Lobdell v. Clark, 4 La. Ann. 99

Lobdell v. Clark

4 La. Ann. 99 | La. | 1849

T.he judgment of the court was pronounced by

Rost, J.

This is a petitory action founded on a patent .issued on the certificate of purchase of .t.wo preemption rights. The defendant resists the claim, and alleges that he is the owner of the land covered by the patent, by virtue of an order of survey granted in 1798, under which he alleges that the land has been occupied and cultivated by Jose Matteo ligarte, and those who claim under him, down to the present time. There was judgment against him, and he appealed.

The evidence leaves it extremely doubtful whether the claim of the defendant covers any of the land patented to the plaintiff’s vendor. But if it did, .it rests upon an incomplete grant, which is not shown to have been presented for confirmation, or recorded, as required by the various acts of Congress passed for ascertaining and adjusting titles and claims to land within the territory of Orleans. Those acts expressly provide that if claimants shall neglect to give notice of their claims in writing to the proper officers, or to cause to be recorded the written evidence of them, all them right, so far as the same is derived from the two -first sections of the act of 1805, shall become void,and forever thereafter be barred ; nor shall any incomplete grant, warrant, order of survey, deed of conveyance or other written evidence, which shall not be recorded as above directed, -ever after he considered or admitted as evidence in any court of the United States, against any grant derived from the United States. Land Laws, pp. 520, 548.

The defendant contends that, by the first sectiop of the act of 1805, amended by the first section oí the act of 1807, an order of survey, obtained prior to the first day of October, 1800, where the land was actually inhabited and cul*100tivated, had the effect of a complete title ; that it conferred on the grantee absolute ownership, and was not required to be recor-ded under the fourth section of the act of 1805. If this construction of the acts of Congress was correct, it would not avail the defendant, because he has failed to show that the land claimed was actually inhabited and cultivated by the grantee, or by any person for him; the occasional possessions he has shown, being totally unconnected with the order of survey under which he claims. But we are satisfied that the exception contended for, only exists in favor of complete french and Spanish grants.

It is further alleged that, the right of the defendant to the land, is secured by the treaty of cession, and could nót have been taken away by an act of Congress. This argument takes for granted that the title passed from the sovereign under an order of survey, even when there was no actual settlement and cultivation. But it has been settled by the highest judicial authority that such was not the effect of inchoate grants; that until the patent issued, they remained within the discretion of the grantor; and that they were not changed in their character by the treaty by which Louisiana was acquired ; that this treaty imposed upon the government of the United States only a political obligation to perfect them; and that this obligation, sacred as it may be, cannot be enforced by any action of the judicial tribunal. Chouteau v. Eckhart, 2 Howard, 344, United States v. Wiggins, 14 Peters, 330. Pontalba v. Copland, 3 An. 86.

It is urged on the authority of Murdock v. Gurley, 5 Rob. 457, that the penalty imposed by the acts of Congress is a mere rule of evidence binding only upon the courts of the United States. We cannot view it in that light, considering, as we do, orders of survey, unattended with actual settlement and cultivation, as mere equitable claims, under which no title passed. It is undoubtedly a rule of property. Since the treaty of cession, the United States have acted uniformly upon that class of claims by legislation, and their right to prescribe the mode and the time, by and during which, they might be ripened into perfect titles, cannot now be doubted.

After extending again and again the time allowed to make proof of inchoate grants, and complying fully with the political obligation imposed upon them by the treaty of cession, the land in controversy has remained vacant, and they have granted it to the plaintiff’s vendor, with the solemn pledge that he should not be disturbed by any inchoate grant not previously made known to the proper authority. We must hold this grant to be the paramount and better title.

The chain of titles of the plaintiff ascends to the patent, which issued directly in Millaudon’s name, as purchaser off the settlement rights of Jones and Bunker. This appears to us sufficient in a case where Jones and Bunker are not parties. Judgment affirmed.