This case comes up on a writ of error from the district court of Missouri. It was an action of ejectment for two arpens of land in front and forty arpens in depth, in and adjoining the city of St Louis in the state of Missouri.
The material question in the case arises upon an instruction given to the jury upon the prayer of the defendant below, who is the defendant here.
Upon the trial no evidence was given on the part of the defendant, and the plaintiff having closed his case, the defendant moved the court to instruct the jury as follows: 'that if the jury find from the evidence that the two confirmations made by the board of commissioners to Auguste Choteau, given in evidence by the plaintiff in this case, are for the same land, and include all the premises in the declaration mentioned, the plaintiff cannot recover in this action.' Which instruction was given, and the jury found a verdict for the defendant.
In the course of the trial certain depositions were offered in evidence, which, among other things, went to prove the hand writing of Rene Kiercereau, whose name appeared as a witness to one of the deeds which had been admitted in evidence (and who, in the body of the deed, was described as a witness of assistance), by comparing the hand writing of the witness with the hand writing of entries made in a certain register of marriages and interments, alleged to have been made by the witness; of which, however, there was no direct evidence. The depositions, so far as they went to prove the hand writing of the witness to the deed by comparison, were objected to and overruled by the court, to which exception was taken.
It is a general rule, that evidence by comparison of hands is not admissible, where the witness has had no previous knowledge of the hand writing, but is called upon to testify merely from a comparison of hands. There may be cases, where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, comparison of hand writing with documents, known to be in his hand writing, has been admitted. But these are extraordinary instances, arising from the necessity of the case, and which do not apply to the one before the court. For there were living witnesses examined as to the hand writing, and, besides, the deed was received and read in evidence, and the plaintiff had the full benefit of it. But it is said, the evidence was offered for the purpose of identifying the witness, and to show that he was the original grantee of the forty arpens, and the husband of Marie Reneux Robillar; and being named in the deed as a witness of assistance, it operated by the Spanish and French law as a conveyance of his own title, the same as if he had signed the deed as grantor.
There are two answers to be given to the objection made to the ruling of the judge in the court below, in the view now presented. In the first place, that was not stated as the purpose for which it was offered, nor was it shown that such was the operation of the deed thus witnessed by the Spanish or French law; and these being foreign laws, should have been proved. The court cannot be charged with knowledge of foreign laws. But, in the second place, the record does not show that the judge was called upon to express any opinion with respect to the legal effect and operation of the deed, or that the plaintiff had not the full benefit of its being considered his deed. And, indeed, it would seem from the course of the trial, that it was so considered, or at all events the contrary does not appear from any question presented to the court on the subject.
Two other points have been made and argued here, which do not appear to have been raised in the court below, and which will be very briefly noticed.
It is objected on the part of the defendant that the plaintiff's claim, even from his own showing, is no more than an equitable right, for which an action of ejectment will not lie.
There is in the state of Missouri an act of the legislature regulating the action of ejectment, and enumerating various classes of cases of claims to land, where the action will lie; among which a claim under any French or Spanish grant, warrant, or order of survey, which, prior to the 10th of March 1804, had been surveyed by proper authority under the French or Spanish governments, and recorded according to the customs and usages of the country. Rev. Laws Miss. 343.