3 Rob. 171 | La. | 1842
In this court, in addition to the able opinion of the judge, we have had the benefit of an argument distinguished for its ability, and of the counsel of one of our associates, who was not present when the cause was tried.
The first question by which we are met, is a plea of res judicata. It appears that in the year 1830, the plaintiffs, with their three co-heirs in the succession of Samuel Levi Wells, instituted a petitory action against the defendants, in which they claimed of them fifteen hundred arpens of land — five hundred arpens on the west side of the bayou Bceuf, and one thousand arpens on the east side, situated at the Biloxi village, bounded above by the plantation of Judge Mathews. They claimed, by inheritance from their father, his rights derived from the Indians, through Miller and Fulton. In answer to that action, the defendants set up as their title, the same deed of conveyance now presented, in which there is a clause that the legal title to the land is to remain in Samuel Levi Wells until Leonard B. Compton shall have paid the price ; and as there, was no record evidence of his having paid it, the plaintiffs hoped to recover, supposing that he had not done so, or could not prove it, if he had. The case turned on that question entirely, as an inspection of the record, and the decision of this court, in 3 La. 164, will show. The plaintiffs failed in that suit, but it will be seen that the matters now in controversy were not involved in it. There was no question of boundary, nor was it the purpose of the parties to fix the point of commencement under the deed. The judgment says, that the plaintiffs shall take nothing by their suit, and quiets the defendants in their possession and title to the land claimed. But the question where that land is, was not in any manner touched or decided. The judgment gives no more than the deed gave. Besides this, the parties are not claiming in the same capacity, nor by virtue of the same right. This suit is in effect an action of homage. The plaintiffs do not dispute the validity of the defendants’ title, so far as it goes, but allege that they have got possession beyond the true boundary. The case does not come within the meaning of
A number of bills of exception were taken on the trial to the opinions of the judge admitting or rejecting testimony, which we will proceed to notice.
The first was taken by the plaintiffs to the opinion of the court rejecting as evidence, the record and depositions in the case of Leonard B. Compton v. George Mathews. They offered them to prove, first, that that suit anti the present are substantially the same, viz. to fix the boundaries of the tract of land sold by Samuel L. Wells to L. B. Compton, now; in controversy; secondly, to show that L. B. Compton claimed that the elm tree in the first turn of the bayou below the Biloxi village, was the proper point of beginning, from whence to survey the land claimed by him at that time. But the court rejected all “ the evidence, except the record to prove rem ipsam, and the testimony of Kenneth McCrummen as hearsa}1- evidence, and the plats referred to in his evidence.” The grounds of objection are stated by the judge in a very long opinion. We think that he erred in confining the evidence to the narrow grounds which he did. He ought to have admitted it, to prove the acts and conduct of the party, and have given them their legal effect. The great ■ question at issue, was, where was the true point, to begin to run the twenty-five arpens line. As the contract did not fix it in a manner satisfactory to all parties, the declarations and acts of the parties contesting were admissible, to prove what their understanding of the agreement was. The judge says, there is no doubt but that the declarations of Leonard B. Compton would be admissible to show that the elm tree was the proper point of beginning. If his parol declarations were admissible, we see no reason why his declarations in a petition, filed in court, should be rejected. As the plaintiffs were not parties to that suit, they cannot avail themselves of the statements so made as judicial admissions, absolutely binding on the party, and conclusive as to his rights; but we have no doubt that the allegations made, ought to be considered as other declarations would be, and as such as forming a link in the chain of circumstances going to prove that the plaintiffs and Compton at one time entertained the same opinion, as to the meaning of the expressions in
The next bill of exceptions was taking by the defendants, to the opinion of the court receiving in evidence a plat made by McCrummen, the parish surveyor, of a survey made by him under the order of the court in the case of Compton v. Mathews, and also his testimony on the trial of that case. The judge admitted it as hearsay testimony, to show the directions and requests of L. B. Compton, when the survey was made to establish the boundaries of the tract of land purchased by L. B. Compton of Samuel L. Wells. It was proved that McCrummen and the chain carriers were dead, and that he was the parish surveyor, and had made the survey under the order of the court. We think the judge did not err. Surveyors are officers known to the law, appointed by the Governor and Senate ; they give bond, and take an oath to perform their duties; they are required to keep a record of their proceedings, and to give copies, which are evidence in the different courts of the State. B. & C. Dig. 796, sec. 1, p. 798, sec. 10. They are specially required faithfully to execute all orders of survey directed to them by any of the courts in the State ; and they make surveys generally. Ibid. p. 796, sec. 4. The acts of such officers are entitled to due weight, and if they are dead, we see no objection to appealing to their recorded testimony in a suit, to explain their acts, when it is required or necessary to understand them. 2 Phillipps on Evidence, 629, 632, 633, 634, 635. 6 Peters, 341. 7 Cranch, 296.
The defendants offered in evidence the record of the suit of the heirs of Wells v. J. and L. B. Compton, for the purpose of sup
In relation to the defendant’s bill of exceptions to admitting in evidence the plat of the whole Indian claim, approved by John Dinsmore, Principal Deputy Surveyor, we do not think that the judge erred. There is no doubt that the certificate was sufficiently formal, and the effect of the plat should have been considered.
The defendants excepted to the opinion of the judge, excluding the sixth, seventh, ninth, and'tenth interrogatories propounded to Alexander Compton, and the answers thereto, on the ground that the interrogatories contained leading questions. The judge, we think, erred. The interrogatories are somewhat of the character stated ; they ask the questions in an affirmative and negative form, yet they do not, in our opinion, so clearly indicate the answers to be given, as to authorize their rejection entirely.
After the plaintiffs and defendants had closed their evidence, the former offered as rebutting evidence, a plat of survey signed by K. McCrummen, parish surveyor, and the record of the same; to which the defendants objected, on the grounds that this was not rebutting evidence, but evidence in chief; that the survey was an ex parte proceeding, not made under an order of court, or of other competent authority, and that none of the statements made in the notes were on oath ; that the defendants were not present when the survey was made, nor ever notified to attend; and that it is not properly certified. This plat is dated in March, 1830. In
The remaining bills of exception it is unnecessary to notice ; and as we are approaching the merits of the case, it may be proper to mention a few other facts connected with it, and to recapitulate some already stated. There cannot be a doubt that, when Samuel L. Wells, in the year 1808, sold to Leonard B. Compton the quantity of one thousand superficial arpens on the east side of the bayou Bceuf, none of the parties knew where the dividing line between the lands of Fulton and Wells was ; but that they only supposed where it probably would be. From the testimony of Josiah Johnston it is clear that no line had been marked, as he says that L. B. Compton and Mathews established a boundary, where they supposed it to be, several years after their respective purchases from the original proprietors. We have very little doubt but that both Wells and Compton believed it to be about twenty-five arpens, from the first turn in the bayou below the Biloxi village to Fulton’s line, and that in the area they proposed to make there would be something approaching to one thousand superficial arpens. The proprietors of the Indian claims, at that
The main difficulty in this case is to ascertain the point on the bayou where the twenty-five arpen line is to commence. That once fixed, every thing else follows as a consequence.
The old Civil Code, page 270, articles 56 to 64, and the present Code, articles 1940 to 1957, lay down precise rules for the interpretation of contracts, and embody the principles contained in the best commentators on the jurisprudence of those countries, from whence we have drawn many of our laws. The decisions of this court have been based on them repeatedly; and the doctrine that the intent of the parties is to be ascertained, and effect given to it, and to all the clauses of the contract, have become legal axioms (8 Mart. N. S. 365); and no construction is to be given that will render important expressions useless. 9 Mart. 635. The intention of the parties must be determined by the words of the contract,
The doctrine that the seller must put the purchaser in possession of what he purchases, is admitted ; and it is further admitted, that if one owns a large tract of land, the first purchaser must have his portion before a second one.
We will now analyze the contract of sale. First, a point was to be fixed, at the first turn of the bayou below the Indian village ; secondly, a line was to run twenty-five arpens, parallel with the base line of the whole tract; thirdly, the line was to run to the bayou, and, with it to the place of beginning; fourthly, if the area thus formed, did not contain one thousand superficial arpens, the deficiency was to be laid off back of the line first run, between parallel lines, which were to be at right angles with the said line.
It is perfectly clear from this statement, that both Wells and Compton supposed, at the time, that the area made by them would comprise one thousand superficial arpens, and that the line first to be run would be a back line, if that quantity of land was found, if not, that the deficiency was to made up back of it, between parallel lines. That they believed there would be an abundance of land in the rear, cannot be doubted, for the Indian claims were supposed to have been eighty arpens in depth, and the defendants admit that they were forty.
It is a well settled rule, in all surveys, that courses and distances must yield to natural and ascertained objects. The Supreme Court of the United States say it is a universal rule. 6 Wheaton, 580. 5 Cond. Rep. 194. The first turn in the bayou Bceuf is a natural object, and wherever that is, the line must begin. It is to be observed, that in this deed a peculiar phraseology is used. It does not use the general word hend of the bayou, but it speaks of
Let us suppose, for a moment, that the line were to commence at the point contended for by the defendants ; what would be the result? To run it parallel with Walther’s base line of the whole claim, as laid down by Phelps, the surveyor would have at once to cross the bayou, and after running for a short distance on the west side of it, would be forced to cross again to the east, and after running for several arpens in the water, or very close to it, would go on his course, without having given a single arpent of land on the west side to the defendants, because they were not to have any there. Again, the point of departure contended for by the defendants, is about nine arpens below the point where the bayou first changes its direction, at the elm tree. We have said, that we do not doubt, but the parties to the sale supposed, that the area first described would probably contain one thousand superficial arpens ; and taking this to be true, would it not have been a very vain thing to run a line along the front, or in the bayou, for eight or nine arpens, and not have thereby given the purchaser any land. He would have a line only, between the water and the land, on the banks of the stream belonging to the seller. Besides this absurdity, we are met by another. In prescribing how the area is to be formed, the deed directs certain lines to be drawn, and the meanderings of the bayou to be then followed to the place of beginning. If this be complied with, in order to get to the beginning,
But, say the counsel for the defendants, the line must have been intended to commence lower down on the curve, for it has been since ascertained that a line of twenty-five arpens in length cannot be run, beginning at the upper part of the curve, without running into the limits of a neighboring proprietor ; and the line must be that long. We have no doubt but the contracting parties expected this line would be twenty-five arpens in length, and designed it to be so. But those expectations have not been realized, because the parties were in error as to the facts. If it had not been intended to fix the point for the line to begin on the upper turn of the bayou, how could it be known at what point below it was to commence, as the line of Fulton was not then known ? The counsel reply, (and so the defendants have alleged in their answer,) our line must commence at Fulton’s, now Mathews’, lower line, and run down until we get twenty-five arpens; but this is in direct opposition to the deed, which says, that the line must run up, and not down.
We will now see how the defendants, for a long time, understood this clause in the deed. In the suit which Leonard B. Compton instituted against Mathews, Ke alleges that he claims according to a plat of survey filed with his petition. It is shown that this plat fixed the lower boundary at the elm tree ; and the defendants adhered to it until they were defeated in that suit. They pointed out this tree to surveyors as being the correct point from which to commence running the line ; and, after the plaintiffs purchased the land adjoining them, they still admitted this tree to be the proper boundary, but did not give up the land below it. The counsel for the defendants say that these acts and admissions were made through error, but whether of fact or law is not precisely stated. Suppose this to be true, has it not been very clearly shown that Wells was also in error, in supposing Fulton’s lower line to be so
But, say the defendants, if you do not permit us to run our line down the bayou, we shall not get the quantity of land which we purchased. This may be true ; but the deed does not say that you are to go down the bayou to get the quantity. It says that you must go back, and that does not mean that you must go in front. But, repeat the counsel, if confined in this way, we must lose the land sold to us. In answer to this, it may be asked, is this the fault of Samuel Levi Wells ? When he sold to you, all parties supposed that he had a great depth to his claim. You say yourselves that he had forty arpens in depth, when you bought; and if you have lost it since, he is only responsible in warranty. There is a special clause in the conveyance providing for the case of the United States, not recognizing the claim, and it is possible that the warranty may go beyond the stipulation in the act itself, as against the heirs of Samuel Levi Wells ; but, upon that point, we express no opinion.
The defendants allege that they purchased a certain quantity of land out of a larger tract belonging to Samuel Levi Wells, and that he, or his heirs, are bound to deliver it to them. It is very true that the defendants agreed to purchase a certain quantity, but they bought with a particular boundary and within certain limits, and they cannot claim beyond them. The case relied on in 6 Mart. N. S. 700, is one in which a certain quantity of land was sold, without boundaries, to be taken out of a larger tract, and it was correctly held that the first purchaser must be satisfied. In this case, the heirs of Samuel Levi Wells are not parties. The plaintiffs do not sue as such, and none of the pleadings call upon them to answer in that capacity. The plaintiffs claim rights purchased from the estate of their father; they may be responsible as his heirs, but they are clearly not responsible as such, until called on in a legal manner.
We will now return to that part of the case, defining what is the first turn in the bayou, below the Biloxi village. The defendants say that their right to consider any part of the bend or turn, as a proper place for their first line to begin, has been decided by this court, in the case of Compton v. Mathews, 3 La. 139-145.
In relation to this opinion, it is proper to observe that it is merely an obiter dictum. It was not necessary to the decision of the case, as was mentioned by the court, and the plaintiffs in this case were not parties to it; and we doubt very much, whether the court would, with the same evidence and reflection that we have given' to the subject, again say, that the first turn in the bayou means any portion of the bend or curve. The defendants did, at one time, appear to think, that any part of the turn would satisfy the call of -the title ; but it appears that they abandoned this idea, and most perseveringly acted on a different one for a number of years ; or, to make the most of their conduct, it would seem that they intended to be prepared for any contingency, and, if they could not get the land above, to try to get it below, after having approved a proceeding by which it could not be had in the rear.
To what has been said in previous decisions of this court we always look with much respect, although the reasons assigned may not have been exactly called for; and, in mpst cases, we concede our own impressions, to preserve uniformity in the decisions of this tribunal. We will, therefore, in this case, go as far in fixing the point of beginning, as the court intimated it would do in the case of Compton v. Mathews. That is, we will fix the
The judgment of the District Court is, therefore, annulled and reversed ; and we do further order and decree, that the plaintiffs, Montfort and Thomas J. Wells, do recover of the defendants, John Compton and the legal representatives of Leonard B. Compton, deceased, all the land below a line to commence on the bayou Bceuf, at the point marked by this court, in red ink, S. C., on the plat made by A. G. Phelps, Parish Surveyor, under the order of the District Court; and that a line be drawn from said point to the back line of the claim of Miller and Fulton, as represented by the plat made by A. S. Phelps, United States Deputy Surveyor, approved Oct. 8th, 1837, parallel with the line A. B. on said map of said A. G. Phelps, Parish Surveyor, and at right angles with the baseline of Walther’s survey, as represented on said Phelps’ plat. And the said plaintiffs are quieted in their title to all the land below said line, and the defendants to all above it. The defendants to pay the costs of this appeal, and all those in the District Court up to this time. The line now established, to be run at the expense of both parties. And, as relates to rents, fruits, and improvements, it is ordered that this case be remanded to the District Court, to be proceeded in according to law ; and in the mean time no writ of possession to be issued.
Bollard, J. having been of counsel in this case, did not sit on its trial.