Albritton v. Shaw, 23927

• Court: Louisiana Supreme Court
• Writing for the Court: O'NIELL, J.
• Citation: 87 So. 32,148 La. 427
• Decision Date: 12 November 1920
• Docket Number: 23927
• Parties: ALBRITTON v. SHAW

87 So. 32

148 La. 427

ALBRITTON
v.
SHAW

No. 23927

Supreme Court of Louisiana

November 12, 1920

Rehearing Denied January 14, 1921

Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.

Petitory action by A. R. Albritton against George T. Shaw. Judgment for defendant, and plaintiff appeals.

Affirmed.

Cross & Moyse, of Baton Rouge, for appellant.

Blanchard, Goldstein & Walker, of Shreveport, McEachern & Applebaum, of Homer, and Thigpen & Herold, of Shreveport, for appellee.

O'NIELL, J. PROVOSTY and SOMMERVILLE, JJ., dissent.

OPINION [87 So. 33]

[148 La. 429] O'NIELL, J.

Plaintiff appeals from a judgment rejecting his demand, in a petitory action, for a tract of land in the defendant's possession. The land is described as the N. E. 1/4 of N. E. 1/4 of section 25, in township 21 N., range 8 W., containing 40.37 acres. Being in the Claiborne oil field, the land had suddenly become very valuable when plaintiff obtained a patent for it from the state. He claims title under this patent, dated the 1st of February, 1919, and claims that the state acquired title by the swamp land grant of 1849. Defendant claims title by mesne conveyances from Thomas J. Harvey, who received a certificate of entry from the United States on the 17th of December, 1850. No patent was ever issued by the United States in pursuance of Harvey's certificate of entry. But he went into possession of the land and began cultivating it soon after purchasing it, and it has remained in cultivation continuously, by Harvey and in turn by those who acquired title from him, from the time of Harvey's purchase until the trial of this suit.

The land in question was selected by the state's agent, for approval under the swamp land grant, on the 8th of November, 1850, and was reported by the United States Surveyor General on the 7th of December, 1850; that is, 10 days before Harvey got his certificate of entry. But the state's selection was not approved by the Secretary of the Interior until the 6th of May, 1852; that is, more than four months after Harvey had obtained his certificate of entry. Harvey's [148 La. 430] entry was canceled by order of the Commissioner of the General Land Office, on the 9th of May, 1899, after sending notice by registered letter addressed to Harvey's last known post office, which notice was not received by Harvey or his transferee, but was returned to the Land Office.

Under these facts, which are not disputed, defendant urges several defenses, in the alternative and in their order, as follows:

(1) That the land was not conveyed to the state by the swamp land grant of the 2d of March, 1849, and was therefore subject to sale by the United States on the 17th of December, 1850, when Thomas J. Harvey purchased and paid for it and received the final certificate, giving him the absolute right to a patent for the land, and that therefore the subsequent approval to the state did not divest the title which had been acquired by Thomas J. Harvey.

(2) That the order of the Commissioner of the General Land Office, of date the 9th of May, 1899, purporting to cancel Harvey's entry, was null and of no effect against the title held by Harvey's transferee, for two reasons: First, because the United States Land Department was without jurisdiction over the land after it had been sold to Harvey and thereafter approved to the state; and, second, because, even if the land department had had jurisdiction, the cancellation without notice to the owner of the land was without due process of law.

(3) That, if the approval to the state was originally valid, it was annulled by the act of Congress approved March 2, 1855 (Comp. St. §§ 4961, 4962, 6799 [43]), entitled "An act for the relief of purchasers and locators of swamp and overflowed lands," and by the act of Congress approved March 3, 1857 (Comp. St. § 4963), on the same subject, and by the Act No. 75 of 1904 of the General Assembly of this state, accepting and acquiescing in the aforesaid acts of Congress.

[148 La. 431] (4) That the state patent held by plaintiff was issued in violation of a prohibitory law of this state and was therefore absolutely null.

(5) That, if the state patent was not null, it [87 So. 34] was issued subject to the preference right afforded to defendant by the Act No. 21 of 1886, for having possessed and improved and cultivated the land.

Before considering or passing upon the merits of the title under which defendant holds possession of the land, we must determine whether plaintiff has exhibited a valid patent from the state; for, if the register of the state land office was prohibited by law, or was without authority, to issue the patent, it is null, and the state alone has an interest in ousting the defendant as possessor of this land.

But, before passing upon the question of validity of plaintiff's patent, we must consider and determine the question raised by plaintiff's counsel, whether the defendant should be permitted to plead the nullity of the state patent.

Plaintiff's counsel invoke the rule that a land patent, signed and issued by the officers who had authority to issue it, and in due form, is conclusive evidence of the transfer of title, and its validity cannot be questioned in an action at law. But the essential element of that rule is the supposed authority of the officers who signed it to issue the patent. The two prerequisites of the right of an individual to attack the validity of a land patent are: First, that the individual making the attack had an equitable title or an inceptive right upon the land, antedating the issuance of the patent; and, second, that the attack is aimed at the jurisdiction or legal authority of the officers of the land department to issue the patent.

Of course, a mere trespasser, or possessor who has no other evidence of title than his occupancy of the land, is without [148 La. 432] authority to question the validity of a patent for the land, in due form and signed by the proper officers. See Delta Duck Club v. Barrios, 135 La. 357, 65 So. 489. Nor can a person who had no equitable right previous to the issuance of a patent to some one else acquire the right to attack the validity of the patent by offering to purchase from the land department the land already conveyed by the patent. See Smith v. Crandall, 118 La. 1052, 43 So. 699; J. W. Frellsen & Co. v. Crandell, 120 La. 712, 45 So. 558; Bowman-Hicks Lumber Co. v. Industrial Lumber Co., 127 La. 1057, 54 So. 349. See, also, Chauvin v. Louisiana Oyster Commission, 121 La. 10, 46 So. 38.

But a person who had an equitable title at the time when the register of the land office issued a patent to some one else for the land -- a person who might be adjudged the owner of the land if the officers of the land department were without authority to issue a patent for it to any one else -- surely has an interest in attacking, and therefore a right to attack, the validity of the patent, on the ground that the officers of the land department had no legal authority to issue it. See State ex rel. Board of Commissioners v. Grace, Register of the State Land Office, 145 La. 962, 83 So. 206, in which all previous rulings upon this subject are reviewed and reconciled.

On the general rule, that a person who has an equitable interest in the question of validity of a land patent that has been issued to some one else may raise the question of jurisdiction or legal authority of the officers of the land department who issued the patent, the jurisprudence of the Supreme Court of the United States, and of this court, is in perfect harmony. Some of the decisions on this subject, both by the Supreme Court of the United States and by this court, would be pertinent to the question whether the defendant in this suit should be decreed the [148 La. 433] owner of the land in contest, even though the state patent held by the plaintiff should not be decreed null. But we are not now concerned with the question whether the defendant might be adjudged the owner of this land, in an action brought by the state, if the officers of the land department were without authority to issue the patent to the plaintiff. It is sufficient, to permit the defendant, in possession of this land, to plead the nullity of plaintiff's patent, that defendant had an equitable title of sufficient importance to entitle him to demand that a suit to oust him shall be brought by one who can be adjudged the owner of the land if defendant himself should not be adjudged the owner. We will review the decisions on this subject merely to demonstrate that, in our opinion, the possession which the defendant and his authors have enjoyed for nearly seventy years is founded upon a claim of sufficient equity to demand that it shall be respected by any and every person except one who could be adjudged the owner of the land if the defendant should not be adjudged the owner of it.

In Landry v. Gautreau, 1 Rob. 372, the plaintiff acquired a patent, under an act of Congress giving to the proprietor of any tract of land fronting on a stream the preference of entering any vacant land of the same area, in the rear of and adjoining his front tract. The defendant held possession of the rear tract, at the time the patent issued to the plaintiff, and afterwards applied to the land office to purchase the rear tract under the pre-emption law. His application was granted and a receipt was issued for the price which he paid. The court maintained the defendant's right to plead the nullity of the plaintiff's patent, and adjudged it null and of no effect.

In Kittridge v. Breaud, which was before this court twice, 2 Rob. 40, and 4 Rob. 79, 39 Am. Dec. 512, it was said:

[148 La. 434] "In a contest between parties claiming lands sold by the United States, the courts of this [87 So. 35] state, whose powers are not limited by any distinction between law and equity, will look to the...