majority">Gamble, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover possession of a small piece of land near the town of Carondelet, brought by Gamache and others against Piquignot.

The plaintiffs claim that the title of their ancestor, John B. Gamache, was confirmed by the act of the 13th June, 1812. In support of this position, there were offered in evidence certain documents issued from the office of the recorder of land titles. The first was a paper claimed tobe a certificate of confirmation, issued by Conway, the recorder of land titles, dated 22d January, 1839, under the act of congress of the 26th May, 1824. The second was an extract from the registry, kept by the recorder, of certificates issued by him, under the *317act of 1824, by which, it appears that Conway entered the certificate to Gamache’s representatives, on that register, on the 12th March, 1839, and furnished on that day to the surveyor general a description of the land. The third was an extract from the additional list of claims furnished by the recorder to the surveyor general, on the 12th March, 1839, which addition was of the Gamache claim alone. There were other documents showing that Hunt, who was the recorder of land titles, who acted under the act of 1824, in taking proof of claims, and who filed with the surveyor the list of claims proved before him, had filed one or two supplemental or explanatory lists after the first.

The court below rejected the evidence offered. A survey of the claim of Gamache was. made by a deputy surveyor, under instructions from the surveyor general, and, the survey being returned to the office by the deputy, and a plat made, the word “ approved” was written upon it and signed by the then surveyor general, but it never was recorded. It appeared in evidence, that the practice of the surveyor’s office, when a deputy surveyor made return of a survey which he had been instructed to make, was to have the survey examined, to see the manner in which the deputy had followed the instructions given, and if he had followed them, his work was approved, and the approval evidenced by such writing as had been made in this case, which was intended to authorize the payment of the deputy for his work, and that subsequently the survey was more carefully examined, and if found -to be a proper survey, in all respects, it was recorded in the books of the office, which was the evidence that it was finally adopted and approved ; and that, by the practice of the office, 'certified copies of surveys were not given out until they were thus finally approved and recorded. Conway, who had been surveyor general, as well as recorder, testified, that he would regard the survey of the Ga-mache claim as an approved survey, and would record it as such, if he were in the office.

It appeared in evidence, that the present surveyor general re*318fuses to record it as an approved survey, or to certify it to tbe recorder as a survey of land for which a certificate of confirmation is to issue, and that in that refusal he is sustained by the department at Washington.

After the evidence was closed, the court, by an instruction, declared the survey was not evidence of title, nor of the boundaries and extent of the Gamache claim.

A certified copy of the affidavits made before recorder Hunt, when he was taking proof under the act of 1824, was in evidence, but an instruction given to the jury substantially excluded them from consideration.

The plaintiffs gave evidence of cultivation and possession of a tract of land of which the premises in controversy were alleged to form a part, claiming it to be an out-lot of the village of Carondelet, the title to which was confirmed by the first section of the act of June 13,1812. The question of fact arising upon this part of the case was, whether the tract upon which the cultivation of Gamache was made embraced the premises in dispute.

The defendant claimed the premises under a lease from the corporation of Carondelet, as a part of the commons.

The court, at the instance of the plaintiffs, gave the following instructions :

1. If the jury believe from the evidence, that John B. Ga-ache, sr., was an inhabitant of the village of Carondelet prior to the 20th day of December, 1803 ; that he claimed and inhabited, cultivated or possessed, prior to that date, the tract of land described in the declaration in this case as an out-lot, or cultivated field lot, adjoining or belonging to said village, they will find for the plaintiffs for that portion of that tract which is embraced in lots Nos. 34 and 33, except sixty-six feet in width on the south side of said lot No. 33, of Mackay’s subdivision survey No. 2.

2. The jury are instructed that inhabitation, cultivation or possession of a part of a lot, claiming the whole, is in law an inhabitation, cultivation or possession of the whole lot claimed, *319within the true meaning and intent of the act of congress of 13th June, 1812.

3. The jury are instructed that the defendants have given no such evidence of adverse possession of the land in controversy in this case for twenty years prior to the commencement of this suit, as is sufficient in law to constitute an adverse possession that can bar this suit under the statute of limitations, provided the jury also believe that the tract of land in the declaration mentioned, was claimed and inhabited, cultivated or possessed, as an out-lot, or cultivated field lot of said village of Caron-delet, by John B. G-amache, sr., prior to the 20th December, 1803.

The court refused to give the following instructions, which were asked by the plaintiff:

1. The jury are instructed that, as against such a claim and cultivation or possession as that mentioned in said second instruction, no adverse user as commons as a ground title under the act of congress of 18th June, 1812, can prevail, unless such user existed in fact by an actual occupation and use as commons of the same ground, visible and continued, notorious, hostile and exclusive, only to the extent that such actual occupation and use as commons existed in fact and to the exclusion of such claim and cultivation or possession by Gamache of the same land as an out-lot or cultivated field lot of the village, prior to the 20th day of December, 1803 ; provided the jury also believe from the evidence, that the tract of land, in the declaration described was claimed and inhabited, cultivated or possessed by John B. Gamache, sr., prior to. the 20th December, 1803, as an out-lot, or cultivated field lot of said, village, with such a cultivation or possession as that mentioned in the said second instruction for the plaintiffs.

2. If the jury believe from the evidence, that the claim of the village of Oarondelet to commons prior to the 20th day of December, 1803, was bounded north (in part j by the- cultivated lots of the village, and that, prior to said date, the lot of land in said declaration described as having been claimed by *320Gamache was one o£ the cultivated lots of the village, then there is no conflict of title in this case, and the defendants have shown no title to the land in controversy.

8. The jury are instructed that, on the evidence given in this case, the statute of limitations is no, bar to this action, unless they shall believe from the evidence, that the town of Oaronde-let, or those holding under said town, have had an adverse possession in fact of the land in controversy in this case by an actual occupation on the ground, visible and continued, notorious, hostile and exclusive, for at least twenty years next preceding the commencement of this suit.

4. The jury are instructed that the survey No. 120 and the plats and field notes thereof, given in evidence by the plaintiffs, are evidence of the true location, extent and boundary of the o.ut-lot of the village of Carondelet, claimed under John B. Gamache, sr., by his legal representatives.

5. The certified extract from the minutes of Recorder Hunt, taken under the act of congress of 26th May, 1824, are evidence that the tract of land therein mentioned and described was claimed and inhabited, cultivated or possessed by John B. Gamache, sr., prior to the 20th day of December, 1803, and evidence that the same was- confirmed to John B. Gamache, sr., or his legal representatives, by the act of congress of 13th June, 1812.

6. The certified extract from registry of certificates from the recorder’s office, offered in evidence, shows that the out-lot therein mentioned was confirmed to John B. Gamache, sr., or his legal representatives, by the act of 13th June, 1812.

7. The certified extract from the list of claims transmitted by the recorder of land titles to the surveyor general, and certified from the office of the surveyor general, relating to the claims of the legal representatives of John B. Gamache, sr., is evidence of said claim and the extent and boundary thereof; and that the samé was confirmed by the act of congress of 13th .June, 1812.

8. The certificate of confirmation of the recorder of land. *321titles in Missouri, given in evidence by the plaintiffs, shows a prima facie title from the United States in the legal representatives of John B. Gamache, sr., to the land therein described.

The court, at the request of defendants, gave the three following instructions :

1. If the jury find that the land spoken of by the witnesses as actually cultivated and possessed by Gamache, did not embrace the land now in dispute, they ought to find for the defendant.

2. The survey No. 120, read by the plaintiff, is no evidence of title, nor of the extent and boundaries of Gamache’s claim.

3. The testimony taken before Hunt, and read in evidence by the plaintiff, is not to be regarded by the jury in the present case, the defendant not insisting that the claim had been abandoned.

The jury gave a verdict for the defendant.

1. Part of the design of the act of 26th May, 1824, in requiring proof tobe given before the recorder, by the individual claimants of land under the. first section of the act of 1812* evidently was that within a short period, the government should be in possession of sufficient evidence, upon which to distinguish the private from the public property. The proceedings before the recorder were to be the basis of the action of the surveyor, and the time allowed for taking the proof before the recorder was limited to eighteen months. In the third section, it is required that, “ so soon as the said term shall have expired he shall furnish the surveyor general with a list of the lots so proved to have .been inhabited, cultivated or possessed, to serve as his guide in distinguishing them from the vacant lots to be set apart as above described, and shall 'transmit a copy of such list to the commissioner of the general land office.” The previous section of the act had provided that, “ immediately after the expiration of the term allowed for proving such facts, it shall be the duty of the surveyor general” to designate and set apart the lots for the support of schools.

*322In the present ease, we have a recorder of land titles, fourteen years from the passage of this act, attempting to give the evidence of title, by issuing q certificate of confirmation, and certifying the claim to the surveyor general, as one confirmed by the act of 1812. If the government of the United States has confirmed the title set up by the plaintiffs by that act of congress, then the party, as has been held in this court, does not lose bis land by the failure to procure the evidence provided for by the act of 1824, and under these decisions, the plaintiffs in this case, after the evidence was rejected which they claimed was rightly issued under the last mentioned act, proceeded to prove the cultivation and possession of their ancestor, Ga-mache, and claimed that the title was confirmed by the act of 1812.

If the evidence of title, purporting to be issued under the act of 1824, appeared undisputed by the United States and acknowledged and treated by the government as effectual, then it may be that a person, who was a mere stranger to the title, would not be allowed to dispute the correctness of the conduct of the officers in their attempts to carry out the law.

But when we find that the government itself, in its own offices, arrests the progress of the title, and the whole reliance of the party in this case is upon the acts of the recorder, the correctness of which is denied by the government, we will examine bis acts, and give them effect only so far as they conform to the law.

That the recorder, under the act of 1824, was required to act in a quasi judicial character, is perfectly manifest, although there was no mode provided by the law for the expression of an opinion against the sufficiency of the evidence given before him. If a claim was in bis judgment confirmed by the act of 1812, be issued to the party a certificate of confirmation, and included the lot in the descriptive list, which he was required to furnish the surveyor general. If there was a failure to prove the inhabitation, cultivation, or possession, to bis satisfaction, be simply omitted to include the claim in bis list, and be issued no certificate.'

*323The acts required to be done, when a claim was confirmed, were to be done immediately after the expiration of the time limited for taking the proof, and when we see, from the evidence offered by the plaintiffs, that the recorder filed his list of confirmations with the surveyor, in October, 1827, near twelve years before Conway, his successor, returned the present claim to that office, we cannot avoid the conclusion, that this latter act was not within the scope allowed for such proceeding by the act of congress.

It is not necessary to maintain that, if Hunt, the recorder, who took the proof, had died before he acted upon the claims, his successor could not act upon them; but when he did act, and made out and furnished to the surveyor the list required by law, the conclusion is one which the law draws, that claims not within that list are claims not proved to his satisfaction.

The fact that other claims were reported by Hunt and annexed to his list, which were never disputed, is only evidence that the government did not deal with these titles with any strictness ; but when his successor takes up the book in which the affidavits of witnesses are contained, and undertakes to pronounce his judgment upon the testimony fourteen years after the affidavits were made, and twelve years after the list of Hunt was filed, his power to act upon the subject was properly denied by the other officers of the government, and before this court his act has the character of mere nullity. Reference to several cases is made in support of the recorder’s authority, but in none of the cases decided by this court has the present question been determined. In Macklot v. Dubreuil, 9 Mo. Rep. 478, the certificate which was issued by the recorder in 1842, was objected to as evidence ; but the objection made and decided upon by the court was, that the recorder had not jurisdiction of the case, because the land in dispute was not a lot which could be confirmed by the act of 1812. In that case, the decision in Hunter v. Hemphill, 6 Mo. Rep. 106, is remarked upon, and it is said to be conceded in the latter case, that the defendant might show that the paper title of the plain*324tiff was a mere nullity, because issued by an officer not authorized by law. In the very papers produced by the plaintiffs and which were at first offered together, there are affidavits made before Hunt., the recorder, in 1825, and every other paper is made by Conway in 1839.. The question whether Conway had any authority to act upon the subject at the time he did, was a question of law, arising upon the evidence offered by the plaintiffs, and required its exclusion if he had no legal authority to act. We think it clear that he had no such authority.

2. Reference is made to expressions used in decisions of this court, which are supposed to favor the idea that copies of the' affidavits made before Hunt, are competent evidence to establish the facts testified to by the witnesses. No such inference is fairly deducible from the language employed. In Biehler v. Coonce, 9 Mo. Rep. 351, it is said that the tabular statements from the books of the recorder, are admissible in evidence ; but the court is then speaking of " an extract from the registry of confirmations by the recorder of land titles." In Somers v. Mc Gill, 15 Mo. R. 87, it is said, that a properly authenticated extract from the descriptive list, sent by the recorder to the surveyor’s office, is entitled to all the effect that an original certificate of confirmation would have. The sum of all the decisions is, that evidence from tho recorder’s books, and from the list sent to the surveyor’s office, showing that he had acted upon the proof made before him, and had adjudged the claim to be confirmed, was admissible without the production of the certificate. In the present case, the extract from the registry of certificates, and the copy from the communication to the surveyor, both show that the action of recorder Conway, in 1839, was all the action ever had upon the claim, as exhibited before Hunt.

3. The survey of the Gamache claim was properly excluded by the instruction, after the whole evidence was given. It was perfectly apparent from the whole evidence relating to the survey, that it was not in that condition in the office, in which it oould be regarded as completed, so as to be binding on the *325government, or tbe party. It was but in progress and had not received the sanction which the regulations and practice of the office required.

4. The first instruction given for the defendant, if it stood alone, would be so entirely erroneous as to require a reversal of the judgment. That the jury should be required to find for the defendant, if the cultivation by the elder Gamache.was not a cultivation of the precise piece of ground in controversy, would have been so gross a mistake, that neither the court nor the counsel asking the instruction could be supposed to have fallen into it. Accordingly, when we examine the second instruction given for the plaintiffs, we find the court telling the jury that cultivation of a part of a tract, under claim of the whole, was, under the act of 1812, a cultivation of the whole tract; and in looking into the case we see that the controversy was, whether this cultivation of Gamache, was not on an entirely different tract from that now claimed to include the premises in dispute. We are satisfied that the jury must have understood the question to be, whether the cultivation of Ga-mache, spoken of by the witnesses, was at any place upon the tract to which his heirs now claim title, or at some place upon an entirely different tract.

5. In this view of the question submitted to the jury, there would be no propriety in reyersing the judgment for the instruction given for the defendant.

The instructions asked by plaintiffs, which were refused by the court, all refer to the proceedings in the recorder’s office, the effect of which has been considered. The judgment is, with the concurrence of the other judges, affirmed.

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