The opinion
Bates, Judge,
delivered the opinion of the court.
This is an action in the nature of an ejectment. The plaintiff claims title under a confirmation to Louis Labeaume by the old board of commissioners in 1810.
The defendant claims title under the board of Public Schools by virtue of the 2d sec. of the act of Congress of the 13th of June, 1812, the acts of 26th May, 1824, and Jamrary 27, 1831.
The confirmation to Labeaume was surveyed in 1817, and again in 1833. These surveys were set aside by the Secretary of the Interior, and a new survey (No. 3333) made, which was approved February 26, 1852.
The surveys of 1817 and 1833 did not include the land in dispute ; the survey No. 3333 did include it. In 1845, the surveyor general of Illinois and Missouri surveyed, designated and set apart for the use of schools, to the board of Public Schools, a tract of land which included the piece in dispute.
The defendant claims that, holding under the Public Schools, his title is better than that of the'plaintiff holding under the confirmation and late survey for Labeaume.
*439 A patent has been issued to Labeaume’s representatives for the land surveyed in 1852.
The Supreme Court of the United States, in the case of Magwire v. Tyler, 1 Black, 195 , decided that the Secretary of the Interior had authority to set aside the former survey and order another to bo made.
We therefore regard the case as if no survey had been made prior to that of 1852, (No. 3333.) Certainly a confirmation by the old board of commissioners in 1810 is a superior title to any title subsequently acquired from the United States.
In some cases of confirmation, and for some purposes, the title does not attach to any particular land until the survey is made, but in this case Labeaume’s claim before the board of commissioners was accompanied by a concession and Spanish survey, and the confirmation was therefore of a definite tract of land to which the title immediately attached.
It was ordered to be surveyed according to the concession, but the survey so ordered would only be a retracing of the lines run by the Spanish surveyor; or even if there had been an error in the Spanish survey, to be corrected by the United States survey, such error might, and probably would, have no effect to impair the definiteness of the tract confirmed. If there had been before the commissioners no evidence by which to identify the tract, the confirmation would operate as a grant, which, because of its vagueness, would attach to no land until it should be located by an United States survey.
In this case, the confirmation, being of a definite tract of land, took immediate effect, and the subsequent proceedings by survey and patent relate to the time of the inception of the proceedings before the board for the confirmation.
The title of the plaintiff under Labeaume is the elder and better title than that of the defendant under the Public Schools.
The judgment of the court below is affirmed,
the other judges concurring.