Opinion of the Court. power. Litchfield v. Buswell, 5 How. Pr. 341; Revely v. Skinner, 33 Missouri, 98.-XIII. No decree can be taken against a minor on his own admissions or those of his guardian ad litem. Mr. George D. Reynolds for defendant in error. MR. JUSTICE HARLAN delivered the opinion of the court. He recited the facts, as above stated, and continued: 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 here—there 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. By an act of Congress, approved April 12, 1814, ch. 52, 3 Stat. 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 25th of December, 1803, for lands lying within that part of the State of Louisiana which composed the late Territory of Orleans, or which was Opinion of the Court. granted for lands lying within the Territory of Missouri before the 10th 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 subsequent to the treaty of St. Ildefonso, concluded October 1, 1800, between Spain and France; Act of March 26, 1804, 2 Stat. 287, ch. 38, § 14; 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, 17 American State Papers (2 Public Lands), 678; 18 Ib. (3 Public Lands), 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 acquire or reach his interest in the Mine à 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 governorgeneral 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 Opinion of the Court. 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. United States, 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 enjoyment 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. In Strother v. Lucas, 12 Pet. 410, 434-5, 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, 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 property 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. United States, 10 Wall. 224, 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. 138, 141; Morton v. Nebraska, 21 Wall. 660. Opinion of the Court. And in Landes v. Perkins, 12 Missouri, 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. 348, 370-1, 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 VOL. CXIII-13 Opinion of the Court. 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 Terri. Stats. Missouri, 120, § 45; Moreau v. Detchemendy, 18 Missouri, 522; Allen v. Moss, 27 Missouri, 354; Moreau v. Detchemendy, 41 Missouri, 431; Grimsley v. Riley, 5 Missouri, 280; Harley v. Ramsey, 49 Missouri, 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 suit, and, so far as they impeach the correctness of that adjudication, are not open to re-examination, in any collateral proceeding between the same parties or their privies, provided the court which rendered the decree had jurisdiction of the subject-matter and of the parties. Its jurisdiction to pass any final decree affecting the rights of non-resident minors is assailed only upon grounds to be now stated. 1. It is contended that there was no authority, under the laws of Missouri, to proceed against the non-resident minors by publication. Counsel for the plaintiffs refers to the act of March 17, 1835, regulating the practice at law in the courts of Missouri, and calls attention to the fact that, while it provides for actual service of process upon infants, no provision is made for service upon non-resident defendants by publication. And referring to the act of March 7, 1835, regulating the practice in chancery, he insists that, while a mode is therein prescribed for the service of process upon resident and non-resident de |