the defendant below acquired title, had his 321*] mansion-house *adjacent to the land in controversy, and occupied a part thereof before the year 1824, and that the same has been ever since occupied; that the defendant Bissell extended his improvements over the whole fiftyfive acres as early as 1829 or 1830.

The defendant then asked the following instructions, which the court refused to give, and each of them; to which refusal the defendant by his counsel excepted; which instructions are in the words and figures following:

Instructions Refused.

1. That the land sued for in this action was not reserved from sale by the Act of Congress of 3d March, 1811, in consequence of the filing of the claim of Rudolph Tillier, with the concession to Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, and other documents, with the recorder of land titles, as given in evidence in this case.

2. That the confirmation by the Board of Commissioners to Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, given in evidence in this case, ratified by act of Congress of 4th July, 1836, did not vest any title in the land sued for in this action in the plaintiff.

3. That the plaintiff has shown no title on which she can recover of the defendant the land sued for in this action, or any part thereof.

4. That the plaintiff, if entitled to recover in this action, can recover only the undivided tenth of so much of the land sued for as the defendant was in possession of at the commencement of this suit.

5. If the jury find from the evidence that Rudolph Tillier, under whom the plaintiff in this case claims the land in question, filed his claim with the recorder of land titles, and as a part of the evidence of his claim, filed two plats of the land claimed, one of which plats would embrace the land now in the defendant's possession, and the other would not embrace that land, then there is no reservation of the land in defendant's possession from sale, which would prevent the location of the land in question, under the certificate in favor of John Brooks, or his legal representatives.

6. That the confirmation of the claim of Benito Vasquez and others, given in evidence by the plaintiff, being according to the concession, is in itself a rejection of the survey made by Mackay, which has been given in evidence; and under that confirmation there is no authority for a survey upon the land located under the certificate in favor of John Brooks, or his legal representatives.

322*] *7. That the survey given in evidence by plaintiff, of 800 arpents, made by Mackay in 1806, being a mere private survey made of a part of the public domain, in violation of an act of Congress prohibiting such surveys at that time under severe penalties, is not in law any part of the claim filed before the recorder of land titles, and cannot come in aid thereof, so as to work a reservation from sale, under the Act of Congress of 3d March, 1811, of said 800 arpents.

The plaintiff then asked the following instruction, which the court gave; to the giving which the defendant, by his counsel, excepted. Which instruction is as follows:

Instruction given.

That the land included in the survey given in evidence, and which was made for Rudolph Tillier, assignee of Benito Vasquez, on the 27th of February, 1806, by James Mackay, and which was officially resurveyed in conformity to the Act of Congress of the 4th of July, 1836, and which resurvey is numbered 3061, and was approved by Jos. C. Brown on location and sale at the time McNight and the 29th of March, 1842, was reserved from Brady's location, under a New Madrid claim, was made; and, therefore, the location under said claim is invalid as against the title of said Vasquez, or of those claiming through him to the extent that the two claims cover the same land, and that the land included by both_the surveys aforesaid is the land confirmed to Benito Vasquez, or his legal representatives, by the Act of Congress of the 4th of July, 1836, and that the confirmation operated as a grant to said Vasquez, or his legal representatives; such being the legal effect of the acts of Congress, records, and title deeds given in evidence.

And the defendant prays the court to sign and seal this his bill of exceptions, which is done accordingly. J. Catron. [L. S.]

Upon this exception the case came up to this court.

It was very elaborately argued by Mr. Benton and Mr. Gamble for the plaintiff in error, with whom was Mr. Geyer, and by Mr. Good and Mr. Ewing for the defendant. It is impossible to do more than state the points raised by the counsel respectively.

Those on behalf of the plaintiff in error were the following:

I. The report of the late Board of Commissioners, ratified by the Act of the 4th of July, 1836, is not a confirmation according to either of the plats of survey filed by Rudolph Tillier, under whom the defendant in error claims, nor of any survey, but *operates as a grant [*323 according to the concession of 4,000 arpents of land, to be located in one or two places of the public domain.

1. The confirmatory act confirms nothing but the concession, the only document mentioned or referred to in the decision, and therefore it cannot be assumed that any survey, or plat of survey, whatever, was adopted. Mackay v. Dillon, 4 Howard, 448. It is a public grant, and passes nothing that is not described in terms, or by specific reference to something out of it. Blake v. Doherty, 5 Wheat. 359; Dyer, 350 b, 362 a; Cro. Car. 169; 10 Co. 65, 112 b; Charles River Bridge v. Warren Bridge, 11 Peters, 420.

2. The concession is a floating warrant of survey, conferring no title to any specific land, and a confirmation in terms, according to that concession, does not give it a special location or boundaries. Forbes's case, 15 Peters, 184; Buyck's case, Ibid. 215; O'Hara's case, Ibid. 275; Delespine's case, Ibid. 319; Miranda's case, 16 Peters, 159, 160; United States v. King, 3 Howard, 773; Mackay v. Dillon, 4 Howard, 448.

3. If anything can be resorted to, other than the decision and the concession to which it refers, for the purpose of determining the legal

effect of the grant, it must appear by the transcript laid before Congress, and that cannot be contradicted, altered, or varied by oral evidence. 1 Phil. Ev. 218, 423; 3 Starkie's Ev. 995-997.

4. The particular survey mentioned in the instruction given at the trial, if in fact executed, was prohibited by law, and is a mere nullity (United States v. Hanson, 16 Peters, 196), and was never recognized by the recorder and commissioners as the foundation of the claim, or as evidence of its location and boundaries.

5. The claim, considered by the recorder and commissioners under the act of 1832, was made by the original grantees, on the concession alone, and the decision by special reference to that claim and concession excludes all other claimants and documents. Co. Lit. 210 a, 183 b.

6. No plat of survey was transmitted with the transcript, or in any form presented to Congress. The confirmatory act, therefore, can have reference only to the face of the concession, regardless of any survey whatever. Mackay v. Dillon, 4 Howard, 448; McDonogh v. Millaudon, 3 Howard, 693.

II. Whatever land is granted or confirmed, by the report and act of Congress, is granted or confirmed to the five sons of Vasquez, named in the decision of the commissioners, or their legal representatives, and not to any one of them, and his representatives, in exclusion of all the others.

interest as the grantee had at the time; the title, if any, afterwards acquired by the confirmation, does not inure to his grantee. McCracken v. Wright, 14 Johns. 193; Jackson v. Hubble, 1 Cowen, 613; Jackson v. Winslow, 9 Cowen, 13; Jackson v. Peck, 4 Wend. 300; Missouri Stat. Rev. Code, 1825, p. 217; Landis et al. v. Perkins, 12 Mo.

IV. The instruction given at the trial, "that the land included in the survey given in evidence, and which was made for Rudolph Tillier, assignee of Benito Vasquez, on the 27th of February, 1806, by James Mackay, and which was officially resurveyed by survey No. 3061, was reserved from location and sale at the time the location under the New Madrid claim was made," is erroneous, because

*1. The survey referred to was not [*325 only private and unauthorized, but prohibited by positive law, and is of no effect whatever, as fixing the locality and boundaries of the concession, or as the foundation of a claim. Garcia v. Lee, 12 Peters, 511; Smith's case, 10 Peters, 327; Wherry's case, Ibid. 338; Jourdan et al. v. Barrett, 4 Howard, 169; Mackay v. Dillon, Ibid. 448.

2. The plat of a private or forbidden survey is not authorized or required to be filed with the recorder of land titles; and being, in this case, both made and filed contrary to law, is of no effect for any purpose. Kerns v. Swope, 2 Watts, 75; Heister v. Fortner, 2 Binney, 40; Dewitt v. Moulton, 5 Shepl. 418; Blood v. Blood,

Mummey v. Johnston, 3 A. K. Marsh. 220.

2. No survey for any one of the grantees has ever been recognized by the government.

3. Every claim under the concession in severalty was rejected by the first Board of Commissioners, and none such was presented to, taken up, or recognized in any form, under the Act of 1832.

4. The decision, as entered in the transcript, and confirmed by Congress, is in terms in favor of all the original grantees, by name, according to the concession, and no one of them can be excluded from the benefit of the grant, or preferred in the location.

III. The defendant in error is not the legal representative of Benito Vasquez, Jr., or of any of the grantees named in the decision of the commissioners, and acquired no title to the land sued for, by the confirmation.

1. The instrument of writing purporting to be a transfer from Tillier to C. B. Penrose, under which alone she claims, not being a deed, is inoperative as a conveyance of a freehold estate. Moss v. Anderson, 7 Mo. 337; McCabe v. Hunter's Heirs, Ibid. 355.

2. That instrument is, in terms, a mere assignment of the interest of Tillier in the concession and plats of survey, and does not purport to convey lands. No interest in lands passes by a mere assignment of evidences of title. 2 Ham. 221; Fitzhugh v. Croghan, 2 J. J. Marsh. 429.

3. Taken as an operative conveyance of land, the transfer does not pass an estate of inheritance. Martin v. Long, 3 Mo. 391.

4. The transfer, if otherwise unexceptionable, at most conveys only such right, title, and

3. The concession containing no special location, and the survey being an absolute nullity, no particular tract of land was brought within the proviso of the tenth section of the Act of March, 1811.

4. There were two plats of survey filed at the same time, differing from each other, and, nothing appearing on the record to distinguish which of them designates the land claimed, the court was not authorized to elect between them. Mackay v. Dillon, 4 Howard, 448.

5. The official survey, No. 3061, has no effect on the question of reservation.

6. What particular land was embraced by the plats originally filed depended upon facts to be proved aliunde, and upon which the identity was to be found by the jury, and not by the court or by the act of the surveyor.

7. The reservation of the land included in the survey for Tillier, in 1806, if any there was, ceased before the location, under which the plaintiff in error claims, was made.

V. If it shall be held that the location was made on land within the proviso of the tenth section of the Act of 3d March, 1811, and while it was in force, "the legal effect of the acts of Congress, records, and title papers given in evidence," is not to render the location invalid as against the confirmation by the Act of 1836.

1. The location, survey, and patent certificates being in other respects regular, vested in John Brooks, or his legal representativės, a title valid against the United States, which was defeasible only by a confirmation of the conflicting claim during the continuance of the reservation. Barry v. Gamble, 3 Howard, 32; Stoddard v. Chambers, 2 Howard, 317; Polk's

the same subject; the Act of April 26, 1822; and also Act of 2d March, 1831.

4th. That this case differs from Smith's case, reported in 10 Peters, 327; also from that of Mackay, as reported in Barry v. Gamble, 3 Howard, 32; and still further from that of Les Bois v. Bramell, 4 Howard, 456.

The claim of the plaintiff could not be defeated by any act of legislation, without a disregard of the Treaty of 1803, and a direct denial of the equitable obligation imposed by the acts of Congress already cited, and which obligation has been repeatedly recognized by the agents of the United States, who, having assumed the trust existing between the government of Spain and the party under whom the plaintiff claims, could not defeat that trust by conditions imposed by them subsequent to the transfer of said trust. Analogies from the law of England will be cited to sustain this view, as also the opinion of this court in the case of Percheman, 7 Peters, 90.

329*] *5th. That the Act of the 9th of July, 1832, embraced this claim; its existence was thereby recognized, and the right to a confirmation of it clearly implied; that the confirmation by the Board of Commissioners, on the 2d day of November, 1833, and which was approved and made conclusive by the Act of the 4th of July, 1836, completes the title of the defendant in error; and that no one claiming the land in question from the United States, by virtue of any sale or grant made by them subsequent to the location and survey by Tillier in 1806, can hold said lands as against the legal representatives of the Spanish grantee. Opinion of the court in the case of Stoddard v. Chambers, 2 Howard, 284, and the authorities therein cited.

The title of the plaintiff in error cannot, we think, be shown to be entitled to the serious consideration of this court

1st. Because the certificate and location in virtue of which he claims conferred no right: the location was on lands, the sale of which was not at the time authorized by law; and it was therefore absolutely void. Opinions of Attorney-General, Wirt, October 10, 1825; Opinions, etc., Vol. II. p. 25, reference to letters of Secretary Crawford, June 10th, 1818; of Mr. Wirt, October 22, 1828; and of Mr. Butler. Attorney-General, August 8th, 1838; Stodda Chambers, and the authorities therein cited, 2 Howard, 284.

There was no act of Congress subsequent to the 26th of May, 1829, and before the 9th of July, 1832, giving the plaintiff in error the right to re-locate his certificate; and if there had been, we should not be willing to admit that a location thus made upon the land in question, although protected by a patent, could prevail against the Spanish grant; but there being no such location or patent, we contend that the New Madrid locator, notwithstanding the land in question should be regarded as public land during the interval mentioned, is in no better condition in regard to said land than he was prior to said interval. His location was void in its inception; nothing less than a special act of Congress could revive and make it available. To contend, as we understand the plaintiff in error will, that, although the [*330 New Madrid certificate was originally located on land at the time not authorized to be sold, yet it became public land in the interval between the 26th of May, 1829, and the 9th of July, 1832, and was therefore subject to his claim, as it were, by relation back to 1818, when his claim was first located, is, we think, an assumption not less unreasonable than it would be to contend that location under a New Madrid certificate on mineral lands or school lands specially reserved from sale at the time, but subsequently authorized to be sold, would be held good, and entitle the party to a patent, even as against the United States. It cannot be supposed that this court would countenance such a doctrine as this; and yet it is not, as we think, less worthy of their serious consideration than the position assumed in this doctrine of relation so earnestly insisted on by the plaintiff in error.

It will, we presume, be contended, that the confirmation, "according to the concession,' shall be construed to mean a confirmation, not of 800 arpents to Benito Vasquez, or his legal representatives, but a confirmation of 4,000 in common to all the brothers. The proceedings from 1806 to 1833, by the Board of Commissioners, and which are in evidence, show conclusively that such was not and could not have been the design of the board who confirmed the claim; but the testimony of Conway, one of the board who confirmed said claim, frees this question from all doubt. His testimony explains what otherwise might admit of dispute. It shows that there was but one plat before the board; they took proof as to that plat; they were satisfied therewith. Its not being referred to in the tabular statement made out by the clerk of the board is likewise satisfactorily explained by the testimony of Conway, one of the commissioners by whom this claim was confirmed. To show the manner of proceeding in this and like cases, we refer to the cases of Gabriel Cerré, 5 American State Papers, 821; St. Gemme Beauvais; Ibid. 744; Raphael St. Gemme and others, Ibid. 745; Thomas Maddin, Ibid. 747; Joseph Morin, Ibid. 819; James Williams, Ibid. 820; Charles Fremon Delauriere and Louis Labeaume, Ibid. 822; James Richardson. Ibid. 823; Pierre Detor, Ibid. 824;