United States v. D'Auterive
51 U.S. 609 (1850)

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U.S. Supreme Court

United States v. D'Auterive, 51 U.S. 10 How. 609 609 (1850)

United States v. D'Auterive

51 U.S. (10 How.) 609

Syllabus

Following out the principles applied to the construction of treaties in the cases of United States v. Reynes and Davis v. Police jury of Concordia, in 8 Howard, this Court now decides that a grant of land in Louisiana, issued by the representative of the King of France in 1765 was void, the Province of Louisiana having been ceded by the King of France to the King of Spain in 1762.

The title to the land described in this void grant was vested, therefore, in the King of Spain, and remained in him until the Treaty of St. Ildefonso. It then passed to France, and by the treaty of Paris became vested in the United States.

None of the acts of Congress have confirmed this grant.

The act of 1805 2 Stat. 324 required three things in order to effect a confirmation.

Page 51 U. S. 610

1st, that the parties should be residents; 2d, that the Indian title should have been extinguished; 3d, that the land should have been actually inhabited and cultivated by the grantees, or for their use. In the present case, these conditions were not complied with.

The Act of May 26, 1824, in part reenacted by the Act of June 17, 1844, 5 Stat. 676, did not create any new rights or enlarge those previously existing, but only allowed claims to be presented to the court which would otherwise have been barred.

This was a petition presented to the district court under the act of 1824, relating to land titles in Missouri, as revived and made applicable to Louisiana by the act of 1844.

The history of the title claimed by the heirs of D'Auterive, so far as it may be necessary to explain the opinion of the court, was as follows.

A copy of the following grant, issued in 1765, was certified by the register of the land office at New Orleans to be found upon the records in his possession, and forming part of the archives of the office.

"Charles Philippe Aubry, Chevalier of the Royal and Military Order of St. Louis, commanding for the King in Louisiana, and Denis Nicholas Foucault, being the Intendant Commissary of this Province of Louisiana."

"Upon the demand made by Messrs. D'Auterive and Masse, partners, to grant to them a parcel of land named La Prairie du Vermilion, bounded east by the River Des Tortues and the Lake Du Tasse, north by the Mauvais Bois, west by the River Vermilion and south by a muddy prairie, considering their petition above, and in other part, and for consideration of the cession made by them to the Acadian families, recently arrived in this Province, of the land occupied by them during a long period, in the Attakapas, and in consideration also of the advantages which may result for this capital of the great establishment in vacheries that they propose themselves to do on the said land named La Prairie du Vermilion, by the quantity of cattle they may bring to market in a short period, we have conceded, and do concede to them by these presents the said land, for them and their heirs to enjoy and dispose of the same in full ownership and usufruct, as a thing belonging to them, except against titles or possession anterior to these to the contrary, provided that said land lies on this side of the limits which have been established of the French and Spanish possessions in this part of the country, and provided also, that they do deliver to us the titles of the land which they have ceded to the Acadian families, and also under the conditions

Page 51 U. S. 611

that one year from this date they shall establish the said vacherie, in default whereof the said land shall become part of the King's domain, who may dispose of the same as if the said concession had never been granted, and also with the burden by them to support and pay the seigneurial rights, if any hereafter be established in this colony. We also reserve for his Majesty all the timber necessary for the construction of forts, stores, and other public works that he has ordered to be done or may order in the future, even for the refitting and careening of his men-of-war, whenever the same will be necessary; and also the necessary ground for the royal highways and fortifications."

"Given in New Orleans, under the seals of our arms and the countersign of our secretaries 2 March, 1765."

"[Signed] AUBRY AND FOUCAULT"

"[Countersigned] -- SOUBIE & DUVERGE"

The decision of the court being that this grant was invalid when made, it is not necessary to trace out the assignment of his share from Masse to D'Auterive, by which it was alleged that the latter became the sole proprietor.

On 6 February, 1835, Congress passed an Act, 4 Stat. 749, entitled "An act for the final adjustment of claims to lands in the State of Louisiana."

By this act, claims recognized by former laws as valid but which had not been confirmed were to be presented to the register and receiver of the land office where the lands lie, with the evidence in support of the same, who were to report the same to the Secretary of the Treasury with their opinion of the validity of each claim, and which report was to be laid before Congress, with the opinion of the Commissioner of the General Land Office touching the validity of the respective claims.

This claim was presented to the register and receiver, together with a great mass of evidence in its support, which it is not necessary here to state. On account of the voluminous nature of the papers, the claim was not included in a report made by the Commissioner on 15 May, 1840. But in February, 1842, the then register and receiver took up the subject and made a report thereon to the Secretary of the Treasury, from which the following is an extract:

"The peculiar circumstances which seem to involve this claim, its unwarrantable neglect, firstly by the heirs themselves, and lastly by the former boards of this office, and the unsuccessful efforts of the Honorable Edward Livingston to obtain any action of Congress upon it, and the very heavy

Page 51 U. S. 612

charges and expenses which the heirs have been at in the protection and prosecution of their rights have induced us to examine with the greatest circumspection and attention all the documents of title filed in this claim. We have given it throughout a mature and deliberate investigation, and, seeing the pacific views of the claimants in their renouncement of their rights to any part of the said land to which a title has been obtained either by French or Spanish grant, private entry, or otherwise, that may fall within the limits of their grant, and from the fact that the patent mentioned in this claim corresponds with one on the abstract of patents certified by the register of New Orleans, for the use of this office, consequently making it a complete title in form, with no act of the sovereign remaining to be done that the title of the land might be fully vested in D'Auterive, think that a confirmation of such a title is scarcely necessary, though it may be useful. Congress never asserted the right to annul, restrict, or question any genuine complete grant which has been made by the former governments; they were regarded as sacred documents, and respected by the treaty of cession; it was not obligatory on the holders of complete patents to file them with the registers and the receivers. By the fifth section of the Act of 2 March, 1805, the registers and receivers were requested to make a report on all complete French and Spanish grants, the evidence of which, though not thus filed, may be found on record in the public records of such grants; it was evident the reports on such titles were required for the purpose of ascertaining what lands had ceased to belong to the public domain."

"If the intention of Congress had been to subject these claims to their scrutiny, they would have required of the owners to file them; if the board, on finding in the public records the evidence of a complete grant, would have made any other than a favorable report on it, Congress would never have permitted such a decision; the boards were only to decide on the simple recorded proof -- that is, the official copy of the grant -- and were to consider it as conclusive evidence; it has accordingly been decided by the supreme court of this state as well as the United States court that a complete grant is complete evidence of title without any confirmation, and viewing the grant of the claimants in this report as of a similar character, and perfectly satisfied as regards the sale from Masse to D'Auterive, the testimony in proof thereof being ample and complete, we cannot do otherwise than recommend this claim for confirmation to the full extent of land that may be found comprised within the boundaries laid down in the concession. "

Page 51 U. S. 613

These proceedings were referred, in pursuance of the law, to the Commissioner of the General Land Office, who gave his opinion that the claim was not valid. A report was them made to Congress, but no action was there had upon the subject.

Under the Act of Congress passed on 17 June, 1844, entitled "An act to provide for the adjustment of land claims in the states of Missouri, Arkansas, and Louisiana," the heirs of D'Auterive filed a petition in the District Court of the United States for the District of Louisiana, on 16 June, 1846. Attached to the petition was a copy of the report of the Commissioners above mentioned. The petition concluded as follows:

"The petitioners show that it appears from said statement that the said Bernard D'Auterive occupied said land as a stock farm, for which purpose it had been granted, up to the time of his death, which occurred in 1776; that the said D'Auterive left a widow and four small children; that in 1779 his widow married Jean Baptiste Degruy; that the said Degruy and his wife continued to occupy said land as a stock farm, and to cultivate a small part thereof until 1784, when they removed to the Mississippi; that thereafter the said land, and even the stock kept thereon, were utterly neglected by said Degruy; that in consequence thereof, and on account of their ignorance of said claim, the Spanish authorities in Louisiana granted a considerable, and the most valuable, part of said land to other persons, and that the petitioners, considering the good faith with which said titles were acquired, and to prevent the delays and expenses of litigation, claimed the confirmation of so much only of the aforesaid grant as was not held by titles emanating from the Spanish government and confirmed by the United States, and had not been sold or otherwise disposed of by the United States."

"And the petitioners show that they now again claim the confirmation of said grant with the same restrictions; that as the petitioners do not intent to interfere with the rights of any persons holding portions of said grant under confirmed Spanish titles or under purchases from the United States, it is unnecessary to cite said persons, and that, besides them, there are no other persons in possession of portions of said grant except certain settlers who occupy small parts thereof with the written consent of the petitioners."

"Wherefore the petitioners pray that the United States of America, by their District Attorney for the District of Louisiana, be cited; that the aforesaid grant be declared valid and confirmed to the petitioners; that thereafter the Surveyor General

Page 51 U. S. 614

of the United States for the State of Louisiana be ordered to survey said lands; that he be further ordered to certify, on the plats and certificates of said survey, what parts of said grant are held under confirmed Spanish titles, and what part, if any, of said grant has been sold by the United States, together with the quantity thereof. And the petitioners further pray that it may be decreed that they, their heirs and legal representatives, shall have the right to enter the quantity of land so certified to have been sold or disposed of by the United States in any land office in the State of Louisiana."

"[Signed] L. JANIN, of Counsel"

On 10 November, 1846, Thomas J. Durant, the district attorney of the United States, filed an answer denying all the allegations of the petition.

In April, 1847, the depositions of sundry witnesses were taken by the plaintiffs before N. R. Jennings, Commissioner, and in December, 1847, the cause came on for trial before the district court.

On 13 June, 1848, the district court gave the following judgment:

"The court having taken this cause as above entitled under consideration, and having maturely considered the same, doth now, for reasons set forth at length and on file, order, adjudge, and decree, that the petitioners recover the land claimed in their petition and described in the original grant or concession to them, as exhibited on pages 180 and 181 of the record of French grants, the same having been delivered at the cession of Louisiana to the government of the United States and deposited in the United States land office in the City of New Orleans."

"And the court doth further order and decree that the Surveyor General of the State of Louisiana do survey the land so decreed to petitioners as aforesaid, and certify on the plats and certificates of survey all such parts of the said grant as may have been sold or otherwise disposed of by the United States."

"And the court doth further order and decree, that the petitioners, or their heirs or legal representatives, shall have the right to enter the quantity of land that may be so certified to have been sold or otherwise disposed of by the United States, in any land office of the State of Louisiana, according to the provisions of the eleventh section of the Act of 26 May, 1824."

"Judgment rendered June 13, 1848. Judgment signed June 17, 1848."

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

Page 51 U. S. 615

From this decree the United States appealed to this Court.

Page 51 U. S. 620

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