An historical account given as to what officer in Louisiana
possessed the power to grant part of the King's domain.
In September, 1797, Morales, who was intendant, had not the
power. And a receipt of that date given by him for the purchase
money of lands sold could convey no title.
By the regulations of O'Reilly made in 1770, the front
proprietors of land upon the Mississippi were bound to make mounds
or levees, and also to clear and ditch the whole front of the depth
of two arpents within three years from the date of their purchases.
In default thereof, the land reverted to the King.
This condition not having been complied with in the present
case, and the alleged proprietor not having asserted any claim from
1797 to 1835, the presumption is that he surrendered his purchase
and had his money refunded.
The claim is also barred by lapse of time.
The district court decreed that
"In case any of the lands claimed by the petitioner should have
been sold by the United States, he, the petitioner, should be
authorized to enter, in any land office in the State of Louisiana,
a like quantity of public lands."
This decree was erroneous. The act of 1844 revived the act of
1824, but did not revive the act of 1828, and the act of 1824
required the grantees of the United States to be made parties in
order that they might come in and defend their title. It also
intended that these grantees should produce their titles, so that
the court might ascertain their boundaries and quantities, and
decree accordingly. But in the decree in question, this was not
done.
The Act approved 17 June, 1844, 4 Stat. 676, revived and
continued for five years, and extended to the State of Louisiana
the expired Act of 26 May, 1824, entitled
"An act enabling the claimants to lands within the limits of the
state
Page 53 U. S. 210
of Missouri and Territory of Arkansas to institute proceedings
to try the validity of their claims."
4 Stat. 52.
Under this act, Michael Moore presented his petition to the
District Court of the United States for the District of Louisiana
on 17 June, 1846, claiming sixty thousand arpents of land situated
in the district of the Atchafalaya, in the sharp end of land or
angle where the Atchafalaya and Mississippi Rivers join, or the
point formed between the said rivers at the place the Atchafalaya
leaves the Mississippi.
The title presented by the petitioner was the following:
"
No. 2 -- Sale of Royal Lands; page 31"
"Don Juan Ventura Morales and Don Gilberto Leonard, Intendant
and Comptroller
Pro Tempore of the Province of
Louisiana."
"We have received from Don Antonio Iriarte twenty-four thousand
bits 12 1/2 cts. each, for the value of sixty thousand superficial
arpents of land, at the rate of five cents per arpent, which land
has been sold to him for amount of the Royal Treasurer in the
District of Country of Chafalaya and the Mississippi, on the point
where the two unite, which payment is entered in folio 31 of the
journal of this Treasury Department, and seven hundred and eight
bits 12 1/2 cents each, the amount due for the two and a half
percent for the duty of half-yearly tribute, and eighteen percent
for the transportation of said half-yearly tribute to Spain, have
also been paid, as shown by the amount below, namely: "
Bits Bits
For the value of said land . . . . . . . . . . . 24,000
The half-yearly tribute, and eighteen percent
for its transportation to Spain. . . . . . . . 708
------ 24,708
"New Orleans, 11 September, 1797."
"[Signed]"
"MORALES"
"LEONARD"
"VALDES"
On the 8th of January, 1835, Don Roque Moreno, then residing in
Madrid, purchased the claim from Don Antonio Iriarte for fifty
thousand bits 12 1/2 cents each, and in order to obtain a formal
transfer of the title, he presented a petition on 17 February,
1835, to the Lieutenant Mayor of Madrid, requesting that the
acknowledgment of Iriarte to the transfer might be made in due
form. Accordingly, Iriarte appeared before the Lieutenant Mayor and
acknowledged the deed in the presence of three notaries.
Page 53 U. S. 211
In 1838, Roque Moreno wrote several letters to the house of
Rosendo Fernandez & Co., at Havana, requesting them to sell the
claim, and in May endorsed the document to them for this purpose by
the following order:
"Pay to the order of Messrs. Don Rosendo Fernandez & Co.,
the value of the document hereto annexed, for value in account with
said gentlemen."
"ROQUE MORENO"
"Madrid, 27th May, 1838"
On 15 September, 1838, Fernandez & Co. assigned the
documents to Cuesta, who transferred them to Moore the petitioner,
as appears by the following transfers:
"Agreeably to a letter from Don Roque Moreno of 28 July last, we
transfer the above documents to Don Antonio Garcia Cuesta or order
without any recourse whatsoever against us."
"R. FERNANDEZ & CO."
"Havana, 15 September, 1838"
"I hereby assign, transfer, and convey to Michael Moore all my
right, title, and interest, and the interest of Roque Moreno and R.
Fernandez & Co., to the foregoing title, and to the sixty
thousand arpents of land herein mentioned."
"ANTONIO GARCIA CUESTA"
The petitioner Moore also presented in evidence the following
letter from Leopold O'Donnell, Governor and Captain General of the
Island of Cuba, verified by Robert B. Campbell Esq., consul of the
United States at Havana. The letter was addressed to the Spanish
consul at New Orleans.
"In my official letter of 22 February, I communicated to your
Excellency what follows: "
"His Excellency, the Intendant of the Army,
Sub-Intendant-General, and Delegate of the Royal Treasury of this
city, in his official letter of the 18th of this month,
communicates to me what follows: "
"ESTEEMED SIR -- In order to be able to answer your official
letter of the 8th inst., in which you enclosed me a letter from the
consul of her Majesty in New Orleans asking certain information, I
sent said letter to the general archives of the Royal Treasury, and
have obtained the following information. At folio 31 of the book
Journal of the Comptroller for the Army and Department of the Royal
Treasury for the Province of Louisiana for the year 1797 is an
entry of which what follows is an exact copy: "
Page 53 U. S. 212
"September 11th. We have received from Don Antonio Iriarte
twenty-four thousand bits, for the value of sixty thousand
superficial arpents of land, at the rate of five cents per arpent,
which land has been sold to him for amount of the Royal Treasury in
the District of Country of Chafalaya and the Mississippi, on the
point where the two unite, and the seven hundred and eight bits,
for the balance due for the duty of 2 1/2 percent for half-yearly
tribute on the value of the land, and eighteen percent for the
transportation of said half-yearly tribute to Spain, have also been
paid, as appears by the account below: "
For the value of said lands . . . . . . . . . 24,000 bits
The half-yearly tribute, and 18 percent
for its transportation to Spain . . . . . . 708
------ 24,708 bits
"Antonio Iriarte, 24,708 bits."
"MORALES, LEONARD, VALDES"
"This is all that appears in relation to the transfer which the
Spanish government made in Louisiana Don Antonio Iriarte, of the
60,000 arpents of land of which mention is made in the official
letter of his Excellency the Captain General, and also in the
letter of the consul of her Majesty at New Orleans, enclosed
therein, whether it be in consequence of the documents appertaining
to the subject matter not having been transferred to this office,
now under my charge, or whether they were among those which have
been lost on the way to this island, or of those which were
destroyed by the moths and humidity in the place where they had
been deposited since they were received here; neither can be found
the decree or copy issued by the tribunal of this intendancy,
ordering to be made out the calculations of the amount to be paid
by the purchaser for said land, and consequently this office cannot
give anything more than what has already been stated in relation to
the boundaries, dimensions of the land, or furnish anything by
which the parties interested may do so. The above is in answer to
your letter above mentioned, and I transmit this information to you
for your knowledge, and in answer to your letter of the 25th of
last month having reference to this subject."
"I transmit to you the above information, in case the first
communication of a similar nature should have been mislaid or
lost."
"May God preserve you many years."
"LEOPOLD O'DONNELL"
"Havana, 11th April, 1845"
Several witnesses were examined on behalf of the petitioner
Page 53 U. S. 213
who verified the signatures of Rosendo Fernandez & Co., of
Roque Moreno, of Morales, Leonard, and Valdes. One of the
witnesses, Charles Louis Blacke, being shown the original document,
said,
"Cannot explain why the document A is cut, as it appears to be;
believes that it must have been done in wantonness. States that
documents in the intendancy department were never cut in that
way."
Jose Martinez del Campo, witness for plaintiff, being recalled,
states that the discolored appearance of the paper, the document A,
in his opinion, arises from certain things, which he states as
follows: that the officers of quarantine in Spain, in order to
prevent the spreading of infectious diseases, immerse documents in
vinegar, and cut them in the manner of the document A in question
in order to make the vinegar penetrate more easily. This, he
thinks, has been the case with the document A, and therefore its
discolored and cut appearance.
States, that all the documents from Spain are cut in like
manner; that he has often seen them; he has in his possession
letters cut in the same way.
The petitioner also offered evidence to prove the genuineness of
the letters from Roque Moreno, above mentioned.
The district Attorney put in a general denial on the part of the
United States and offered sundry original documents in evidence to
show Morales' habitual mode of signing officially, and also
Leonard's mode of signature.
At May term, 1848, the cause came on for trial before the
district court; the petitioner having entered a disclaimer as to
the lands claimed by Butler and Black confining his claim, as to
them, to a float from the United States. The following is the
decree of the district court:
"It is hereby ordered, adjudged, and decreed that the
petitioner, Michael Moore, is the true and lawful owner of, and has
good title against the United States, the defendants, in and to all
the lands and hereditaments claimed by him in his petition, to-wit,
to sixty thousand superficial arpents of land situated in the State
of Louisiana between the Rivers Mississippi and the Atchafalaya in
the angle formed by the said two rivers, commencing at the point
where the Atchafalaya River leaves the Mississippi and running down
between the two rivers, with the said rivers as boundaries on two
sides, for the above quantity."
"It is further ordered, adjudged, and decreed that in case said
lands so claimed by said petitioner or any part or portion thereof,
shall have been sold by the United States or otherwise disposed of,
said petitioner Michael Moore shall be and is hereby authorized to
enter in any land office in the State
Page 53 U. S. 214
of Louisiana, in parcels conformable to sectional divisions and
subdivisions, a like quantity of public lands after the same shall
have been offered at public sale."
"And it further appearing that Thomas Butler and John Black hold
their lands by title acquired from the United States, it is
ordered, adjudged, and decreed that they be quieted in their
titles, and that the petitioner recover nothing from them."
"And that judgment
pro confesso be entered against John
Hagan, Charles W. Hopkins, and H.L. Williams, A. Ledoux, and A.
Miltenberger, they not having answered the petition filed in this
case."
"Judgment rendered June 28, 1848."
"Judgment signed June 30, 1848."
"[Signed] THEO. H. McCALEB [Seal]"
"
United States Judge"
From this decree, the United States appealed to this Court.
Page 53 U. S. 217
MR. JUSTICE CATRON delivered the opinion of the Court.
The petition states, that about 11 September, 1797, Antonio
Yriarte, a resident of the Province of Louisiana, for the sum of
24,708 reals by him paid, purchased from the proper authorities
under the government of Spain, to-wit: Juan Ventura Morales, the
Intendant of the Province of Louisiana, and Gilbert Leonard, the
Treasurer of said Province, sixty thousand arpens of land &c.,
all of which more fully appears from the annexed certificate,
signed by the said Morales, Leonard and Carsetano Valdes, secretary
of the Intendant, acknowledging the receipt of the consideration
and the sale of the land above expressed.
The first question arising on this statement of facts is whether
the paper exhibited affords any evidence that the "proper
authorities" of Spain sold the land to Yriate, as this party can
only sue for lands claimed by virtue of any French or Spanish
grant, concession, warrant, or order of survey "legally made."
His petition alleges that the land was purchased on 11
September, 1797, from Morales, the intendant, and Leonard, the
treasurer of the province. The act positively requires that the
date of the sale, concession &c., shall be set forth, and by
whom it was made, in order that it may be seen whether the officer
making the concession or sale had power to do so at the time it was
done, and here the question of power existing in the intendant is
raised by an allegation of the fact and a denial in the answer
Undoubtedly Leonard had no authority to sell or distribute by
donation and part of the public domain, but this would be of no
consequence if Morales had such power. When the paper exhibited
bears date, a controversy existed between the Intendant Morales and
the political and military governor of Louisiana, as to which of
them appertained the power to sell and distribute the King's
domain, the intendant claiming authority under the laws of the
Indies and the governor relying on a royal order of August, 1770.
The following historical account will best explain how the matter
stood in 1797, when as is alleged this sale was made.
O'Reilly, by commission dated 16 April, 1769, was appointed
Governor and Captain General of Louisiana, with
"special power to establish in this new part of the King's
dominions with regard to the military force, police, administration
of justice and finances, such a form of government as might most
effectually secure its dependence and subordination, and promote
the King's service and the happiness of his subjects."
2 Mart. 2.
Page 53 U. S. 218
Unzaga, colonel of the regiment of Havana, who had come with
O'Reilly, had a commission as governor, but was not authorized to
enter upon his duties until the departure of O'Reilly or the
declaration of his will. On 1t December, 1769, O'Reilly made the
declaration, and Unzaga assumed the functions of governor. 2 Mart.
13.
On 18 February, 1770, O'Reilly made the regulations relating to
the granting of land known by his name. The 12th article declares
that all grants shall be made in the name of the King by the
governor general of the Province. 2 White's Recop. 230.
A royal order of 24 August, 1770, states, that O'Reilly had
communicated the regulations made by him to his government, and
these declaring that the granting of land had been confided by His
Majesty to the governor and Comisario Ordenador, he considered it
would be better in future, that the governor alone should be
authorize by His Majesty to make those grants. The order to the
governor then proceeds:
"The King having examined these dispositions and propositions of
the said Lieutenant General, approves them, and also, that it
should be you and your successors in that government only, who are
to have the right to distribute the royal lands, conforming in all
points, as long as His Majesty does not otherwise dispose, to the
said instructions, the date of which is 18 February of this present
year."
2 White's Recop. 460.
The governors who succeeded Unzaga were Galvez, colonel of the
regiment of Louisiana, to whom Unzaga, when he was appointed
Captain General of the Caraccas, was directed to surrender the
government provisionally, by a cedula of 10 July, 1776. Galvez
entered on the duties of his office 1 January, 1777. 2 Mart.
39.
Miro succeeded Galvez; the government of the province being
provisionally vested in him on the departure of Galvez in 1782. 2
Mart. 68.
Carondelet was promoted from the Government of San Salvador, and
entered on his duties 1 January, 1792. 2 Mart. 81.
Gayoso, the commandant at Natchez, succeeded Carondelet in the
beginning of 1797. 2 Mart. 149. His regulations for the
administration of posts and distribution of lands, are dated 9
September, 1797.
So far as we have seen, the exclusive authority vested in the
governors to make grants, stood unrevoked up to this time. But on
the departure of Rendon, who had been intendant in 1796, the
functions of Intendant devolved on Morales, who had been contador,
2 Mart. 131. Morales, thus intendant
ad interim, in a
letter to governor Gayoso 29 August, 1797,
Page 53 U. S. 219
a few days before the latter issued his regulations, claimed the
right to grant the lands. 2 White's Recop. 470. Gayoso declined to
yield, but "resolved to submit the question to higher authority,
and to allow no innovation until the resolution of His Majesty be
made known." 2 White, 470, 471. Morales also wrote a long letter to
Spain on the subject.
A royal order of 22 October, 1798, addressed to Gayoso, states
the receipt of his and Morales' communications
"respecting the right of granting and distributing royal lands
in the district under your command, which right has been vested in
the political and military governor since the order of August 24,
1770,"
and proceeds thus:
"The King has resolved for the sake of the better and more exact
observance of the 81st article of the royal ordinance for
intendants of New Spain, that the exclusive faculty of granting and
distributing lands, of every class, shall be restored to the
intendancy of the province, free from the interference of any other
authority, in the proceedings as established by law, consequently
the power hitherto residing in the government to those effects is
abolished and suppressed, being transferred to the Intendancy for
the future."
2 White's Recop. 478.
The royal order was communicated from Spain to Morales on the
same 22 October, 1798. In the communication to Gayoso, and that to
himself, Morales is styled intendant
ad interim.
The royal order seems to have reached Morales in February, 1799,
before it did Gayoso. Some correspondence then took place between
them, and Morales became vested with the power of making sales and
grants. 2 White 478-484. He issued his regulations 17 July, 1799.
Id., 234.
It will thus be seen that the authorities in Spain considered
the royal order of 24 August, 1770, as of force up to February,
1799. The language is too plain to admit of a doubt. The preamble
of Morales' own regulations states, that the power to grant was
vested in the military and political government, from 24 August,
1770, to 22 October, 1798.
To the same effect is the report of Pintado, dated at Havana in
1822, respecting lands in Florida, communicated to our government.
2 White's Recop. 339.
See also, 2 Mart. 158.
At the date of the receipt to Yriarte, 11 September, 1797, the
question between Gayoso and Morales had not been settled by the
King. In fact, it was only a few days after he had addressed the
first letter to Gayoso on the subject.
In the correspondence of Morales and Gayoso and the authorities
in Spain, he refers to the eighty-first article of instructions to
intendants, as giving some foundation for his claim. The
instructions were dated in December, 1787. 1 White's
Page 53 U. S. 220
Recop. 360. They will be found more at length in 2 White 67, and
it will be seen to apply only to twelve intendancies thereby
created and expressly named in New Spain; it did not apply to
Louisiana. This article seems not to have been sent to Louisiana,
or been known there until Morales brought the question up in 1797.
The royal order of 1798, transferring the power to distribute the
land for the future, is conclusive that the eighty-first article
had no application to Louisiana.
Some of the governors acted also as intendants, but that would
not alter the power conferred. It was in their capacities as
governors they were authorized to make grants, and not as
superintendents of the finances.
The first Intendant seems to have come to the country with
O'Reilly. His name was Francisco de Loyola. 2 Mart. 2. He died in
1670, and was succeeded by Gayaree, as intendant
ad
interim. 2 Mart. 21.
Unzaga had the office of intendant united to that of governor. 2
Mart. 34. Galvez, when appointed governor was also appointed
intendant. 2 Mart. 39. During the time he was engaged in the
expeditions against the British possessions in West Florida, he had
no time to bestow of fiscal affairs, and Martin Navarro was
appointed intendant in the beginning of 1781. 2 Mart. 54. He left
the province for Spain in 1788, and the two offices were again
united in the person of Miro. 2 Mart. 180. Carondelet was intendant
as well as governor. 2 Mart. 111. On his representation the office
of intendant was separated from that of governor, and Francisco de
Rendon, who had been the secretary of the Spanish Legation in the
United States, was appointed, and arrived in New Orleans in the
beginning of 1794. 2 Mart. 122. Rendon was afterwards sent to
Zacatecas, and Morales was appointed
ad interim, 1796. 2
Mart. 131.
Thus it appears that Morales in his letter of August 29, 1797,
to Governor Gayosa de Lemos, claimed the right to sell, distribute,
and grant the public lands, and insisted that the governor should
not oppose the intendancy in the free and open jurisdiction
appertaining to it, and with which no one had a right to
intermeddle. And, on the next day, 30 August, 1797, the governor
replied that as discussion of the question would embarrass the
King's service, and as the intendant claimed cognizance of causes
respecting sales, agreements, and distributions of royal lands, he
resolved to submit the question to higher authority, "and to allow
no innovation until the resolution of his majesty be made
known."
The governor having partly shrunk from the contest, it is highly
probable that the intendant did assume to make the sale set forth
by the receipt, which bears date twelve days after the
Page 53 U. S. 221
governor's letter. As no authority existed in the intendant to
deal with the King's domain from 1769, when Spain first got
possession of Louisiana, up to the date of the King's order, made
in October, 1798, it is manifest that Morales had no power to sell
in September, 1797, and there is no evidence that the King
sanctioned this sale, nor can it be inferred from anything
appearing in the case. We think the contrary is apparent.
In 1797, Yriarte resided at New Orleans, and continued in this
country for ten years or more, as Blache states, and then removed
to old Spain. He resided at Madrid, when he transferred the receipt
to Moreno in 1835. Yriarte never took possession of the land
claimed, nor did he take any further step to secure the
property.
By the regulations of O'Reilly, made in 1770, and sanctioned by
the King, Yriarte was compelled, if he was owner, to make mounds or
levees in front of his land on the banks of the Mississippi, and
also to clear and ditch the whole front of the depth of two arpens
within three years from the date of his purchase, and, in default
of fulfilling these conditions, the land was to revert to the
King's domain and be granted anew. Neither could he sell until
after three years' possession, and until the above-mentioned
conditions were entirely fulfilled, and, says the third
regulation,
"To guard against every evasion in this respect, the sales of
said lands cannot be made without a written permission from the
governor general, who will not grant it, until, on strict inquiry,
it shall be found that the conditions above explained have been
duly executed."
That is to say, no sale could be made or formal title issued,
until these conditions were complied with.
The land claimed fronted on the Mississippi River for twenty
miles and more, and on the great western outlet, the Atchafalaya,
to an equal extent, and if no mounds were made, the country below
must have been overflowed every year to a ruinous extent. Levees
were indispensable; their construction was a high public policy,
and forfeiture an inevitable necessity in case of failure. These
were laws and ordinances of the government under which the claim
originated, and which the act of 1824 instructs us to observe; the
Spanish government was not bound to complete the title, but, on the
contrary, under a necessity to declare it forfeited. This is
plainly manifest. Even admitting that Morales, as intendant, had
full power to make the sale, still forfeiture was inevitable. Under
these circumstances, it is idle to assume that Morales' act of sale
received any sanction from the King of Spain, or from anyone
exercising his authority.
Embarrassed as Yriarte was with the want of power in Morales to
sell, and the stringency of O'Reilly's regulations compelling
Page 53 U. S. 222
him to occupy, clear, ditch, and levy, a necessity was imposed
on him to surrender his purchase and have his money refunded, and
there are several reasons apparent why we think he did so. In the
first place, he labored under no disability or impediment; he
remained quiet, never took possession nor asked for a survey up to
the change of flags in 1804; nor did he ask for a confirmation of
Morales' void act from the Spanish authorities. And after the
United States assumed jurisdiction, boards of commissioners almost
constantly existed before which his claim could have been
presented, and through them reported to Congress for political
action thereon; yet no step was taken and the claim slept in the
hands of Yriarte until 1835, when he sold it in Madrid, and it
first made its appearance in this country when presented to the
district court in June, 1846. When there adduced in evidence, the
receipt was cut in gashes and stained, having the appearance of a
neglected, valueless, and cancelled paper. To account for its
appearance, one Campo deposed for plaintiff, that in his opinion
the cut and dilapidated condition of the document grew out of this
fact:
"that the officers of quarantine in Spain, in order to prevent
the spreading of infectious diseases, immersed documents in
vinegar, and cut them in this manner. This was in order to make the
vinegar penetrate more easily, and this he thinks has been the case
with the document in question, and therefore its discolored and cut
appearance."
He further states, "that all the documents from Spain are cut in
like manner; that he has often seen them; he has in his possession
letters cut in the same way."
This was obviously a private receipt held by Yriarte, and
carried by him to Spain; and as the money he had paid in Louisiana
went to the Royal Treasury and was transmitted to Madrid as the
receipt shows, the fair presumption is that when the receipt was
there presented, and the money refunded, the marks of cancellation
were made by cutting the paper in gashes, as no reason can be
perceived why the holder would thus deface his own document; nor
can it be imagined why a mere sheet of paper should be thus cut to
let in an acid, if such practice prevailed, which we suppose,
however, to have no foundation in fact, as witnesses in abundance
could have been produced to support this improbable account, if it
were true that all documents, coming from Spain, are cut in like
manner and stained with vinegar.
We are called on to decide in this case according to the rules
governing a court of equity, and are bound to give due weight to
lapse of time.
The party was under no disability, and slept on his rights, as
he now claims them, for nearly fifty years, without taking a
Page 53 U. S. 223
single step. He makes no excuse for his long delay, and cannot
now get relief by having his title completed.
No case has come within our experience, where the obscurity and
antiquity of the transaction more forcibly than in the present
case, required a court of equity to bar a complainant on legal
presumptions founded on lapse of time, and where the bar should
take the place of individual belief.
The government had taken possession, and had sold out these
lands to a great extent, and was bound in good faith to protect its
vendees; that these private owners could have relied on the lapse
of time, and defeated the claim set up, is clear, and on principle,
their vendor could do so likewise.
Even had this claim been adjudged valid by this Court, still the
decree below is in part erroneous. The part referred to is as
follows:
"It is further ordered, adjudged, and decreed, that in case said
lands so claimed by said petitioner or any part or portion thereof
shall have been sold by the United States or otherwise disposed of,
said petitioner, Michael Moore shall be and is hereby authorized to
enter in any land office in the State of Louisiana, in parcels
conformable to sectional divisions and subdivisions, a like
quantity of public lands, after the same shall have been offered at
public sale."
By the act of 1824 it is provided that if it shall so happen
that the lands decreed to any complainant "shall have been sold by
the United States, or otherwise disposed of, it shall be lawful for
the party interested to enter the like quantity on other lands."
Here the decree is general against the United States, and awards to
complainant floating warrants for all lands that the United States
may have sold, or otherwise disposed of within the bounds of the
tract decreed. The act requires the names of all persons claiming
the land sued for, or any part of it, to be set forth in the
petition, and that they shall be made defendants in due form by
citation, and if the entire tract is claimed by private persons,
then they shall be sole defendants; but if the government is owner
in part, or of the whole, then this fact shall be stated, and the
attorney of the district must be served with process, and be
allowed to answer for the United States. The purpose of Congress
was first, to authorize a suit against the United States, and in
the next place, to give judicial cognizance of a description of
incipient claims having no standing in a court of justice before
the act was passed; and thirdly that the petitioner should be bound
to sue private persons, claiming the same land, so that those
having an interest, and better knowledge of facts, and more
capacity to defend, than the United States, might be drawn into the
contest. and that they should be compelled to produce their title,
so that if a
Page 53 U. S. 224
decree was made for complainant, the court could ascertain what
part of the land should be granted to him by patent; and as this
could only be done by a specific ascertainment of interfering
claims, the decree must of necessity specify their boundaries and
quantities. Nor can it stop here; it must adjudge that a warrant
shall issued, and be subject to location. This decree is not only
in general terms, but it is contingent that in case all the lands
claimed, or any part or portion of them, have been sold or
otherwise disposed of by the United States, then the petitioner
shall be authorized to enter a like quantity &c.
The district court, as we apprehend, did not proceed to adjudge
other lands as an equivalent, on the act of 1824, as it originally
stood, but on amendatory and repealing clauses found in the 8th
section of the Act of May 23, 1828, extending the law to Florida;
and especially to the 2d section of the act of 24 May, 1828, giving
further time to claimants in Missouri and Arkansas to institute
suits, both of which clauses declare that so much of the act of
1824 as requires petitioners to make adverse claimants parties to
the suit shall be, and are thereby repealed. The Act of 24 May,
1828, contains various other provisions, some of which modify, and
others repeal parts of the act of 1824.
The Act of June 17, 1844, provides that so much of the Act of
May 26, 1824, as relates to the State of Missouri is thereby
revived and reenacted, and the same jurisdiction is given to the
district courts of Arkansas, Louisiana, Alabama, and Mississippi,
as was exercised under said act in Missouri; with the exception of
that part of the act being section 14 and 15 that applied
exclusively to the Territory of Arkansas, which only allowed claims
of a league square, and under, to be adjudicated. The thirteen
previous sections stand incorporated in like manner as they would
be, if they had been copied into the act of 1844. No language to
this effect could make it plainer; any attempt to incorporate
likewise the Act of 24 May, 1828, into that of 1844, would not only
be a forced construction, but a manifest perversion. It follows
that the law as found in the thirteen first sections of the act of
1824, furnishes all authority the district court had, to proceed,
and to decree an equivalent, and that the true mode of proceeding,
according to the law as it stands, is as above stated, we suppose
to be not open to controversy.
This view of the act of 1844 was very forcibly presented to us
by the Attorney General in the case of
United
States v. Boisdore's Heirs, 11 How. 63, 77
[argument of counsel -- omitted], but as we then apprehended that
no similar irregularity might again occur, no notice was taken of
it in the opinion dismissing the cause on its merits.
Page 53 U. S. 225
Being of opinion that this cause is destitute of merits, it is
ordered that the decree of the district court be
Reversed and the petition dismissed.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court that the decree of the said district court in this cause be,
and the same is hereby, reversed and annulled, and that this cause
be and the same is hereby remanded to the said district court, with
directions to dismiss the petition of the claimants.
