delivered the opinion of the court.

This is a writ of error to the circuit court of the United States for the district of Missouri.

The plaintiff below, Garrison, brought an action of ejectment against Savignac, to recover the possession of a lot of land in the city of St. Louis, claiming title derived from the confirmation of Mordeeai ■ Bell’s Spanish claim by the .act of congress of 1835.

. The defendant claimed title to the lot under the 1st section of the act of 13th of June, 1812, which provided “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, (enumerating several, of which St. Louis was one,) which lots have been inhabited, cultivated, or possessed prior to the 2dth December, 1803, shall be, and the same is hereby confirmed to the inhabitants of the respective towns or villages, according to their several right or rights in common thereto.”

Evidence was given on the ferial, by the defendant, deducing a title or claim to the lot in question, derived from Charles Simoneau, and also evidence tending to prove that the lot was an out-lot within the purview of the act of 1812, and that Simoneau was in possession and cultivation of it prior to the 20th December, 1803.

*137 After the testimony closed, the court instructed the jury that “ there was no evidence that Simoneau cultivated any out-lot or common-field lot; nor that any one existed at the plqce where the cultivation was ; nor had the act of 1812 application to this land, so far as Simoneau, or those claiming under him, are concerned. And further, that if there had existéd an out-lot or common-field lot, undefined by boundaries, which was claimed on the ground of inhabitation, cultivation, or possession, then the act of the 26th May, 1824, required that the fact of inhabitation, cultivation, or possession, and the boundaries and extent of such claim, should be proved before the recorder of land titles, to enable the surveyor-general to distinguish the private from the vacant lots. And no steps having been taken under the act. of 1824, nor any authoritative location or survey of the "land, at any time, either under the Spanish government or the government of the United States, the evidence given, in this case Will not enable the defendant to resist a recovery by the plaintiff.” '

The case of Guitard et al. v. Stoddard, 16 How. 494, decided since this case was tried at the circuit, disposes of both branches of the instructions to which we have referred, holding that whether or not the lot, and the inhabitation, cultivation, or possession thereof came within the purview of the act of 1812, were questions of fact for the jury; and that the neglect to procure the survey and location, under the act of 1824, did not operate to impair or forfeit the title acquired under that of 1812.

As the judgment of the court below must be reversed for errors in the instructions referred to, it is unimportant to take notice of any other questions raised on the trial or in the argument.

Judgment reversed, and venire de novo to issue.