author: Mr. Justice CATRON Mr. Justice NELSON

text:
    Andrew Erwin, Appellant, v. William S. Parham, James Dick, and Henry R. W. Hill.
    Where a bill in chancery states that, at an execution sale, which was a'ieged to have been open and fair, the complainant purchased, for the sum of $600, certain promissory notes secured by mortgage, amounting in the whole to $260,000, and the bill was demurred to, and the demurrer sustained by the Circuit Court, this judgment must be reversed.
    Mere inadequacy of price does not, of itself, furnish a sufficient reason for dismissing the bill, or deciding that the complainant was entitled to no relief whatever.
    This was an appeal from the Circuit Court of the United States for the District of Louisiana, sitting as a court of equity.
    • It came up upon a demurrer to a bill filed by Andrew Erwin, which demurrer was sustained by the court, and the bill dismissed with costs. - The facts set forth in the bill, arranged in chronological order, were as follows:—
    In the year 1839, James M. Wall, a citizen of the State of Mississippi, appears to have been in possession of two plantations in Louisiana; and on the 16th of November, in that year, sold them, together with the stock and slaves upon them, to William S. Parham, for a sum amounting very nearly to $300,-000. Of this consideration, $35,200 were in cash, and the residue in thirteen promissory notes, each for the sum of $20,369.23, payable on the 1st of January, 1842,1843, 1844, 1845,1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854. These notes wer,e drawn in favor of Wall, made payable and negotiable at the Citizens Bank of New Orleans, and were indorsed “ ne varietur ” by the, notary before whom the deed was acknowledged, and secured by a mortgage of the property. It was further stipulated in the deed, that Parham was to settle all claims against the property, and have a credit upon the notes for whatever sums he might pay. A list of the mortgages outstanding upon the property was waived by the parties, because, as was stated in the deed, 11 Parham was advised of the mortgages existing on said property.” The list nowhere appeared in the record.
    In 1842 Wall,.being a resident of Mississippi, was sued in the Circuit Court of the United States for that district, by one William M. Beal, a resident and citizen of Louisiana; and a judgment was recovered at the May term in said suit for $2,365.13. An execution was issued upon this judgment against Wall, which was returned11 nulla bona.”

    On the 1st of August, 1842, Parham conveyed to his mother, Elizabeth Jané Parham, who was also the mother of Wall, all the property which had been conveyed to him by Wall on the 16th of November, 1839. The consideration for this deed was, that the grantee should pay the thirteen promissory notes above mentioned (except the sum of $18,000, which was stated to have been paid on account of them); that the grantee should also pay to one W. Ford, Jr., $6,986.52, which Parham owed in three separate notes, and should also pay sundry small debts, not exceeding in the whole five thousand dollars.
    On the 20th of November, 1845, Beal filed a petition in the Ninth District Court of the State of Louisiana, setting forth the judgment which he had recovered against Wall in the State of Mississippi, and praying that it might be made executory in Louisiana. An order of seizure and sale was accordingly granted, and, on the 19th of January, 1846, a writ of fieri facias was issued to the sheriff of the parish of Madison, commanding him to seize all and singular the property movable or immovable, rights and credits of Wall within his parish.
    On the 24th of January, 1846, the sherifflevied this execution upon the thirteen promissory notes above described.
    On the first Saturday in May, 1846, the said sheriff, after having carefully and strictly observed and,, complied with and performed all the solemnities and formalities 'required by the law and the statute in such case made and provided, sold two of the thirteen promissory notes, viz., the two which were due on 1st January, 1846 and 1847, to Andrew Erwin, the appellant, and one John W. Nixon, as equal proprietors, for the sum of $300, that being the last and highest bid, and conveyed the same to the purchasers in due form of law.
    On the same day, and after the above sale, the sheriff exposed to sale the remaining eleven notes, which were purchased by Erwin alone, -and a deed executed for them by the sheriff.
    On the 31st of January, 1846, between the seizure and sale, 'Wall acknowledged, before a notary-public, that he was indebted to Dick and Hill in the sum of $35,979.53; that he had given them his promissory note for that amount, due on 1st April following; and that, to secure the payment thereof, he, on that day, pledged, transferred, and delivered to said Dick and Hill, two of the thirteen notes above mentioned, viz., those which were due on 1st January, 1845 and 1846, respectively.
    In the mean time, but when the record did not show exactly, Elizabeth Parham, the mother, died, leaving Parham and Wall her heirs at law.
    At some period subsequent to the above transactions, but when the record did not show, Dick and Hill got possession of the rest of the thirteen promissory notes, two of which had been pledged to them by Wall, as above stated.
    On the 2d of January, 1847, Dick and Hill, being thus in possession of the notes, caused the mortgaged property, for the purchase of which the notes were given, to be levied upon and seized by the sheriff of the parish of Madison, and exposed to sale at public auction. They became the purchasers at the sale for the sum of $50,000.
    On the 26th of February, 1047, Erwin filed his bill.in the Circuit Court of the United States for Louisiana, setting forth, in great detail, the above facts; and averring that Nixon had sold' his half of the two notes purchased by him and Erwin conjointly, to some person unknown. The bill charged Dick and Hill with a corrupt, fraudulent, and iniquitous combination and conspiracy, to and with Wall, to cheat, defraud, and injure the creditors of Wall, and especially the complainant. It averred, that Dick and Hill were the creditors of Wall (if at all) only for advances made upon crops, which advances had been fully paid; that the sale by them of the mortgaged property was therefore wholly unnecessary; that the sum of $50,000 was an inadequate price; that, if they had a claim upon Wall for a sum less than $50,000, the residue, 'after paying themselves, ought to be shared amongst the creditors of Wall, amongst whom the complainant was one; that Wall was in the enjoyment of all the large revenues from the property. The bill then prayed that Parham should be adjudged to pay, &c., and in default thereof that the property might be sold. It further prayed for an' injunction upon-Parham, Dick, and Hill, forbidding them from selling the property, or disposing in any manner of any of the revenues or crops.
    An injunction was granted, and the defendants appeared and answered; but afterwards withdrew their answers and demurred to the bill.
    On the 8th of February, 1848, the Circuit Court dissolved the injunction,' and dismissed the bill, with costs; whereupon, the complainant appealed to this court.
    It was argued by Mr. Johnson,

    who made the following points:
    1. That the notes, from 1 to 13, inclusive, by virtue of the executory process of seizure and sale and purchase, averred in the bill, became the property of the complainant in ,his own right as to eleven of them, and to one half of the other two; the other half having been originally in J. W. Nixon.
    2. That, as such owner of -said notes, he had a specific lien upon the property, real and personal, mentioned in the bill..
    3. That, upon that ground alone, as well as upon the ground of discovery, he had a right to the relief prayed.
    4. That he was entitled to relief, also, upon the ground of the corrupt combination and conspiracy between the defendants, Dick and Hill, and James M. Wall, to defraud the complainant, as well as upon the ground of like combination and conspiracy between Dick and Hill and William S. Parham, to defraud the creditors of said Wall.
    5. That if the property, subject to the incumbrance of said notes, is not in the hands of Dick and Hill responsible for the whol,e amount of the notes, it is at least responsible in the proportion that said amount bears to the sum of $35,979.79, with the interest thereon, being the amount of the note made by Wall to Dick and Hill, dated 31st January, 1846.
    6. The rule established in 5 Peters and 11 Gill & Johnson, is that if, besides inadequacy of price, there be suspicion of fraud, equity will leave the party to his remedy at law. But here there is nothing but mere inadequacy of price. We bought at a judicial sale, and all the preliminary steps required by law are alleged in the bill, and admitted by the demurrer to have been taken.
   Mr. Justice CATRON

delivered the opinion of the court.'

This case comes up from the equity side of the Circuit Court for the Fifth Circuit and District of Louisiana, by appeal from a decree supporting a demurrer to a bill of complaint filed by the present appellant.

The bill, filed 24th February, 1847, states, in substance, that in the year 1842, one “William M. Beal, a resident of the city of New Orleans, obtained judgment in the United States Circuit Court for the Southern District of Mississippi, against James M. Wall, for the sum of $2,265.13 besides costs. That upon this judgment execution was issued in the last-mentioned district, where Wall then resided, and that such execution was returned “nulla bona.” That subsequently, and in the year 1845, this judgment being in full force and unpaid, Beal filed his petition in the Ninth District Court of the State of Louisiana, held in and for the parish of Madison, setting forth the judgment and praying that by the law of Louisiana it might be made executory in that State, and that process thereon might bp granted him against all the property, real and personal, rights and credits of Wall, in the State of Louisiana, and that they might be applied to the satisfaction of his rightful claim. That executory process was granted by the court so petitioned, and that in pursuance of an order of seizure and sale thereupon made, a writ offi. fa. was, on or about the 19th March, 1846, issued to the sheriff of the parish of Madison, commanding him to seize all the property, rights and credits of Wall, within his parish, and to sell them for the liquidation of the aforesaid judgment. That in accordance herewith, the sheriff did, on the 24th January, 1846, seize all the right, title and interest of Wall, in and to thirteen certain promissory notes, each and all of them bearing date on the 16th. January, 1839, each for the sum of $20,369.23, payable respectively on the 1st of January, 1842, and upon each succeeding 1st of January until and including the 1st of January, 1854. Each and all of these notes being signed and executed by William S. Parham to and in favor of James M. Wall, and paraphed “we varietur” by A.. J. Lowry, Esq., Notary-Public in and for the parish of Madison, in order to identify the said notes with an act of mortgage and sale, passed before said Lowry on 16th November, 1839, between William S. -Parham as vendee, and james M. Wall, as vendor, by which deed the payment of these thirteen notes bore a mortgage and privilege upon certain property, movable and immovable, in said deed described, together with all and singular the mortgage, liens and privileges by said deed created, or which, by operation and -effect of law, subsisted to and in favor of James M. Wall.

That the sheriff did advertise the properly so seized for the satisfaction of the judgment in favor of Beal; and on the first Saturday of May, 1846, having complied with'all the requisites of the law, exposed for sale, at public auction, two of the promissory notes, viz.: those falling due the 1st of January, in the years 1846 and 1847 ; and that these two notes were, for the sum of $300, purchased by this appellant and one john W. Nixon conjointly, together with all the right, mortgages, equities and privileges appertaining thereto, that being the last and highest; bid. Whereupon said two notes, together with all the mortgages, &c., pertaining to them, were conveyed by the sheriff to the appellant and said John W. Nixon.

That at the same time, the eleven other of the said notes were, for the further sum of $300, sold and conveyed by the sheriff to the appellant, together with all and singular the equities, &c., attaching to them. The following is the sheriffs return on the execution, exhibited as part of the bill.

Received on the 19th day of January, 1846, and executed on the 24th day of January of the same year, by attaching, in the hands of William S. Parham, all the notes described in the notice of seizure, and by seizing the same as described in the said notice of seizure, by virtue of the within writ; and after having advertised the same for the space of fifteen clear days, the sale to take place on the first Saturday of March, 1846, and on which first Saturday of March, 1846, I proceeded to offer the same for sale for cash, after causing the same to be appraised, and no person present bid for said property two thirds of the appraisement of the same, no sale was affected. Wherefore I, the sheriff, readvertised the same upon a credit of twelve months, for the space of thirty clear days, the sale to take place on the-first Saturday of May, 1846, on which said first Saturday of May, 1846, I, the said sheriff, proceeded to offer the said property for sale upon a credit of twelve months, at the court-house door in Richmond, lia., and J. J. Amonette being present and acting, as agent for Andrew Erwin, and Robert Garland being present and acting as agent for John M. Nixon, bid for the notes described in said notice of seizure, due 1st January, 1846, and 1st January, 1847, the sum of $300, which being the last bid or offer made, the same was struck off and adjudicated to the said Erwin and Nixon, at and for the said sum of $300; and at the same above-described day 1, the said sheriff, proceeded to offer the eleven other notes, as described in the notice of seizure annexed hereto and made a part 6f this return, on the terms and conditions above described, and no person, being present, bid therefor two thirds of the appraised value of the said property, no sale was effected. Whereupon I, the said sheriff, readvertised the same, the sale to take place at the town 'of Richmond aforesaid, on the first Saturday of May, 1846, upon a credit of twelve months, for the space of thirty clear days; I, the said sheriff, proceeded to offer, on the said first Saturday of May, 1846, at the town of Richmond aforesaid, the said property; and James J. Amonette being present, and acting as agent for Andrew Erwin, bid therefor the sum of $300, which being the last and highest bid or offer made, I, the said sheriff, struck off and adjudicated the said property to the said Andrew. Erwin, at and for the said sum of $300; and the said Amonette, acting as counsel for the plaintiff herein, has authorized me, the sheriff, to credit this writ the amount of each of said bids, $600.

“ Richmond, La., May 13,1846.”

That at the time of the seizure of all these several promissory notes, they were in the possession or control of James M. Wall, and he was at that time invested with all the liens, equities, &c,, pertaining to them.

That of all the proceedings of the sheriff of Madison, by virtue of this execution, and of the sale of the several notes to the appellant and Nixon, both Wall and Parham, and all claiming under them, had due legal and constructive notice.

That Nixon had, a few weeks before the filing of the bill, parted with all his interest in the two notes which he had purchased conjointly with the appellant, to some person unknown to the appellant.

The bill then states, that on or about the 16th of November, 1839, James M. Wall was seized and possessed of two large and valuable plantations, of a great number of negroes, and. of a large stock and all the utensils, &c., pertaining to so extensive an estate; and being so seized and possessed, he, on the day and year last mentioned, conveyed the same to William S. Parham, in consideration of the sum of $299,999.99, of which a portion was paid in cash, and the vest was represented by the thirteen several promissory notes above referred to.

That notwithstanding James M. Wall and all claiming under him had legal and constructive notice of the sheriff’s seizure, on the 24th of January, 1846, of these various promissory notes, yet the said Wall did, on the 31st of January of the'same year, execute his promissory note to James Dick and Henry R. W. Hill for $1,846.46, payable on the 1st of April, .1846, and, as security therefor, pledged those two of the notes of Parham in favor of Wall, falling due the 1st January, 1845, ana 1st January, 1846.

The bill further states, that within a few weeks before the date thereof, the said Dick and Hill had become possessed of the eleven other notes, but by what means the appellant knows hot. That said Dick and Hill had recently discharged William S. Parham from all liability to Wall, or any person or persons claiming under said Wall. That the notes of Parnam, in favor of Wall, and above referred to, cannot be met by the drawer unless the property purchased by. him of Wall, and charged with the payment thereof, be subjected to their liquidation.

That the said Dick and Hill, being possessed of the said thirteen promissory notes, and professing to act in virtue of the mortgages, equities, and liens pertaining to such notes, had, on the 2d of January, 1847, levied upon, seized, and at public auction sold to themselves, as highest bidders, the property charged with the payment of these notes, for the sum of $50,000; but the complainant cannot state by virtue of and for what particular note or notes.

That the sum of $50,000, the alleged consideration-money for this sale, was less than one third of the real value of the property sold.

The bill alleges that the proceedings between Dick and Hill and Wall, and between Dick and Hill and. Parham, were the result of combination and conspiracy to defraud the complainant. That on the 1st of August, 1842, William S. Parham,' by deed, conveyed to Mrs. Elizabeth Jane Parham, (the mother of the said Parham and of James M. Wall,) all and singular the property, real and personal, which in the year 1839 had been conveyed.by said Wail to said Parham, for and upon consideration, amongst others, that the said Elizabeth Jane_ Parham would discharge the thirteen promissory notes charged upon the property, but that the said- Elizabeth Jane Parham was at the time of this conveyance aged and infirm, and without any other means of paying for the property than by the profits of the property itself; charges said conveyance to be fraudulent and void as to the creditors of Wall or Parham; that it could interpose no hinderance to complainant’s recovery. That Elizabeth Jane Par-ham died in the year 1844, leaving William S. Parham and James M. Wall her heirs at law.

The bill alleges, that the property in question, and upon which the notes are a lien, is not adequate security for their payment, unless all the revenues, issues, and profits of the estate be appropriated to their liquidation. That since the sale of the estate to Pai'ham, such property has greatly depreciated, and that if would not, at the time of bill filed, bring at public sale any thing like its real and just value. That the revenues and profits of the estate are from $20,000 to $30,000 per year. That ever since the conveyance to Mrs. Elizabeth Jane Parham, James M. Wall and William S. Parham have resided upon the estate; - the first having the sole management and control of the property, its issues and profits, and both'deriving their maintenance and support therefrom.

The 'bill claims, that if the sale by Dick and Hill was lawful and in good faith, that the proceeds of that sale should be distributed pro rata among the several thirteen promissory notes ; and after propounding interrogatories, prays the court to award to the complainant the possession of the thirteen promissory notes, and that he be decreed to have all the liens and privileges pertaining to said notes: That the conveyance to Mrs. Elizabeth Jane Parham be set aside. That the sale of the 2d January, 1847, under which Dick and Hill claim, be declared null; that a receiver be appointed, and that the defendants be restrained by injunction from intermeddling with, or disposing of, the property in question, or using or disposing of any of the said thirteen promissory notes.

' On the 5th of March, 1847, a writ of injunction was granted, and afterwards answers were put in by the defendants, but were subsequently withdrawn, by agreement of counsel, and a demurrer filed, alleging that the bill made out no title to the discovery sought in the interrogatories, and did not contain sufficient matter of equity to establish the claim for relief.

The hearing coming on upon bill and demurrer, on the 8th of February, 1848, the demurrer was sustained, the injunction dissolved, and the bill dismissed with costs, and from this decree the complainant below prosecuted an appeal to this court.

The appellant contends:

1. That the notes from one to thirteen inclusive, by virtue of the executory process of seizure, sale, and purchase, averred in the bill, became the property of the complainant in his own right as to eleven of them, and to one half of the other two, the other, half having been originally in J. W. Nixon.

2. That as such owner of said notes, he had a. specific lien upon the property, real and personal, mentioned in the bill.

3. That upon that ground’ alone, as well as upon the ground of discovery, he had a right to the relief prayed.

4. That he was entitled to relief also upon the ground of the corrupt combination and conspiracy between the defendants, Dick and Hill and James M. Wall, to defraud the complainant, as well as upon the ground of like combination and conspiracy between Dick and Hill and William S. Parham .to defraud the creditors of said Wall.

5. That if the property subject to the incumbrance of said notes is not in the hands of Dick and Hill responsible for th e whole amount of the notes, it is at least responsible in the proportion that said amount bears to the sum of $35,979.79, with the interest thereon, being the amount of the note made by Wall to Dick and Hill, dated 31st January, 1846.

No counsel appeared for the appellees, Dick, Hill, and Parham; and as it does not appear by the demurrer on what grounds of defence the respondents relied in the Circuit Court, or wherefore the court dismissed the bill, we have examined for ourselves, so far as we were enabled, whether any legal defect exists in the proceeding and process under which the notes were seized and sold. The bill alleges that all the steps taken were in due form of law; nor is any thing found in its statements contrary to the laws of Louisiana, so far as we can ascertain, that will render the sale void.

And as the bill stands on demurrer, and nothing beyond its allegations can be considered, it is not possible for us to say that the complainant is entitled to no relief at all, and therefore dismiss .his bill. He paid only six hundred dollars for these thirteen notes, calling, in the aggregate, for $260,000 ; but this was paid on an execution sale, admitted by the demurrer to have been open to competition, regular and fair. The payer, Parham, may have been insolvent, and the mortgage of no value for want of title in the mortgagor. In such event no startling inadequacy of price could be predicated of the enormous disparity between the nominal amount of the notes, and the price paid for them. Complainant is entitled to relief as the case now. stands, certainly to the extent of the six hundred dollars, and interést on it; and he having a right of possession, and owning the judgment, it is not perceived how he could be deprived of the notes until his whole judgment was satisfied. Or, his rights may extend to an enforcement of the mortgage and all the notes. We deem it useless further to speculate on these matters at present.

On the other hand, the execution sale may be void for reasons that can be brought out in evidence, but which are not now open to controversy, because the bill alleges that the proceeding under which complainant purchased was regular and bond fide. Or again, because of want of title in Wail to the notes ánd mortgaged property at the date of the levy and sale: These matters, or any others set up in defence, respondents may bring forth by their answer if they chink proper to do so.

All we mean now to say is, that complainant has made a primd facie ease for answer and for relief; and it is the duty of respondents, if they mean to defend, to meet that case by answer, and to show, if they can, that no relief should be granted; or, if any, to what modified extent compared with the entire-relief prayed. We therefore feel ourselves bound to reverse the decree, and to overrule the demurrer, with leave to respondents to answer in the Circuit Court, when this cause is returned there on our mandate.

Mr. Justice NELSON

dissented.

I am unable to assent to the decision of a majority of the court in this case.

'The complainant has purchased, at sheriff’s sale, thirteen promissory notes, given as part of the purchase-money upon a sale of a large plantation and slaves; and secured by mortgage on the same to an amount exceeding $260,000 for the small sum of $600; and asks the interposition of the extraordinary powers of this court on the equity side to aid him in realizing this enormous speculation. . -

I think he should be left to his remedy at law, and this, upon the established course of proceeding of a court of chancery in these cases.

In Seymour v. Delancey and others, (6 Johns. Ch. R. 222,) Chancellor' Kent held that a specific performance of a contract of sale is not a matter of course; but rests entirely on the discretion of the court, upon a view of all the circumstances. ’ And that though mere inadequacy of price, independent of other circumstances, is not, of itself, sufficient to set aside the transaction; yet it may be sufficient to induce the court to stay the exercise of its discretionary power to enforce a specific performance. All the' cases on this subject will be found reviewed in that case; and, also, by Chief Justice Savage in the Court for the Correction of Errors, where the decree in that case was- affirmed. 6 Cow. 445.

The Chancellor, after having referred to many of the cases particularly, observed that these cases show the antiquity of the doctrine of the court; and that the power of awarding the specific execution of contracts, for the sale of land, rested in sound judicial discretion, and was not to be applied to cases that were hard, or unfair, or unreasonable, or founded on very inadequate considerations.

The strong ground against enforcing a contract, where the consideration is so inadequate as to render it a hard bargain, and an unequal and unreasonable bargain, is that, if a court of equity acts at all, it must act ex vigore, and carry the contract into execution with unmitigated severity; whereas, if the party be sent to law, to submit his case to a jury, relief can be afforded in damages, with a moderation agreeable to equity and good conscience, and when the claims and pretensions of each party can be duly attended to, and be permitted to govern the assessment.

In the case before us, if the court undertakes to give relief, it would seem, from the established rules of proceeding in equity, that it will be bound to award to the complainant the full amount of the notes in question; and thus enable him to realize upwards of $260,000 upon a purchase at the price of $600; in other words, virtually awarding to him, for this small consideration, an estate, which Wall, one of the defendants, had sold for a sum exceeding $260,000, as the notes in question constitute part of the purchase-money and the payment securer' upon this estate.

The inadequacy of the consideration is far beyond that of any case that has come under my observation in the course of this examination, and is such as to, shock the common sense of mankind.

In many of the cases in which the court has refused to interfere, mainly on the ground of inadequacy of price, only half the value had been agreed to be given. That was considered as sufficient evidence' of a hard and unconscionablé bargain, to induce the - court to pause, when its extraordinary powers were invoked to the áid of the party seeking to realize the advantage of the contract, and turn him over to a court of law.

The complainant in this case is not without a remedy. If he has got a legal right, he can gp into a court of law and enforce it. But I do not think it a fit case for the interposition of a court of equity.

, I do not regard the allegation of a 'fraudulent, attempt on the part of the defendants, to prevent the complainant from realizing the benefit of his purchase; as the question, whether or not a court of equity should interfere and grant the relief prayed for, in my judgment, is wholly, unaffected by any- such considerations ; for, assuming the fraud should be hereafter established, and this impediment to the énforcement of the claim set up under the purchase, removed, even then, according to the eourse of proceeding in a court of equity, as already stated, that court would withhold its extraordinary power from aiding the party to obtáin so unjust and unconscionable advantage, and turn him over to a court of law. By entertaining the case, as presented in the bill, and directing an answer, the court assumes that, if the complainant can.establish the fraud in the transfer of the notes as charged, he is entitled to its decree for the whole amount of his purchase; for, as we have seen, a court of equity must act, if at all, ex vigore, and carry into execution the purchase as it has been made. It cannot consistently, in the exercise of its power on this subject, carry, the purchase into partial execution by separating it, granting the execution in part, and withholding it in part. This would be arbitrary, and unsupported by any rule or principle to guide the judgment of the court.

Whether the court will entertain the case at all, or not, and give the relief prayed for in these cases, is a question of judicial discretion; but, when oncé entertained, and,held to be a proper case for the relief,-/there,can be no other given, consistent with established principles, than such as the legal title or right set up carries along with it. If it gives to him an estate in land, the court cannot stop at a, moiety of it; nor, in this case, in awarding any amount less than the $260,000.' The legal title to the whole amount is as complete as to any portion of it.

For these reasons, thus briefly given, I am obliged to dissent from the decision in this case.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same.is ^hereby,- reversed, with costs; and - that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to overrule the demurrer of the defendants with leave to them to answer, and for such further proceedings, in conformity to the opinion of this court, as to law and justice may appertain. -


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    The United States, Appellants, v. Michael Moore.
    An historical account given as to what officer in Louisiana possessed the power to grant part of the king’s domain.
    In September, 1797, Morales, who was intendant, had not the power. And a receipt, of that date, given by him for the purchase-money of lands sold, could convey no title.
    By the regulations of O’Reilly, made in 1770, the front proprietors of land upon the • Mississippi were bound to make mounds or levees, and also to clear and ditch the whole front of the depth of two arpents, within three years from the date of their purchases. In default thereof, the land reverted to the king.
    This condition not having been complied with in the present case, and the alleged proprietor not having asserted any claim from' 1797 to 1835, the presumption is that he surrendered his purchase and had his money refunded.
    The claim is also barred by lapse of time.
    The District Court decreed that “ in case any of the lands claimed by the petitioner should have been sold by the United States, he, the petitioner, should be authorized to enter, in any land-office in the State of Louisiana, a like quantity of public lands.”
    This decree was erroneous. The act of 1844 revived the act of 1824, but did not revive the act of 1828; and the act of 1824 required the grantees of the United States to be made parties in order that they might come in and defend their title. It also intended that these grantees should produce their titles, so that the court might ascertain their boundaries and quantities, and decree accordingly. But in the decree in question, this was not done.
    This was an appeal from the District Court of the United States, for the Eastern District of Louisiana.
    The act, approved 17th June, 1844, [4 Stat. at Large, p. 676,} revived and continued .for five years, and extended to the State of Louisiana the expired act of 26th May, 1824, entitled “ An act enabling the claimants to lands within the limits of the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims.” 4 Stat. at Large, p. 52.

    Under this act, Michael Moore presented his petition to the District Court of the United States for the District of Louisiana, on the 17th June, 1846, claiming sixty thousand arpents of land situated in the District of the Atchafalaya, in the sharp end of land or angle where the Atchafalaya and Mississippi Rivers join, or the point formed between the said rivers at the place the Atchafalaya leaves the Mississippi.
    The title presented by the petitioner was the following:

      No. 2. — Sale of Royal Lands ; page 31.
    Don Juan Ventura Morales and Don Gilberto Leonard, intendant and comptroller, pro tempore of the Province of Louisiana.
    We have received from Don Antonio Iriarte twenty-four thousand bits (12¿ cts. each,) for the value of sixty thousand superficial arpents of land, at. the rate of five cents per arpent, which land has been sold to him for amount of the royal treasurer in the district of country of Chafalaya and the Mississippi, on the point where the two unite; which payment is entered in folio 31 of the journal of this treasury department, and seven hundred and eight bits, (12¿ cents each,) the amount due for the two and a half per cent, for the duty of half-yearly tribute, and eighteen per cent, for the transportation of said half-yearly tribute to Spain, have also, been paid, as shown by the amount below, namely:
    Bits. Bits.
    For the value of said land, 24,000
    The half-yearly tribute, and eighteen per. cent, for its transportation to Spain, 708-
    24,708
    New Orleans, 11th September, 1797. (Signed)
    Morales.
    Leonard.
    Valdes.
    On the 8th of January, 1835, Don Roque Moreno, then residing in Madrid, purchased the claim from Don Antonio Iriarte for fifty thousand bits (12½ cents each); and in order to obtain a formal transfer of the title, he presented a petition on the 17th of February, 1835, to the Lieutenant Mayor of Madrid, requesting that the acknowledgment of Iriarte to the transfer might be made in due form. Accordingly, Iriarte appeared before the Lieutenant Mayor, and acknowledged the deed in the presence of three notaries.

      In 1838, Roque Moreno wrote several letters to the house of Rosendo Fernandez & Co., at Havana, requesting them to sell the claim, and in May indorsed the document to- them for this purpose by the following order:
    “ Pay to the order of Messrs. Don Rosendo Fernandez & Co., the value of the document hereto annexed, for value in account with said gentlemen. Roque Moreno.
    “Madrid, 27th May, 1838.”
    On the 15th of September, 1838, Fernandez & Co. assigned the documents. to Cuesta, who transferred them to Moore, the petitioner, as appears by the following transfers.
    “ Agreeably to a letter from Don Roque Moreno, of 28th of July last, we transfer the above documents to Don Antonio Garcia Cuesta, or order, without any recourse whatsoever against us. R. Fernandez & Co.
    “ Havana, 15th September, 1838.”
    “ I hereby assign, transfer, and convey to Michael Moore, all my right, title, and interest, and the interest of Roque Moreno and R. Fernandez & Co., to the foregoing title, and to the sixty thousand arpents of land herein mentioned.
    Antonio Garcia Cuesta.”
    The petitioner, Moore, also, presented in evidence the following letter from Leopold O’Donnell, Governor and Captain-General of the Island of Cuba, verified by Robert B. Campbell, Esq., consul of the United States at ■ Havana. The letter was addressed to the Spanish consul at New Orleans.
    “ In my official letter of the 22d of February, I communicated to your Excellency what follows:
    “ His Excellency the Iritendant of the Army, Sub-IntendantGeneral, and Delegate of the Royal Treasury of this city, in his official letter of the 18th of this month, communicates to me what follows:
    '“ Esteemed Sir, — In order to be able to answer your official letter of the 8th inst., in which you inclosed me a letter from the consul of her Majesty in New Orleans, asking certain information, I sent said letter to the general archives of the royal treasury, and have obtained the following information. At folio 31 of the book (journal) of the Comptroller for the Army and Department of the Royal Treasury for the Province of. Louisiana, for the year 1797, is an entry, of which what follows is an exact copy:

      “ September 11th. We have received from Don Antonio Marte twenty-four thousand bits, for the value of sixty thousand superficial arpents of land, at the rate of five cents per arpent, which land has been sold to him for amount of the royal treasury, in the district of country of Chafalaya and the Mississippi, on the point where the two unite; and the seven hundred and eight bits, for the balance due for the duty of 2¡ per cent, for half-yearly tribute on the value of the land, and eighteen per cent, for the transportation of said half-yearly tribute to Spain, have also been paid, as appears by the account below:
    For the value of said lands, ,. . 24,000 bits.
    The half-yearly tribute, and 18 per
    cent, for its transportation to Spain, 708 .
    - 24,708 bits.
    Morales, Leonard, Valdes.
    Antonio Marte, 24,708 bits.
    “ This is all that appears in relation to the transfer which the. Spanish government made in Louisiana to Don Antonio Marte, of the 60,000 arpents of land of which mention is made in the official letter of his Excellency the Captain-General, and also in the letter of the consul of her Majesty at New Orleans, inclosed therein; whether it be in consequence of the documents appertaining to the subject-matter' not having^ been transferred to this office, now under my charge, or whether they were among those which have been lost on the way to this island, or of thbse which were destroyed by the moths and humidity in the place where they had beén deposited since they were received here; neither can be found the decree or copy issued by the tribunal of this intendancy, ordering to be made out the calculations of the amount to be paid by the purchaser for said land; and consequently this office cannot give any thing more than what has already been stated in relation to the boundaries, dimensions of the land, or furnish any thing by which the parties interested may do so. The above is in answer to your letter above mentioned, and I transmit this information to you for your knowledge; and in answer to your letter of the 25th of last month having reference to this subject.
    “ I transmit to you the above information, in case the first communication of a similar nature should have been mislaid or lost.

      “ May God preserve you many years.
    Leopold O’Donnell.
    “ Havana, 11th April, 1845.”
    Several witnesses were examined on behalf of the petitioner, who verified the signatures of Rosendo Fernandez & Co., of Roque Moreno, of Morales, Leonard, and Valdes. One of the witnesses, Charles Louis Blacke, being shown the orginal document; said, “ Cannot explain why the document A is cut, as it appears to be; believes that it must have been done in wantonness. States that documents in the intendancy department were never cut in that way.”
    Jose Martinez del Campo, witness for plaintiff, being recalled, states, that the discolored appearance of the paper, the document A, in his opinion, ¿rises from certain things, which he states as fo lows: That the officers of quarantine in Spain, in order to prevent the spreading of infectious diseases, immerse documents in vinegar, and cut them in the manner of the document A in question, in order to make the vinegar penetrate more easily. This, he thinks, has been the case -with the document A, and therefore, its discolored and cut appearance.
    States, that all the documents. from Spain are cut in like manner; that he has often seen them; he has in his possession letters cut in the same way.
    The petitioner-also offered evidence to prove the genuineness of 'the letters from Roque Moreno, above mentioned.
    The District Attorney put in a general denial, on the part of the United States, and offered sundry original documents in evidence to show Morales’s habitual mode of signing officially, and also Leonard’s mode of signature.
    At/May term, 1848, the, cause came on for trial before the District Court; the petitioner having entered a disclaimer as to the lands claimed by Butler'afi’d Black, confining his claim, as to them, to a float from the United States. The following is the decree of the District Court:

      “ It is hereby ordered, adjudged, and decreed, that the petitioner, Michael Moore, is the true and lawful owner of, and has good title against the United States, the defendants, in and to all the lands and hereditaments claimed by him in his petition, to wit, to sixty thousand superficial arpents of land, situated in the State of Louisiana, between the rivers Mississippi and the At'chafalaya, in the angle formed by the said two rivers, commencing at the point where the Atchafalaya River leaves the Mississippi, and running down between the two rivers, with the said rivers as boundaries on two sides, for the above quantity.
    “ It is further ordered, adjudged, and decreed that, in case said lands, so claimed by said petitioner, or any part or portion thereof, shall have been sold by the United States, or otherwise disposed of, said petitioner, Michael Moore, shall be, and is hereby, authorized to enter in any land-office in the State of Louisiana, in parcels conformable to sectional divisions and subdivisions, a like quantity of public lands, after the same shall have been, offered at public sale.
    “And it further appearing that Thomas .Butler and John Black hold their lands by title acquired from the United States, it is ordered, adjudged, and decreed, that they be quieted in their titles, and that the petitioner recover nothing from them.
    “And that judgment, pro confesso, be entered against John' Hagan, Charles W. Hopkins, and H. L. Williams, A. Ledoux, and A. Miltenberger, they not having answered the petition filed in this case. ’•
    “ Judgment rendered June 28th, 1848.
    “Judgment signed June 30th, 1848.
    (Signed) Theo. H. Mo Caleb, [Seal.]

      United States Judge”

    From this decree, the United States appealed to this court.
    It was argued for the appellants by Mr. Crittenden, Attorney-General, who insisted that the claim was fraudulent and void.
    1. The claim is not founded on any grant, cpneession, warrant, or order of survey; and so not within the statute which authorized claimants to institute suits' against the United States.
    .It is simply a receipt for money paid into the treasury of Spain by Iriarte, for land which he desired to purchase; the description of the land is the sole act of Iriarte himself, not founded on any previous act of the officer of Spain for the’ Province of Louisiana, who was authorized to make grants, concessions, warrants, and orders of survey: nor is it sanctioned and ratified by any subsequent act of grant, concession, warrant, Or order of survey, to define the boundaries and sever the land from the public domain. By our own laws, any person may deposit in the treasury of the United States, for the purchase of the land he desires to make, and take the treasurer’s receipt therefor. But that receipt confers no right or interest in the land which is described by the depositor. He must thereafter apply to the proper officers of the United States, who are intrusted by law to make sales of the public lands and carry them into grant. It would not do for such, depositor to stop at his deposit of money in the treasury, omitting all the subsequent means required by law, in order to obtain a title to the lands mentioned in the treasurer’s- receipt. If such a depositor should hold spch a receipt for thirty or forty years, and then claim the’land mentioned in the receipt, his claim would be pronounced ridiculous and absurd.

      The claim of Moore, founded upon the simple receipt produced, unaccompanied by any authoritative act, previously or subsequently had and done, to signify a grant, concession, warrant, or order of survey, is ridiculous and absurd. The letter of O’Donnell, Governor and Captain-.General of Cuba, introduced by the petitioner, shows that the receipt is not of itself a grant, concession, warrant, or order of survey.
    2. The petition contains no excuse whatever; no reason for the delay, for the laches and neglect, for the length of time during which Marte and those claiming as assignees under him have slept upon this receipt; without claim, enjoyment, or effort to enjoy the land claimed under it.
    The petition, by the express command of the statute under which it was filed, is to be governed and conducted according to the rules of a court of equity. . And, as the bill alleges no excuse for the great laches, inactivity, and neglect, it is bad upon general demurrer. Bowman & others v. Wathen & others, December term, 1843, 1 Howard, 193; Maxwell v. Kennedy’s Heirs, December term, 1840, 8 Howard, 221, 222. In these two cases various decisions upon the subject are cited.
    From 11th September, 1797, to the filing of this petition, on 17th June, 1846, (a period of forty-eight years and more,) this claim slept, without any attempt to obtain a survey, without any possession, without any claim known, or heard of in Louisiana. It was first stirred in Madrid, in the year 1835, by Moreno; sent' to Havana, and passed from hand to hand there, until Michael Moore became assignee, without date, and asserted the claim in the year 1846.
    That this receipt was suffered to sleep for such a great length of time, without one single effort to obtain the land; lays' the foundation for the legal presumption that it has been in some way compensated and cancelled. Its discolored, cancelled, cut, and carved condition is but ill accounted for by the witness Campo, who seems not to understand the meaning of quarantine., This document, A, was in Madrid, and upon the petition of Moréno, was there assigned and acknowledged by Marte; certified there; thence inclosed in a letter by Moreno to Fernandez & Co., at Havana, and never returned to Spain. That documents sent from Spain should, by “ the officers in quarantine in Spain,” be immersed in vinegar, and cut to make the vinegar penetrate more easily, “ in order to prevent the spreading of infectious diseases,” is reversing the order and regular course of things.. Vessels arriving in Spain are subjected to quarantine by the officers of quarantine in Spain. But that the officers in Spain should immerse in vinegar, and cut, to make the vinegar penetrate more easily, this receipt to be sent from Spain, and that “ all the-documents from Spajn are cut in like manner,” is a tale not credible because of the swearing of Jose Martinez del Campo.
    M&rte was resident in Louisiana at the date of the receipt, and for years after. If in the beginning the receipt was .true, good, and effectual, and had not, by some after transaction, become of no effect, why did Marte, from 1797 to 1835, sleep upon his right, neglect to pursue his claim, and totally fail to seek the enjoyment of that which was his own ?
    The -legal presumption-in courts of law and in courts of equity, arising out of such, laches, inactivity, and supineness for such a great length of time, is that this receipt may have been for a bill, order, or note never paid; or that the money had been withdrawn from the. treasury; or that the half-yearly tribute of two and a half per cent, upon the value of the land, and eighteen per cent, for transporting it to Spain, was found too onerous by Marte, and therefore he abandoned his claim to the land, refused or neglected to pay the half-yearly tribute, cancelled his intended purchase, or refused to complete it; or that,-by some means or other, now forgotten in the lapse of such a great nuriiber of years, this receipt was compensated, extinguished, and abandoned.
    That legal presumption “ stands upon a clear principle, built upon reason, the nature and character of man, and the result of human experience. It resolves itself into this, that a man will naturally enjoy what belongs to him.”
    “ Upon the weakness and infirmity of all human tribunals, judging of matters of antiquity, where the circumstances aré incapable of raising any thing like belief, instead of belief, (which is the foundation of the judgment upon a recent transaction,) the legal presumption holds the place of particular individual belief.”
    “ Mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle to take the place of individual, specific belief.”
    .After twenty yeará, this presumption will hold unless repelled by something to excuse and account for the failure for so many years to seek to enjoy what is his own. Hillary v. Waller, 12 Vesey 265, 266.
    3 This petition was not presented to ,.the court within the tw( years prescribed by the statute under vfrhich it professes to have been filed.
    4. The description of the land mentioned in the receipt is too vague imd indefinite.
    As these, two last points are not involved in the opinion of the court, the arguments of the Attorney-General in support of them are omitted.
   Mr. Justice CATRON

delivered the opinion of the court.

The petition states, that about the 11th September, 1797, Antonio Yriarte, a resident of the Province of Louisiana, for the sum of 24,708 reals by him- paid, purchased from the proper authorities under the government of Spain, to wit: Juan Ventura Morales, the Intendant of the Province of Louisiana, and Gilbert Leonard, the Treasurer of said Province, sixty thousand arpens of land, &c., all of which more fully appears from the annexed certificate, signed by the said Morales, Leonard and Carsetano Valdes, secretary of the Intendant, acknowledging the Receipt of the consideration and the sale of the land above expressed.

The first question arising on this statement of facts is, whether the paper exhibited affords any evidence that the “ proper authorities” of Spain sold the land to Yriarte, as this party can only sue for lands claimed by virtue of any French or Spanish grant, concession, warrant, or order of survey, “ legally made.”

His petition alleges that the land was purchased on the 11th September, 1797, from Morales, the Intendant, and Leonard, the Treasurer of the Province. The act positively requires that the date of the sale, concession, &e., shall be set forth, and by whom it was made, in order that it may be seen whether the officer making the concession, or sale, had power to do so, at the time it was done; and here, the question of power existing in the Intendant is raised by an allegation of the fact, and a denial in the-answer. Undoubtedly, Leonard had no authority tó sell, or distribute by donation, any part of the public domain; but this would be of no consequence if Morales had such power. When the paper exhibited bears date, a controversy existed between the Intendant Morales and the political and military Governor of Louisiana, as to which of them appertained the power to sell and distribute the King’s domain, the Intendant claiming authority under the laws of the Indies, and the Governor relying on a royal order of August, 1770. The following historical account will best explain how,the matter stood in 1797, when (as is alleged) this sale was made.

O’Rielly, by commission dated 16th April, 1769, was appointed Governor and Captain-General of Louisiana, with “ special power to establish in this new part of the King’s dominions, with regard to the military force, police, administration of justice and finances, such a form of government as might most effectually secure its-dependence and subordination, and promote the King’s service and the happiness of his subjects. 2 Mart. 2.

Unzaga, colonel of the regiment of Havana, who had come with O’Rielly, had a commission as Governor; but was not authorized to enter upon his duties until the departure of O’Rielly, or the declaration of his will. On the 1st December, 1769, O’Rielly made the declaration, and Unzaga assumed the functions of Governor. .2 Mart. 13.

On the 18th February, 1770, O’Rielly made the regulations relating to the granting of land, known by his name. The 12th article declares that all grants shall be made in the name of the King by the Governor-General of the Province. 2 White’s Re-cop. 230,

A royal order of the-24th August, 1770, states, that O’Rielly had communicated the regulations made by him to his govern-, ment, and these declaring that the granting of land had been confided by His Majesty to the Governor and Comisario Ordenador, he considered it would be better in future, that the Governor alone should be authorized by His Majesty to make those grants. - The order to the Governor then proceeds: “ The King having examined these dispositions and propositions of the said Lieutenant-General, approves them, and also, that it should be you and your successors in that government only, who are to have the right to distribute the royal lands, conforming in all points, as long as His Majesty does not otherwise dispose, to the said instructions, the date of which is 18th February of this present year.” 2 White’s Recop. 480.

The Governors who succeeded Unzaga were, Galvez, colonel of the regiment of Louisiana, to whom Unzaga, when he was appointed Captain-General of the Caraecas, was directed to surrender the government provisionally, by a cédula of 10th July, 1776. Galvez entered on the duties of his office 1st January, 1777. 2 Mart. 39.’ '

Miro succeeded Galvez; the government of the province being provisionally vested in him on the departure of Galvez in 1782. 2 Mart. 68.’

Carondelet was promoted from the government of £an Salvador, and entered on his duties 1st January, 1792. 2 Mart. 81-

Gayoso, the commandant at Natchez, succeeded Carondelet in the beginning of 1797. 2 Mart. 149. His regulations for the administration of, posts and distribution of lands, are dated 9th September, 1797.

So far as we have seen, the exclusive authority vested in the Governors to make' grants, stood unrevoked up to this time. But on the ".departure of Rendon, who had been Intendant in 1796, the functions of Intendant devolved on Morales, who had been contador. 2 Mart. 131. Morales, thus Intendant 'ad interim, in a letter to Governor Gayoso of the 29th August, 1797, (a few days before the latter issued his regulations,) claimed the right to grant the lands. 2 White’s Recop. 470. Gayoso declined to yield, but “ resolved to submit the question to higher áuthority, and to allow no innovation until the resolution of His Majesty be made known.” 2 White, 470, 471. Morales also wrote a long letter to Spain on the subject.

A royal order of 22d October, 1798, addressed to Gayoso, states the receipt of his and Morales’s communications “ respecting the right of granting and distributing royal lands in the district under your command, which right has been vested in' the political and military Governor since the order of August 24, 1770,” and proceeds thus : “ The King has resolved for the sake of the better and more exact observance of the 81st article of the royal ordinance for Intendants of New Spain, that the exclusive faculty of granting and distributing lands, of every class, shall be restored to the. Intendancy of the province, free from the interference of any other authority, in the proceedings as established by law, consequently the power hitherto residing in the government to those effects is abolished and suppressed, being transferred to the Intendancy for the future.” 2 White’s Recop. 478.

The royal order was communicated from Spain to Morales on the same 22d October, 1798. In the communication to Gayoso, and that to himself, Morales is styled Intendant ad interim.

The royal order seems to have reached Morales in February, 1799, before it did Gayoso. Some correspondence then took place between them, and Morales became vested with the power of making sales and grants. 2 White, 478-484. lie issued his regulations 17th July, 1799. Ib. 234.

It will thus be seen, that the authorities in Spain considered the royal order of 24th August, 1770, as of force up to February, 1799. The language is too plain to admit of a doubt. The preamble of Morales’s own regulations states, that the power to grant was vested in the military and political government, from 24th August, 1770, to 22d October, 1798.

To the same effect is the report of Pintado, dated at Havana in 1822, respecting lands in Florida, communicated to our government. 2 White’s Recop. 339. See, also, 2 Mart. 158.

At the date of the receipt to Yriarte, 11th September, 1797, the question between Gayoso and Morales had not been settled by thé king. In fact, it was only a few days after he had addressed the first letter to Gayoso on the subject.

In the correspondence of Morales with Gayoso and'the authorities in Spain, he refers to the eighty-first article of instructions to Intendants, as giving some foundation for his claim. The instructions were dated in December, 1787. 1 White’s Recop. 360. They will be found more at length in 2 White, 67, and it will be seen to apply only to twelve intendancies thereby created and expressly named in New Spain; it did not .apply to Louisiana. This article seems not to have been sent to Louisiana, or been known there until Morales brought the question up in 1797. The royal order of 1798, transferring the power to distribute the land for the future, is conclusive that the eighty-first article had no application to Louisiana.

Some of the Governors acted also as Intendants; but that would not alter the power conferred. It was in their capacities as governors they were authorized to make grants, and not as superintendents of the -finances.

The first Intendant seems to have come to the country with O’Reilly. His name was Francisco de Loyola. 2 Mart. 2. He died in 1670, and was succeeded by Gayarre, as Intendant, ad interim. 2 Mart. 21.

Un'zaga had the office of Intendant united to that of Governor. 2 Mart. 34. Galvez, when appointed Governor, was also appointed intendant. 2 Mart- 39. During the time he was engaged in the expeditions against the British possessions in West Florida, he had no time to'bestow on fiscal affairs, and Martin Navarro was appointed Intendant in the beginning of 1781. 2 Mart. 54. He leffrthe province for Spain in 1788, and the two offices were again united in the person of Miro. 2 Mart. 180. Carondelet was Intendant as well as Governor. 2 Mart. 111. On his representation the office of Intendant was separated from that of Governor, and Francisco de Rendon, who had been the Secretary of the Spanish Legation in the United States, was appointed, and arrived at New Orleans in the beginning of 1794. 2 Mart. 122. Rendon was afterwards sent to Zacatecas, and Morales was appointed ad interim, 1796. 2 Mart. 131.

Thus it appears that Morales, in his. letter of August 29th, 1797, to Governor Gayosa de Lemos, claimed the right to sell, distribute, and grant the public lands; and insisted that the Governor should not oppose the intendancy in the free and open, jurisdiction appertaining to it, and with which no one had a right to intermeddlfe. And, on the next day, (30th August, 1797) the governor replied that, as discussion of the question would embarrass the King’s service, and as the Intendant claimed cognizance of causes respecting sales, agreements, and distributions of royal lands, he resolved to submit the question to higher authority, “ and to allow no innovation until the resolution of his majesty be made known.”

Tbe Governor having partly shrunk -from the contest, it is highly probable that the Intendant did assume to make the sale set forth by the receipt, which bears date twelve days after the Governor’s letter. As ho authority existed in the Intendant to deal with the King’s domain from 1769, when Spain first got possession of Louisiana, up to the date of, the King’s order made in October, 1798, it is manifest that Morales had no power to sell in September, 1797; and there is no evidence that the King sanctioned this sale, nor can it be inferred from any thing appearing in the case. We think the contrary is apparent.

In 1797, Yriarte resided at New Orleans, and continued in this country for ten years or more, as Blache states, and then removed to old Spain. He resided at Madrid, when he' transferred the receipt to Moreno in 1835. ‘Yriarte never took possession of the land claimed, nor did he take any further step- to secure the property.

By the regulations of O’Rielly, made in 1770, and sanctioned by the King, Yriarte was compelled, if he was owner, to make mounds or levees in front of his" land on the banks of the Mississippi, and also to clear and ditch the whole front of the depth of two arpens within three years from the date of his purchase; and, in default of fulfilling these conditions, the land was to revert to the King’s domain and be granted anew. Neither could he sell until after three years’ possession, and until the above-mentioned conditions were entirely fulfilled; and, says the third regulation, “ To guard against every evasion in this respect, the sales of said lands cannot be made without a written permission from the Governor-General, who will not grant it, until, on strict inquiry, it shall be found that the conditions above explained have been duly executed.” That is to say, no sale could be made or formal title issued, until these conditions were complied with.

The land claimed fronted on the Mississippi River for twenty miles and more, and on the great western outlet, the Atchafalaya, to an equal extent; and, if no mounds were made, the country below must have been overflowed every year to a ruinous extent. Levees were indispensable; their construction was a high public policy, and forfeiture an inevitable necessity, in case of failure. These were laws and ordinances of the government under which the - claim originated, and which the act of 1824 .instructs us to observe; the Spanish government was not bound to complete the title; but, on the contrary, under a necessity to declare it forfeited. This is plainly manifest. Even admitting that Morales, as Intendant, had full power to make the sale, still forfeiture was inevitable.' Under these circumstances it is idle to assume that Morales’s act of sale received any sanction from the King of Spain, or from any one exercising his authority.

Embarrassed as Yriarte was with the want -of power in Morales to sell, and.the stringency, of O’Reilly’s regulations compelling him to occupy, .clear, ditch, and levy, a necessity was imposed on him to surrender his purchase and have his money refunded ; and there are severál reasons apparent why we think he did so. In the first place, he labored under no disability or impediment; he remained quiet, never took possession, nor asked for a survey up to the change of flags in 1804; nor did he ask for a confirmation of Morales’s void act from the Spanish authorities. And, after the United States assumed jurisdiction, boards of commissioners almost constantly existed before which his claim could have been presented, and through them, reported to Congress for political action thereon; yet no step was taken, and the claim.slept in the h:ands of Yriarte until 1835, when he sold it in Madrid; and it first made its appearance in this country, when presented to the District Court, in June, 1846. When there adduced- in evidence, the receipt was cut in gashes and stained, having the appearance of a neglected, valueless, and cancelled paper.' To account for its appearance., one Campo deposed for plaintiff, that, in his opinion, the cut and dilapidated condition of the document grew out of this fact: “ that the officers of quarantine in Spain, in order to prevent the spreading of. infectious diseases, immersed docurhents in vinegar, and cut them in this manner. This was in order, to make the vinegar penetrate more easily, and this he thinks has been the case with the document in question, and, therefore, its discolored and cut appearance.” He further states, “that all the documents from Spain are cut in like manner; that he has often seen them; he has in his possession letters cut in the same way.”

This was obviously a private receipt held by Yriarte, and carried by him to Spain; and as the money he had paid in Louisiana went to the royal treasury and was'transmitted to Madrid' as the receipt shows, the fair presumption is, that when the receipt was there presented, and the money refunded, the marks of cancellation were made by cutting the paper in gashes, as no reason can be perceived why the holder would thus deface his own document; nor can it be imagined why á mere sheet of paper should be thus cut to let in an acid,.if such practice prevailed, which we suppose, however, to have no foundation in fact, as witnesses in abundance could have been produced to- support this improbable account, if it were true that all documents, coming from Spain, are cut in like manner and stained with vinegar.

We are called on to decide in this case according to the rules governing a court of equity, and are bound to give due weight to lapse of time.

The party was under no disability, and slept on his rights, as ■he now claims them, for nearly fifty years, without taking a single step. He makes no excuse for his long delay, and cannot now get relief by having his title completed.

No case has come within our experience, where the obscurity and antiquity of the transaction more forcibly than in the present case, required a court of equity to bar a complainant,-on' legal presumptions founded on lapse of time; and where the bar should take the place of individual belief.

The government had taken possession, and had sold out these lands to a great extent, and was bound in good faith to protect its vendees; that these private owners could have relied on the lapse of time, and defeated the claim set up, is clear; and on principle, their vendor could do so likewise.

Even had this claim been adjudged valid by this court, still the decree below is in part erroneous. The part referred to is as follows: “ It is further ordered, adjudged, and decreed, that,, in case said lands so claimed by said petitioner, or any part or portion thereof, shall have been sold by the United States, or otherwise disposed of, said petitioner, Michael Moore, shall be, and is hereby, authorized, to enter in any land-office in the State of Louisiana, in parcels conformable to sectional divisions- and subdivisions, a like quantity of public lands, after the same shall have been offered at public sale.”

By the act of 1824, it is provided that if it shall so happen that the lands decreed to any complainant “ shall have been sold by the United States, or otherwise disposed of, it shall be lawful for the party interested to enter the like quantity on other lands.” Here the decree is general against the United States, and awards to complainant floating warrants for all lands that the United States may have sold, or otherwise disposed of within the bounds of the tract decreed. The act requires the names of all persons claiming the land sued for, or any part of it, to be set forth in the petition, and that they shall be made defendants in due form by citation; and if the entire tract is claimed by private persons, then they shall be sole defendants; but if the government is owner in part, or of the whole, then this fact shall be stated, and the attorney of the district must be served with process, and be allowed to answer for the United States. The purpose of Congress was first, to authorize a suit against the United States ; and, in the next place, to give judicial cognizance of, a description of incipient claims having no standing in a court of justice before the act was passed; and, thirdly, that the petitioner should be bound to sue private persons, claiming' the same land, so that those having an interest, and better -knowledge of facts, and more capacity to defend, than the United States, might be drawn into the contest; and that they should be compelled to produce their title, so that if a decree was made for complainant, the court could ascertain what part of the land should be granted to him by patent; and as this could only be done by a specific ascertainment of interfering claims, the decree must of necessity specify their boundaries and quantities. Nor can it stop here; it must adjudge that a warrant shall issue, and be subject to location. This decree is not only in general terms, but it is contingent, that in case all ■the lands claimed, or any part or portion of them, have been sold or otherwise disposed of by the United States, then the petitioner shall be authorized to enter a like quantity, &c.

The District Court, as we apprehend, did not proceed to adjudge other lands as an equivalent, on the act of 1824, as it originally stood, but on amendatory and repealing clauses found in the 8th section of the act of May 23d, 1828, extending the law to Florida; and especially to the 2d section of the act of 24th May, 1828, giving further time to claimants in Missouri and Arkansas to institute suit§; both of which clauses declare that so much of the act of 1824 as requires petitioners to make adverse claimants parties to the suit shall be, and are thereby repealed. The act of 24th May, 1828, contains various other provisions; some of which modify, and others repeal parts of the act of 1824.

The act of June 17,1844, provides that so much of the act of May 26, 1824, as relates to the State of Missouri is thereby revived and reenacted; and the same jurisdiction is given to the District Courts of Arkansas, Louisiana, Alabama, and Mississippi, as was exercised under said act in Missouri; with the exception of that part of the act (being sections 14 and 15) that applied exclusively to the territory of Arkansas, which only allowed claims of a league square, and under, to be adjudicated. The thirteen previous sections stand incorporated in like manner as they would be, if they had been copied into the act of 1844. No language to this effect, could make it plainer; any attempt to incorporate likewise the act of 24th May, 1828, into that of 1844, would not only be a forced construction, but a manifest perversion. It follows that the law as found in the thirteen first sections of the act of 1824, furnishes all authority the District Court had, to proceed, and to decree an equivalent; and, that the true mode of proceeding, according to the law as it stands, is as above stated, we suppose to be not open to controversy.

This view of the act of 1844 was very forcibly presented to us by the Attorney-General in the case of the United States v. Boisdore’s Heirs, coming up from Mississippi, 11 How. 77, but as we then apprehended that no similar irregularity might again occur, no notice was taken of it in the opinion, dismissing the cause on its merits.

Being of opinion that this canse is destitute of merits, it is ordered that the decree of the District Court be reversed, and the petition dismissed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is- now here ordered, adjudged, and decreed by this court, that the decree of the said District' Court in this cause be, and the same is hereby, reversed and annulled, and that this cause be and the same is hereby remanded to the said District Court, with directions to dismiss the petition of- the claimants.