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
MR. JUSTICE DANIEL delivered the opinion of the Court.
This is a writ of error to a judgment of the Circuit Court of
the United States for the District of Louisiana.
The defendant in error instituted a petitory action in the court
just mentioned, to recover certain lands in Louisiana in the
possession of James B. Gilmer, the plaintiff in error.
The petition of Poindexter sets forth, that by an Act of
Congress approved on 30 May, 1834, entitled "An act granting to
General Philemon Thomas a tract of land in consideration of
military services &c.," the said Thomas was authorized to
enter, without payment, two sections of land on any of the lands of
the United States in Louisiana. That Thomas, on 30 January, 1835,
sold to the petitioner this right of entry, and authorized him, or
his substitute, to make the location in the name of Thomas. That
the petitioner afterwards caused said location to be made on two
sections of land in Louisiana, north of Red River, one of which
described in parcels contained 619 36/100 acres, and is the land in
controversy.
This after this location,
viz., on 27 November, 1840,
Thomas by notarial act transferred to the petitioner all the right,
title &c., which he, Thomas, then had or thereafter might have
to the two sections so located, and authorized the petitioner to
obtain a patent therefor in his own name. That on
Page 51 U. S. 265
26 March, 1841, a patent was issued for the lands to Thomas, by
virtue of which, and of the sale and transfer of 27 November, 1840,
the petitioner avers that he became the legal owner of the lands
claimed, and is entitled to the possession thereof. That Gilmer has
taken unlawful possession of one section of the land in township
19, range 14, and refused to surrender it to the petitioner, who
therefore prays judgment for possession of the land, and for rents
and profits. The agreements between Thomas and Poindexter of 30
January, 1835, and of 27 November, 1840, and the patent to Thomas
of 26 March, 1841, referred to in the petition, were filed as
exhibits therewith.
The tenant in possession, Gilmer, after a general denial in his
answer of any right or title to the land in the petitioner, alleges
that he is the possessor and true owner of the land claimed, by
purchase in good faith for valuable consideration from James W.
Patten, by a notarial act executed in New Orleans on 28 May, 1844;
that Patten's conveyance to him was with general warranty, and he
therefore avouches Patten in warranty; and prays that, in the event
of his eviction, he may have a recovery over against his warrantor,
Patten, for the value of the land and improvements made by the
defendant. This cause, according to the practice in the State of
Louisiana, was tried by the court, without the intervention of a
jury, and the court, after hearing the parties, by its opinion
expressed on 10 May, but signed on 28 June, 1848, and considered as
of the day last named, gave the following judgment,
viz.:
"It is ordered, adjudged, and decreed, that judgment be rendered
in favor of the plaintiff, George Poindexter, and against the
defendant, James B. Gilmer, for the premises described in the
plaintiff's petition, and that the said Gilmer surrender to the
plaintiff the possession of the following described parcels of land
&c., and that the plaintiff have a writ of
habere facias
possessionem to place him in legal possession thereof. The
right of the plaintiff for mesne profits, and of the defendants to
sue for improvements, is reserved respectively."
In addition to the documents above mentioned, filed as exhibits
with the plaintiff's petition, there was offered in evidence on the
part of the petitioner, and admitted by the court, an instrument of
writing executed on 20 November, 1835, between Poindexter and one
Felix Huston, in which it was amongst other things recited, that
the parties to that instrument had formed a partnership for the
purposes of purchasing lands of the United States, or preemption
rights, or entries
Page 51 U. S. 266
of individuals, for the joint and mutual benefit of the parties,
and that the said Poindexter, having purchased of General Philemon
Thomas his right to locate the quantity of twelve hundred and
eighty acres of land on any of the public lands in Louisiana,
granted by an Act of Congress passed on 39 June, 1834, and having
obtained of the said Thomas, on 30 January, 1835, a conveyance of
his said right of entry, which yet remains unlocated, the said
Poindexter agreed to convey to the said Huston his right of entry
derived under the said deed, in the same manner as he acquired the
same from the said Philemon Thomas, so that the said entry may be
made in the name of the said Felix Huston, to be held by him for
the joint and equal benefit of him the said George Poindexter
&c. This instrument, being a private declaration of trust
between Poindexter and Huston, not evidenced by any record or other
public acknowledgment of the parties, was attested by a single
witness, William Burns, who was not called at the trial to prove
its execution, was received in evidence by the court without such
proof, and its reception was excepted to for that cause. It does
not appear, moreover, that a knowledge of this instrument was
brought home either to Patten or to Irwin, his attorney in fact,
from whom Patten purchased.
The plaintiff in error relied in the circuit court on the
following proofs: 1st, on the act of Congress granting the right of
entry to Thomas; 2d, on the public act and conveyance from Thomas
to Poindexter, as recited in the petition; 3d, the plaintiff in
error next adduced in proof a public and authentic act of sale and
conveyance, on 20 November, 1835, to Huston, in absolute right, of
all his, Poindexter's, title, interest, and estate in the grant to
Thomas, then vested, or which might vest at any future period; 4th,
the public authentic act of Huston, conveying the land in
controversy with general warranty, on 20 January, 1844, and
reciting in its terms the conveyance from Thomas to Poindexter of
30 January, 1835, and that of Poindexter to Huston of 20 November,
1835, and describing the land so conveyed as that "which was
located by said Huston according to the provisions of the
above-mentioned act of Congress;" 5th, the public authentic act of
Patten, constituting Irwin his attorney in fact to sell and convey
the lands purchased of Huston, and 6th and lastly the conveyance by
Patten, by his said attorney, Irwin, of the lands in controversy to
Gilmer, the tenant in possession in March, 1844, with warranty.
In considering this case it is proper to carry with us
throughout, as a standard by which to test the proceedings in the
circuit
Page 51 U. S. 267
court and the decision founded upon them, this controlling
principle -- that the petitory action is a proceeding at law for
the recovery of property, and can be maintained in the courts of
the United States only where the right of possession can be shown,
and, according to the principles and distinctions settled in this
Court, corresponds in character with the action of ejectment at
common law.
The petitioner or plaintiff therefore, in a petitory action,
must recover upon the strength of his title, and that must be a
legal, as contradistinguished from an equitable, title.
See United States v.
King, 7 How. 846,
48 U. S. 847,
and
Livingston v.
Story, 9 Pet. 632. Tried by this rule, we are
unable to perceive how the claim of Poindexter, as set forth in his
petition, even if unaffected by his transactions with Huston, can
be maintained in this action. The petitioner alleges that he
purchased of Thomas his right of entry in virtue of the act of
Congress, and received from Thomas a power to make a location in
the name of the latter.
By this transaction, no legal title to any certain or specific
land was conveyed, for nothing specific or certain was then vested
in Thomas, and the power of locating alleged in the petition was a
power to locate, not in the name of Poindexter, but in that of
Thomas. The petitioner proceeds to state that after these locations
made by him, Thomas, by an authentic act before a notary public, on
27 November, 1840 a copy of which is filed with the petition,
transferred to the petitioner all the right, title &c., which
he then had, or thereafter might have, to the sections of land
located in his name, and authorized the petitioner to obtain a
patent therefor. He further alleges that afterwards,
viz.,
on 26 March, 1841, a patent issued to Thomas for the lands located
as aforesaid in his name, and that by virtue of these proceedings,
viz., the transfer by Thomas in 1840, and the patent in
1841, the petitioner became invested with the legal title to the
land in dispute. This alleged investiture of the legal title must
have been supposed to rest upon an estoppel operated by the
transfer and patent before mentioned, for, independently of such an
operation, and by the literal terms of the patent, the title would
certainly be in Thomas, and not in Poindexter. But we are of
opinion that in this instance no estoppel has been operated. This
legal effect can occur only where a party has conveyed a precise or
definite legal estate or right, by a solemn assurance, which he
will not be permitted to vary or to deny. It can have no operation
to prevent the denial of an equitable transfer of title, which is
not identical with the legal title or muniment of title which it
may be relied on either to establish
Page 51 U. S. 268
or protect. An estoppel, it is said, should be certain to every
intent, and therefore, if a thing be not directly and precisely
alleged, it shall not be estopped. Co.Lit. 303
a,
552
b. So, too, it is laid down, that to the success of an
estoppel it is obviously necessary that the grantor's want of a
present vested estate should not appear on the deed itself, which
would else contain internal evidence of its invalidity. 2 Sim.
& Stu. 519; 3 Ad. & Ell. 12. And with regard to the mode of
using an estoppel, it is said that it must be pleaded if there be
an opportunity; otherwise, the party omitting to plead it waives
the estoppel.
See 2 Smith's Lead.Cas. 457, and the
authorities there cited. Again it is ruled that an equitable title
cannot be estopped by a verdict at law, for there is no such thing
as an estoppel in equity.
See Com.Dig., Estoppel ยง 1. Even
upon the hypothesis, then, that the title set up by Poindexter
under his agreement with Thomas could be regarded as a legal title,
still, upon a comparison of the description of the property
contained in those agreements with that of the land granted by the
patent to Thomas, there is not that certainty and identity that are
required by an estoppel, or such as will cause the land granted by
the patent to Thomas to enure to Poindexter. But the right set up
by Poindexter under his contracts with Thomas remains strictly an
equitable right, and therefore neither Thomas nor his alienee could
be estopped from averring a right in the land contained in the
patent, in opposition to such equitable claim.
But in another aspect of the question, supposing the interest
transferred to Poindexter by the agreements with Thomas of January
30, 1835, and May 14, 1839, could be so construed as to have passed
to the former a legal title, and admitting, too, that the
description of the property contained in those agreements accorded
in precise terms with that of the lands granted to Thomas by the
patent of March 20, 1841, it would still remain to be inquired,
whether Poindexter has not parted with his title, and would not in
this aspect of the case be estopped from setting it up against his
alienee, and all claiming under such alienee.
It appears from the evidence which was before the court, and
already adverted to in the statement of this case, that on 20
November, 1835, Poindexter sold and conveyed, by his public
authentic act, and in absolute right and estate, to Felix Huston,
all the right, title, interest, and claim which he then had, or
thereafter might have, in and by virtue of an Act of Congress of 30
June, 1834, granting to Philemon Thomas the quantity of twelve
hundred and eighty acres of land, to be located on any lands of the
United States in Louisiana,
Page 51 U. S. 269
which said land was conveyed by the said Philemon Thomas to the
said George Poindexter on 30 January, 1835; it further appears,
that from Houston a regular title, by public authentic acts and
written assurances, is deduced down to the defendant in possession,
Gilmer. It is true, that in order to countervail the force of this
title, the petitioner offered in evidence the agreement between
himself and Huston of 20 November, 1835, creating a partnership
between themselves, and purporting to convey to Huston all the
title of Poindexter to the right of entry granted by act of
Congress to Thomas, to be disposed of and applied by Huston for the
benefit of the partnership; but it is equally true that this
instrument, which was objected to by the plaintiff in error, was
received without legal proof of its execution, and therefore should
not have been admitted and considered by the court; and there being
no proof in this record of any knowledge of the contents, or even
of the existence, of this instrument on the part of the purchasers
under the absolute and public deed from Poindexter to Huston, their
title thus derived, for aught that appears, cannot be affected by
the former instrument.
Upon the whole case, the petitioner in the circuit court, having
failed to establish a legal title in himself to the premises
demanded, could not maintain his action, and the judgment of the
court should have been for the defendant. It is therefore the
opinion of this Court, that the judgment of the circuit court be
and the same is hereby
Reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Louisiana, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court that the judgment of
the said circuit court in this cause be, and the same is hereby
reversed with costs, and that this cause be and the same is hereby
remanded to the said circuit court for further proceedings to be
had therein in conformity to the opinion of this Court.
