1 Rob. 343 | La. | 1842
Lead Opinion
The defendant, by her agent, having advertised for sale at auction certain lots of ground in the rear of the city of New Orleans, the plaintiff obtained from the District Court of the first judicial district an injunction restraining her proceedings, on ■alleging title to said lots, and denying the right of the defendant to
The plaintiff exhibits as evidence of title, a patent in due form, granted by the Intendant of Louisiana, Don Ramon de Lopez y Angulo, and bearing date the 20th of May, 1801, (and which appears to have been duly registered in the land office of the United States,) in favor of Carlos Guardiola, together with a regular chain of conveyances from the original grantee down to himself.
The argument in this court has turned mainly upon the alleged nullity of this grant. It has been strenuously urged that it is void, because after the 1st of October, 1800, the date of the treaty of San Ildefonso, Spain was no longer the sovereign of Louisiana ; that it belonged de jure to the French Republic, and that the Governor, Intendants, or Sub-delegates, acting under the pretended authority of Spain, had no longer a right to make any grants of land. It is further contended that even supposing the authority of the Inten-dant unimpaired, the grant is nevertheless void, because the same land had been previously conceded by the government of Fvanee as early as 1752 and 1764; and that,the certificate of Trudeau, the Surveyor Genera], that the land was vacant previously to Guar-diola’s grant, was manifestly erroneous.
It is therefore under this two-fold aspect, that we are to examine the pretensions of the parties. If Guardiola’s concession be void, either on the ground of a change of sovereignty previous to its date, or because the land no longer belonged to the domain, then the plaintiff must fail.
I. It is probable that some misconceptions have existed in relation to the celebrated treaty of San Ildefonso. It would seem from the words of an act of Congress, relied on in argument, that the legislative department of the government of the United States had regarded the change of sovereignty as complete at the date of that treaty, to wit, October 1, 1800 ; and that France became from that moment the true sovereign of the province of Louisiana. A recurrence to the treaty itself, and to the history of the day, will show
This last treaty spoken of by the historian has been little known, and, as well as that of the year 1800, does not appear to have been promulgated in extenso at that period, nor for many years after-wards. It is a matter of historical notoriety, that the Spanish governors continued in the meantime to exercise all their authority, as if no such compact had been entered into, and that Spain continued defacto the sovereign of Louisiana. The terms of the treaty do not import necessarily a change of sovereignty de jure, but convey only the idea of a promise to cede the territory in full sovereignty, upon the performance of certain conditions precedent. The first authentic evidence, with which we are acquainted, of any admission on the part of the king of Spain, that such conditions had been performed by France, or of any act done towards the execution of the promise stipulated by the treaty of San Ildefonso, is contained in the Cédula or Royal Order of the 15th of October, 1802. The terms of this Cédula are inconsistent with the idea, that the sovereignty was already, by the compact of 1800, vested in the Frebch Republic. It
The subsequent acts of the Commissioners appointed on the part of Spain to deliver possession, confirm this view of the case. Governor Salcedo and the Marquis of Casa Calvo, who had been .appointed for that purpose, in a public document dated the 18th of May, 1803, repeat the terms of the Cédula, under which they acted, and which have already been noticed,; and the final surrender of the colony took place a few months afterwards, to wit, on the 30th of November, 1803. In the act of delivery, or protocol of the Commissioners on both sides, they declare that the French Commissioner is put in possession of the colony of Louisiana and its dependencies, &c., ‘in order that the same may henceforth belong to the french republic, and be governed and administered by its officers and governors, in such manner as will best suit its interests ; and that they have accordingly solemnly delivered to him the keys of the place, declaring that they absolve from the oath of fidelity to his said Majesty all such inhabitants as may choose to continue in the service of dependence of the French Republic.’ Whether the change
• If the validity of Guardiola’s grant depended alone on the treaties of which we have been speaking, we should not hesitate to say that having been completed before the change of sovereignty, the land had become private property, and is to be protected under the treaty of cession to the United States.
But it is further urged that the grant in question is declared null and void by the 14th section of the act of Congress of the 26th March, 1804, entitled ‘ an act erecting Louisiana into two territories, &c.,’ which declared that all Spanish grants, subsequent to the date of the treaty of San Ildefonso, and all proceedings towards obtaining such grants, shall be held to be null and void. Without stopping to enquire into the authority of Congress to annul a grant reposing on the faith of treaties between other sovereign states, and one of them its own immediate predecessor, or how far the adjudicated cases referred to in argument would apply to a case within the acknowledged limits of ancient Louisiana, in the island of Orleans itself, we will content ourselves with remarking that, in our opinion, the grant in question is protected by the proviso to the section relied on, which saves all grants to actual settlers. It is shown that the land conceded to Guardiola, was inhabited and improved.
II. We come now to the second ground of defence, and to en-quire how far the evidence in the record shows that the locus in quo had been granted by the french government before the cession of Louisiana to Spain. No such written concession is exhibited; but it is contended that the evidence sufficiently shows, that the surveyor general, Trudeau, was mistaken, when he certified that the land was vacant at the time Guardiola’s patent was issued. If granted at all during the existence of the french authority, it must have been either to Le Breton in 1752, or to-Latil in 1764. Let us examine each in succession.
First. The extent of Le Breton’s grant is quite uncertain. Our knowledge of it is derived principally from his own declarations in
Le Breton, in 1758, made a donation to Docminil Morant of the two arpens reserved by him in his sale to Madame D’Auberville, and in the act of donation he described the land as having two arpens front, avec la profondeur qui se trouvera, adjoining on one side lands of the heirs of Morant, and on the other lands which Latil had purchased from Madame D’Auberville. The depth is left doubtful; but whatever it may be, the side lines must be taken as parallel to each other, and extending from east to west from the bayou road. The two arpens would not then cover the land in dispute. The expression, avec la profondeur qui se trouvera, implies less than forty arpens. The existence of this grant ofLe Breton, and especially its original extent, is left very doubtful. Even the original survey has not been produced, nor accounted for. The whole rests principally upon Le Breton’s own declarations, and it is not until his ratification of the donation to, Docminil Mo-rant, that he speaks of the depth of the two arpens, extending to Pradelles’ land. In order to destroy the validity of a regular title, in form like that of Guardiola’s, it does not suffice to render it probable that the land had been previously granted. Something more defi'nite is required for judicial purposes. After the most attentive consideration we have been able to give to this part of the case, we conclude that Le Breton's pretensions to the land covered by the plaintiff’s title, may be laid out of view.
Latil had purchased, it appears, the land of D’Auberville, already spoken of, and Madame D’Auberrille had acquired of Le Breton, whatever may have been the original depth of his grant, only four arpens and twenty toises in depth west from the bayou road. On the other side there was the rear of the land of the heirs of Morant, of about the saíne front, and between these two tracts it was discovered that there was a vacant piece of land. This was granted in 1764 to Latil. A copy of the concession is before us, and is in substance as follows: “Upon the petition which Mr. Latil has made to grant him a piece of vacant land and not conceded, situated between the minors Morant and the land which he declares to have purchased from the succession of D’ Jluberville, all situated in this city, fronting on the bayou road, which leads to St. John. We by virtue of the power given to us by the King, and upon the petition and the certificate of the surveyor, Amelot, have conceded and do concede to him the said piece of land, such as it may be found.”
It could not be inferred from the expressions of this grant that the government intended to concede a small front upon the bayou road with a depth of forty arpens, or indeed any depth beyond the extent of the side lines, to wit: the back line of the land of the heirs of Morant, and the side line of the tract purchased by Latil of D’Auberville’s succession. The piece of land was granted such as it was, between two given boundaries. If the back line was left uncertain, or rather was not given, it'is not difficult to ascertain what it was. If we go beyond the back corner of Morant’s tract in the direction of the back line, and beyond the back corner of the D’Auberville tract to an indefinite extent, and close the lines, we evidently enclose land not between the two given boundaries. It is more reasonable in itself, and more consonant to the terms used in the grant, to suppose that the back line of the grant was intended to run from the back corner of the Morant tract to that of Latil’s purchase from D’Auberville. This mode of laying
The extent of Latil’s land in the rear appears always to have been a subject of doubt. Trudeau*- the surveyor general, in his notes in explanation of his plan of the city of New Orleans, and’ its’environs, upon the faith of which the’ grants of Suares, Yidal, and G-uardiola appear to have been made, says-, ‘these lands of D’Auberv-iire passed afterwards info' the hands of Mr. Alexander Latil, wh'o on the 6th of August, 1764-, obtained- the grant of a remnant of land*,- {un reste de terre,)’ between- that' acquired from D’Auberville and that of Mr. De Morant. This concession speaks neil'herof front nor of depth-, but only of a remnant of vacant land'. Mr. Latil was- then- proprietor of four arpens and' twenty toises ■ sold by Touiangeaud, eight arpens and fourteen toises and four feet sold' by Le Breton, and one arpent and twelve toises, the remnant of land granted to him, in' all thirteen arpens, sixteen toises and- four' feet front on the bayou road. By means of a change in the- direction of the' lines, Latil sold eighteen arpens front on the bayou road. ' These eighteen arpens were measured and bounded, (I presume by Mr. Olivier Devezin,) each proprietor enjoying quietly, each his respective share, but all the possessors . in-good faith believed themselves entitled to the land in the rear. As there remains-too much doubt as to the depth of these lands, it appears- to us-justice would be done to'all by extending them to w-ithin sixty ffeet'df the canal Garondelet.
This act of the surveyor'general giving to the vague pretensions of the various grantees-in the rear, a more definite location, has been ingeniously criticised at the bar; but so far as it relates to Latil’s’ grant it-appears-to have been sufficiently liberal, and so far as-we are. informed-', acquiesced-in-by all parties concerned. We cannot perceive how the grant of Latil could be laid off in com-fO'rmity to- its terms, so as to cross the canal Carondelet, and interfere-with'the grant in favor of-Guardiola.
Whether therefore, we consider the defendant as holding under Le Breton, orunder Latil, neither title will, in our opinion, avail her;- The side lines of Le Breton’s grant, whatever may have'been
The plea of prescription is not, in our opinion, supported by the evidence, and was properly overruled.
Judgment .affirmed.
Rehearing
Same Case — On a re-hearing.
A re-hearing was allowed in this case upon the single question, whether the grant to Guardiola, which, was subsequent to the 1st of October, 1800, the date of the treaty of San Ildefonso, was protected by the proviso to the 14th section of the act of Congress of 1804, entitled ‘ an act erecting Louisiana into
That section declares, ‘ that all grants for lands within the terri, tories ceded by the french republic to the United States by the treaty of the 30th of April, in the year 1803, the titles whereof were at the date of the treaty of San Ildefonso in the crown, government, or nation of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining of any grant, title, or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be and to have been from the beginning, null, void, and of no effect in law or equity: Provided nevertheless, that anything in this section contained shall not be construed to make null and void any bona fide grant, made agreeably to the laws, usages, and customs of the Spanish government to an actual settler on the lands so granted for himself, and for his wife and family ; or to make null and void any bona fide act or proceeding done by an actual settler agreeably to the laws, usages, and customs of the Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement, in either case, was actually made prior to the 20th day of December, 1803,’ &c.
The proviso above recited contemplates two classes of titles: First, those granted according to the ordinances and usages of the Spanish government, upon the usual condition of settlement upon the lands so granted, to heads of families, provided such condition was complied with before the cession to the United States ; and secondly, such as were applied for after the settlement was made, commonly called permissions to settle with a Requdta. In both cases we are to look, in our opinion, to the laws and usages of the Spanish government for the definition of an actual settler, rather than to subsequent acts of Congress which provide for pre-emptions in favor of such persons as shall have settled upon, inhabited, and cultivated a part of the public domain. This proviso recognizes the authority of Spain to make certain grants after the date of the treaty of San Ildefonso, and therefore it cannot be said, that Congress has treated this as exclusively a political question, and absolutely decided, that the sovereignty was changed at that period. The only doubt is,
The re-hearing being confined to this question, we have not thought it our duty to follow the counsel for the defendant in his argument upon other questions connected with this cause, nor to examine how far, upon other points, our view of the case differ from that of the highest tribunal in the Union. Looking upon Guar-diola’s grant as one made in good faith, according to the usages and ordinances of the Spanish government, and as having become private property, according to those laws and usages, and according to the treaties between France and Spain, and the law of nations, we consider it protected not merely by the proviso to the act of Congress first recited, but by the treaty of cession.
It is therefore considered that the judgment first pronounced, remain undisturbed.