| La. | Feb 15, 1838
delivered the opinion of the court.
The plaintiff asserts title to' a tract of land, a part of which is alleged to be in possession of the defendant. The evidence of title which he exhibits, consists of a certificate of the commissioners for the adjustment of land titles in the territory east of the island of Orleans, in favor of an actual settler, followed by an order of survey, granted by the register and receiver, and an actual survey and location approved by the surveyor general.
The defendant sets up title to the premises in dispute, under one Smith, who, he alleges was a settler, entitled to a donation from the government of the United States, who sold his claifn to Silliman, and the latter to White, who conveyed the same to the defendant. He alleges, that he and those from and through whom he holds, have been in possession since 1802.
In an amended answer, the defendant sets up a confirmation of his claim by a special act of Congress, passed since the institution of this suit. He further pleads prescription.
The plaintiff had a verdict and judgment in his favor, and the defendant appealed.
The act of Congress of the 29th May, 1830, confirms the claim of the defendant to a tract of land, not exceeding six hundred and forty acres “ it being the place settled by Thomas Smith, and transferred by him to Silliman, by Silliman to White, and by White to Walker.” It covers all the land purchased by the defendant from White, and as the
It appears in evidence, that the parties had had a controversy before the register and receiver, in relation to their respective claims. Those officers do not appear to have decided finally upon Smith’s claim. They regard it as a neglected one, yet to be acted upon by the government. They say in their decision, that “ as-defective as the claim of Dr. Walker appears to us to be, we could not without great injustice, run his claim into another’s survey, before a final decision is had thereon by government.” It is true they order the plaintiff’s claim to be surveyed without regard to a provisional, or as it is called a conditional line between the parties, called in the record the Dutton line, but they direct in their order of survey, “ that the southern boundary be left for the present open, until the claim of Dr. Walker be finally decided on.” The surveyor general certifies in a note to his procés verbal, that the order of survey required him to designate the line said to have been made between the claims of Boatner and Dr. Walker, so that the same can be laid down on the connected township plat, but that the diagram furnished by him does not show it.
The plaintiff has not yet received a patent for the land claimed by him, and his title, in our opinion, ought not to prevail over thé title conferred on the defendant by the special act of congress. The record does not show to what precise extent the two claims conflict, but we are of opinion that the defendant has exhibited the best title to all the land purchased by him from White, and described in his conveyance; and as the plaintiff does not show that he, the defendant, is in possession of any other land, judgment must be entered in his favor.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the verdict set aside, and that ours be for the defendant, with costs in both courts.