Missouri, of "the plat of survey No. 52, containing 7,153 arps. 323 p's, in the right of Moses Austin, as the same appears of record in first part of registre d'arpentage, page 85, Soulard's surveys, together with field-notes of the same;" and a copy of the record of the grant to Austin, under date of July 5, 1802, by "Don John Bonaventure Morales, treasurer of armies, intendant interim of the royal finances of the provinces of Louisiana and western Florida, superintendent, subdelegate, judge of arrivals, of lands, and king's domain," whereby was granted to Austin "complete property, use, and domain of the aforesaid 7,153 arpents 323 feet of land in superficie, according to the results of figures and measures contained in the plat of survey drawn by said Soulard," etc. This was accompanied by a copy of the testimony taken in 1808 in support of Austin's claim, from which it appears that he took possession of the land embraced in that grant as early as 1798, and made improvements thereon. 3 Amer. State Papers, 682. (2) The claim of Austin, as set out by him upon the United States record of land titles.

The defendants introduced a large amount of other documentary evidence, which, in the view taken by the court of the case, it is unnecessary to give in detail. Its object was to show the execution of a mortgage, under date of March 11, 1818, by Austin to the Bank of St. Louis, on the land in controversy, for the sum of $15,000; a judgment in the superior court of the territory of Missouri, in favor of the bank, against Austin, for $14,001.85, rendered October 1, 1819, and a judgment in the same court, in favor of McNair, for $493.94; executions upon those judgments issuing in 1819, which were levied upon all the right, title, claim, interest, and property of Austin in the land embraced in the Mine a Breton survey, (except three lots of described boundaries,) and under which sales were had March 21, 1820; a deed by the sheriff, making the sale, to Charles R. Ross, who purchased as agent of the Bank of St. Louis, and to which no seal or scroll was affixed; duly recorded deeds from the bank to Charles R. Ross in trust; from Ross to Simpson, Price, Hammond, and Easton; from Simpson, Hammond, and Easton to Price; from Ross, agent, to Price; from Price to Smith and others in trust; from the latter, under date of June 29, 1822, to Louis Devotion; the death of Devotion, and the appointment and qualification of Savage and Walsh as his administrators; the resignation of Walsh, and the sale by Savage, as administrator, because of the insufficiency of personalty to meet debts of his intestate, and in conformity with the orders of the county court of St. Louis county, having jurisdiction in the premises, of Austin's interest in the land embraced in the Mine a Breton survey; its purchase by John Deane; the confirmation of such sale; and the subsequent conveyance to Deane by the administrator of Devotion on May 28, 1835.

On the first day of April, 1836, Deane, having received possession under his purchase, exhibited his bill in equity in the circuit court of Washington county, Missouri, against James F. Perry and Emily, his wife; Stephen Perry and Eliza Perry; the present plaintiffs in error; and a child, whose name was alleged to be unknown, but who was averred to have been born of the intermarriage of James F. and Emily Perry. The bill alleged that the defendants were out of the jurisdiction of the court and residents of the state of Texas; and that all of them, except James F. Perry and wife, were under the age of 21 years. It gave a detailed history of the title asserted by Deane under the before-mentioned proceedings, alleging, among other things, that the sheriff who made the deed for the land sold in 1820 under the foregoing executions, inadvertently and by mistake, omitted to affix a seal or scroll thereto; that the deed from Austin to James Bryan was without consideration, and was made with the intent, upon the part of Austin and Bryan, to hinder and delay the creditors of the grantor; and that Bryan took the conveyance with knowledge of and subject to the judgments and mortgages held against Austin by the Bank of St. Louis and McNair. The prayer of the bill

was that the defendants in that suit, in whose behalf an interest in the land was asserted, be compelled by a decree of court to answer to the complainant for all the right, title, and interest each of them might have in the undivided moiety of the said tract of land, or “that the right, title, and interest of James Bryan at the time of his death, and of said James F. Perry and Emily, his wife, in her right, and of the said William Bryan, Moses Bryan, Guy Bryan Stephen Perry, Eliza Perry, and the child, whose name is unknown, of the said Emily Perry, in the said undivided moiety of the said tract of land conveyed by said Moses Austin, by his deed, executed the fifteenth of February, 1820, to said James Bryan as aforesaid, be vested in your orator, and for such other and further relief as to the court shall seem just," etc. The bill was verified by the oath of the complainant, and he also made affidavit that the defendants (naming them) and the child, whose name was unknown, of the said Emily Perry, defendants in the bill, were non-residents of the state of Missouri.

On the twenty-sixth of July, 1836, an order was made by the court reciting that the order of publication, previously made by the clerk in vacation, had been duly published; and a guardian ad litem, John Brickey, was appointed in behalf of the infant defendants. On the next day an order was made reciting that the infant defendants (naming them) come "by their guardian, John Brickey, and file their answer; and the said James F. Perry, and Emily, his wife, having been notified to appear at this term according to law, and answer the bill of the said complainant, or the same would be taken as confessed, and having failed to file any exceptions, plea, demurrer, or answer to the bill, it is ordered that the same be taken as confessed against the said James F. Perry and his wife." It was further ordered and adjudged that the right, title, and interest of Perry and wife in the undivided moiety of the land conveyed by Austin's deed of February 15, 1820, to James Bryan, "be vested in the said John Deane, the complainant, unless the said James F. Perry and wife appear at the next term of this court and file their answer to said bill." *On the thirtieth day of November, 1836, the following decree was passed: "And now at this day comes the said John Deane, the complainant, by his solicitor, and the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, by their guardian, John Brickey, and by agreement of the parties aforesaid, it is consented that the bill be taken in lieu of allegations, and thereupon, neither party requiring a jury, all and singular the premises are submitted to the court, who doth find that the matters aforesaid, in form aforesaid in the bill alleged, are true; and the said James F. Perry, and Emily, his wife, having failed to appear at this term of the court, and file their answer to the bill of complaint, it is ordered and adjudged and decreed that the decree heretofore entered in this cause against them be, and the same is hereby, made final.

"And it is further ordered, adjudged, and decreed that the right, title, and interest of the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unknown, of the said Emily Bryan, defendants, in and to the undivided moiety of that certain tract of land situate in the county of Washington, in this state, heretofore granted to Moses Austin by the Spanish government, and confirmed to him by the government of the United States, containing seven thousand one hundred and sixty arpens, and being one league square, situate at and near the Mine a Breton in the county of Washington, excepting such parcels thereof as the said Moses Austin had prior to the fifteenth day of February, in the year one thousand eight hundred and twenty, sold and conveyed, and which parcels so excepted are, fourteen hundred and thirty-two arpens to John Rice Jones, forty-five arpens to the county of Washington, two hundred and sixteen arpens to a Mr. Perry, two hundred and forty-three arpens to a Mr. Ruggles, fifty-eight arpens to a

Mr. McGready, four arpens to John Brickey, senior, three hundred and twenty-four arpens to Mr. Ficklin, forty-five arpens to Mr. McCormick, one hundred and sixteen arpens to Mr. Brocky, and are described in the deeds and contracts to said purchasers for the same, being the moiety conveyed as charged in the bill of complaint by Moses Austin to James Bryan, by his deed dated the fifteenth day of February, in the year one thousand eight hundred and twenty, be vested in the said John Deane, the complainant.

"And it is further ordered, adjudged, and decreed that the said defendants recover of the said complainant, John Deane, the costs and charges in this behalf expended.

"And it is further ordered, adjudged, and decreed that the said William Bryan, Moses Bryan, Guy Bryan, Stephen Perry, Eliza Perry, and a child, whose name is unkown, of the said Emily Bryan, respectively, be allowed each the time of six months after he or she respectively comes of age to appear and show cause against this decree entered as aforesaid against them."

*187

The present action was defended upon the following grounds: (1) That the defendants and those under whom they claim, had been in the open, continuous adverse possession of the premises in controversy for more than 30 years prior to the commencement of the action. (2) That the equitable title to the premises emanated from the government of the United States on the tenth of April, 1803; that the premises have not been in possession of the plaintiffs, or of any one under whom they claim, for a period of time exceeding 30 years prior to February 27, 1874, nor have plaintiffs, during that period, paid taxes thereon, but they have been paid by defendants and those under whom they claim; that on the tenth day of June, 1814, all title, both legal and equitable, to said premises passed from the United States, and that no action to recover the same has been instituted, as provided by law, prior to the institution of the present suit. (3) That the decree in the equity suit, instituted on the first day of April, 1836, by John Deane, who then had actual possession of the premises, and under whom the defendants claim, estops the plaintiffs from maintaining their action, and from claiming under the deed from Moses Austin to James Bryan, Levi Pettibone, and Rufus Pettibone any interest or o estate in the premises adverse to said defendants.

Without any reference to the defense based upon adverse possession, the jury were instructed to find, and did find, a verdict for the defendants. A general exception was taken by the plaintiffs to the "instructions" given by

the court.

Henry H. Denison, for plaintiff in error. Geo. D. Reynolds and F. J. Don ovan, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

The objection that the record does not show a sufficient exception, upon the part of plaintiffs, to the instructions given to the jury, cannot be sustained. The series of propositions announced by the court, although styled instructions, embodies nothing more than the reasons that induced it to direct a verdict for the defendants. These propositions submitted no fact for the determination of the jury; for they were accompanied by a peremptory instruction to return a verdict for the defendants. As the bill of exceptions contains all the evidence, and, in addition, sets forth the exceptions reserved by the plaintiffs, in the progress of the trial, to the admission of testimony, it is competent for this court to determine whether the exceptions were well taken, and, also, whether there was error in directing a verdict for the defendants. If, upon all the evidence, excluding such as was incompetent, plaintiffs were entitled to go to the jury-and such is the contention herethere was error of law in instructing them to find for the defendants. We proceed, therefore, to consider such of the questions argued by counsel as are deemed necessary to the determination of the case.

*188

06T.

By an act of congress, approved April 12, 1814, c. 52, (3 St. 121,) provision is made for the confirmation of the claims of every person or persons, or the legal representatives of any person or persons, claiming lands in the state of Louisiana, or the territory of Missouri, by virtue of any incomplete French or Spanish grant or concession, or any warrant or order of survey, which was granted prior to the twenty-fifth of December, 1803, for lands lying within that part of the state of Louisiana which composed the late territory of Orleans, or which was granted for lands lying within the territory of Missouri before the tenth day of March, 1804. In behalf of the plaintiffs it is contended that the Spanish grant of 1802, recited in the preamble of the act of February 14, 1874, was void, because made subséquent to the treaty of St. Ildefonso, concluded October 1, 1800, between Spain and France;—Act March 26, 1804, c. 38, § 14, (2 St. 287;) Foster v. Neilson, 2 Pet. 253, 304;— that if the grant to Austin was an incomplete grant, and, therefore, embraced by the act of 1814, that act operated only to confirm to him the equitable title to the land, the legal title remaining in the United States until the passage of the act of February 14, 1874; that the equitable title passed only under the restrictions and in the manner prescribed by the act of 1814; that, so far from Austin acquiring the legal title, the board of commissioners, organized under the act of congress, found that his title was not a grant made and completed prior to the treaty of St. Ildefonso, (2 Amer. State Papers, 678; 3 Amer. State Papers, 671; Burgess v. Gray, 16 How. 48;) that, for these reasons, Austin did not, at the date of the before-mentioned judgments, have any title which could be mortgaged or which was subject to levy and sale under execution; and, consequently, that all the proceedings which had for their object to ac quire or reach his interest in the Mine a Breton survey are inoperative to defeat their rights under the act of February 14, 1874, by which, for the first time, the United States parted with the legal title.

It is not necessary, in this case, that we should define the precise nature and extent of the interest acquired by Austin in this land, prior to or apart from the grant of 1802 by Morales, then governor at New Orleans. The order of the governor general of the territory of Louisiana, in 1797, that he be placed in possession; his taking possession of the land and improving it in 1798; the orders of the lieutenant governor of the territory, in 1799, that the land be surveyed and Austin put legally in possession, followed by the execution of that order, and the recording of the certificate of survey, all prior to the treaty of St. Ildefonso, certainly operated to give Austin a property interest in the land, capable (even if the grant of 1802 was void) of being made a complete grant, with the consent of the United States. In Soulard v. U. S. 4 Pet. 511, it was said by Chief Justice MARSHALL that, in the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free en joyment of their property; that the term "property," as applied to lands comprehends every species of title, inchoate or complete, and embraces rights which lie in contract, executory as well as executed; and that, in this respect, the relation of the inhabitants to their government was not changed; the new government taking the place of that which had passed away. Ir Strother v. Lucas, 12 Pet. 410, which involved the title to real estate in St Louis, the court said that "the state in which the premises are situated was formerly a part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty, and dominion, as she had acquired and held it; (Foster v. Neilson, 2 Pet. 301;) by which this government put itself in place of the former sovereigns and became invested with all their rights, subject to their concomitant obligations to the inhabitants;" that "this court has defined prop erty to be any right, legal or equitable, inceptive, inchoate, or perfect, which, before the treaty with France in 1803, or with Spain in 1819, had so attached

to any piece or tract of land, great or small, as to affect the conscience of the former sovereign with a trust,' and make him a trustee for an individual, according to the law of nations, of the sovereign himself, the local usage or custom of the colony or district, according to the principles of justice and rules of equity;" and that "the term 'grant,' in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession."

So, in Hornsby v. U. S. 10 Wall. 242, it was said that by the term "property," as applied to lands, all titles are embraced, legal or equitable, perfect or imperfect. See, also, Carpenter v. Rannels, 19 Wall. 141; Morton v. Nebraska, 21 Wall. 660.* And in Landes v. Perkins, 12 Mo. 238, the court said: "It is a matter of history, of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this state is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they had faith in their government, and rested as quietly under their inchoate titles as though they had been perfect. As early as October, 1804, we find the legislature speaking of freeholders, and authorizing executions against lands and tenements. There being so few complete titles, the legislatures, in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the date of the act above referred to, no titles had been confirmed by the United States. An instance is not recollected in which a question has been made as to the liability of such titles as Clamorgan's, under the Spanish government, to sale under execution. It is believed that such titles have been made the subject of judicial sales without question ever since the change of government.' That such was the law of Missouri is recognized by this court in Landes v. Brant, 10 How. 370, 371, where, among other things, referring to a title derived from the Spanish government, and confirmation of which was obtained from a board of commissioners acting under the authority of the United States, it was said: “The imperfect title, as then filed, was subject to seizure and sale by execution; the ultimate perfect title demanded and granted was a confirmation and sanction by the political power of the imperfect title, and gave it complete legal validity."

We are of opinion, therefore, that, even upon the assumption that the Spanish grant of 1802 was void, the interest which Austin acquired by the concession of 1797, the order of survey, and the recorded survey of 1799, in connection with his actual possession, taken under competent authority, was a property right which, at least as between private parties, could be transferred by mortgage or be reached by judicial process. But it is contended that the defendants cannot claim title under the before-mentioned proceedings in the courts of the territory and state of Missouri, and thereby defeat the rights of the plaintiffs under Austin's deed of 1820, because (1) it was not competent for the bank to have Austin's interest sold under execution on a judgment, while it held a mortgage on part of the premises sold, and thus cut off his right of redemption; (2) the sheriff's deed to Ross was void for want of a seal or scroll affixed thereto, (1 Terr. Laws Mo. 120, § 45; Moreau v. Detchemendy, 18 Mo. 522; Moreau v. Branham, 27 Mo. 351; Moreau v. Detchemendy, 41 Mo. 431; Grimsley v. Riley's Adm'rs, 5 Mo. 280; Harley v. Ramsey, 49 Mo. 309. (3) The deed from the bank was not under its corporate seal. And these matters all appearing upon the face of the record in the suit of Deane v. Bryan, instituted in 1836, no title passed by the decree therein, even if the court rendering it had jurisdiction.

These propositions were necessarily involved in the determination of that

*194