16 La. 84 | La. | 1840
delivered the opinion of the court.
The plaintiffs claim the ownership of a tract of land in the parish of St. Martin, which is in the possession of the defendant, who has inhabited and cultivated it, since the spring of the year 1829.
The plaintiffs derive their title from the United States, under an act of congress, approved the 15th of June, 1832, which gives to the owner of the land fronting on a water course, “ a preference in becoming the purchaser of any vacant tract of land, adjacent to, and back of his own tract,” not exceeding in quantity the front tract. The provisions of this act, were extended to the 15th of June, 1836, and on the 7th of that month, the plaintiffs representing to the register and receiver, that the land in the rear of their tract, was vacant, entered the same and obtained a receipt, of the receiver of public moneys, for the money. The defendant claims the land under the provisions of an act of Congress,
(Signed,) VALENTINE KING, Register.
BENJAMIN R. ROGERS, Receiver.
The aforesaid register, on the 23d of March, 1832, also gave the defendant a certificate, stating that he had been allowed to make an entry, and purchase the tract of land in question, in conformity with the act of congress, of May 29th, 1830. The defendant offered to pay for the land in May, 1831, when he made the application to purchase it, but was told, by the register his money could not be received, as the land had not been legally surveyed, and the township plat returned according to law, and they were forbidden, by instructions from the commissioner of the general land office, to receive money in such cases, but that if the money was paid in one year after the land was legally surveyed, and the plat returned, it would be sufficient, and the said instructions are in the record. On the 14th of July, 1832, congress, passed an act, supplementary to the act of 1830, in which it is expressly said, that in all cases, where a person was entitled to a pre-emption, under the act of 1830, but have not been ena
The act of May 29th, 1830, certainly authorized the defendant, to enter the land, and gave him a preference over all other persons. He did all in his power to comply with the conditions of the law, and was prevented from completing his purchase, by the United States not performing all the obligations imposed on them. It was the duty of the govern-i iii , , , , . . ment to have the land surveyed, and the plat returned to the register’s office. The defendant could not do it. He has complied with all the conditions of the law that were in his power, and as the other party has not complied with their obligations, it is not his fault, and he is not to suffer by it. It is to be observed, that the plaintiffs were authorized to puri ,, „ , r , „ ,. t . ~ chase “ any vacant tract of land,5 adjacent to their own tract, and it cannot be said the land in possession of defendant, was vacant We have been referred to several decisions of the - , t • • r» _ court, reported in 9 Louisiana Reports, 56. 10 Louisiana Reports, 159 and II Louisiana Reports, 322.
These decisions we think correct, but a material difference between those cases and the one under consideration, seems to have escaped the observation of the counsel for the appellants. The pre-emption rights in those cases, arose under . 4 * ° 7 the 5th section of an act of congress, relating to land titles in Louisiana, approved April 12th, 1814, which referred to an act, approved February 5th, 1813. Land Laws, volume 1st, 631, 653. Under those laws, the person claiming a right of pre-emption, in addition to the proof of occupancy and cultivation, was bound to pay in cash one-twentieth part of the purchase money, whether the land was surveyed or not. In none of the cases cited was the money paid. Suppose it had been paid, and the proof made in accordance to law, this court would probably not have decided as it did. It may be