¶1delivered the opinion of the court.
¶2This was an action of ejectment, and of course, as the defendant was in possession, it became the duty of the plaintiffs to show a superior title to that set up by him ip order to eject him.
¶3The plaintiffs maintain that the defendant could not acquire a valid title to vacant land within the outboundary of the city of St. Louis, as surveyed under the act of 1812, by virtue of an entry and patent dated in June, 1826. If this is conceded, how do the plaintiffs stand under their confirmation by the act of July 4, 1836 ? Could that act give them any title to vacant land within the said outboundary ? Was not such land as much protected from the operation of the act of July 4,1836, as from the entry and patent of the defendant ? We have held that where land is reserved from sale the title is still in the United States. The title to the school lands reserved by the act of 1812 we have said could pass by the act of the 29th of April, 1816. (Hammond v. Public Schools, 8 Mo.) But by the act of January 27,1831, the United States relinquished all their right, title and interest in the lands reserved for schools by the act of 1812. How, then, could the act of July 4, 1836, pass a title to any of those lands ? It has been held that this act only gives title from its date. But even if it operated retrospectively, and gave title from the passage of the act organizing the last board of commissioners, it would not affect this case, as that act was subsequent to the 27th January, 1831.
¶4Considering the state of the law as to the question whether one trial in ejectment is conclusive, and that this is a case in which the unsuccessful party here may go to another tribunal, we are not satisfied' that the court below exercised its discretion soundly in rejecting the depositions offered by the plaintiffs, as they were entitled to have their whole case *286heard in the court of the last resort. We will not undertake to estimate the force of the rejected testimony. A party who insists on the rejection of evidence in the court where the trial takes place, stands in rather an awkward situation here in maintaining that such evidence is of no weight and that its rejection did not affect the result of the trial. The answer to such argument is obvious. If the testimony was of the character attributed to it, why object to it ? It is obvious that the rule requiring depositions taken in another cause to be filed before they are read, is not an inflexible one, and may be dispensed with when the ends of justice require it. When the evidence can be met and would operate as a surprise on the ojjposite party, it would not be proper to depart from the rule but on terms which would effect justice between the parties ; but if the evidence can not be met, if it is merely cumulative and will not surprise, why reject it ?
¶5We have never held that the evidence taken before the board of commissioners organized under the act of Congress of the 9th July, 1832, could be read in another suit, in proof of the inhabitation, cultivation or possession necessary to show a confirmation under the act of 1812. We know no principle that would warrant the admission of such evidence for such a purpose. Such a rule of evidence might lead to serious consequences. We do not see how the patent of the defendant is made dependent on the act of July 4, 1836, for its validity. If that patent is within the meaning of the second section of that act, it is then recognized as a valid instrument from its date.
¶6We arc not to be understood as expressing an opinion on the question whether the patent of the defendant conferred on him any title. We do not consider that is involved in the case. As the matter stood, we conceive that defendant’s possession was a defence to the action.
¶7Judgment reversed and remanded. Plaintiffs to pay costs of this court.