Gilmer v. Poindexter
51 U.S. 257 (1850)

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U.S. Supreme Court

Gilmer v. Poindexter, 51 U.S. 10 How. 257 257 (1850)

Gilmer v. Poindexter

51 U.S. (10 How.) 257

Syllabus

On 30 January, 1835, Poindexter purchased from Thomas a right of entry in certain lands in Louisiana, with authority to locate the lands in the name of Thomas, and they were so located. Subsequently to such location, viz., on the right which Thomas then had, or thereafter might have, to the land so located, and authorized Poindexter to obtain a patent in his own name. The patent, however, was issued to Thomas, and not to Poindexter. This did not vest in Poindexter a legal title, which would enable him to recover in a petitory action, which corresponds with an action of ejectment. Poindexter did not take a legal title, either by direct conveyance or by estoppel.

On 20 November, 1835, Poindexter, by a conveyance of record, conveyed his right in the lands in question to Huston, and on the same day, by articles of co-partnership with Huston, not of record, authorized Huston to apply these for the mutual benefit of Poindexter and Huston.

A purchaser from Huston without notice is not affected by these articles.

On 30 June, 1834, Congress passed an

"act granting to General Philemon Thomas, of Louisiana, a tract of land, in consideration of the military services rendered by him in taking possession of that portion of West Florida included in the District of Baton Rouge."

By this act, Thomas was authorized to enter, without payment, two sections of land on any of the lands of the United States in the State of Louisiana.

On 30 January, 1835, Thomas executed a deed to George Poindexter in which, for the consideration of $7,500, he

"granted, bargained, and sold unto him, the said George Poindexter, his heirs and assigns, forever all the right, title, interest, and claim whatsoever, which he, the said Philemon Thomas, may have or might hereafter have in and by virtue of the recited act of Congress, and the said Philemon Thomas doth hereby authorize and empower the said George Poindexter to make the location or locations of the said twelve hundred and eighty acres of land for his own proper use and benefit, or proper use and benefit of his heirs or assigns, in the same manner, and with the same effect, as he, the said Philemon Thomas, might have done in his own name if this conveyance had not been made. "

Page 51 U. S. 258

On 20 November, 1835, Poindexter entered into articles of co-partnership with one Felix Huston in which it was stipulated that Poindexter conveyed to Huston the right of entry yet remaining unlocated, so that the said entry may be made in the name of Huston, and the said Huston agreed on his part to purchase eight thousand dollars' worth of floats, and hold the whole for the joint and equal benefit of Poindexter and Huston. The articles contained other stipulations, but they were not recorded and executed in the presence of William Burns, an attesting witness.

On the same day, viz., 20 November, 1835, Poindexter executed a deed to Huston, from which the following is an extract:

"And by these presents doth grant, bargain, sell, convey, and confirm unto the said Felix Huston, his heirs and assigns forever, all the right, title, interest, and claim whatsoever which he, the said George Poindexter, has, or heretofore may have had, or might hereafter have, in and by virtue of an Act of Congress of the United States approved June 30, 1834, granting Philemon Thomas, without payment, the quantity of twelve hundred and eighty acres of land, to be located on any of the lands of the United States within the State of Louisiana, at the proper land office, with a proviso, that the same shall be located in tracts of not less than six hundred and forty acres, according to legal subdivisions; which said land was conveyed by the said Philemon Thomas to the said George Poindexter, by indenture entered into on 30 January, A.D. 1835; which is of record in the District Court for the County of Washington, in the District of Columbia. And the said George Poindexter doth hereby authorize and empower the said Felix Huston to make the location or locations of the said twelve hundred and eighty acres for his own proper use and benefit, or the proper use and benefit of his heirs and assigns, in the same manner and with the same effect as he, the said George Poindexter, might have done in his own name, by virtue of the said act of indenture from the said Philemon Thomas to the said George Poindexter. And the said Felix Huston, being present, declares that he accepts this act with all its clauses."

This deed was recorded in the Parish of Concordia.

On 27 November, 1840, Thomas and Poindexter executed the following instrument, viz.:

"State of Louisiana"

"Parish of East Baton Rouge"

"Whereas, on 30 January, 1835, General Philemon Thomas, of this parish, for valuable consideration to him

Page 51 U. S. 259

in hand paid, sold and conveyed to me, George Poindexter, of the State of Mississippi, his right of entry, without payment, two sections of land on any of the lands of the United States, in the State of Louisiana, granted to the said Philemon Thomas by an act of Congress passed in the year 1834. And whereas, in order to complete the said location, the said Philemon Thomas executed to the said George Poindexter a power of attorney, with the right of substitution, authorizing the said location to be made in the name of him, the said Philemon Thomas; which location, according to the tenor and effect of the said power of attorney, was made on two sections of the lands of the United States in township eighteen north, range ten west, and in township nineteen north, range thirteen and fourteen west."

"Now, therefore, in order to enable the said George Poindexter to perfect his title by withdrawing from the land office at Natchitoches the final certificate of said location, he, the said Philemon Thomas, hereby, for himself, his heirs, executors, and administrators, transfers to the said George Poindexter, his heirs, executors, and administrators, all the right, title, interest, and claim which he, the said Philemon Thomas, has, or hereafter may have, in and to the two sections of land located as aforesaid in the name of said Philemon Thomas, and further does authorize the said George Poindexter to obtain a patent for the lands so located in his own name at the General Land Office of the United States at the City of Washington."

"And the said George Poindexter, being here present, accepts this transfer made in his favor."

"In witness whereof, the parties have hereto set their hands with me, Charles R. Tessier, a notary public, duly commissioned and sworn for said parish, and in presence of Raphael Legendre and Victor Allain, witnesses duly qualified at Baton Rouge, this 27 November, 1840."

"[Signed] PHILEMON THOMAS"

"GEORGE POINDEXTER"

"RAPHAEL LEGENDRE"

"VICTOR ALLAIN"

"CHARLES R. TESSIER, Notary Public"

On 26 March, 1841, a patent, describing the lands, was issued by the General Land Office to General Philemon Thomas, his heirs and assigns forever.

On the 10th of January, 1844, Huston executed a deed to James Washington Patten, residing in Buncombe County, North Carolina, reciting the origin of the title, and conveying 649 36/100 acres to Patten, his heirs and assigns, to their proper

Page 51 U. S. 260

use and behoof, forever. This deed was duly executed and recorded.

On 15 January, 1844, Patten executed to James Erwin a full power of attorney, authorizing him to sell the lands upon such terms as he might deem proper, execute deeds &c.

On 28 March, 1844, Erwin executed a deed to Gilmer, conveying the lands to him for $6,473.60, with a warranty of title.

On 20 February, 1847, Poindexter brought a petitory action in the Circuit Court of the United States for Louisiana, reciting the grant by Congress to Thomas, the deed from Thomas to himself, the location and the patent. By virtue of these documents, he claimed to be the legal owner and proprietor of the parcels of land therein described, and justly entitled to the possession thereof.

On 31 March, 1847, Gilmer answered. He referred to his deed from Patten, through Erwin, and cited him in warranty.

On 10 May, 1848, the judgment of the court was pronounced on the law and evidence in favor of the petitioner. The documentary evidence was ordered to be placed upon the record. The following bill of exceptions was taken, viz.:

"Be it remembered, that, on the trial of this cause, plaintiff offered in evidence a paper purporting to be articles of agreement between plaintiff and one Felix Huston, and to have been signed and sealed by them, and purporting to bear date November 20, 1835; said paper also purported to have been signed by one William Burns, as subscribing witness. No testimony was offered as to the sealing or delivery of said paper, or the time when it was made; the subscribing witness was not called to testify, but a witness was examined who testified that the names of said Poindexter and Huston, subscribed to said paper, were in the handwriting, of said parties. Witness knew nothing of the execution of said instrument. Defendant, by his counsel, objected to the reception of said paper in evidence, on the ground that there was no proof whatever of the time when it was signed, nor of the sealing and delivery of the same. Defendant objected also to the admissibility of said paper in evidence, even if the due execution thereof were duly proved, on the ground that it was a private act, not recorded, to which defendant was not a party, or of which he had notice; and on the further ground, that the effect of said paper in evidence would be to contradict, qualify, and explain the positive and direct admissions of plaintiff, made in his conveyance, by authentic act, to said Huston, on 20 November,

Page 51 U. S. 261

1835, which said authentic act of conveyance had been offered in evidence by the defendant. The objections of defendant were overruled by the court, and the paper received in evidence, to which defendant, by his counsel, excepts."

"Be it further remembered, that, on the trial of this cause, defendant offered to introduce testimony to prove the value of the improvements made by him upon the land in controversy, in support of his answer and plea in reconvention; the court refused to receive or hear said testimony, to which refusal defendant, by his counsel, excepts, and tenders this, his bill of exceptions, and prays that the same may be signed."

"THEO. H. McCALEB [SEAL] U.S. Judge"

A writ of error sued out by Gilmer brought the case up to this Court.

Page 51 U. S. 264

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