10 La. 155 | La. | 1836
delivered the opinion of the court.
This is a petitory action, in which the plaintiff sets up title to one hundred and sixty acres of land in the parish of East Baton Rouge, in virtue of a purchase from the United States. The defendants deny that they are in possession of any land for which the plaintiff has a just and legal title; but they aver that if it should appear that the land claimed by the plaintiff, or any part thereof, is in their possession, the same makes part of a donation of six hundred and forty acres granted to the defendants by the several acts of congress, passed for the adjustment of land claims west of Pearl River and east of the Island of Orleans. That p certificate was regularly granted, on a favorable report made of the same to congress, which was confirmed and subsequently an order of survey given, and that the plaintiff cannot have any legal title to said land.
This answer substantially denies that the title set up by the plaintiff covers the land in possession of the defendants, and alleges title to the land thus possessed; in other words, the locus in quo is not admitted.
Judgment was rendered in favor of the plaintiff, and the defendants appealed.
The evidence in support of the plaintiff’s title consists of a receipt of the receiver of public moneys, of the price of the land sued for, and this court has often held that sufficient to show title out of the government. But the defendants allege possession under a certificate of confirmation by the register and receiver, at St. Helena, which the plaintiff avers was revoked and annulled by a decision of that board, and in support of that allegation, gave in evidence a document . , ’ , . . , „ purporting to be a copy of a decision made by those officers in a case of William Cooper vs. Littleton & Packer, in which it is recited that much evidence had been introduced to show that the government has been defrauded or would be by allowing Cooper a donation, and that Cooper had not introduced any evidence to show that the place claimed by him is the place on which he attempted, in 1808, to make his tomahawk improvement, nor that he had shown himself entitled any where to a donation by making a settlement or improvement as contemplated by law. But they allow him further time to introduce evidence of his right, which if he fails to do they declare that they will recall the certificate granted to said Cooper. This order was made in November, 1826, and on the 1st of March, 1827, they say that the evidence not having been furnished, their previous judgment is made final.
The introduction of this document in evidence, was opposed on the ground that it purports to be an adjudication between different parties, and that it is not legal evidence for any of , . i . ° ... the purposes for which it was offered, to wit, either to prove the locality of the land, the locality of the certificate revoked by the commissioners, or the possession of the land J , 1 by Cooper. These objections being overruled a bill of exceptions was taken.
We are of opinion that the court erred in admitting this document for any other purpose than to prove the transaction itself, rem ipsam, and that it ought not to have any effect in the decision of this case.
We are to presume that the certificate in question was issued in pursuance of the provisions of law relative to the
This act of congress appears to leave it to the discretion and sound judgment of the commissioners whether to grant or to withhold a patent on the presentation of certificates; but it does not authorize the register and receiver to revoke or annul a certificate already granted. The judicial authority of those officers, which was fully recognized by this court in the case of Boatner vs. Ventress, 8 Martin, N. S., 645, is confined to cases of conflicting locations under different certificates. Land Laws, page 824, section 4.
But the defendants show that afterwards the register and receiver, who succeeded to the powers of the former ones, recognized the validity of the certificate in question and ordered its location in a particular manner. This order of survey was previous to the purchase made by the plaintiff from the United States. But no survey of either claim is presented to the court, and the parole evidence is too vague and unsatisfactory to enable us to decide upon the principal . , * question in the cause. Neither party exhibits a patent, and certificate shown by the defendants, is of older date than the purchase of the plaintiff. There ought, in our opinion, , 1 , 1 , , , ° , , to have been a survey under the orders of the court, to show the confliction, if any. If it should appear that the location,as ordered by the register and receiver under Cooper’s certificate, covers the - land possessed by him and embraces his improvements, and that it is the same land which the plaintiff has purchased, the question will yet remain open, which party has the best title.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered, that the case be remanded for a new trial, and that the appellee pay the costs of this appeal.
