Millikin v. Minnis

| La. | Oct 15, 1838

Bullard, J.,

delivered the opinion of the court.

This is a petitory action, in which the plaintiff asserts title to the south-west part of lot No. 1, in township No. 17, of range 14, east; and also, of the south-west part of lots No. 17 and 18, in township 17, range 13, east, containing about 150 acres, which, he alleges, the defendant has in possession. He exhibits as evidence of his title, patents from the United Slates; for the whole of the three lots above designated.

The defendant in his answer alleges, that the land claimed by the plaintiff, is his property ; that in 1825, he purchased from the plaintiff, a tract of land, which embraces and includes that now sued for; and that he was duly put in possession thereof, and has ever since continued in possession. He alleges, that he holds the bond of the plaintiff, to make to him a complete title to a tract of land, of which, that in question, forms a part, and he denies that he is in possession of any land not embraced by the description in the bond.

The whole controversy, therefore, turns upon the construction we are to put upon the bond or contract entered into between the parties, as stated in the answer. This bond recites, that Millikin had obligated himself to make to the defendant “ a complete title to a certain tract of land, lying and being in the state of Louisiana and parish of Concordia, situated on the river Mississippi, and commencing on said river, and running back through the lane now existing between said tract and the tract claimed by the representatives of Peter Smith, deceased, and extending on the river about three quarters of a mile ; that is to say, to the fence now existing between said Millikin, and tire tract of land now in the possession of William Elliot, and running on said fence, and beyond the same, containing six hundred and forty acres, more or less, being the four quarter sections as surveyed by Maxfield Ludlow, etc.” Minnis, the defendant, by the same contract, engages to pay' to the United Stales, one dollar and a quarter per acre for the land, whenever required, besides the price agreed on to be paid to Millikin.

The record shows, that the defendant, in pursuance of this contract, paid the congress price, and obtained patents in his own name for the land, as surveyed by Ludlow, being lots Nos. 2, 3, 4, and 5, and these patents do not cover the land in controversy.

It is manifest, therefore, that according to the written evidence, the plaintiff shows a title of the highest dignity to the locus in quo. _

But, it is contended on the part of the defendant, that according to the description in the bond, the defendant purchased from the lane to the fence, and thence with the fence and beyond it, and that by extending the line in that direction it embraces the land in controversy, and was sold by the plaintiff to the defendant. It is further urged, that the plaintiff put the defendant in possession by that line, and thereby gave a construction to the contract which supports his pretensions, and that the sale was onecer aversionem, from boundary to boundary, and conveyed all the land included within the limits described. He relies on the case of Cuny vs. Archinard. 5 Martin, N. S., 238.

In seeking for the intention of the parties to a written contract; the whole of it must be examined, and if possible, effect given to every part. In a sale of a tract of land, described in the instrument of writing as having;certain boundaries, but making express reference (o a plat of survey,“being four quarter sections, as surveyed by M. L.,” the reference to the plat of survey must control the vague and indefinite description of the boundaries in other clauses of the contract. The titles of the parties, and notthemannerof putting in possession, or the acquiescence of oue in the pos* session of the other for a time, will control, when the pretensions set up under this possession are wholly inconsistentwith the written titles. Parole evidence, admitted to show the act ( of putting in possession, in a manner manifestly erroneous ami inconsistent evidence of'tifle disre"

In seeking for the intention of (he parties, the whole contract must, be examined, and if possible, effect given to every part. The expressions “ being four quarter sections as surveyed by JUaxfield Ludlow, etc.” form an important part of the designation of the land conveyed, and cannot be overlooked. If there had been no other description of the land, it would have been sufficient to convey the four quarter sections, for which patents were afterwards obtained by the defendant. There is no difficulty about the lane which forms the lower line. The dispute appears to have arisen from the vague manner in which the upper boundary has been described, as running on a fence and beyond it, without saying either in what direction or to what distance. We are of opinion, that a reference in the contract to the survey of Ludlow, must control the vague and indefinite description of boundaries, in other clauses in the contract.

JBut the appellee relies upon article 1960, of the Louisiana Code, which declares that “ when the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both or by one, wilb the express or implied assent of the oilier, furnishes a rule for its interpretation.” Under this provision be contends, that Mil-likin, by putting his vendee in possession, according to the direction of the fence, put a construction upon this contract which concludes him. But it must not. be forgotten that this is not the only act performed in execution of the contract, of 1825, by the parties. The defendant, in pursuance of that contrapt, paid the United States for the land embraced by the survey of Ludlow, and took out his patent in conformity therewith ; and Millikin obtained patents for the adjacent lots, which embraced the locus in quo, and that those acts, and the titles which resulted from them, are wholly inconsistent with the pretensions now asserted. There is nothing in the record to satisfy us that Millikin intended to sell, or the defendant to acquire about one hundred and eighty acres, covered by the patent of Millikin, and not embraced by Lud-low’s survey. The parole evidence, admitted to show the act of putting in possession in a manner manifestly erroneous and inconsistent with the written evidence of title, cannot be regarded by this court as sufficient to destroy the plaintiff’s title to the land in controversy.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and proceeding to render such judgment as ought, in our opinion, to have been given below; it is further adjudged and decreed, that the plaintiff recover and be quieted in his title to the tract of land claimed in his petition, and that the line beginning on the river, at an elm stump at the letter B, on the plat of survey in the record, and running'south, 20° west, the whole extent of the tract, according to Ludlow’s survey, be established as the boundary between the parties^ and that the defendant pay the costs in both courts.