Choutean v. Eckhart. 2 H. founded, just, and equitable, and that ought to have been confirmed by the general intendency, had no change of government taken place, and such as ought not to have been confirmed. On these reports coming before congress, it acted directly, by statute, on such titles as were by the legislature considered well-founded and just claims. In all such instances, it acted as the successor of the general intendency, and had the same discretion to confirm, and the sovereign power to perfect the incipient right, or to reject it, that the intendant-general had; each exercising sovereign power in regard to the claim, with full authority to award or to refuse a perfect title. As the board of commissioners had no capacity to grant, but only to ascertain facts, and report their opinions, and their powers to examine not extending to every description of claim, congress acted in some instances independent of any recommendation, necessarily in cases where the board had no right to interfere. Chouteau's claim had been presented to the board early in 1809. In July, 1810, the board declared the opinion that this claim ought not to be confirmed; and no action was had on it by congress on the return of the report of 1810. In 1812, congress confirmed the village claims as follows: "That the rights, titles, and claims to town or village lots, out lots, common field lots, and commons, in, adjoining, and belonging to the several towns or villages of Portage de Sioux, St. Charles, St. Louis, &c., which lots have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803, shall be, and the same are hereby confirmed to the inhabitants of the [*375 ] · respective towns or villages aforesaid, according to their several rights or right in common thereto." A new board was organized according to an act of 1832,' with powers to reexamine the claims (with others) deemed unworthy of confirmation by the former board. The new board was of a different opinion from the former in regard to Chouteau's claim; and, in November, 1833, recommended it for confirmation, according to his concession; and it was confirmed by the act of the 4th of July, 1836, corresponding to a recent survey made in conformity to the concession. The whole of the claim is included in the village common of St. Charles, as it existed on the 20th day of December, 1803; and under which the defendant protected his possession, as an outstanding title. The state circuit court in Missouri held the village right the better, and so charged the jury; which opinion was sustained in the supreme court of that State, on their former decisions; especially 1 4 Stats. at Large, 565. Catts v. Phalen. 2 H. in the cases of Byrd v. Montgomery, 6 Mo. 514, and Mackay v. Dillon, 7 Mo. 10. The last involved a contest in which title was claimed by one party under the St. Louis Common. These cases maintain in substance, that such inchoate claims (as that of Chouteau was in 1812, when the community of St. Charles took its title, previously also inchoate,) were not changed in their character by the treaty by which Louisiana was acquired; that the treaty imposed on this government only a political obligation to perfect them; that this obligation, sacred as it may be, in any instance, cannot be enforced by any action of the judicial tribunals; and that the legislation of congress, from 1804 to the present time, has proceeded upon this construction of the treaty, as is manifested by the modes adopted to investigate the claims through boards of commissioners, and then acting on them by legislation. This court held likewise, in the United States v. Wiggins, 14 Pet. 350. We think this reasoning correct, and necessarily following the nature of the claim as above set forth, it not having been perfected by the general intendency before the change of governments. 2. That court in substance also held, in the cases cited, that the federal government, being unable to confirm the same land to two adverse claimants, must then, to some extent, determine between the conflicting titles. Each claimant depends upon the justice or comity of the present government; and when the government exer[* 376] cises its powers and confirms the land to one, it must necessarily be considered in a court of law the paramount and better title. We think this position also sound, and that it is conclusive against the validity of the plaintiff's title; and therefore order the judgment of the supreme court of Missouri to be affirmed. 3 H. 773; 4 H. 169, 449; 7 H. 586; 10 H. 348; 11 H. 529. 2h 376 15wa674 5f 230 5f 237 JOHN CATTS, Plaintiff in Error, v. JAMES PHALEN and FRANCIS 2 H. 376. The court is not bound to give a modified instruction, different in substance from what is Catts v. Phalen. 2 H. ERROR to the circuit court for the District of Columbia, in an action for money had and received. The State of Virginia, in and before 1834, having authorized certain lotteries, the defendants in error were authorized by parties interested, to draw a lottery for the improvement of a turnpike road in that State; and they employed the defendant to do the manual acts of drawing the numbers, and so determining the prizes. The defendant secretly caused a ticket to be purchased for him, and fraudulently pretended to have drawn the number of that ticket, so as to entitle it to a prize of $15,000; and the plaintiffs, believing that this ticket had drawn that prize, paid the money, in 1841, to the person who secretly acted for the defendant. The plaintiffs brought their action to recover back this money; and, having shown these facts, the defendant relied on an act of assembly of Virginia, which took effect in 1837, suppressing all lotteries within that State, and also upon his infancy; and requested the court to instruct the jury that: "If the jury shall believe, from the said evidence, that the said lottery was drawn under the said act of the commonwealth of Virginia, and the said contract so given in evidence as aforesaid, that then the * said lottery was illegal; and if plaintiffs [* 379 ] paid the amount of said prize, under the belief that said ticket had been fairly drawn, the plaintiffs cannot recover. And if the jury shall further believe, from the said evidence, that in December, 1840, when the said lottery was drawn, said defendant was an infant under the age of twenty-one years, that then the plaintiffs are not entitled to recover in this action." Which instruction the court refused the defendant excepted. The jury returned a verdict in favor of the plaintiffs for $12,500, to bear interest from 15th March, 1841. Upon this exception, the case came up to this court. Coxe and Semmes, for the plaintiff in error. Jones and Brent, for the defendants in error. [ * 380 ] * BALDWIN, J., delivered the opinion of the court. Phalen and Morris brought an action in the court below, to recover from Catts the sum of $12,500, which they alleged he had received for their use, and being so indebted, promised and assumed to pay, to which the plaintiff plead the general issue. It appeared in evidence on the trial, that the legislature of Virginia had authorized lotteries, to raise money for improving a turn Catts v. Phalen. 2 H. pike road in that State, which were placed under the superintendence of commissioners appointed under those laws, who, by articles of agreement contracted with the plaintiffs, to manage and [*381] conduct the drawing *of the lotteries authorized by the laws, on certain terms therein stipulated, one of which took place in Virginia, under the circumstances set forth in the statement of the case by the reporter. In the argument for the plaintiff in error here, it has been contended that this lottery was illegal by the suppressing act of 1834, which precluded a recovery of the money he received; but as, in our opinion, this cause can be decided without an examination of that question, we shall proceed to the other points of the case, assuming for present purposes the illegality of the lottery. Taking, as we must, the evidence adduced by the plaintiffs below to be in all respects true after verdict, the facts of the case present a scene of a deeply concocted, deliberate, gross, and most wicked fraud, which the defendant neither attempted to disprove nor mitigate at the trial, the consequence of which is, that he has not, and cannot have any better standing in court than if he had never owned a ticket in the lottery, or it had never been drawn. So far as he is concerned, the law annuls the pretended drawing of the prize he claimed; and in point of law, he did not draw the lottery; his fraud avoids not only his acts, but places him in the same position as if there had been no drawing in fact, and he had claimed and received the money of the plaintiffs, by means of any other false pretence, and he is estopped from avowing that the lottery was in fact drawn. Such being the legal position of Catts, the case before us is simply this: Phalen and Morris had in their possession $12,500, either in their own right, or as trustees for others interested in the lottery, no matter which; the legal right to this sum was in them; the defendant claimed and received it by false and fraudulent pretences, as morally criminal as by larceny, forgery, or perjury; and the only question before us is, whether he can retain it by any principle or rule of law. The transaction between the parties did not originate in the drawing of an illegal lottery; the money was not paid on a ticket which was entitled to, or drew the prize; it was paid and received on the false assertion of that fact; the contract which the law raises between them, is not founded on the drawing of the lottery, but on the obligation to refund the money which has been received by falsehood and fraud, by the assertion of a drawing which never took place. To state is to decide such a case, even if the instructions prayed by the defendant had been broader than they were. The instructions Catts v. Phalen. 2 H. prayed were, 1. That if the jury believed from the evidence, that the lottery was drawn under the law of Virginia, and the contract referred to, then * the lottery was illegal; and if plain- [*382 ] tiffs paid the amount of said prize, under the belief that said ticket had been fairly drawn, the plaintiff cannot recover. 2. That if the jury shall believe from the evidence, that in December, 1840, when the lottery was drawn, the defendant was an infant, the plaintiffs are not entitled to recover in this action. A party cannot assign for error, the refusal of an instruction to which he has not a right to the full extent as stated, and in its precise terms; the court is not bound to give a modified instruction varying from the one prayed; here, they were asked to instruct the jury, that the belief of the plaintiff that the ticket had been fairly drawn, and the consequent payment, prevented a recovery, without referring to the fact in evidence, that that belief was caused by the false and fraudulent assertions of the defendant. The second instruction asked was, that the plaintiffs could not recover, if the defendant was a minor in December, 1840, which the court properly refused, because they were not asked to decide on the effect of his minority when the money was received in February, 1841; and because, if he had then been a minor, it would have been no defence to an action founded on his fraud and falsehood. The first instruction, if granted, would have excluded from the consideration of the jury, all reference to the fraud which produced such belief in the plaintiff, and they must have given it the same effect, whether it was founded in fact, or caused by the false asseveration of the fact by the defendant, knowing it was a falsehood, and thus depriving the jury of the right to decide on the whole evidence. The second instruction asked would, if granted, have also taken from the jury the right of finding for the plaintiff, if the defendant had been of full age when the fraud was successfully consummated by the receipt of the money, which was the only fact on which the law could raise a promise to repay, for certainly none could be raised at any previous time; so that, had these instructions been given, the verdict must have been rendered for the defendant without taking into view the only evidence on which the plaintiff relied, whether it was available in law or not. For these reasons, the judgment of the circuit court is affirmed, with costs. |