In Louisiana, all the evidence taken in the court below goes up
to the supreme court, which decides questions of fact as well as of
law. In the absence of bills of exceptions, setting forth the
points of law decided in the case, this Court must look to the
opinion of the state court, made a part of the record by law, in
order to see whether or not any question has been decided there
which would give this Court appellate jurisdiction, under the
twenty-fifth section of the Judiciary Act.
A claim to land in Louisiana was presented to the commissioner
appointed under the Act of 1812, 2 Stat. 713, reported favorably
upon by him to Congress,
Page 60 U. S. 203
and confirmed by the Act of 1819, 3 Stat. 628. But it did not
appear that this claim had been surveyed, or that it had any
definite boundaries.
In 1820, the register and receiver gave to the claimant a
certificate that he was entitled to a patent, but without saying
how it was to be located.
In 1822, Congress passed an Act, 3 Stat. 707, giving to the
registers and receivers power to direct the location and manner of
surveying the claims to land confirmed by the act of 1819.
In 1826, the register and receiver ordered the claim to be
surveyed, speaking of it, however, as being derived from an
original claimant, different from the person who was mentioned as
the original claimant in the certificate of 1820.
The act of 1822 was remedial, and this difference was
immaterial.
When the survey was executed according to that order, it gave a
prima facie title, and the United States were bound by it
until it was set aside at the General Land Office. The Supreme
Court of Louisiana were in error when they decided that it gave no
title, and this Court has jurisdiction, under the twenty-fifth
section of the Judiciary Act, to review that judgment.
But until the survey was made and approved, the United States
could sell the land, and a purchase of a part of it must stand
good.
As this case will probably be much referred to hereafter as
settling some general principles of great importance, it may be
well to state in this report the precise nature of the certificates
of confirmation and order of survey.
Under the Act of Congress of April 25, 1812, 2 Stat. 713, Cousin
presented a donation claim to the commissioners appointed under
that act. On the 2d of January, 1816, the commissioners reported as
follows upon this claim, calling it No. 255, and placing it in
class B.
See American State Papers, Public Lands, vol. 3,
56.
image:a
Page 60 U. S. 204
It will be observed that the name of the original claimant is
here said to have been Stephen Rene. No survey or location of the
land was made under this certificate.
In 1819, Congress passed an Act, 3 Stat. 528, confirming this
claim amongst many others, and on the 8th of June, 1820, the
register and receiver gave to Cousin the following certificate:
"
[Certificate of Confirmation]"
"
Commissioner's Report, Letter B, Certificate No.
178"
"LAND OFFICE, ST. HELENA"
"In pursuance of the Act of Congress passed the 3d of March,
1819, entitled 'An act for adjusting the claims to land, and
establishing land offices for the district east of the island of
New Orleans,' we certify that claim No. 255, in the report of the
commissioner marked B, claimed by Francis Cousin, original
claimant, Stephen Rene, is confirmed as a donation, and entitled to
a patent for one thousand arpens, situated in St. Tammany and
claimed under an order of survey dated 10 September, 1798."
"Given under our hands, this 8th day of June, 1820."
"Attest: [Signed] CHARLES S. COSBY,
Register"
"F. HERAULT,
Clerk"
"FULWER SKIPWITH,
Receiver"
It will be observed that the name of the original claimant is
here mentioned as Stephen Rene, and there is no mode of survey
pointed out, the original order of survey not being produced.
In 1822, Congress passed an Act, 3 Stat. 707, giving to the
registers and receivers power to direct the location and manner of
surveying the claims to land confirmed by the act of 1819.
On the 21st of September, 1826, the register and receiver gave
to Cousin the following order of survey:
"
[Order of Survey]"
"
LAND OFFICE, ST. HELENA"
"
Francis Cousin, Certificate No. 178"
"
Dated June 8, 1820"
"ST. TAMMANY, Sept. 21, 1826"
"Francis Cousin claims a tract of one thousand arpens of land,
situate in the Parish of St. Tammany, as purchaser from his father,
Francis Cousin, deceased, who bought it from Louis Blanc, who
bought it from the original owner, Gabriel Bertrand, and in virtue
of certificate No. 178, dated 8 June, 1820, and signed Charles S.
Cosby, register, and Fulwer Skipwith,
Page 60 U. S. 205
receiver, in which certificate it is alleged by this claimant
that it is erroneously set forth that Stephen Rene was the original
claimant, it appearing that this tract of land is fronting on Bayou
la Liberte, bounded below by the tract of land of Mr. Girod, and
above by a tract of land belonging to claimant."
"It is ordered that this claim be located and surveyed with a
front extending on said bayou, from the land of said Girod to that
of claimant above, and from these points on the bayou to run back
for quantity."
"Given under our hands, this 21st day of September, 1826."
"[Signed] SAMUEL J. RANNELLS,
Register"
"WILL KINCHEN,
Receiver"
The difference between this certificate and the other as
respects the derivation of title will be manifest upon comparing
the two.
Upon this subject, the Supreme Court of Louisiana made the
following remarks:
"The counsel for plaintiff also objects to the certificate of 8
June, 1820, on account of the vagueness of description of the land
donated. We consider this objection to be well founded. The
description is, 'One thousand arpens, situated in St. Tammany.' It
is plainly impossible to locate land by such a description as this.
And when such is the case, the grant can produce no effect. 16 Pet.
United States v. Miranda; 10 How.
Villalobos v.
U.S.; 15 Pet.
United States v. Delestine; 11 How.;
Lecompte v. U.S.; 5 Ann.
Ledoux v. Black."
"It is proper here to mention that the order of survey of 10th
September, 1798, mentioned in the certificate, is not produced,
although formally called for by the opposite party. Had such an
order of survey ever been given in evidence before the commissioner
of land claims, it would have been recorded in the archives of the
land office.
See acts of Congress of 1812 and 1819, above
quoted."
"But no such record appears."
"It was probably a consciousness of this defect in his title
which induced the defendant's ancestor to procure from Rannells and
Kinchen, the successors of Cosby and Skipwith in the office of
register and receiver of the land office at St. Helena, the order
of location and survey of the 21st September, 1826, which the
defendants offer in evidence."
"This paper sets out by declaring that the first certificate had
erroneously stated the origin of defendant's title, gives another
and totally different origin to the same as the correct one and
orders a survey to be made, and the defendant's donation to be
located on the Bayou Liberte, between the lands
Page 60 U. S. 206
of certain proprietors named. The survey of Vanzandt was made in
conformity to this order."
"We view the amended certificate of the 21st September, 1826,
and the survey under it, as nullities. For the certificate of Cosby
and Skipwith followed strictly the report of the commissioner of
land claims, confirmed by the Act of Congress of 3 March, 1819.
Therefore, in correcting that certificate, Rannells and Kinchen
took upon themselves to correct the report of the commissioner of
land claims and to make the act of Congress apply to a claim which
was not mentioned in that report, and which was consequently never
before Congress."
"The supreme court of this state, in the case of
Newport v.
Cooper, 10 La., decided that the register and receiver of the
land office at St. Helena were without power, by law, to reverse
and annul a certificate granted by their predecessors. By parity of
reasoning, are they without power to make amendments in such a
certificate which falsify the act of Congress on which the first
certificate was based? If the claimant could not locate the land
claimed by him under his claim as presented to the commissioner of
land claims and reported to Congress, that was a misfortune which
the land officers at St. Helena had no power to remedy by
fabricating for him a new claim seven years after the action of
Congress upon the report."
Under the order of September 21, 1826, Vanzandt made a survey in
1845, which was one of the evidences of Cousin's title.
The history of the case in the state courts of Louisiana is
given in the opinion of this Court.
MR. JUSTICE CATRON delivered the opinion of the Court.
Evariste Blanc sued Terence Cousin, in the Eighth District Court
of Louisiana, invoking the aid of that court to settle a disputed
boundary between the plaintiff and defendant.
Cousin, instead of responding to the action, for the purpose of
settling boundary, filed an answer denying Blanc's title to the
property described in his petition and setting up title in himself
and claiming damages against Blanc, who joined issue on the answer
and denied the validity of the title asserted by Cousin. This
turned Cousin into a plaintiff, as the state courts held, and
imposed on him the burden of proof to support his title. It was
adjudged in the district court, on the documents presented by
Cousin, that he had no title whatever to any part of the land in
dispute, and so the Supreme
Page 60 U. S. 207
Court of Louisiana held on an appeal to that court, where the
cause was reheard.
Pending the appeal, Blanc died and his widow and heirs were made
parties. They prayed the benefit of the judgment of the court
below, and also that it might be so amended by the supreme court as
to give them the benefit of all that Blanc claimed in his petition
-- that is to say 222.80 acres, according to certificate No. 1,280,
showing a regular purchase from the United States, together with
1,240 arpens in superficies, according to a plan annexed to the
original petition of Blanc, that they might be quieted in the
possession thereof as owners, and that the 1,240 arpens may be
bounded according to the plan. And to this effect the court gave
judgment.
The laws of Congress and the acts of the officers executing them
in perfecting titles to public lands have been drawn in question
and construed by the decision of the Supreme Court of Louisiana in
this case, and the decision being against the title set up by
Cousin under the acts of Congress and the authority exercised under
them, it follows that jurisdiction is vested in this Court by the
25th section of the Judiciary Act to examine the judgment of the
state court and, in doing so, we refer to the opinion of that
court, which is made part of the record by the laws of Louisiana
and is explanatory to the judgment, of which it is there deemed an
essential part. We refer to the opinion in order to show that
questions did arise and were decided, as required to give this
Court jurisdiction.
50 U. S. 9 How. 9.
This is necessarily so in cases brought here by writ of error to
the courts of Louisiana, because no bill of exceptions is necessary
there when appeals are prosecuted. The court of last resort acts on
the law and facts as presented by the whole record.
By relying on this source of information as to what questions
were raised and were decided by the state court, we are relieved
from all difficulty in this instance.
Cousin's claim is assumed to have originated in a Spanish order
of survey laid before the proper commissioner appointed under the
Act of April 25, 1812, whose duty it was to receive notices and
evidences of claims, which were ordered to be recorded by the
commissioner. It was made the duty of the commissioner to report to
the Secretary of the Treasury upon claims and the evidences thereof
thus notified to him, which report the act directed should be laid
before Congress by the Secretary.
In January, 1816, the report was transmitted by him to Congress.
By the Act of March 3d, 1819, Congress legislated in regard to the
claims reported. By that act, two land
Page 60 U. S. 208
districts were established east of the Island of New Orleans,
and a register and receiver were provided for each.
The books of the former commissioners, in which the claims and
evidences of claims were recorded, were directed to be lodged with
the register; and the register and receiver were vested with power
"to examine the claims recognized, confirmed, or provided to be
granted," by the provisions of that act; they were instructed to
make out, for each claimant entitled in their opinion thereto, a
certificate according to the nature of the case, pursuant to the
instructions of the Commissioner of the General Land Office, and on
the presentation at that office of such certificate, a patent was
ordered to be issued. Francis Cousin's claim was within the above
description.
As no provision was made by the act of 1819, vesting authority
in the register and receiver to direct in what manner confirmed
claims should be located and surveyed, it was (sec. 11) left to the
deputies of the principal surveyor south of Tennessee to find the
lands and survey them according to their own judgment. Then again,
the surveyors had no authority to adjust conflicting boundaries,
and therefore further legislation was deemed necessary, and
accordingly the Act of June 8, 1822, was passed by Congress, giving
the registers and receivers power to direct the manner in which
claims should be located and surveyed (sec. 4), and power was also
given to them to decide between parties whose claims
conflicted.
In June, 1820, the register and receiver gave Cousin a
certificate of confirmation under the act of 1819. They certify
"That claim No. 255 in the report of the commissioner, marked B,
claimed by Francis Cousin, original claimant Stephen Rene, is
confirmed as a donation, and entitled to a patent for one thousand
arpens, situated in St. Tammany and claimed under an order of
survey dated 10th September, 1798."
No Spanish survey was found to aid the foregoing
description.
In 1826, the register and receiver made an order of survey as
follows:
"
Land Office, St. Helena"
"
FRANCIS COUSIN, CERTIFICATE NO. 178, DATED JUNE 8,
1820"
"Francis Cousin claims a tract of one thousand arpens of land,
situate in the Parish of St. Tammany, as purchaser from his father,
Francis Cousin, deceased, who bought it from Louis Blanc, who
bought it from the original owner, Gabriel Bertrand, and in virtue
of certificate No. 178, dated 8th June, 1820, and signed Charles S.
Cosby, register, and Fulwer Skipwith, receiver, in which
certificate it is alleged by this claimant that it is erroneously
set forth that Stephen Rene was the original claimant; it appearing
that this tract of land is fronting
Page 60 U. S. 209
on Bayou la Liberte, bounded below by the tract of land of Mr.
Girod, and above by a tract of land belonging to claimant."
"It is ordered that this claim be located and surveyed with a
front extending on said bayou from the land of said Girod to that
of claimant above, and from these points on the bayou to run back
for quantity."
The Supreme Court of Louisiana held the certificate of 1820 so
vague as not to be of any value, and pronounced it void.
Furthermore, that the second one of 1826 departed from the
confirmation, and was also invalid. The first purported to be for
land derived from Stephen Rene, as original claimant, and the
second for land of which Gabriel Bertrand was the original
owner.
The act of 1822 is a supplement to the act of 1819; when taken
together, they gave the register and receiver authority to declare
what land had been confirmed and how it should be surveyed. Now if
it be true, as is held by the state court, that the certificate of
1820 is so vague as to be of no value and void, then it follows
that another could be made in 1826 which would be certain in its
description of the land confirmed, accompanied by an order of
survey. Whether Rene or Bertrand once claimed the land is
immaterial. The confirmation is an incipient United States title,
conferred on Cousin, which our government, in its political
capacity, reserved to itself the power to locate by survey, and to
grant by the acts of its executive officers, with which acts the
courts of justice have no jurisdiction to interfere.
57 U. S. 16
How. 403,
57 U. S.
414.
It rested with the register and receiver to ascertain the
location of the land confirmed to Cousin, from the evidences of
claim recorded and filed with the register, and having decided
where and how the land should be located and surveyed, the courts
of justice cannot reverse that decision; the power of revision is
vested in the Commissioner of the General Land Office.
It is proper here to say we do not hold that the certificate of
1820 was void because it was too vague to authorize a survey of the
land. It established the fact that Cousin's claim was one of those
described in the act of 1819, which had been confirmed. The act of
1822 was remedial; its main object was to confer power on the
register and receiver to amend vague descriptions -- so vague that
patents could not issue on them, as required by the act of
1819.
The amendment was effectually made in this instance by the order
of survey of 1826, and when the survey was executed according to
that order, the United States government
Page 60 U. S. 210
was bound by it until it was set aside at the General Land
Office.
The Act of March 3, 1831, authorized a Surveyor General to be
appointed for the State of Louisiana, whose duty it was to cause
confirmed claims to be surveyed, and the registers and receivers
were again empowered (sec. 6) to decide in cases of contested
boundaries, and consequently to control the surveys. On the 22d of
December, 1846, the official survey, accompanied by a plat of the
claim of Francis Cousin, was approved at the Surveyor General's
office. This is known as Vanzandt's survey, and is the one relied
on by Cousin in his defense. A copy thereof, duly certified as a
record of the Surveyor General's office, is found in the record,
and which copy the act of 1831 sec. 5 declares shall be admitted as
evidence in the courts of justice.
The act of 1831 (sec. 6) further declares as respects
interfering claims
"That the decisions of the register and receiver, and the
surveys and patents that may be issued in conformity thereto, shall
not in any wise be considered as precluding a legal investigation
and decision by the proper judicial tribunals between the parties
to any such interfering claims, but shall only operate as a
relinquishment on the part of the United States of all title to the
land in question."
The foregoing reservation applies here; Cousin's survey extended
in depth from Bayou Liberte so as to include 222.80 acres of land,
which had been purchased of the United States by Francis Alpuente,
and on the 4th of March, 1844, before Cousin's survey was made,
duly conveyed to the plaintiff, Blanc, as part of the succession of
Alpuente.
Title to this land is claimed by Cousin by force of his
confirmation, rendered certain by his survey of 1846, and which
claim was rejected by the Supreme Court of Louisiana, when they
rejected Cousin's title as set up.
We are of opinion that Cousin's title had no standing in a court
of justice until the land was surveyed and the survey approved as a
proper one at the Surveyor General's office, and that therefore the
United States could lawfully sell the land and give title to
Alpuente.
49 U. S. 8 How.
306. The mere loose order of survey, made in 1826 by the register
and receiver, cannot be recognized in this case as conferring any
vested interest, as against Alpuente, to the 222.80 acres purchased
by him, and to this extent the decision of the Supreme Court of
Louisiana is proper. But as respects all other parts of Cousin's
survey, it furnishes
prima facie evidence of title in him,
subject to be contested by the opposing title of Blanc, if he has
any by prescription or otherwise.
Page 60 U. S. 211
We order that the judgment be reversed and the cause
remanded to the Supreme Court of Louisiana, to be further proceeded
in.
