The second section of the Act of 29 May, 1830, providing,
"If two or more persons be settled upon the same
quarter-section, the same may be divided between the two first
actual settlers if by a north and south or east and west line the
settlement or improvement of each can be included in a
refers only to tracts of land containing one hundred and sixty
acres, and does not operate upon one containing only one hundred
and thirty-three acres.
Therefore, where tenants in common of a tract of one hundred and
thirty-three acres applied to a state court for a partition under
the above act, the judgment of that court cannot be reviewed by
this Court when brought up by writ of error under the twenty-fifth
section of the Judiciary Act, because the right asserted does not
arise under an act of Congress.
The writ of error must be dismissed.
Mr. Crittenden, for the defendant in error, moved to dismiss the
writ for the following reasons. Because:
Page 45 U. S. 501
1st. Said writ of error is directed to the "Judge of the Ninth
Judicial District Court of the State of Louisiana," when in truth
no writ of error lies from this to that court.
2d. Said writ is for alleged error in a judgment of the said
District Court of Louisiana when in truth this Court has no
jurisdiction to judge of or correct said error if it exists, and no
power to reverse said judgment upon writ of error.
3d. That the record filed in this case, or what purports to be
such, is not duly certified, or legally authenticated and verified
-- the certificate of "John T. Mason Clerk of the Ninth District
Court, Parish of Madison, La.," being no evidence of the truth or
verity of any record which this Court has power to judge of on writ
4th. The subject matter of said suit and judgment, and the
parties thereto, were proper matters and subjects of the
jurisdiction of the courts of the State of Louisiana, and there is
nothing therein to give this Court any cognizance or right to
revise or reverse said judgment, and the same is final and
MR. JUSTICE McLEAN delivered the opinion of the Court.
On 15 June, 1837, a patent was issued by the United States to
Elijah Evans and Levi Blakeley for one hundred and thirty-three
acres and eight hundredths of an acre, being lots numbered one and
three of section six in township sixteen of range thirteen east, in
the district of lands subject to sale at Ouachita, Louisiana. The
patentees having settled upon the above tract, and each having made
improvements thereon, claimed a preemptive right under the Act of
the 29 May, 1830. The second section of that act provides
"That if two or more persons be settled upon the same
quarter-section, the same may be divided between the two first
actual settlers, if by a north and south, or east and west, line
the settlement or improvement of each can be included in a
The plaintiff applied, by petition, to the Ninth District Court
of Louisiana for a partition of the above tract, which, it seems,
was submitted to a jury, and on the trial of which "the judge
charged the jury that the Act of Congress of May 29, 1830, entitled
"An act to grant preemption rights to settlers on the public
lands," was not applicable to the case before the court and jury;
that the said act had no binding force as to the dividing or
Page 45 U. S. 502
lands granted to settlers on the same quarter-section or
fractional quarter-section after issuing a patent therefor, but
that such division and partition must be in conformity with the
laws of Louisiana and the principles of equity and justice." To
which charge an exception was taken, and on which an appeal was
prosecuted to the supreme court of the state, which affirmed the
judgment of the district court.
How the parties to this suit became interested in the tract of
land above patented does not appear from the record. In the
petition and answer, they are represented as owners of the
premises, and they are treated as such by the District and Supreme
Courts of Louisiana.
The second section of the preemption law above cited refers to a
quarter of a section, which contains one hundred and sixty acres,
and as the tract of which partition is demanded is less than a
quarter, it does not come within the law. Had application been made
for a division of the tract to the proper department of the
government, before the emanation of the patent, it could not, as we
suppose, have been considered as coming within the act, so as to
authorize a partition and a patent to each of the claimants. A
patent having been issued to the claimants for the tract jointly,
as tenants in common, and they having conveyed the land, which has
become vested in the parties to this record, it is now a question
on what principle a division shall be made.
If the parties entitled to the preemptive right might have
applied for a partition under the act of Congress, but preferred
taking the patent as issued, it is difficult to perceive how the
present claimants could go behind the patent, in the assertion of a
right which was waived by those with whom it originated. The patent
vested in the patentees a joint interest as tenants in common, and
the same interest was conveyed through their grantees down to the
present owners. It does not appear, and the Court cannot presume,
that any greater or different right was conveyed than that which is
shown on the face of the patent.
In this view, we think the decision of the Louisiana court was
correct. It directed a partition on equitable principles, under the
local law, reserving to each claimant his improvements. And it
appears from the facts in the case, that this could not be done by
straight lines running north and south or east and west.
As the right asserted in this case by the plaintiff does not
arise under an act of Congress, this Court has no jurisdiction by
the twenty-fifth section.
There seems to have been no allowance of the writ of error, and
it was directed to the District instead of the Supreme Court of
Louisiana. As this Court can only revise the judgment of the
highest court in the state which can exercise jurisdiction in the
case, the writ of error should be directed to such court,
Page 45 U. S. 503
the record shall have been transmitted to an inferior tribunal.
But, independently of these irregularities, we think that this
Court have no jurisdiction under the act of Congress, and on this
ground this suit is