John McDonogh, Plaintiff In Error v. Laurent Millaudon and Others, Defendants

Citation3 How. 693,11 L.Ed. 787,44 U.S. 693
PartiesJOHN MCDONOGH, PLAINTIFF IN ERROR, v. LAURENT MILLAUDON AND OTHERS, DEFENDANTS
Decision Date01 January 1845
CourtUnited States Supreme Court

THIS case was brought up by writ of error, under the 25th section of the Judiciary Act, from the Supreme Court of the state of Louisiana.

The decision of this court being against its jurisdiction, it seems best to give the opinion of the Supreme Court of Louisiana, as the facts in the case and the points decided by that court are stated with great clearness.

'Supreme Court of the state of Louisiana.

'The court met, Monday, April 26th, 1841.

'Present, their honors Henry A. Bullard, A. Morphy, E. Simon, and Rice Garland. His honor Judge Martin is absent on account of indisposition.

'Laurent Millaudon et al., appellees,

v.

John McDonogh, appellant.

Appeal from the District Court for the First Judicial District.

'The plaintiffs (Millaudon and others, who were plaintiffs in the original action) allege that they, with Henry T. Williams and Charles F. Zimpel, purchased a large tract of land of A. F. Rightor, being a portion of a claim or grant generally known as the Houmas, in the parish of Ascension. They took possession with the intention of dividing it into smaller tracts and selling them at auction, to effect a partition; but were prevented from doing so by the acts and conduct of the defendant, who publicly declared that he was the owner of a large portion of the land, and slandered their title. They say they have requested him to desist his slanders, or to bring suit to assert his title, which he declines. They pray that he be compelled to set forth his title, if he has any, and if he fail to do so that they be quieted in their possession against his claims and pretensions; that he be enjoined and ordered to desist therefrom; and, further, that they have judgment for the fifty thousand dollars damages for the tortious acts of the said defendant.

'The defendant pleads a general denial; then specially that the plaintiffs have no title; he further avers he is the true and lawful owner of the land by good and sufficient titles, and concludes by a demand in reconvention, in which he prays the plaintiffs may be cited to answer; that they be compelled to produce and exhibit their titles, and that he be quieted and maintained in his possession of the land.

'The plaintiffs, for answer to this reconvention demand, plead the general issue, and called on A. F. Rightor, as their warrantor, to maintain and defend their title against that of McDonogh. Rightor answers the call in warranty by a plea of the general issue; secondly, that the plaintiffs are not entitled to the remedies against him, which they claim; thirdly, that they had a perfect knowledge of the character and extent of the defendant's claim when they purchased, and, therefore, have no right to call on him as warrantor. He further says, the plaintiffs have a good and sufficient title; that McDonogh has none at all; and if he has, he is bound to sue the plaintiffs to establish it, or abandon his claim. He prays that McDonogh be compelled to exhibit his title; that it be rejected; and he concurs in the prayer of the plaintiffs against him, (McDonogh.)

'It is further prayed that the cause be tried by a jury; but, subsequently, the parties agreed to submit the question of titles to the court, reserving the damages to a trial before the jury.

'The issues in this case are somewhat complicated; it has been argued at great length and with eminent ability. A variety of questions have been raised by bills of exceptions, which, with the evidence, have swelled the record to a great size; and both plaintiffs and defendant evidently desire the court to go much farther into an investigation of, and decision upon, their respective titles, than is necessary for the settlement of the controversy between them. We think we can see difficulties enough likely to arise out of both these claims, in which persons not now before us may be interested. We shall not anticipate the points that may hereafter be made, and will now only decide what is indispensable to the adjustment of the difficulty between the parties before us.

'The first question is, upon which party lies the burden of proof as to the title of the land. The defendant says, it rests upon his adversaries and their warrantor. We think differently. The reasons given by the district judge, in his judgment, have not been refuted, and are, in our opinion, unanswerable. He says, the demand of the plaintiffs in their original petition does not constitute a petitory action. It is destitute of the first requisite of that action, not being brought against a party alleged to be in possession. Code of Pract., art. 43. On the contrary, the plaintiffs allege they were in possession, and are disquieted and prevented from making a legitimate use and profit out of their possession and title, by the words and acts of the defendant; for which cause they ask for damages, and that he be enjoined from setting up any claim for the future, unless he do it at once, either in the present action or by another suit. It is true, the defendant says he is in possession also; and had he rested his case upon that allegation, it is possible the question would have been limited to that inquiry, according to art. 49 of the Code of Practice. But the defendant has gone further; without excepting to the form of the action, he comes up to the mark, sets up title in himself, and institutes a reconventional demand, asking that the property be adjudged to him. This reconventional or cross action, which is by the Code of Practice consolidated with the principal or original suit, is clearly petitory, and imposes on McDonogh the obligation of making the proof requisite to sustain his demand. So fully does this seem to have been understood by the parties originally, that all the subsequent proceedings are in accordance with the idea of the original defendant having become pro hac vice the plaintiff. The plaintiffs cite their vendor, Rightor, in warranty to defend their title, according to Code of Practice, article 379, et sequitur. Every provision of that code assumes that the warrantor is a defendant in the issue.

'There are various decisions of this court, and we hold it well settled, that the last warrantor is the real defendant in a suit against his vendees—not only against the party who cites him, but more particularly against the original actor. That person in the present suit, so far as Rightor is concerned, both in substance and form, is McDonogh, whose pretensions he is called upon by his vendees to resist. This question has been heretofore decided by this court, in 9 Mart. (La.), 556, and 11 La., 188; and we see no reason for changing the precedents.

'McDonogh, holding the affirmative of the issue, offered in evidence a certified copy from the register or record of complete grants in the Land-office in New Orleans, by which it appeared that on the 3d of April, 1769, the French governor of Louisiana granted to Pierre Joseph Delille Dupard, pere, a tract of land having thirty arpens front on the Mississippi river, with all the depth which might be found to Lake Maurepas, of the land where formerly stood two villages of the Collapissa Indians, situated about sixteen leagues above the city, on the same side; to take from the plantation of a person named _____ Allemand, and join that of a free mulatto named Joseph Lacomb. The usual stipulations and reservations are made in this grant. To its reception in evidence various objections were made, which were overruled, and bills of exceptions taken by Rightor, and the grant attached after it was received as being a nullity on various grounds. It is not necessary in the present case to decide any of these questions.

'The counsel for Rightor, on whom devolved the whole defence of this case, (the plaintiffs not appearing at all, further than to join issue with McDonogh,) insists that, supposing the grant to Delille Dupard to be genuine, given by competent authority, and all the rights of the grantee vested in his opponent, (all of which he specially denies, however,) that then this action cannot be maintained; because, he says, it being for a certain front and depth, and it not being specified that the lines are to open or close in any manner, it must be located by parallel lines; and the evidence shows conclusively that, if so located, it will not touch any portion of the land claimed by the plaintiffs. But the counsel for McDonogh insist, the lines should open upwards of twenty degrees, and endeavor to prove that it has been located, and should so continue, as to let the lower line touch the western shore of Lake Maurepas, and the upper running westerly strike the Amite river at a distance of about nineteen miles from the Mississippi, and nearly that distance from the point where the lower line touches the lake. Nothing is said in the grant about the Amite river, nor is it shown that the lines should open in this manner, so as to include the sites of the two Indian villages mentioned in it. If this location were to be sanctioned, the Dupard claim would cover somewhere about one hundred thousand arpens of land.

'To sustain their position, the counsel for McDonogh insist strenuously on what they call a plat made by Don Carlos Trudeau, in 1790, which they say indicates the partition of the tract among the heirs and legal representatives of Delille Dupard, as on it it is said the lines open in the rear as claimed. This document was objected to as evidence by the counsel of Rightor, but received by the court, with the exception of a written memorandum upon it, and a bill of exception taken, which we consider it unnecessary to decide on, as we think the paper does not prove what is alleged, nor is it entitled to any weight as evidence. It is neither a survey, or plat, or a copy properly authenticated, showing how the partition was made. On the face, it is apparent a...

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