Teddlie v. McNeely
| Decision Date | 01 January 1900 |
| Docket Number | 13,402 |
| Citation | 29 So. 247,104 La. 603 |
| Court | Louisiana Supreme Court |
| Parties | E. W. TEDDLIE AND J. E. DUNN v. J. H. McNEELY, ET ALS. (CONSOLIDATED.) |
Rehearing refused.
APPEAL from the Fourth Judicial District, Parish of Grant -- Machen, J..
R. J Bowman, for Plaintiffs, Appellants.
William C. Roberts, for Defendants, Appellees.
Plaintiffs, claiming to have entered under the Homestead Act at the United States land office, certain lands in Section 16, Township 6 North, Range 3 West, Parish of Grant, went upon the same with the intention of taking possession thereof.
Whereupon defendants, themselves claiming ownership and possession and alleging disturbance by plaintiffs, brought a possessory action to be maintained and quieted in their possession, and coupled with it a prayer for the writ of injunction to restrain plaintiffs.
Issue having been joined on the question of possession -- plaintiffs averring defendants to be squatters and trespassers upon the land which therefore had been public land -- judgment was rendered decreeing defendants possessors of the premises, restoring them to the possession, and perpetuating the injunction restraining plaintiffs from disturbing the same.
The terms "plaintiffs" and "defendants" refer to those occupying that relation in the present suit.
Plaintiffs then resorted to this petitory action to enforce their alleged rights of ownership and possession, and from a judgment rejecting their demands, prosecute this appeal.
The basis of plaintiffs' claim is a receipt issued by the Receiver of Public Moneys at the U.S. Land Office to E. W. Teddlie and one to J. E. Dunn, on March 1, 1898, each showing payment of homestead entry fees and describing the land entered.
It is well settled that a receiver's receipt is a sufficient muniment of title upon which to found a petitory action.
Defendants claim under a title alleged to have had its origin in 1790.
They assert that the land in controversy is part of and embraced within a certain Spanish grant which Don Estivan Miro, Spanish Governor or Captain General of the Province of Louisiana, made to Jacques Pecondom in that year.
The description of this grant was 40 arpents front by 40 arpents deep on each side of the Bayou Toreau.
This Bayou Toreau was a small stream of inconsequential length on the north side of Red river in what afterwards became the parish of Rapides -- now embraced within the limits of the parish of Grant.
The land in dispute is located very near the town of Colfax, the county seat of Grant parish, and forms part of that fine body of alluvial lands known prior to the civil war, and since, as the "Calhoun plantations". It has been in cultivation for more than sixty years.
The contention of defendants is that the grant to Pecondom was founded upon an order of survey issued by the Spanish Governor and evidenced by a complete Spanish title, and that under the terms of the treaty of cession of the Louisiana Territory in 1803 between France and the United States, the land it covered never became part of the public domain of the latter.
The further contention is that if it ever did become part of the public domain of the United States, the grant was, after investigation and report by the land officials of the Government, duly confirmed by Act of Congress.
Defendants set up as a chain of title a sale in 1818 from Pecondom to James Bowie; Bowie to Isaac Thomas; Thomas to Pamplin and Baillio; Pamplin and Baillio to William Smith; thence by descent from Smith, who died in 1840 or 1841, to his grand-daughter, Mary Smith, who became the wife of Meredith Calhoun; thence by descent to her children and heirs, William S. Calhoun and Marie Marguerite Ada Calhoun, who married George W. Lane. W. S. Calhoun's interest in his mother's succession was sold in 1882 at sheriff's sale and acquired by L. McNeely and R. S. Cameron. Then followed a partition between them and Mrs. Lane, by which a portion of the land in controversy was awarded to McNeely and Cameron. From the latter, partly by inheritance and partly by mesne conveyances, it passed to certain of defendants.
Another part of the land in controversy was still held in ownership by Isaac Thomas at his death, and it passed to his sole heir, Mrs. Hubbard Flint, who sold to J. Madison Wells, Wells to Walker and Bogan, and they to Meredith Calhoun. At the succession sale of the latter it passed to Deal about the year 1882, and from him by mesne conveyance to certain of defendants herein.
Alleging that they and those under whom they hold have for more than sixty years held uninterrupted, open, notorious possession as owners, defendants plead the prescriptions of ten and thirty years.
The position of plaintiffs is that the land sued for became part of the public domain of the United States following the acquisition of the Louisiana territory, and that it was never severed from the same until entered as homesteads by them.
They deny that the Pecondom grant was ever located upon the land, or, indeed, upon any land. Their contention is that this grant was "floated" -- script having been issued to the heirs of Pecondom in 1894 and 1897 in lieu of land in place.
They further contend that the land being part of a 16th section, it and the whole of the section pertained to the State of Louisiana as "school lands", but that the Government of the United States having disposed of most of the section at an early day and before the school selections were made, the claim of the State was satisfied by script issued in 1853 to and accepted by the State for the whole section, in lieu of the land in place, and, thus, what was left in 1898 of this particular 16th section the United States Land Department was at liberty to dispose of under the Homestead law, and they and others entered it.
It is well to concede right here that these contentions of plaintiffs are sustained by the land officials of the Government.
This brings us to the consideration of the one and only question which the case presents: --
Was the land claimed by plaintiffs public land when they entered it?
If it were, plaintiffs are entitled to a reversal of the adverse judgment of which they complain.
If it were not, the United States was without title and could convey none.
If it be true that there was a complete Spanish title which prevented the land, of which that in dispute formed a part, from falling into the public domain when the cession came, or if, supposing it did fall within the public domain, the United States has parted with the title she once had, then it would follow that the mistakes of her officers cannot make public property that which belongs to private persons. 11 La.Ann. 563; 17 La. 230; 19 La. 510; 5 R. 466.
If the Spanish grant under which defendants claim was recognized as valid by the U.S. Government, and that was done which located it upon lands in place, and part of such lands is that here sued for, it was not within the power of the General Land Office to declare vacant any portion of the same, and to permit a homestead entry upon it.
Flower vs. Duval, 11 La.Ann. 562; Tate vs. Carney, 24 How, 357.
Complete Spanish or French titles required no act of confirmation by the Government of the United States, for they needed no other protection than that offered by the 3rd article of the treaty of cession.
U.S. vs. Wiggins, 14 Pet. 350; Snyder vs. Sickles, 98 U.S. 204; Lavergne's Heirs vs. Elkins' Heirs, 17 L. 230; 40 La.Ann. 712.
A "complete" title, in this sense, was one where the terms of the granting act or concession not only sufficed to convey the land, but which so described it as to identify and locate it, or, following the inchoate grant or concession and before the cession from France, that was done in the way of a survey or act of location which identified and segregated it from the mass of other lands, and thus perfected the title. Menard's Heirs vs. Massey, 8th How. 301.
Incomplete titles required confirmation, and Congress passed the Act of the 2nd of March, 1805, to ascertain and adjust titles and claims to land in the ceded territory. 98 U.S. 204.
This was followed by other Acts of Congress upon the same subject matter -- those with which we are presently concerned being the Act approved May 11, 1820, entitled "An Act supplementary to the several Acts for the adjustment of Land Claims in the State of Louisiana", and another approved February 28, 1823, bearing the same title.
"Incomplete" titles, in this sense, were those where, while the terms of the granting act or concession sufficed to convey lands, or sufficed to evidence a present intention and purpose to convey lands, yet did not describe the particular land granted so as to identify and locate it, and no survey or act of location had yet (prior to the cession) been made.
In other words, an incomplete title was one where the grant or concession, or order of survey, had been made, but the actual identification or location of the land had not taken place; where something had yet to be done to distinguish and segregate the land intended to be granted from the mass of other lands, and thus perfect the title. 8 How. 301.
The evidence, in our view, does not establish that Jacques Pecondom, at the date of the treaty of cession, held a complete Spanish grant.
But he did hold a grant or concession founded on an order of survey signed and executed in his favor by the Spanish Governor on March 24, 1790, which concession called for forty arpents front of land on each side of the Bayou Toreau, by the depth of forty arpents, equal to 3200 arpents, or 2708 American acres.
This description did not sufficiently identify the land to constitute its definite location and by the...
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