author: Mbekicic, O. J.

text:
    John H. Knox v. L. F. Pulliam.
    A party who has made an entry of public land under a pre-emption law, and obtained the Receiver's receipt for the pnrcheso money, has obtained an equitable right which cannot he - defeated by a patent obtained through fraud and misrepresentation.
    Where the Commissioner of the Land Office was induced by misrepresentation to cancelan entry so made and to order the land to be entered as school land, under a warrant presented by another party— Held: That tlio patent issued under the last entry inured to the benefit of the party making the first entry as the equitable owner of the land.
    from the District Court of the Parish of Pointe Coupee, Ratliff, J.

      A. Provosty, for plaintiff and appellant:
    This is a petitory action for a tract of land of which the defendant is in possession. It is claimed by virtue of a patent issued by the State of Louisiana, under a certificate of the Register of the Land Office at New Orleans.
    The plaintiff is the vendee of Nathan K. Knox, who had located the said tract of land, under a warrant issued by the State of Louisiana, and with the approval and confirmation of the land department.
    The defendant avers, that he holds the land by a just title from the United States, as per Receiver’s receipt of the 28th of November, 1855 ; and sets up fraud and error against the title of the plaintiff.
    Such is the issue before this court; the question of damages and improvements being reserved for future action.
    The evidence substantiates the following' facts : Nathan K. Knox applied, on the 11th August, 1855, to the Register of the Land Office at New Orleans, to locate school warrant, No. 1238, for 320 acres, oh the south half of section 35, in township 5 of range 9, east. The register refused to entertain said application as made, and only allowed it for the portions not comprehended in the entries of Gayle & Leduf.

    It appears that Benjamin Collins claimed lot No. 2 of said section, on an alleged settlement made in 1843 ; that on the 7th February, 1840, he wont before E. Cooley, Parish Judge, and declared that it was his intention to abandon, and that he did abandon lot No. 2, of sec. 35, township 5, range 9, east, and all intention to claim the same. It further appears, that on the same day, before the same officer, E. Cooley, Parish Judge, Mathew Gayle declared his intention to claim said lot, on the ground that he had settled and improved it; that on this declaration and application, the Register of the Land Office allowed the said Gayle to enter not only lot No. 2, but the entire south-west quarter of section 35.
    On the other hand, it also appears, that one Honoré Leduf, f. m. c., was allowed to enter the south-east quarter of section 35, under the preemption Act of the 4th September, 1841, after the time allowed by the 5th section of the Act of 3d of March, 1843. These two entries, Gayle’s and Leduf’s, so illegal and unjustifiable, so surprised the Commissioner of the Land Office as to cause him to write to the Register the letter of inquiry of the 12th February, 1855 ; in his answer, the Register admits the illegality of Ledvf’s entry, and argues as to that of Gayle, that the law allowed him the quantity of land he obtained; to this Commissioner Wilson replies :
    “Your decision adverse to the claim of Honoré Leduf is approved, and his entry has accordingly been cancelled. In the case of Mathew A. Gayle, he should be restricted to lot No. 2 of south-west quarter, section 35, township 5, 9 east, for which he filed a declaratory statement ,• a new certificate must, therefore, be issued to him for this said lot, &c., or if the party desire it, the whole entry will be vacated, and the purchase money returned. If issued, send on the new certificate in a special communication, referring to the date of this.”
    To this decision, Gayle has always refused to submit, and no new certificate has over been issued.
    It was under these circumstances, Leduf’s entry being cancelled, Gayle's entry restricted to lot No. 2, and he refusing to submit and claim this lot, that plaintiff’s vendor tendered his warrant on the 11th August, 1855, for 320 acres of land, that is, the south-half of section 35, in township 5, range 9 east. This application was rejected by the Register, for the portions comprehended in the entries of Gayle and Leduf, and these entries, it will be seen, included all the lands applied for. Why the Register, in view of his own decision in regard to Leduf’s entry, and of that of the Commissioner in relation to that of Gayle, should have refused the application of Knox, or restricted it to the 94 acres, which in fact were covered by Gayle’s entry, is more than we can understand and explain. Knox had then but one course to pursue, that is, to appeal to the land department for redress ; ho did so ; but before his demand could receive the decision of that proverbially slow office, he learned that efforts were made to deprive him even of the lot of 94 acres, which, under the decision of the Commissioner, could not be claimed by Gayle, and were untouched by Leduf’s entry; before anything could be hoard from Washington, the Register had granted the tract to Pulliam, the defendant in this case. All these facts were again laid before the land office, and they were so grossly illegal, as to prompt the Commissioner, Hendricks, to interpose, and to write to the Register his letter of March, 1856, in which he states:
    “ You erred in not permitting said location, (the one applied for by Knox,) so far as the tract in said south half of section 35 was vacant, and that in consequence, the subsequent entry of Lewis F. Pulliam, per certificate of the north half and south-west quarter of south-west quarter of. section 35, allowed by you, and predicated upon an alleged settlement, is without authority of law, and it has therefore been cancelled.”

      Knox’s application was then received by the Register, and it being approved by the Secretary of the Interior, which approval bears date the 29th of April, 1856, the patent in evidence was then issued in his favor by the State of Louisiana.
    So that our right to this tract of land, of 94 acres, which is the only one at present under contestation, is sustained, first, by a prior application ; second, two decisions of the land department; third, the approval of the Secretary of the Interior ; fourth, the patent. To an unprejudiced mind, it really requires some stress on the brain to understand how the defendant can defeat it.
    We have read with great attention the authorities quoted by the defendant in the lower court, and have failed to discover in them anything that conflicts in the slightest degree with our claim ; in fact, properly applied, we believe they strengthen it. In the Kittridge case, 4 R. 83, the patent had clearly been issued in error, and obtained by a suppression of facts within the knowledge of the party who applied for it. In Dufresne v. Haydel, 1 A. R. 663, the right of the plaintiff to an equitable division of the land was secured to him by the Act of Congress of 1811; and it was clear that the inequitable action of the surveyor could not deprive him of it. In 2 Howard, Stoddard v. Chambers, the Supreme Court of the United States merely decided that, if two patents be issued for the same land by the United States, .and the first in date be obtained fraudulently and against law, it does not carry the legal title.
    We will ask, in what consists the error of the Commissioner of the Land Office, and of the Secretary of the Interior, and the fraud of plaintiff? What facts did the letter suppress ? Were not these officers aware of Pulliam’s entry, and of the circumstances under which it was received by the Register ? Where is the defendant’s patent ?
    If the issuing of a patent is a ministerial act, which must be performed according to law to be binding, what else is the act of the Register, and of what force will it be if done against law and equity ? Mr. Palms knew that Leduf had no legal title to any part of the land claimed by plaintiff', himself admits it in his letter ; and he knew the cancellation by his controlling officer of Gayle’s entry, to whom the right of having a new certificate issued for lot 2, if he choose to avail himself of it, was reserved, and the refusal of Gayle to submit; and knowing all these facts, he refused to receive the application of plaintiff: and why ? He, so prolix on other points, is exceedingly reserved on this ; and the same officer, while the appeal of plaintiff is before the land department, allows Mr. Pulliam to enter a portion of the land. Is not all the fraud and all the error in the case on the side of defendant and the Register ?
    The inferior court, in this decision, states, “ that it has been the policy and practice of the General Government to permit the first applicant to enter land when he conforms to the laws and regulations of the land department.” This is certainly correct. 2 Land Laws, page 419 ; and as Knox is the first applicant, his claim should prevail.

      “ Mr. Knox, on the 11th August, 1855,” pursues the Judge, “ applied to the Register to locate a school warrant on the south half of section 35, containing 320 acres ; so far, he was undoubtedly the first applicant; the Register refused to permit him to enter said land, informing him that he would entertain his application for the portion not comprehended in the entries of Gayle and Leduf.”

    Now, these entries included the whole land applied for by plaintiff; he could, therefore, refuse to accept with good grace ; he was entitled to the whole, except lot No. 2, and even, perhaps, to lot No. 2, for Gayle refused, and still refuses, to avail himself of the tender made to him of the lot by the government; and under the very decisions quoted by defendant’s counsel, plaintiff’s right, as the first ap-' plicant for vacant land, would have defeated defendant’s patent, had the government, instead of giving it to Knox, erroneously granted it to the former.
    The Judge of the lower court further says : “ Here, (after Mr. Knox’s refusal to accept the land not included in Leduf s and Gayle’s entries,) so far as the evidence informs us, and as the Register was informed, Mr. Knox seems to have abandoned his intention to locate his school warrant on section 35, and we hear no more of him until the 12th March, 1856.”
    On what fact does the court predicate the assumption that Knox had abandoned his intention to locate, the record does not inform us. What could he do but to prefer his claim to the department at Washington ? And if, as usual, on account of the press of business in that office, the matter lingered there without decision, is he to suffer ?
    “ It is a well established principle,” said Judge McLean, in the case of Lytle v. State of Arkansas, 9 How., “ that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the preemption right of Cloyes having been proved, and an offer to pay the land claimed by him, nothing more could be done, and nothing more could be required of him under the Act.
    So, here, Knox having presented his warrant on the land, which was vacant, and the Register having refused to entertain his demand, nothing more could be done by him but to appeal.
    And such is the course indicated by the land department; see Laws and Opinions, 2d vol., p. 489 ; “ It appears,” said the commissioner, “ that H. applied as early as the 12th November for the purchase of a tract of land, then subject to private entry, and tendered the money ; he had undoubtedly at the time a right to enter the land, and if, when his application was refused by the Register through misapprehension, he had appealed to this office, I should have had no hesitation in directing the Register to receive it; nor could an application from any other individual during the interim have prejudiced his claim.
    These instructions so completely cover this case as to leave us nothing to add, but to refer to the Act of Congress of 1836,§1, which gives to the Commissioner a supervision over the official acts of the Register and Receiver.
    So much for the equity of the case, and the reasons of the lower court. The authorities are also clearly on our side ; we made the first application ; defendant’s entry has been cancelled by the proper department; ours approved by the same authority ; we have the patent. Are mere suppositions, that wo abandoned our claim, mere surmises as to our intentions ; mere charges of want of diligence, to overcome these high evidences of title ?
    The presumption certainly is, that the patent is valid and passed the legal title. 18 Howard, 88. The entry of Pulliam was set aside before the patent was issued, and it has been determined by this tribunal, that in such a case, it cannot revise the decision of the land office ; Haijdel v. Nixon, 5 A. R. 559 ; and the power of the Commissioner to set aside such an entry is undoubted ; 2 A. R.
    302 ; 4 A. R. 364 ; 9 Rob. 288 ; 19 R. 339 ; Gantreo.ux v. Boote, 10 A. R. 139.
    It is well settled, said 0. J. Merrick, in the case of Butler v. Watts, 13 A. R.:--. .s 391, that the action of the land department upon questions of this kind is fipáíT <*. and that the courts, as a general rule, are without power to revise the decision of " such department, specially entrusted by the government with jurisdiction oveii.’.yy the surveys, location, settlements upon, and sales of the public lands. J

      Robert II. Bradford, for defendant and appellee :
    This is a petitory action.

      On the llih of August, 1855, James Barron, as plaintiff’s agent, applied to the Register of the Federal Land Office at Now Orleans, to locate school warrant 1233 on the entire south half of section 35, township 5 south, of range 9 east, in the South-Eastern District, Louisiana, west of the Mississippi River. The warrant issued for 320 acres due T. 12 south, R. 17 E. The Register applied to Mr. Barron, in answer to the application, that the warrant could not be located on all the land applied for, because the south-east quarter of the section, and lot 2, (or the south-east quarter of the south-west quarter) had been previously disposed of by the United States. But the Register added, that the north half of the south-west quarter, and lot 1, (or 'the south-west quarter of the south-west quarter,) were vacant, and liable to location by the plaintiff under the warrant tendered. But Barron declined this offer, saying that Knox’s letter of instructions required the entry of all the south half of the section ; that plaintiff’s warrant was for 320 acres; that he had no instructions from the plaintiff to locate lass than 320 acres; and that, if he could not get the entire south half of the section, he could not sacrifice the warrant on the portion offered by the Register. That portion only contained 94.52 acres. The response of the Register to Barron’s application, and Barron’s rejoinder, are the only facts at issue. The record clearly sustains these facts as detailed above, and contains no evidence to rebut them.
    The plaintiff’s agent having refused to locate the lots containing 94.52 acres, defendant entered them as a jpreemptor, on the 28th November, 1855, thus allowing the plaintiff since the 11th August, 1855. the date of his application, to hear from his agent; to amend or renew his application ; or to procure instructions from Washington, compelling the Register to reverse his alleged misconduct in refusing the application.
    On the 20th of March, 1856, the Commissioner of the General Land Office, in answer to a request preferred on behalf of plaintiff on the 12th of March, wrote to the Register, requiring him to cancel the entry of defendant as erroneous, and to allow the entry of plaintiff. The only objection of the plaintiff to the preemption of defendant, is, that the sale to defendant was subsequent to the illegal refusal by the Register, to entertain the application by plaintiff for the land in controversy. In other respects, the preemption of defendant is unquestioned and unquestionable. Fraud is not alleged against it, yet fraud is the only ground on which it could now be attacked. Act 29th May, 1830, section 3 ; Lytle v. Arkansas, 9 Howard, 314; Public Lands, Instructions and Opinions, pp. 98 and 99 ; Barton v. Ilemphin, 19 L. 510 ; Morancy v. Ford, 2 A. 299 ; Courtney v. Perkins, 5 An. 216 ; Kellarn v. Rippey, 3 R. 138. The Commissioner’s letter assigns the following reasons for disallowing defendant’s entry :
    “ It is the opinion of this office that you erred, in not permitting said location, so far as the tracts in said south half of sec. 35, which were then vacant, and that in consequence, the subsequent entry of Lewis F. Pulliam, per certificate No. 3434 of the north half and south-west quarter of south-west quarter section 35, allowed by you on the 28th November, 1855, and predicated upon an alleged settlement in September, 1855, is without authority of law, it has therefore been cancelled.” Coerced by this extraordinary instruction, the Register, on the 31st March, 1856, allowed the plaintiff, by agent, to locate the land designated by the Commissioner. On this location, a patent issued from the State to the plaintiff, who sued for the land in the parish of Pointe Coupee, where it lies.
    The court below rendered judgment for the defendant. In the progress of the trial, the defendant offered in evidence a diagram of the locus in dispute, certified by the Register at New Orleans to be a true copy of the original filed in his office. The plaintiff objected to the evidence. The objection was overruled, and the plaintiff excepted, on the ground that the diagram should have been certified^ by the Federal Surveyor General. The bill of exception quotes the case of Lawrence v. Grout, 12 An. 836. That case may be invoked by the defendant, but not by the plaintiff. The facts and opinion in the case only deny to a Register the power to certify that a diagram is a true copy of certain sections “ taken from the map of said township, on file in this officeand only show that the Register must certify the diagram to be a copy of the original map. In the case before this court, the certificate of the Register is sustained by Lawrence v. Grout, for the Register distinctly states the diagram to be copied from the original. The general rule, that the Federal Surveyor General is the only person competent to certify copies of township maps, is admitted by defendant. It is sanctioned by Millaudon v. McDonogh, 18 L. 103, and many other authorities. But the reasoning' which sustains the rule, sustains also the evidence excepted to in this case. The rule is founded on the assumption, that the Surveyor General possesses the original map. When, as in the present case, the Register possesses an original map also, under a law precluding the presumption that such map is a copy, Act 10th May, 1800, secs. 1 and 8, the rule applies to certificates-by the Register, as well as to certificates by the Surveyor General. Boatner v. Smith, 1 It. 546. But, an admission that the map in the Register’s office is a copy, does not destroy the efficacy of the diagram certified by him. That paper was offered merely to illustrate the basis of the sales to the plaintiff and defendant, respectively. For this purpose the diagram is competent and exclusive evidence. The sales in question were founded, not on the map in the Surveyor General’s office, but on the map in the Register’s office. Copies certified by the Surveyor General may be exclusive evidence of things occurring before the approval of the map ; but they are incompetent evidence of things which, like the rival entries in this case, necessarily occur after the approval of the map, and in an office distinct from that of the Surveyor General. Between the maps in the Surveyor General’s office, and corresponding- maps in the Register’s office, there may be, and often are, discrepancies. The sales in a township, subsequent to the approval of the township map, are required by law to be noted on the map in the Register’s office only. Act of 10th May, 1800, sec. 8. These considerations show that the evidence objected-to by the plaintiff, is better than any other evidence which could be produced.
    The only issue remaining to be discussed is, the simple question, whether the land entered by plaintiff on the 31st March, 1856, was then liable to entry, or whether it was not rather the property of defendant, who was then in possession of the land, whilst the'government was in possession of the consideration paid by him for the land.
    The Register and Receiver are only federal agents “ for the disposal of the lands of the United States, lying in the Eastern Land District of the territory of Orleans.” Act 3d March, 1811, sec. 3 ; see also section 6 of same Act. In the sale to defendant, those officers acted within the scope of the authority conferred by section 6 of that Act. Their principal is, therefore, bound. Smith’s Mercantile Law, 1 Am. ed. 158. And it is unnecessary for this purpose that the form of the contract be binding on the government, provided the government is, ex ceguo et bono, obliged to recognise the sale to defendant. Williams v. Winchester, 7 N. S. 22 ; Ballister v. Hamilton, 3 An. 401; Carlisle v. Steamer Eudora, 5 An. 15.
    In defendant’s entry, the contract of sale is distinct from the evidence of the contract, (O. O., Art. 1755,) and was complete as soon as the agreement existed between him and the land’ officers, fixing the land and the price, and before delivery or payment. O. O. 2414, 2431; Copley v. Dowell, 1 R. 26 ; Barrett v. Creditors, 12 R. 474. Even if the officers had refused the tender of defendant, still the subsequent sale to the plaintiff would have been voidable, or void, supposing the tender to have been legal. Opinion of Benjamin F. Butler, Attorney General of the United States, Public Lands, Instructions and Opinions, pp. 213, 214, No. 149. The general maxim in the contract of sale, as enunciated in the Civil Code, 2414, 2431, is the only principle which can justify the doctrine of Lynch v. Postlethwaite, 7 M. 213, that the effect of the contract is governed lege locis contractus, although delivery should occur abroad. It is therefore unessential, that the federal patent should issue to defendant, for, to the very equivocal rule that nothing but a patent vests a perfect title to public land, the law recognizes many exceptions. Climer v. Selby, 10 An. 182. The federal preemption laws, for example, vest a legal title in the preémptor, on payment according to them, so that the government cannot afterwards wrest the land from him. Kittridge v. Breaud, 4 R. 82, 83, affirmed Climer v. Selby, 10 An. 182 ; Qodeau v. Phillips, 3 L. 62 ; and at best, the issuing of a patent is a ministerial act, Stoddard v. Chambers, 2 Howard, 284, which passes no title, but is only evidence that a title may have previously vested. Goodlet v. Smithson, 5 Porter, (Ala.) 245. These limitations of the dignity of patents sustain the doctrine that neither a patent, nor an Act of Congress will be suffered to impair the prior title of a holder under a conveyance from government agents. Gulliver v. Garic, 11 L. 90 ; Kittridge v. Breaud, 4 R. 79 ; and sustain also the decision in Jackson v. Wilcox, 1 Scammon (Ill.) 344, that the Register’s certificate (such as defendant holds) is of equal authority with a patent. The decision in Jackson v. Wilcox may be regarded as assuming very high grounds ; but the same point has been expressly decided in the federal courts, Astrom v. Hammond, 3 McLean, 107, and harmonizes with the fundamental doctrine of the Civil Code, and other authorities above quoted, that the patent is simply evidence of a title which really vested on the consent of the vendor and vendee, or at farthest, on payment; for if the patent is simply evidence of a prior title, the certificate of purchase is also evidence of a prior title, and the two differ, not in kind, but in degree only. The land passed to defendant with the delivery of the certificate, (Fleckner v. Grieve, 4 M. 694,) in virtue of the officers’ consent thereby expressed or reiterated, that the vendee should take possession, (Cuvillier v. McDonogh, 6 M. 564,) and thereby the right of possession and the right of property theretofore subsisting in defendant, were joined to the/act of possession, so that now defendant’s physical possession, which is necessarily assumed by the petitory action instituted against him in the court below, perfects his title without necessity for ulterior steps. For a written contract, whereby A declares that he has sold to B a certain lot for a certain price, is completely valid, though mentioning that another instrument remains to bo executed. Poeyfarré v. Delord, 6 M. 11. It were better that B should have the. contemplated instrument, as it is better that defendant should have the patent contemplated in his certificate; for these documents are respectively portions of the evidence of title, insomuch, that unless the vendor be protected by the prerogatives of sovereignty, he may be sued for damages or for specific performance. But the beneficence of the law will not subordinate the rights of an innocent vendee to the caprice or fraud of a vendor, by treating the patent, or other usual consummation of title as a sine qua non, by demanding its production under pain of judicial reprobation. No man is required to do that which is vain, or impossible. Co. Litt. 29 a. 231 b. The law is too equitable to demand all the evidence of which a given fact is susceptible; it allows litigants reasonable choice of proofs, and will excuse the non-production of proofs which, as in this case, have been improperly withhold from a litigant by a third person for and to whom defendant is irresponsible, and from whose injustice there is no appeal save to the justice of a State tribunal.
    The sale to defendant, therefore, being complete by the Register and Receiver, and the certificate which issued to him, and the patent yet due him possessing no_ inherent significance, but being only evidence of the precedent sale, a fact unres-’ tricted to any specific mode of jjroof, it follows that the whole title, leg'al and equitable, was in defendant before the alleged inception of plaintiff’s title, and that neither the Federal Government, in approving plaintiff’s location, nor the j State Government in patenting it, conferred on him any title; for it is a rule J applying to all grauts, that they cannot affect previous titles, so that if the thing I granted was not in the grantor, no right passes to the grantee. New Orleans v. | Armas, 9 Peters, 224; New Orleans v. United Stales, 10 Peters, 662 ; Holcomb’s | Dig. 374, No. 3 ; but the grant is absolutely void. Holcomb’s Dig. 374, No. 4. j No person can transfer to another a greater right than the transferrer possesses. j Pothier Oblig. 263. These general rules are immediately applicable to the case | at bar. Plaintiff’s warrant was located under the second section of the Act of i 20lh May, 1826, which restricts its location to “ unappropriated public lands| and the 1st section of the Act of 3d Aug., 1854, declares, that where a'selection, | such as plaintiff’s location amounts to, covers land not intended to be granted by the Act authorizing the selection, which, in this case, is the Act of 20th May, 1826, such selection shall be void, and shall convey no right whatever. To hold that a selection or location of school lands,-under the Act of 1826, can embrace lands appropriated, and thereby rendered private property, is to assign to the Act of ’26 a power withheld from Congress by the Constitution. That instrument declares that “ the Congress shall have power to dispose of and make all needful | rules and regulations respecting the territory or other property belonging to the I United States.” Art. 4, sec. 3, part 2. In order to sustain plaintiff’s location, fi we must therefore admit, that on the 31st March, 1856, the date of plaintiff’s loca- i tion, the land located remained public, notwithstanding the prior legal sale to defendant. That this sale has been cancelled by the Commissioner, is no answer to this argument. The defendant held his land under the preemption laws, a higher authority than the Commissioner, whose cancellation of the sale, if unsanctioned by law, is a mere nullity. Perry v. O’ílanlon, 11 Miss. 585. The Commissioner's order to the Register, to annul the location of defendant and permit the location of plaintiff, is illegal. The Register’s obedience to the order is illegal. The duty of the Register to disobey improper instructions from the department, is expounded by the department. The Commissioner, in his letter of 27th September, 1823, to the Register at Marietta, says that instructions from the department are not paramount to the law; and that it is the duty of every officer receiving instructions from the department to compare them with the law and with previous instructions, and to construe them compatibly with the law of the land. Public Lands, Instructions and Opinions, 372, No. 295. Had this judicious and necessary rule for the construction of departmental instructions been applied by the local office to the pretensions of the plaintiff, this suit would have been prevented.
    The principle announced in Perry v. O'Hanlon, 11 Miss. 585, is sanctioned by a subsequent decision of the same court, that a vendee of federal lands, after doing all that the law requires to entitle Mm to a patent, cannot be affected by the ignorance, negligence, or unfaithfulness of the government or its officers. Nelson v. Sims, 23 Miss. 383. These decisions of a sister State are commended to this court, no less by the contiguity of the jurisdiction in which they originated, than by the consideration that until 1831, the land in controversy in those cases was, in common with that involved in the case at bar, under the official control of the Surveyor General then presiding in Mississippi, Act 3, March, 1831, and is still subject to common rules for interpreting titles issuing from the Federal Government. They are likewise vindicated by the instructions of the department. A settler, who applies to prove and enter his preemption before the end of the period limited by law, cannot be defeated by a vacancy in the Register’s office. Public Lands, Instructions and Opinions, 639. When a person, conformably to an Act of Congress, enters land and does all he can to fulfil the law, but is prevented from completing his purchase and paying the money by failure of the United States to perform its obligations, he cannot, therefore, be deprived of his rights. Ib. 213.
    It is admitted that the State and Federal Courts have, in many instances, attributed more importance to mere patents than consists with the preceding authorities. In Pepper v. Dunlap, 9 A. 137, for example, the court remarked that a Federal patent for land conclusively proves a severance and a divestiture of the Federal title, which until then may have remained unchanged, notwithstanding a sale and the receipt of the price by the government. But, even this sweeping case is ineffectual to sustain plaintiff’s pretensions; for it decides, also, that the patent, to whomsoever issuing, always enures to the benefit of him to whom the patentee is bound to convey it, or for whose use he ought legally to hold it. Thus qualified, the decision favors the defendant. What matters it, whether the government retains the fee or not, so long as the land is in defendant’s possession and paid for, and that, too, under the guaranty that the patent whensoever, howsoever and to whomsoever issuing from the United States, must enure to his benefit? So, in Metoyer v. Larenandiere, 6 R. 139, it is distinctly enunciated that until patent, the title is unchanged ; but there the court only referred to an ordinary settlement claim for 640 acres — an inchoate right scarcely attaining the dignity of an equitable title — a mere gratuity, petitioned for by the party under a latitudinous construction of the treaty of Paris, and thereby tacitly admitted by him to require the interposition of the Legislature to donate to him the land settled, and the interposition of the executive to enforce the donation by patent. The party begged that a boon might issue to him ex gratia. The defendant demands the recognition of a preexisting title, ex debito justitice. For defendant’s equitable title of preémptor has merged by payment into a mature legal title, investing him with the same right to the tract in controversy, with which Spain, France and the United States were successively invested, and with such additional rights as accrue to him from specific severance and specific divestiture in his favor. Moreover, Pepper v. Dunlap and Metoyer v. Larenandiere, though negatively sanctioning the title of defendant, cannot be invoked by the plaintiff. Those cases apply to Federal patents. Plaintiff does not pretend to hold the Federal patent. No Federal patent has ever issued either to him or to his grantor.
    Without attempting a further discussion of the hasty decisions and dicta which the books contain to the effect that patents are essential to complete a title, it is better to state some general doctrines which underlie all the cases on the subject; and hero the admission implied above is repeated, that in different courts and cases, and at different times, various and conflicting views have been expressed, amplifying or restricting the dignity of patents. Many of the decisions, explain them as we may, assign to patents an authority not justified by the nature of the instrument.
    In the early history of our State and Federal jurisprudence, the questions most frequently arising in "land cases were those relating to Spanish patents. The law and learning applicable to them will be found chiefly in Martin’s Reports, and in the contemporaneous Federal Reports. These decisions have too often served to interpret and apply the patents emanating from the General Government upon sales of the domain, irrespective ol' the distinctions between Spanish and Federat patents. But, really, between those venerable precedents and cases involving titles by purchase from he United States, there is little congruity. Spain disposed of her crown lands gratuitously and solely with a view to their settlement by Spanish subjects. American State Papers. Public Lands III, 62. The fee, therefore, until patent, was necessarily in the sovereign, and, when the fee passed, the patentee paid no consideration. The patent issued ex gratia, and not as a quid pro quo. It was a royal charity, hostile to the assumption of a previous title in the subject. It remained defcasablc for nonperformance of conditions subsequent, laws, &c., relating to the public lands, 2 Appendix, 204, in which case the government could lawfully grant the land to another subject. Id. ib. 204. Bossier v. Metoyer, 5 M. 679 ; Pontalba v. Copeland, 3 A. 86. But the United States alienates the public land for a fixed pecuniary equivalent, which vests in the purchaser a title untrammeled by conditions, and therefore indefeasible. Had the land officers, in selling the tract in question, been agents of a company, they could have refused defendant’s tender of money, could have.preferred plaintiff’s subsequent tender, and the defendant would have been remediless. But, being Federal agents, and being properly applied to, they were constrained to sell. Public Lands, Opinions and Instructions, 213, 639. Marsh v. Gonsoulin, 16 L. 84. The General Government bought the province of Louisiana from France for a valuable consideration, which, practically considered, was paid by the people. The land, therefore, is held in trust for the people. The provisions in the Federal Constitution for the sale of the public domain, the Act of 4th Sept., 1841, and the implied terms of the trust, compel the sovereign trustee to sell; for otherwise the trust is unavailing. The treaty of the 30th April, 1803, was founded chiefly on the theory that the prospective Federal population would need the laud acquired by the treaty for purposes of settlement and cultivation. Our benevolent preemption system is an illustration of that theory. It follows, that the essential design of this trust was amply fulfilled when the land officers in New Orleans, as agents of the trustee, transferred the land in question to the defendant, in consideration of his preemption and of the price paid by him.
    In sales of realty the vendee generally receives his deed when the vendor receives the money for the land. Had this usage prevailed in the sale to defendant this suit might have been averted. Why did it not prevail ? Why was the evidence of title suspended after the title had passed ? It was to subserve the questionable convenience of the government; to gratify a vague apprehension that if the ultimate evidence of title should emanate from New Orleans instead of Washington, collusion between the vendee and the Federal agents to sell might, by possibility, ensue. The injustice, litigation and confusion resulting to the people from the harrassing suspension of their patents at Washington, is matter of general history, of which this court will take judicial notice. Many of the public lands remain unpatented, though sold years ago. Not a tithe of the private claims in the State have been patented. The treaty of 1803 contained a solemn guarantee that the citizens of the ceded province should be protected in their rights of property. Those rights have not been protected. Their very evidence has been withheld by the power which bound itself to maintain them. The great mass of titles in Louisiana, at the date of the treaty, were unpatented, and existed only in the imperfect form of permissions to settle, orders of survey, and plats and certificates of survey. The patent of Spain was essential to clothe these equitable titles with legal vestments. Had the title of the province remained unchanged, these inchoate rights would soon have been perfected, for the interval between a Spauish survey and the patent issuing upon it, was never greater than the necessity of each ease required, and was usually but a few months. See American State Papers. Public Lands III, D. Green’s ed., p. 35, et seq.
    It is the doctrine of the Supreme Court of the United States, that the government, by the treaty, assumed all the obligations in regard to inchoate titles, which had previously (Evolved on France and Spain. This doctrine results from the principles of international law and from the terms of the treaty. Prominent among the obligations thus imposed on the government, is the duty of issuing Federal patents to parties claiming under Spain by inchoate titles. Has this duty boon performed ? Claimants under Spain, in common with claimants under the United States, have suffered so long from the apathy of the government, that their grievances have become part of our judicial annals. The delay in issuing patents is frequently prolonged until intervening descents and sales raise serious questions as to the right of any particular person to receive the patent. Meanwhile, receipts and other original evidence of property are often lost, thus compelling- the true owner of the land either to abandon all hopes of getting his ultimate evidence of title, or to apply for such evidence to tardy officials, to assume the burden of proof in the essential allegations, to resort to formulas and technicalities alien or hostile to the civil law, and to suffer all the expenses and embarrassments incident to business transacted with a remote and irresponsible office, through the instrumentality of lengthened correspondence or distant agents. The government, instead of attempting to remove the difficulties necessarily caused by these delays in issuing patents, has enhanced those difficulties in many cases by executing resurveys of land sold or confirmed. These resurveys are always ex parte, and occasion endless confusion among the lines and corners of the tracts resurveyed. They frequently occasion gross departures from original locations and areas, and too often afford pretexts to the government for coercing land owners to receive titles according to the modified locations and contents, or to abandon their lands to the government. England, France and Spain properly empowered their several colonial authorities to issue ultimate evidences of title without the intervention of the crown, and without any necessity for appealing in each case to the home government. Wo are accustomed to regard the year 1803 as the dawn of superior enlightenment and of superior civil liberties ; but the relations between the government and the land owner in Louisiana, prior to the treaty of Paris, exhibited a regard for the rights of the owner, and a promptness in the completion and protection of his title which the American Government has never imitated. A review of the land system of our Government, as practically administered in the departments at Washington, affords us but little reason to congratulate ourselves upon the change of government resulting from the treaty of Paris.
    The indifference of the government to the discharge of its duties, should stimulate the courts of the country to mitigate, as far as possible, the hardships resulting to the people. Since the government will not issue patents when they become due ; since the excellent precedents of England, France and Spain, in empowering the local officers to issue patents, have been abjured by the United States, the judiciary should, on all proper occasions, sustain and enforce such primary evidences of title as the defendant produces in the case at bar and should not demand evidences which are merely cumulative in their nature, and which depend for their very inception upon the caprice of an unknown and irresponsible ministerial officer. If the sovereign vendor, after receiving the consideration from the ven dec, delays for his own exclusive convenience, the transfer of the acquittance or evidence usually given by private vendors, and thereby, as in the case at bar, extends to third persons facilities for filching the land from the true vendee, and that too by ex parte proceedings, it is respectfully contended that the State courts should rebuke such oppression by the federal authorities, preclude those authorities from taking advantage of their own wrong, and prevent the second veudee from degrading the authority of a court to the consummation of injustice. That the defendant cannot sue the United States for the patent due him, and cannot sue for damages for its detention, constitutes a powerful argument for the defendant. If men are bound in reason and in conscience to comply voluntarily with their legal duties, a fortiori is a government bound. The very exemption of a sovereignty from suit should render the sovereignty anxious to discharge its liabilities. The very dependence of the citizen should secure in his behalf the parental solicitude of his government. Governments, and the attributes of governments, are devised for the protection of the people; and the immunity of the government from litigation is designed, not to protect the government in acts of oppression, but to contribute to its authority and permanency, and to afford its beneficence and magnanimity an opportunity of securing to the government the veneration and devotion of the citizen.

      The power of this tribunal to apply the general principles of right and of our State jurisprudence to the case at bar, is apparent from the case of Widow Du-fresne v. Haydel, 7 An. 660. In that case the defendant, a back preemptor, held under á federal survey, duly approved and patented. Plaintiff held a contiguous preemption under the usual certificate of purchase, but contended that an equitable division of the land had not been made, and that she was entitled to buy land embraced in the defendant’s patent entry. The court sustained her claim on the broad ground, that in selling its domain, the federal government and the vendees were bound by the principles applicable to ordinary vendors and purchasers, and that, therefore, although the issuing of a federal patent irrevocably vests the title in the patentee, yet, if the land already belonged to another person, such subsequent patent enures to the true owner’s benefit. And see Sprigg v. Hooper, 9 R. 248. The doctrines governing the relationship of principal and agent, also show that the solution of the case at bars depends on local law. Contracts with an agent are construed according to the law of the agent’s domicil, and not according to the law of the principal’s domicil. Olivers.Lake, 3 An. 78 ; Bent v. Lame, 3 Ann. 88 ; Khng v. Sejour, 4 An. 128. In defendant’s case, the vendee and government agents reside in Louisiana, the subject of the sale is land in Louisiana, the agreement was made and the money was paid in Louisiana, the certificate of purchase, which represented the land, was delivered in Louisiana, and the contract must, therefore, be governed by Louisiana law.
    The reports of our own State, and of other States in the Union, abound with cases illustrating the application of local law to the interpretation of titles issuing upon sales of land by the general government. Many of these decisions are immediately in point. An unpatented certificate of entry is a better equitable title than a junior patent certificate, so that the patented title will be avoided in equity at the instance of the first purchaser. Hester v. Kembrough, 12 S. & M. 659. See Climer v. Selby, 10 An. 82 ; and Holcomb’s Dig. 481, No. 14. Patents are voidable or void for mistake or fraud, or if sustained, may inure, not to the patentee, but to the party actually entitled. Ann. Dig. for 1847, p. 334, No. 56 ; Nelson v. Moon, 3 McLean, 319 ; 10 An. 133 ; Bell v. Hearne, 10 An. 515 ; Davis v. -Fletcher, 11 An. 506; Jackson v. Hart, 12 Johnson, 76 ; Wilcox v. Jackson, 13 Peters, 498 ; Stoddard v. Chambers, 2 Howard, 284; Kittridge v. Breaucl, 4 R. 83. The case last cited is conclusive. In that case, Kittridge, a back preemptor, bought certain land in the vicinity of his front tract under the 5th section of the Act of 3d of March, 1811, as revived by the 7th section of the Act of 11th of May, 1820, S. O. 2 R. 40. Afterwards, discovering that he had not bought his complement of acres, he purchased another parcel. Both sales were sustained by corresponding surveys, but the second one was not shown on the approved township map. After the second sale an ordinary preemptor, having no notice of the second sale upon the face of the map, entered part of the land embraced in that sale. Pending the litigation which ensued from these conflicting sales, defendant, by concealing the conflict, got a federal patent for his entry. There was judgment for plaintiff, reversing the judgment below. The court remarked, that “ the patent, in this case, bears date August 31st, 1842, since the period when this case was last before us, and the judgment in favor of the defendant reversed. He, therefore, knew of the existence of the claim of the plaintiff, and must have concealed it from the knowledge of the Commissioner of the General Land Office, aud the President, otherwise a patent would not have been issued. We will not permit a party to benefit himself by suppressing a portion of the facts when he applies for a patent, when they are within his knowledge. The benefit of the patent must inure to the plaintiff who is, in our judgment, entitled to recover the land.” Kittridge’s case had much to weaken it, and Breaud’s ease had much to render it plausible. Kittridge had been guilty of laches. His right of entry accrued on the 3d of March, 1811. He suffered years to elapse without making the entry, and when ho did tardily comply with the offer of the government, he neglected to enter as much as he was entitled to enter, and did not buy the deficit in the rear of his front tract until after the Act of May 11,1820. No sale under the 5th section of the Act of 3d of March, 1811, was legal without a corresponding survey. To admit, therefore, thar a back preSmptor, who is bound to know the size of his front tract, can, to humor his owii whim or interest, enter part of his back preemption at one time and enter the remainder many years after, is to admit that the surveying department is the mere slave of the preemptor’s caprice, and is bound to make surveys, ad mjim-

      turn, until tlie aggregate of sueli surveys may amount to the contents of the entire front tract. The argumentum ab inconveniente, if not fatal to such a theory of partial entries, shows at least that those entries can only be upheld by a very strained interpretation of tlie equity of the Act of 3d of March, 1811, and the Acts reviving its’ provisions from time to time. Oil the other hand, the position of Breaud’s entry was a strong one. The department had neglected the duty of delineating Kittridge’s last entry oil the map. * * * *
    The preceding portion of this argument has proceeded on the supposition that the formalities accompanying the inception of plaintiffs’ title are legal. But, the legality of those formalities is very questionable. Plaintiff’s title is founded on the first and second sections of the Act of 20th of May, 1826. The second section of the Act declares that the school land, authorized to be located by the first section, “shall be selected by the Secretary of the Treasury.” The obvious intention of the Act is, that the selection shall precede the appropriation, and shall be made by an indifferent and sworn agent of the government. In the case at bar both the intent and letter of the law have been violated. Selection and appropriation occurred contemporaneously, and were effected not by an agent of the government, but by the agent of thé plaintiff, by a party whose interests arc opposed to the interests of the government, and who is not restrained by the obligations of an oath or of an official station from pursuing his intersts.
    The policy of the Aet of 1826 has been evaded, as well as the spirit and letter of the Aet. Its policy is to discourage floats, but the evasion by the plaintiff, if upheld, destroys this policy and makes the location of a school warrant dependent on the pleasure of the holder. Floats are always mischievous. They are continually perverted to purposes of speculation at the expense of the actual settler. The case before this court is a significant illustration of the inconvenience, immorality and injury resulting from floats. Had the Act of 1826 been complied with in this case, the defendant would only have been opposed by the government; private interests would not have intervened to defeat an investigation of the conduct of the Register, and the title of defendant; and this suit would have been obviated. There can be no float by intendment of law ; for it it a title sui generis — conferring extraordinary power on the holder, and is never created but by express law, to meet an express emergency. No such law has been invoked by plaintiff. None such is in existence. And the very proceedings on which he relies to maintain his float commend the consideration of defendant’s title to the attention of this court. Plaintiff’s entry is embraced in Report 28 of the Register at New Orleans. That entry, in obedience to the 3d section of the Act of 3d August, 1854, was affirmed by the Secretary of the Interior, “ subject to the legal rights of others, existing at tho time said selections were made known at the District Land Office.” The Record throughout shows that defendant had an incontestible title to the land in question, at the time of plaintiff’s entry. Therefore, the rights of the defendant were saved, and plaintiff took nothing by the affirmance in Washington of his pretended location.
    It is important to observe, that the register did not refuse plaintiff’s application on the ground of the entry by Gayle of the whole S. W. quarter of sec. 35 ; he “ refused on the ground that the S. E. quarter of section 35 had been selected for schools, per State school warrant No. 655, under Act of 20th May, 1826, and the lot No. 2 of the S. W. quarter of said section was claimed by Mathew C. Gayle, per certificate No. 3395, under Aet of Congress of 4th September, 1841.” Gayle had entered tho whole quarter, but the entry had been partly can-celled, and only covered the S. E. quarter of the S. W. quarter, or lot two of the S. 'W., at the time of plaintiff’s application.
   Mbekicic, O. J.

The plaintiff claims, in virtue of a patent issued by tho State of Louisiana, the north half of the south west quarter and lot No. 1, of section 35, in township 5, range 9 east, in the south eastern district of Louisiana, west of the Mississippi, containing 94 54-100 acres.

The defendant claims to be the equitable owner of the land, and alleges fraud on the part of the plaintiff The judgment of the lower court being in favor of the defendant, the plaintiff appeals.

It is conceded, that the title is out of the government of the United States.

It appears that “ on the 11th of August, 1855, James Barron, as W. K. Knox’s agent, applied to the Register of the Federal Land Office at New Orleans, to locate school warrant 1233 on the entire south half of section 35, township 5 south, of range 9 oast, in the south eastern district, Louisiana, west of the Mississippi river. The warrant issued for 320 acres due T. 12 south, R. 11 E. The Register replied to Mr. Barron, in answer to the application, that the warrant could not be located on all the land applied for, because the south-east quarter of the section, and lot 2, (or the south-east quarter of the south-west quarter,) had been previously disposed of by the United States. But the Register added that the north half of the south-west quarter, and lot 1, (or the south-west quarter of the south-west quarter,) were vacant, and liable to location by the plaintiff under the -warrant tendered. But Barron declined this offer, saying that Knox’s letter of instructions required the entry of all the south half of the section; that plaintiff’s warrant was for 320 acres ; that he had no instructions from the plaintiff to locate less than 320 acres ; and that, if he could not got the entire south half of the section, he could not sacrifice the warrant on the portion offered by the Register. That portion only contained 94.52 acres.”

On the 28th day of November, 1855, the defendant entered the 94 52-100 acres by preemption, and obtained the receiver’s receipt for the purchase money.

Thus matters stood until the 20th day of March, 1856, when it appears that the Commissioner of the General Land Office was induced by ex parte misrepresentations contained in a letter dated March 12th, 1856, to order the defendant’s entry to be cancelled and the land to be entered as school land, under William K. Knox’s warrant for 320 acres. The misrepresentation, (as it is quite transparent from the letter of the Commissioner,) consisted in suppressing the fact, that Knox’s agent had refused, on the llth of August, 1855, to enter the smaller quantity of land under his warrant for 320 acres, and inducing the Commissioner to suppose that the plaintiff had applied to the land office to make such entry prior to the entry of defendant by preemption ; whereas, in truth, ho had refused to sacrifice his warrant. The defendant, therefore, by his entry, which was legally and rightfully made, obtained an equitable right which cannot be defeated, and plaintiff’s title must be held to enure to the benefit of the defendant.

In a recent review of the law on this subject the Supreme Court of the United States said :

“ The question is, have courts of justice power to examine a contested claim to a right of entry under the preemption laws, and to overrule the decision of the Register and Receiver, confirmed by the Commissioner, in a case where they have been imposed upon by ex parle affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the preemption laws to the destruction of another’s right, who had a preference of entry, which he preferred and effected in due form, but which was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awarded ?”

“ The general rule is, that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice and litigate the conflicting claims. Such was the case of Comegys v. Vasse, 1 Peters, 212, and the case before us belongs to the same class of ex parte proceeding's; nor do the regulations of the Commissioner of the General Land Office, whereby a party may be heard to prove his better claim to outer, oust the jurisdiction of the courts of justice. We announce this to be the settled doctrine of this court.”

The court proceeds, “ It was iu effect so held in the case of Lytle v. State of Arkansas, 9 Howard, 328, next in the case of Cunningham v. Ashley, 14 Howard, and again in the case of Bernard v. Ashley, 18 Howard, 44.” Jones v. McMasters, 20 Howard Rep. p. 8.

This court hold the same doctrine in the case of Wiggins v. Guier, 13 An. 356. The plaintiff, John 11. Knox, has no better right than his immediate vendor, W. K. Knox.

The judgment of the lower court, which deprives the plaintiff of the unjust advantage obtained by his ex parte representations, must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Riddell v. Jackson.
    Plaintiff and defendant purchased on the same day contiguous lots of ground) from the same vendor, with valuable improvements thereon, tho buildings on the one lot being divided from the buildings on the other lot, by a wall in common ; both acknowledged possession of the lots, &c., thus sold ; and both acts of sale referred to the same plan for limits. In a contest of boundary between plaintiff and defendant, a survey was ordered, which showed that tho plan referred to was erroneous, and that plaintiff, to get the quantity of land called for in his title, made in accordance with this erroneous plan, would encroach upon the improvements of defendant. Held: That as the buildings designated in the act of sale appear to constitute by far the most valuable part of the thing sold, they must control an alleged measure of invisible lines falsely stated in tho plan referred to, by a careless or incompetent surveyor.
    APPEAL from the Sixth District Court of Now Orleans, Ilowell, J.

      J. Dunlap, for plaintiff. Durant <& Hornor and L. Peirce, for defendant and appellant.
   Buchanan, J.

Plaintiff and defendant purchased on the same day, of the same vendor, contiguous lots of ground, with buildings errected thereupon, the buildings on the one lot being separated from the buildings on the other lot by a wall in common at the time of the sale.

The description of the thing sold, in plaintiff’s title, is as follows :

“ A certain lot of ground, lying and being in the square bounded by Canal, Common, Circus and Phillippa streets, designated by tho number one on a plan drawn by Henry Mullhausen, architect and civil engineer, on the 13th day of July, 1846. Said lot No. 1 measuring 29 feet 1 inch front on Phillippa street, 26 feet 3 inches in the rear, 135 feet 10 inches and 4£ lines on one line, and 134 feet on the line separating it from lot No. 2 ; on which lot of ground is a three story brick dwelling house, kitchen and dependencies; the whole rented at the rate of nine hundred dollars per annum to the 1st of November, 1846.”

The description of the thing sold, in defendant’s title, is as follows :

“ A certain lot of ground, lying and being in the square bounded by Canal, Common, Circus and Phillippa streets, designated by the No. two, on a plan drawn by Henry Midihausen, architect and civil engineer, on the 13th of July, 1846. Said lot measures 30 feet 2 inches front on Philippa street, 26 feet 6 inches in the rear, 134 feet on the line dividing the same from the lot No. 1, and 132 freet 4 lines on the line dividing the same from lot No. 3 ; on which lot of ground is a three story brick dwelling house, kitchen and dependencies, the whole now rented at the rate of one thousand and fifty dollars per annum to the 1st of November, 1847.”

The vendees acknowledge possession of the respective lots, &e., thus sold, and have been in possession thereof, respectively, ever since.

On the 1st of May, 1855, nearly nine years after the sale, the plaintiff instituted this suit, alleging that the line of one hundred and thirty-four feet, mentioned in both conveyances as the line dividing the two lots numbers one and two, had never been run and marked by meets and bounds ; and that defendant, adopting another and false boundary line, has taken possession of and has occupied and enjoyed, since the 8th of August, 1846, a large and valuable portion of plaintiff’s lot, number one.

The petition prays that the line of division between lots number one and two, may be fixed and marked by limits, and established by a decree, and for damages. The answer is a general denial.

Surveyors were appointed to run this division line; and by their report and testimony, it appears that a line following the party wall which separates the houses of plaintiff and defendant, will not give plaintiff the quantity of land called for by his title; but that Mullhausen’s plan is erroneous, and the line of 134 feet called for by the title, and exhibited on that plan, can only be had by drawing a crooked line from front to rear, which, while it enlarges the apartments of plaintiff will encroach upon those of defendant.

One of the surveyors who ran the line testifies. “ The line which is claimed by the plaintiff as the true line, would run through the entry of defendant’s house; at the widest part it is four feet, four and a half inches from the center of the wall. The next door to the defendant’s house are the parlors of plaintiff. If this line were to be made, it would enlarge the parlor of Dr. Riddell, plaintiff, and his yard and the rooms up stairs over the parlor. The line claimed by plaintiff would not give him any additional front on Philippa street, or on the alley in the rear. It would involve an entire new wall between the parties — and would compel a modification of defendant’s passage way or entry, and of the upper portion of his house also above the entry.”

This claim of plaintiff cannot be sustained. It is founded upon apian exhibiting a line, which is admitted on all hands to be erroneous; and it leaves out of view that important portion of the description of the thing sold, which concerns the improvements. The titles of the two parties are of equal dignity. Both are of the same date, and have the same author. The plaintiff acquired a three story brick dwelling house, kitchen and dependencies, then under lease at a rent of nine hundred dollars. The defendant acquired a three story brick dwelling house, kitchens and dependencies, then under lease, at a rent of one thousand and fifty dollars.

These designations of visible objects, constituting by far the most valuable part of the thing sold, must control an alleged measure of invisible lines, falsely stated by an incompetent or careless surveyor.

The plaintiff' knew what he was purchasing, for he acknowledged himself, in the act of sale, to be in possession of tbe thing purchased.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment in favor of the defendants and appellants,' with costs in both courts.


author: Spofford, J. Spofford, J. Merrick, C. J.

text:
    E. Hiestand v. City of New Orleans.
    An assignment of errors in the Supreme Court, under Art. 897 of the Code of Practice, is not necessary when the case was decided in the court below on an exception to the sufficiency of the plaintiff’s petition.
    The plaintiff is not bound to administer proof of the allegations of his petition which are not denied by ■ the answer.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.
    Plaintiff in pro. per. J. J. Michel, for defendant and appellant.
   Spofford, J.

The defendant has appealed from the judgment of the District Court in favor of the plaintiff.

There is neither evidence, statement of facts, nor bill of exceptions in the record, and the case was not tried by a jury.

In such cases the rule of practice is imperative. “ The appellant who does not rely, wholly or in part, on a statement of facts, an exception to the Judge’s opinion or special verdict, to sustain his appeal, but on an error of law appearing on the face of the record, shall be allowed to allege such error, if within ten days after the record is brought up he files in the Supreme Court a written paper stating specially such errors as he alleges; otherwise, his appeal shall be rejected.” C. P.897.

It being too late to file an assignment of errors now, and none having been filed, the motion to dismiss must prevail.

Appeal dismissed.

Same Case — On a Re-hearing.

Spofford, J.

Considering that the case went off in the court below lupon an exception to the sufficiency of the plaintiff’s petition, which admitted all the allegations of fact therein contained to be true, and that in Wood v. Henderson, 2 An. 220, no assignment of errors was held necessary in this class of cases.

It is ordered, that the judgment dismissing this appeal be set aside, and the cause set down for trial upon its merits.

Same Case — On the Merits.

Merrick, C. J.

The plaintiff alleges that he was elected Assistant City Attorney in the month of April, 1855, for the city of New Orleans ; that he entered upon the duties of his office and continued to discharge the same until the 19th day of July, 1856 ; that, while in office, he instituted suits and obtained judgments in favor of said city, in the various courts and before the several justices of the peace, on tax bills, licences, &c., due the city, amounting in the aggregate to upwards of ¡¡5400,000 ; that he is entitled by law to five per cent, upon the amount of the judgments so obtained ; that when he went out of office there remained, and still remain, uncollected judgments to the amount of $167,793 36, as set forth in the account annexed to the petition, on which his commissions amount to the sum of eight thousand six hundred and two 22-100 dollars; that since he went out of office petitioner has offered to the city authorities, if they would authorize him so to do, to collect and pay said judgments into the city treasury without any charge whatever to the city, except the commissions to which he is by law entitled for obtaining said judgments, which liberal offer was rejected by the city; that judgment was rendered against the defendant in said suits, for the amounts claimed and the interest allowed by law, and five per cent, on the amount of the judgment for Assistant Oity Attorney’s fees, costs, &c., and that the city having so refused to permit him to collect said judgments, in order to get his commissions, he is wholly without remedy for the collection thereof, and that said city is in law and equity bound to pay him for his said commissions.' He prays for judgment for $8602 22.

To this petition the defendant first filed an exception, averring “ that plaintiff by his own showing, sets forth no ground of action against the exception,” and prayed for a dismissal of the suit.

Afterwards, on motion of defendant’s counsel, it was ordered that the exception should be transferred, to be tried with the merits, and that said exception be taken as answer to plaintiff’s petition herein.”

The plaintiff having filed a supplemental petition, praying for a trial by jury, it was agreed by counsel that the jury should be waived and the cause submitted to the court on the pleadings, either party having the right to file a brief.

There was judgment in favor of the plaintiff for the amount sued for, and the city appeals.

The first point made by the counsel for the appellant is disposed of by the single.remark, that after the parties had consented that the exception should be taken for an answer, it could no longer be treated as an exception. It was what defendant’s counsel intended, viz : an answer, and his defence must stand or fall with it.

The second ground is, that the District Judge erred in considering the plea as an answer admitting all the facts when in truth the answer admits nothing. When we come to examine the answer we do not find any denial of the allegations contained in the petition. The only issue raised is one of law.

The plaintiff is not bound to administer proof of the allegations of his petition which are not denied by the answer. Akin v. Bedford, 4 N. S. 616 ; 19 L. R. 90.

The allegations contained in the petition must, therefore, be taken as true or proven.

But it is contended, that the judgment when rendered against a party on a tax bill embraces two objects, one the tax and interest belonging to to the city, the other the five per cent, allowed the Oity Attorney by the Act of 1853, p. 86. The answer to this is, that the judgment with its incidents is renderd in favor of the city, and after the. city has refused to allow the Oity Attorney to collect these judgments, it cannot be heard to say that the Oity Attorney has an interest in them still to the amount of his fees, and that he can claim them when collected of his successor.

Our attention is called to the cáse of Hiestand v. Labat, 11 An. 30, and the correctness of that decision is questioned. It was there admitted, that the question decided in that case was not free from difficulty. But after due reflection we are not satisfied that any principle more satisfactory can be adopted than the one upon which the decision is based.

It is urged against that decision, that it declares that the fee of the Oity Attorney is earned by the rendition of the judgment, and that his successor will not receive anything for collecting these judgments, and, therefore, will be negligent, because without interest, in their collection. He will have the same interest in the fees in the hands of his successor, and it will be in the power of the city, if sued for the fees of the Assistant Oity Attorney, to defend the suit on the ground that he has been negligent in the discharge of his duties, if such be the fact.

Judgment affirmed.

Spoitokd, J., took no part in the decision of this cause.


text:
    J. F. Rivière v. J. McCormick.
    Where an instruction to the jury was asked for, which might have been understood by the jury as intimating the opinion of the Judge upon the facts of the case — Held: That such instruction was properly refused ; that the instructions of the Judge to the jury should be embodied in a form to avoid instructing the jury upon the facts.
    PPEAL from the District Court of the Parish of Lafourche, Roman, J.

      Beatty é Bush, for plaintiff. C, Belcher, for defendant and appellant.
   Buchanan, J.

The question involved in this case, is the right to a note for six hundred dollars, made in favor of a person deceased, of whom plaintiff is administrator. The note is in possession of the defendant, who pleads that it was transferred to him for a valuable consideration by the deceased.

The issue was tried by a jury, who found for the plaintiff.

The case turned in a great measure upon the credit to be attached to the testimony of witnesses examined for defendant. Those witnesses were seen and heard by the jury, and were probably known to them, being residents of the same parish. An inspection of the record has not convinced us that the jury has done injustice by their verdict.

A bill of exceptions was taken by the counsel of defendant to the refusal of the District Judge to charge the jury, that the possession of the note by defendant was a circumstance which might be considered by the jury as corroborating the testimony of the witness offered to prove the transfer, under the Article 2257 of the Code. The Judge charged that the fact of possession might be considered and weighed by the jury together with the other circumstances and the evidence of the case. There was no error in this ruling. It is the duty of the Judge to avoid instructing the jury upon the facts, and the form in which the Jv dge embodied his instruction conveyed the proper idea to the jury. The instruction asked and refused might have been understood by the jury as intimating an opinion of the Judge upon the facts of the case, and thus have produced an illegal effect.

Judgment affirmed, with costs.


author: Land, J.

text:
    Frost & Co. v. J. B. White — White & Whidden, Intervenors.
    The interest of a non-resident in the property of a foreign commercial firm, may he attached for a debt due to a citizen of this State.
    When parties intervene, and bond property attached, they are estopped from denying the fact that there is any property attached, having by the act of giving bond judicially admitted it.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.
    XX Simonds S Fenner, for plaintiffs and appellants. Singleton & Clack, for defendant.
   Land, J.

This suit was commenced by attachment for the individual debt of the defendant, a partner in the commercial firm of White <& Whidden, domiciled in the State of Arkansas, and property belonging to the partnership was seized . under the writ. The defendant was personally cited. The firm of White & Whid-den intervened in the suit, bonded the property attached, and moved to dissolve ' the writ of attachment substantially on the following grounds :

1. Because the partnership property of the firm of White S Whidden was not subject to attachment for the individual debt of White.

2. Because the surety on the attachment bond did not possess the qualities required by law.

3. Because no property was in fact attached.

First. The defendant is a non-resident, and his property, rights and credits of every kind, are liable to be seized for the payment of his debts under our attachment laws. C. P., Arts. 239, 256.

The partner of the defendant is also a non-resident, and cannot invoke in his behalf the rule recognized in the case of Shirley et al. v. Owners of Steamer Bride, 5 An. 260.

The attachment in this State, of the interest of a non-resident in the property of a foreign commercial firm, for a debt due a citizen of this State, is not forbidden by any law, or opposed by any consideration of public policy, but on the contrary, is recommended as a matter of remedial justice in favor of our own citizens.

The claims of partnership creditors or other persons, will be heard and enforced when properly presented and satisfactorily established. It will be a proper time to consider such claims, when the parties in interest present them for adjudication. The court will not presume the existence of demands against the property attached in the absence of evidence to the contrary.

Secondly. The surety on the attachment bond possessed all the qualities required by law. He was capable of contracting, was solvent, and had property sufficient to answer for the amount of the obligation, and resided within the jurisdiction of the court. 0. 0. 3011.

Thirdly. The intervenors judicially admitted that property had been attached by the Sheriff under the writ issued in this case, bonded the property attached, and gave a description of it in their bond for its release.

Under these circumstances, they are concluded by their judicial admission of the fact, and are estopped from denying its truth. Denton v. Erwin, 5 An. 18.

The writ of attachment was erroneously set aside by the District Judge.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, so far as it dissolves the writ of attachment issued in this case, and that said writ be reinstated, and the privilege of plaintiffs on the property attached be recognized and enforced ; and that the judgment be affirmed so far as it condemns the defendant to pay the debt sued for, with interest and costs. It is further decreed, that the defendant and appellee pay the costs of both courts.


text:
    Thomas K. Price et al. v. C. M. Emerson.
    A party claiming title to a promissory note under an order and sale made in proceedings in bankruptcy, is not bound to produce in evidence a transcript of all the proceedings.
    from the Second District Court of New Orleans, Morgan, J.

      Benjamin, Bradford & Finney, for plaintiffs and appellants. Durant <& Hornor, for defendant.
   Land, J.

The defendant is sued as maker of three several promissory notes, payable to the order of John McHenry, and by him endorsed in blank.

The defendant pleaded, with other matters of defence, the want of title in the plaintiffs to the notes sued on.

On the trial the defendant offered in evidence a transcript of the record of the proceedings in the matter of the bankruptcy of Thomas K. Price, (the original holder of the notes,) in the United States District Court for the Middle District of Tennessee, to prove that the plaintiff, Price, had surrendered his interest in said notes, and that it had thus passed to his assignee in bankruptcy. To rebut this evidence the plaintiffs offered a transcript from the same court for the purpose of showing an order to the assignee to sell the choses in action of the bankrupts with their other property, and that a sale of the same had been made to A. W. Johnson, one of the plaintiffs in this suit.

To the introduction of this evidence the defendant objected on the ground, that the transcript did not purport to be a complete and perfect record of the proceedings in bankruptcy, but only contained extracts from the same. This objection was sustained by the court, and the plaintiffs excepted.

The District Judge erred. It was held by this court in the case of the Succession of Stafford, 2 An. 886, that in mortuary and insolvent proceedings the production of the entire record has never been required in practice, and that there is no reason why it should be.

A party claiming title to a promissory note, under a decree and judicial sale, is not bound to produce in evidence the whole of the record. Wilson v. Munday, 5 L. 483.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded for further proceedings according to law, with instructions to the District Judge to receive in evidence the transcript offered by the plaintiffs. And it is further ordered, that the defendant pay the cost of this appeal.


author: Buohanas, O'.

text:
    Marcus Hunter et al. v. J. M. Bell, Sheriff.
    'Sii© prescription of sixty days against ships and vessels, lias reference to the time of asserting the privilege hy suit. Tho right of privilege is fixed by the judgment.
    from the Fifth District Oourt of New Orleans, Eggleston, 3.

      Gaither <& McPheeters, for plaintiffs. C. A. Taylor, for defendant and appellant.
   Buohanas, O'.

This is an appeal by.the Sheriff of the parish of Orleans, tfrom a judgment condemning him in damages for seizing the ship St. Peter, un■der a fieri facias issued upon a judgment, which gave a privilege upon the ship :St. Peter.

This case cannot be distinguished in principle from that of Elmore v. Hufty, 13 Am. 227.

The appellee’s counsel contends that the privilege was lost by the lapse of sixity days between the judgment allowing the privilege, and the levying of the fi. .fa.

The prescription of sixty days against privileges upon ships and vessels, recog-mizeS by many decisions, has reference to the time of asserting the privilege by ¡suit. Wo have been referred to no authority for the doctrine maintained by ap-ipellee. The right of privilege is fixed by the judgment.

It 5s, therefore, adjudged and decreed, that as regards the appellant, John M. ¿Bell, the judgment of the court below be reversed, and that there be judgment in favor of said Bdl, and against plaintiffs and appellees, with costs in both courts.


author: Merreck, C. J.

text:
    C. H. Horton v. Thornhill & Co.
    JluluteifiEcutory ordorupon a party to a suit, to produce on a given day and hour the books named, and ¡file'the sanife with the Clerk, is not such an order as will work an irreparable injury, and, consequently, it cannot be appealed from.
    from the Fifth District Court of New Orleans, Eggleston, J.
    J. Henderson and Glenn & Chalmers, for plaintiff. Kennedy & Miles, for (defendants and appellants.
   Merreck, C. J.

There is a motion in this case to dismiss the appeal.

The suit is brought to recover a salary as a book-keeper. The defence to the action is incompetency. Defendants allege that plaintiff’s work was most un-skilfully done — errors of the gravest kind frc quently occuring in his entries and calculations.

Plaintiff in order to show his competency, obtained an order upon the defendants to produce on a given day and hour the b ooks named in the order, and file the same with the Clerlt.

The defendants, after an unsuccessful attempt to set aside the order, take the present appeal, alleging -.that the order will work an irreparable injury. A witness says that it would b e impossible for such a ho aise as that of defendants to get along for a single day without the books named in the order ; that they could not make out an account of sales or write letters, and that the whole business would be in fact locked up, and the result would be a very great injury to the house.

It does not appear that it is the object of the District Court to detain the books longer than a few hours during the trial in order that they may be examined by the Judge or experts to rebut the allegations in defendants’ answer. It is not to be presumed that the District Judge will allow them to be detained one moment longer than required, or that he will withhold them from defendants except while they are actually under examination. The law requires him to fix a day certain for their production, and we will presume that it is the day fixed for the trial. 2 An. 12.

The order made by the District Judge appears to be clearly within the powers conferred upon courts of justice; C. P. 140, 473, 475, 918 ; and we must suppose he will exercise the same in a manner to occasion the least inconvenience to the parties.

A witness has testified that this order if enforced even for a day, will work a very great injury.

His opinion must be construed by the provisions of the Code of Practice.

The law gives to the suitor the right to the production of books for certain purposes, and has made no exception on account of mere inconvenience to the opposite party. This inconvenience the law does not admit as an element of damage in the controversy, and has provided no mode for its estimation. How, then, can this collateral matter be made an independent ground of appeal ? How much damage will it occasion ? Will it amount to over three hundred dollars ?

The same sort of inconvenience occurs when a party is called upon to answer interrogatories on facts and articles. It will be no defence to say, that his operations are large and that the time required to answer will interfere with large contracts and speculations, and occasion him much damage. The excuse cannot be admitted ; he must answer or suffer the penalty fixed. So, too, of the witness brought in by attachment; he cannot prove by his clerks the very great injury his business will sustain in his absence, and appeal from the order directing the attachment.

These inconveniences, as already observed, the law does not admit to be injuries and will not permit to be estimated further than is done in the taxed costs.

Viewing the testimony of the witness under the light of the Code of Practice, we are unable to say that the order complained of can work an irreparable injury which will sustain the appeal. 12 An. 87.

Appeal dismissed.


text:
    C. Richard v. Ben. Butman.
    Where a suit is brought against the surety who is bound in sólido with the drawer of the draft for its payment, prescription is thereby interrupted as to the principal debtor ; it will commence to run again from the date of the judgment against the surety.
    from the District Court of the Parish of St. Tammany, Beale, J.
    /. C. David, for plaintiff. T. A. Bartlett, for defendant and appellant.
   Land, J.

The defendant is sued as the drawer of a draft, dated March 1st, 1850, payable ninety days after date, to his own order, and accepted by the drawees, Butman & Co.

The draft has the following endorsement upon it: “I agree to bind myself for the amount of this note when due.”

(Signed) A. Wintekcast.

After maturity, the plaintiff sued Wintercast, obtained judgment against him, and caused an execution to issue, which was returned nulla bona.

The citation was served on Wintercast on the 31st of January, 1851.

The plaintiff alleges that Wintercast was a debtor in solido, with the defendant, and that the judgment against him, is a bar to the plea of prescription by the defendant.

The defence in the lower court, was the general issue. The want of protest and notice of non-jiayment, and novation — and in this court, the defendant has pleaded the prescription of five years.

Whether the defendant was a member of the firm of Butman <& Co., the acceptors of the draft does not appear. It is, however, only necessary, as the case is before us, to consider the plea of prescription filed in this court.

The suit against Wintercast interrupted prescription as to the defendant, for the reason, that the former was the surety of' the latter, and bound with him in solido for the payment of the draft. McCausland v. Lyons, 4 An. 273 ; McGuire v. Bosworth et al. 1 An. 248 ; Drew v. Robertson, 2 An. 592 ; C. C. 2086, 3004, 3517, 3518.

Prescription, however, commenced running again in favor of the defendant, at least, from the date of the judgment against Wintercast, and more than five years had elapsed from that date, before the commencement of this suit, in which the defendant was cited, on the 3d of May, 1858. Millaudon v. Beazley, 2 An. 916. Hite v. Vaught, ibid 910 ; Dwight v. Brashear, 5 An. 551.

The plaintiff’s action is, therefore, prescribed, unless he can show some other interruption, than the suit against Wintercast. C. C. 3505.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the cause be remanded for further proceedings, on the plea of prescription, according to law; and that the plaintiff pay the costs of this appeal.