, does not entitle the defendant to a verdict in his favour.

9. That no forfeiture or disqualification has accrued against Madame Marie Louise, the widow of Louis Chancellier, or against her assigns, under any act of congress, whereby she or they are barred from asserting their legal and equitable rights to the lots in question before this court.

Which instructions were given by the court.

The plaintiff also moved that the following instructions be given to the jury:

1. That the sale, and partition, and final decree, of which duly certified copies have been given in evidence by the plaintiff, establish the title of the widow of Louis Chancellier, Madame Marie Louise Des Champs and her heirs, to the land described in said sale and partition, as sold and allotted to her, part of which said land consists of the two arpents by forty in the declaration described, bounded by Bijou on the one side, and by John B. Bequette on the other.

2. That independently of the title of Rene Kiersereau and John B. Gamache, there would be sufficient evidence before the jury to establish a title by prescription in Louis Chancellier and his heirs, and Marie Louise, his widow and her heirs, to the two forty arpents described in the declaration.

3. That Hyacinth St. Cyr took no title by prescription in and to said lots.

4. That if the jury shall be of opinion that Hyacinth St. Cyr had notice of the sale of said lots to Marie Louise by the proper Spanish authority, as given in evidence by the plaintiff; the possession of said Hyacinth St. Cyr of said arpents, was not such as could be adverse to said Marie Louise, or could create an estate by prescription in favour of said St. Cyr.

5. That if the jury shall be of opinion from the evidence that St. Cyr was a purchaser at the public sale of the property of Louis Chancellier, or signed his name, or made his mark as purchaser on the margin of said sale; these facts are prima facie evidence that said St. Cyr had notice of the title of said Marie Louise as purchaser at said sale of the lots therein described, as sold to her.

6th. That the deeds given in evidence by the defendant from Rene Kiersereau, bearing date the 23d of October, 1793, conveyed nothing to St. Cyr; being made by a person out of possession, and whose conveyance for the same land by another person to Chancellier, was upon record, and who, therefore, was guilty of the crime of 'Estelionato,' punishable by fine and banishment, by the Spanish law then in force.

7th. That the deed given in evidence by defendant from Joseph Gamache to Hyacinth St. Cyr, dated 23d October, 1793, is void, on the ground of 'Estelionato,' in Batis Gamache, supposing that he made the deed: 2d, on the ground of uncertainty in the deed itself, in this, that it purports to be a deed of Joseph Gamache, and is signed Batis X Gamache.

8th. That August Choteau took no estate by prescription in either of said forty arpent lots in question.

9th. That there is no evidence of possession, whatever, adverse or otherwise, by Auguste Choteau, of said two forty arpents lots, or of any part thereof.

10th. That if the jury shall be of opinion, from the evidence before them, that the said Auguste Choteau had notice of the public sale of said lots to Madame Marie Louise Chancellier, his possession or claim to said lots under Hyacinth St. Cyr is fraudulent and void, as against said Marie Louise and her heirs and assigns.

11th. That the certified copy of the proceedings and sale by the syndic in the matter of Hyacinth St. Cyr, a bankrupt, is not evidence either of St. Cyr's title to either of the lots in question, or that the same were sold by said syndic to said Auguste Choteau, as part of said St. Cyr's property.

12th. That the defendant has shown no title by prescription under the Spanish or civil law, or by the statutes of limitation, (in bar of plaintiff,) under the Anglo-American laws to the lots in question.

13th. That the title of the defendant, as assignee of August Choteau, is vitiated by the fraud which vitiates the title of Choteau and of St. Cyr.

14th. That the deed from Auguste Choteau and wife to Lucas, of the lots in question, dated 11th January, 1808, is void for fraud; if in the opinion of the jury it was a sale and conveyance to Lucas of a claim and interest pending before said Lucas himself for adjudication.

15th. That if, in the opinion of the jury, the claim was pending before Lucas as commissioner when he bought it, the adjudication or confirmation of it on the 23d July, 1810, by the board of commissioners, of which Lucas was a member, is fraudulent and void at law and in equity.

16th. That neither the statute of limitation, nor the Spanish law of prescription can avail the defendant, Lucas, independently of the possession of St. Cyr and Choteau.

17th. That the orders of survey given in evidence by the defendant, and made by himself and his two colleagues in favour of August Choteau, bearing date June 10, 1811, was fraudulent and void; if the jury shall be of opinion from the evidence that the claims therein ordered to be surveyed, had been sold to said defendant by said Choteau previous to the date of said order, and while said claims were pending for adjudication before said defendant, as a member of the board of commissioners, in said order mentioned.

18th. That if any penal effect resulted from any act of congress to Mad. Chancellier and her assigns, or to the legal representatives of Rene Kiersereau and J. B. Gamache; the act of congress of January, 1831, entitled 'an act further supplemental to the act entitled an act making further provisions for settling the claims to lands in the territory of Missouri,' passed the thirteenth day of June, one thousand eight hundred and twelve; remits the parties to their original legal and equitable rights and titles, as if no such penal acts had ever been in force.

19th. That upon the case made by plaintiff he is entitled to a verdict for all that part of the two forty arpents lots in question, situated west of 7th street, in St. Louis, and all the lots east of 7th street, according to the admissions of defendant as above.

20th. That in this case there is no law or binding ordinance of the Spanish government, by which Madame Chancellier and those claiming under her could be deprived, according to the state of the evidence in this case, of whatever title she acquired to the land in question, under the purchase made of it by her as the property of her husband.

21st. That if the jury believe from the evidence that St. Cyr ceased to cultivate and be in actual possession of the premises in dispute from 1797 or 1798, prescription ceased to run in his favour, and that of those who claim under him from that time.

Which instructions the court refused to give; but instructed the jury in relation to the matters referred to in the first instruction above refused: 'that the sale, and partition, and final decree, the record of which certified copies have been given in evidence by the plaintiff, did pass the title of Louis Chancellier, mentioned in said proceedings of sale, such as it was at the time of his death, or such as it was in his heirs at the time of said sale to Madame Marie Louise, his widow, mentioned in said proceedings, and her heirs to the lands described in said record of sale and partition, as sold and allotted to her.'

And further instructed the jury, in relation to the matters mentioned in the fifth instruction above refused: 'that if the jury should be of opinion that St. Cyr, under whom the defendant claims, was a purchaser at said public sale of the property of said Louis Chancellier, or did sign his name or make his mark on the margin of the record of said sale; these facts, or either of them, is evidence proper for them to consider in ascertaining whether said St. Cyr had notice of the said title of said Marie Louise as purchaser at the said sale of the lots described in the record thereof as sold to her.'

And further instructed the jury in relation to the matters referred to in the eleventh instruction above refused: 'that the certified copy of the proceedings and sale by the syndic of the property and estate of St. Cyr as a bankrupt, was not evidence of a title to said St. Cyr to the lots in question, or either of them.'

And further instructed the jury in relation to the matters referred to in the twelfth instruction above refused, and to the statutes of limitation referred to in that refused instruction: 'that the defendant had shown no title to the lots in question, nor any bar to the plaintiff's recovery under any statute or statutes of limitation.'

And further instructed the jury in relation to the matters referred to in the sixteenth instruction above refused: 'that the statute of limitations could not avail the defendant Lucas, either with or independent of the possession of St. Cyr.'

And further instructed the jury in relation to the matters referred to in the eighteenth instruction above refused: 'that although the act of congress of the 31st of January, 1831, referred to in said refused instruction last mentioned, does not remit the penalties as in that refused instruction is supposed by the plaintiff; yet, that in fact no penal effect results from any act of congress which bars or stands in the way of plaintiff's recovery in the present action, or which in any manner affects his title, or evidence of title, under, or to be derived from said acts, or any of them, under the admissions of the parties in the present case.'

The counsel for the plaintiff excepted to the opinion of the court in refusing to give the several instructions; as well as to the opinion of the court in giving the instructions which they did give.

The defendant then moved the court to instruct the jury as follows:

1st: That if the jury find from the evidence that Hyacinth St. Cyr, and those lawfully claiming under him, have possessed the two arpents by forty, surveyed for Gamache and Kiersereau, without interruption, and with claim of title for thirty years, consecutively, prior to 1818, the plaintiff is not entitled to recover in this action.

2d. If the jury find from the evidence, that Hyacinth St. Cyr, and those lawfully claiming under him, possessed the two lots in the declaration mentioned for ten years, consecutively, prior to and until the 23d day of July, 1810; and that the lands confirmed to Auguste Choteau on that day are the same lands in the declaration mentioned, the plaintiff cannot recover in this action.

3d. If the jury find from the evidence that the defendant possessed the lots of land in the declaration mentioned for ten years, consecutively, prior to the 1st of October, 1818, the plaintiff cannot recover in this action.

Which instructions the court gave to the jury, with the further instruction; 'That the possession mentioned must be an open and notorious possession; and that if they should find such possession, it gave title under, and according to the Spanish or civil law, which was in force in Upper Louisiana at the date of the treaty by which Louisiana was acquired by the United States; and remained in force and unabrogated by any law of the district of Louisiana or of Missouri down to a period as late as October, 1818. That the possession of ten or thirty years would give a title, the one period or the other, according to the circumstances under which the possession was obtained. That the ten years possession which would give a prescriptive title, must be a possession under a purchase made in good faith; and where the purchaser believed that the person of whom he purchased had a good title; and where the owner of the title prescribed against resided in the same country during the said ten years. That if the jury believe from the evidence, that the possession of St. Cyr, under whom the defendant claims, was obtained under a purchase made by him in good faith, and under the belief that the person of whom he purchased had a good title; and that the possession of Choteau, under whom the defendant claims, was obtained in like manner, and under a purchase made with the like belief; and that they had the possession mentioned in the second instruction asked for on the part of the defendant; and that the said Marie Louise was in the country during the said ten years: the plaintiff cannot recover in this action.'

And further instructed the jury in relation to the possession mentioned in the third instruction asked for on the part of the defendant, 'that to make the possession there mentioned a bar to the plaintiff's recovery in the present action, the possession of the defendant must have been obtained under a purchaser, where he believed that the person of whom he purchased had a good title; and that the said Marie Louise was in the country during the said ten years, which, unless the jury believe, they cannot find for the defendant upon such possession.'

To which opinion the plaintiff excepted.

Afterwards the judge, of his own motion, further instructed the jury as follows:

That the possession which the said Louis Chancellier had at the time of his death passed to his heirs, and afterwards to his widow, the said Marie Louise, under the purchase made by her at the said public sale of the estate of the said Louis, and that the possession of the said Marie Louise would be presumed to continue in her and her heirs, until an adverse possession was shown; and would continue in her, her heirs or assigns, until an adverse possession was actually taken.

And further instructed the jury, that if they should find from the evidence that said St. Cyr took possession, or was in possession of the lands in controversy, or any of them, under the said Marie Louise, or as her tenant, his possession, so taken or held, would be the possession of the said Marie Louise, and would not be a possession in St. Cyr, available by him or those claiming under him, under the law of prescription mentioned. But, that if the jury should be of opinion that said St. Cyr came to the possession of the land in controversy, not as the tenant of the said Marie Louise, or under her, but under a claim and title adverse to her, such adverse claim and possession would constitute a possession upon which a prescription, by the Spanish or civil law referred to, and then in force, would begin to run in favour of him, and those claiming under him, if such possession was actual, open, and notorious; and that such possession, so commenced, would constitute and preserve to said St. Cyr, his heirs or assigns, a possession, available under the law of prescription referred to, notwithstanding said St. Cyr, or those deriving title from him, should leave the actual possession, or cease to occupy and cultivate, if that abandonment of the actual possession, occupancy, or cultivation, was with the intention to return, and without any mental abandonment of the possession.

And further instructed the jury, that if they should be of opinion from the evidence, that Rene Kiersereau, under whom the parties claim, did attest the sale of the lot in controversy, which both parties, in the present case, claim under him, alleged to be made by Marie Reno Robillia to said Louis Chancellier, by becoming a subscribing witness to the instrument of sale in evidence on behalf of the plaintiff, and purporting to be signed by said Marie Reno Robillia, and that said Rene Kiersereau, at the time of becoming such subscribing witness, was the husband of said Marie Reno, the title of said Rene Kiersereau would, from his presumed assent to said sale, and presumed receipt of the consideration expressed in said instrument, as the husband of said Marie Renno, in presumption of law, pass by said sale to Louis Chancellier. That the subscribing witnesses to a sale in writing, made before a notary or other officer acting as such, are presumed to have been informed of the contents of the written instrument of sale, because, by the civil or Spanish law referred to, which was in force in Louisiana, it was the duty of the notary or other officer to make known to the witness, as well as to the parties, the contents of the writing which they attested and subscribed. But that the jury would consider, from the evidence, and the circumstances in evidence, in this case, whether the said Rene, being the husband of the said Marie Reno, did become the subscribing witness to said instrument. And if they should be of opinion that he did not, or that the same is fraudulent, as against him, his title was not passed by the alleged sale. That if the jury find that the title of said Rene Kiersereau did pass by said sale to said Louis Chancellier, and that the land so acquired by him, and also the land derived by the plaintiff under said Gamache, are the said lands mentioned in the declaration; they will find a verdict for the plaintiff for those lands, or so much thereof as are described in the declaration: unless they find that the title has been lost by him, or those under whom he claims by prescription, according to the principles already stated by the court.

And further instructed the jury, that if they should find from the evidence, that the residue of the land mentioned in the declaration, or any part thereof, was in the possession of Louis Chancellier at the time of his death, and that he and those claiming under him had such possession for thirty years, consecutively, they would find for the plaintiff, for such residue, so possessed; unless they should find that his right, so acquired, had been lost by prescription, under an adverse possession, according to the principles already stated.

The case was argued by Mr. Lawless and Mr. Benton for the plaintiff in error: and by Mr. Geyer and Mr. Jones for the defendant.

In support of the assignment of errors in this case, the plaintiff's counsel contended:

1. That the lots in question constituted a property in the grantees thereof, and their heirs or assigns; which was protected and guarantied by the treaty of cession of Louisiana by France to the United States.

2. That at the date of the treaty of cession of Louisiana by France to the United States, the lots in question were vested, by title of the highest order, in Marie Louise, the widow of Louis Chancellier; who died in April, 1785.

3. That the original grant of said lots, respectively, has not only been vested, by title of the highest order, in Marie Louise, as far as said title could be given by the supreme power in Louisiana, while a province of Spain; but has since been confirmed by the government of the United States to said original grantees and their legal representatives.

4. That at the date of said confirmation by the United States, the said Marie Louise, the widow of Louis Chancellier, was the true assignee and legal representative of the said original grantees.

5. That the title of said Marie Louise and of said original grantees is now fully vested in the plaintiff.

6. That the title of the plaintiff, as assignee of Marie Louise, the widow of Louis Chancellier, to the lots in question, has been fully made out and established by the evidence in this cause; and has not been invalidated or rebutted by the defendant, either by showing a better title under the original grantees, or by showing a title in him by prescription, or limitation, or forfeiture, or escheat; or by establishing any other title adverse to that of plaintiff.

Mr. Justice BALDWIN delivered the opinion of the Court: