United States v. King

delivered the -opinion of the court.

This case is one of much interest to the parties concerned, and to the public.

The. peculiar practice of Louisiana, which has been adopted in the Circuit Court for that District, has produced some embarrassment in this case. According to the laws of that State, unless one of the parties demurs on trial by jury, the court decides the fact as well as the law; and if the judgment is removed to a higher court for revision, the decision upon the fact as well as the law is open for examination in the appellate court. The record transmitted to the Superior Court, therefore, in the. State practice, necessarily contains all the evidence offered in the inferior court. And as there is no distinction between courts of law and courts of equity, the legal and equitable rights of the parties are tried and decided in the same proceeding.

In the courts of the United States, however, the distinction between courts of law and of equity is preserved in Louisiana as well as in the other States. And the removal of the case from the Circuit Court to this court is regulated by act of Congress, and not by the practice of Louisiana; and the writ of error, by which alone a case can be removed from a Circuit Court when sitting as a court of law, brings up for revision here nothing but questions of law; and if the case has been tried according to the Louisiana practice, without the intervention of a jury, the decisions of the Circuit Court upon questions of fact are as conclusive as if they had been found by the jury.

When this case was tried in the Circuit Court, neither party demanded a jury, and- the questions of fact which arose-in. it were .decided by the court. The record transmitted on. the writ of error set forth all the evidence, as is usual in appeals in the State 'courts; and it appeared that the authenticity of one ' of the instruments, under which the defendants in error claimed title, was disputed, and the conflicting evidence upon that subject stated in the record. The Circuit Court decided that the paper was authentic, and executed at the time it bore date. This question was fully .argued here, as will appear by the re

It has been again argued at the present term ; and the case as it appears upon the record is this.

It. is a petitory action, brought and proceeded in in the Circuit Court, according to the Louisiana State practice. The suit is brought by the United States against Richard King, one of the defendants in error, for a parcel of land lying in that State, and described in the petition. King answered, admitting that he was in possession of the .land, and claiming title to it under a conveyance with warranty from Daniel W. Coxe, the othe’r defendant; and prayed that he might be cited to appear ■ and defend the suit.. On the same -day, Coxe appeared and answered, and alleged' in his defence, that the land sued for was part of a large tract of land which had been granted'by the ■Baron deCarondelet to the Marquis de Maison Rouge, by an instrument of writing, dated June 20th, 1797, which he sets out at large in his answer; and by sundry intermediate conveyances, be deduces a title from Maison Rouge to himself for three fourths of the entire tract. He insists that the instrument of writing executed- by the Baron de Carondelet was a complete grant conveying to the Marquis de Maison Rouge an indéfeasi- - ble title to the land therein mentioned, and -that, from the date of the said instrument, it ceased to be a part óf the royal domain, and became the private property of. the said Maison Rouge. He also avers that this grant was made in-consideration of services rendered by Maison Rouge in settling thirty

Upon this issue the partiés proceeded to take testimony, which is set out in full in the record. A great part of it is immaterial, an'd much of it relates to questions of fact which were disputed in the Circuit Court. This mode of making up the record, which is borrowed from the State practicej is irregular, and unnecessarily enhances the costs when a case comes up on writ of error. In cases where there is no jury, the facts, as decided by the court, ought regularly to be stated, and inserted in the record, ,provided the parties cannot agree on a statement. This is most usually done by the court in pronouncing its judgment. In this case, there is a statement by the judge who decided- the case, containing his opinion both on the facts and the law, and which is -attached to the record, and has been sent up with it. But this opinion appears to have been filed, not only after the suit had been ended by a final judgment, "but after a writ of error had been served removing the case to this court. This' statement-of the judge cannot, therefore,' b$ regarded as part of the record of the proceedings in the Circuit Court, which the writ of error brings up, and cannot therefore be resorted to as a statement of the case. And as there is'no. case stated by consent, it is necessary to examine whether the facts upon which the question^ of law, arise sufficiently appear in the record to enable this court to take cognizance of the case.

As we have already said, the action brought by the -United States is what, in the practice -in Louisiana, is called a petitory action, and is in the nature of an ejectment in a court of common law. In a State court where there is no distinction between courts of law and courts of equity, the plaintiff in a petitory action might recover possession, or a defendant defend himself, under an equitable title. But the distinction between

Under the treaty with Spain, the United States acquired in sovereignty all the lands in Louisiana which had not before been granted by the Spanish government, and severed as private property from the royal domain. It was incumbent, therefore, upon the defendants, to show' that the land in question had been so granted by the Spanish authorities; otherwise the United States were entitled to recover it.

The defendants,, in their answer, allege, that it is part of a' tract of land that was granted to the Marquis de Maison Rouge by. an-instrument of writing executed by the Baron de Caronde-letin 1797. 'This instrument refers to the royal order of 1795, and the figurative plan of Trudeau. The defendant Coxe also refers in his answer to these instruments, as containing a part of the evidence of his title ,- relying upon the paper of 1795 as showing the services which formed the consideration of the instrument upon which he relies as a grant. These instruments were all received by the Circuit Court as authentic and sufficiently. proved, and are set forth at large in the record. The question - between the United States and the defendants is, whether, according to the - Spanish laws at that timé in force in 'the province of Louisiana, the instrument of writing dated in 1797 pássed the title to the land described in the figurative "plan of Trudeau to the Marquis de Maison Rouge, as hhs private property.

This is a question of law to be decided by the court. And it is altogether immaterial to that decision, to.inquire what emigrants were introduced by Maison Rouge, or what authority he exercised within' the territory in question, because whatever was done by-him.is admitted to have been done-under and by virtue of the authority derived from the instruments before mentioned; and it depends upon their construction to determine whether it was done as the' agent of the, government or as owner of the land. ■ His acts cannot alter, their cbnstruction.

Confusedly, therefore, as this record has been made up, and loaded as it is with irrelevant'and unnecessary parol testimóny, the facts upon which the question of title arises áre as fully be

We proceed, then, to examiné the question of' title, and to inquire whether the land in question was conveyed to the Marquis de Maison Rouge by the Spanish authorities before' the cession to the Uriited States.

The paper executed in 1795 is evidently a contract to bring emigrants into the province, and not a grant of land. But as the instrument relied on by the defendants as a grant refers to this, and is founded upon it, it is necessary to examine particularly the stipulations contained in it, in order to ascertain its object, and to see what rights were intended to be conferred in the land destined- for the proposed settlement, and to whom, they were to be granted.

This agreement states that the Marquis de Maison Rouge, an emigrant French knight, had proposed to bring into the province thirty families, also emigrants, for. the purpose-of forming an establishment with them on the lands bordering on the Washita River, designed principally for the culture of wheat and the manufacture of flour. And the provincial authorities agreed to pay to every family one.hundred dollars for every useful laborer or artificer in it, to furnish guides from New Madrid ór New Orleans to the place of destination, to pay the expenses of their transportation from those places, and to grant to-each family containing' two white persons- fit for agriculture ten arpens of land, extending back forty arpens, . and increasing in the - same proportion to those which should contain a greater number -of white - cultivators. And European servants brought by the emigrants, bound to serve six or more years, if' they had families, were to be entitled to grants of land, proportioned in the same manner to their numbers, upon the expiration of their term of service.-

If will be observed, that this contract contains no^ stipulation in favor of Maison Rouge. All the engagements on the. part of the government are in favor of the emigrants who should accept the conditions. Indeed, it seems to have been.,.no part of the purposes of this agreement to regulate the-compensation which he was to receive for his services. Its only object, as appears by the concluding sentence, was to make known the offers made by the Spanish government to those -who were disposed to come,. It was therefore to be shown by the Marquis to thosé whom he invited to remove to his establishment, arid it. does not appear;to have been thought necessary, and perhaps was not desirable, that his compensation or his interest in

It is manifest from this contract,.approved as it was by the king, that Spain, was at that, time particularly anxious to strengthen herself in Louisiana, on the Washita River, by emigrants from Europe. It is a matter of history, that, at that period, the political agitations .in France and the neighbouring nations on the, continent of Europe induced many to emigrate. These emigrants were, for the most part, persons who were attach d to the ancient order of things, or who were alarmed or dissatisfied with the changes which.were .taking place around them, and .consequently were precisely of that character, and imbued with those political feelings, which the Spanish' government would prefer in the colonists who settled ;in the province of Louisiana. The very liberal and unusual terms offered in this contract shows its anxiety on the subject. Its evident object was to obtain a body of agriculturists from the continent of Europe, who would settle together under one common leader, in whom the government could confide, and form a colony or establishment of themselves. Such a colony, in sufficient numbers to afford some degree of protection against Indian marauders, would, by opening, cultivating, and improving the place of their settlement, create inducements to others of their friends or countrymen to. join them, and thus promote the early settlement of that part of the province, which this agreement shows die Spanish government was anxious, to accomplish.

The Marquis de Maison Rouge, it seems, from his position as an emigrant French knight', was regarded as a suitable person to be employed in. forwarding this policy. What were his peculiar duties is not defined in this agreement; but it appears that he was to make known, the offers of the government, and select the colonists, and superintend the settlement and formation of the establishment. It is too plain to be question-?

The contract specifies no particular place on the Washita. It merely provides that it should be on the lands bordering on that river. And the Spanish authorities, in their desire to settle that part of the province, — as these unusual offers so clearly evince, — would naturally be ready to- make grants, to others. There was danger,' therefore,- that the unity of the establishment of Maison Rouge might be broken in upon by intervening grants to persons with whom he had no connection, and who, as they did not come under his auspices, might not be disposed to submit to his superintendence, or acknowl-edgé the authority which the Spanish government had conferred on him. The Success of his establishment might thus be endangered. There was another omission’. He contracted to bring in thirty families. It- might well be’ doubted, under the terms of this agreement, whether the promises ’ of the government extended beyond that number; and others might be deterred from coming, under.the impression that they would not reap the like .advantages. These omissions were calculated to embarrass the establishment,' and retard its success. Indeed, it appears by the figurative plan of Trudeau, that grants to others had then already been made in the territory there marked out; and it will, appear, we think, upon examining the instrument of 1797, that these were the omissions it intended to supply, and the difficulties' it intended to remove. It -was to carry the plan of 1795 into more, perfect execution, not to make á grant to Maison Rouge.

' It begins by réciting that the Marquis de Maison Rouge had nearly completed the establishment on the Washita which he was authorized to make by the royal order of 1795, and- then assigns, as a reason for executing this 'instrument, the desire to remove for the future all doubts respecting other families or new colonists that might-come to establish themselves. ' This is the only motive assigned, and therefore was the only object which, this paper was intended to accomplish. The doubt had arisen under the contract.of 1795, and that doubt did not concern Maison Rouge nor the thirty families which he had com tracted to -bring, but other families and new colonists that might come to establish themselves. And in order to -remove these doubts, it destines and appropriates for the establishment aforesaid the thirty- superficial leagues marked in the plan of Trudeau, under the terms and conditions stipulated and contracted for by' the said Maison Rouge. That is to say, it Appropriates a large tract of country, far beyond the wants of the thirty families, in order to show that there would be room for

It is said that the last instrument should be construed by itself, as distinct from the previous contract, and that the contract of 1795 .was referred to merely to show the services which were rendered under it by the Marquis de Maison Rouge, as.the consideration upon which this grant was made to him. It is a sufficient answer to this argument to say, that the last instrument, in express terms, states that the motive for making it was to remove doubts in the former one as to other families and new colonists, and consequently could not have been designed to be an independent agreement, conferring new rights upon. Maison Rouge alone. It in. effect negatives the idea, that' the first Was regarded as a mere consideration; for upon such an interpretation, there would be no doubts to be removed as to the new colonists. They would have no interest in it.' There would be the certainty that the services had been rendered by Mdison Rouge, and that this instrument intended, to reward him. Besidés, the last instrument would be unmeaning and unintelligible Without .referring to. the firsthand construing them together. It would be impossi

But if this instrument is. taken by itself, and regarded as independent of the other, it contains no “words of grant, none, of the words which were employed in the colonial Spanish grants which intended to sever the. land from the royal domain, and to convey it as individual private property. It is ■true that the Spanish colonial grants are in general more summary and brief than common law conveyances. But they are by no means loosely or carelessly expressed; and it must not be supposed that they are ambiguous, because they are brief. On the contrary, the intention to, convey is always expressed in clear and distinct terms. And these, grants, like the patents for land, issued by the government in this country; appear, to have been prepared by officers of the government well ac-quáintéd with- the coloniál usages and forms. Thus,- for example; in the case of Arredondo and Son, reported in 6 Peters, 694, where thé grant was for a large tract, upon condition that-the parties should at their own expense establish two hundred families upon it, it is expressly stated, that the land was granted according to the figurative plat, “ in order that they may. possess the,., same as their own property, and- enjoy it as the exclusive owners thereof.”

It cannot be. supposed that a grant of thirty superficial. leagues, far beyond the quantity, usually conveyed to an indi-, vidual, would have been carelessly drawn in new and unusual terms, calculated to create doubts, and that established forms and usages would be disregarded and needlessly departed from. Certainly there is every reason to believe; that, if this land was-intended to be conveyed to the Marquis de Maison Rouge, that intention would have been expressed withy at least ordinary perspicuity. Yet, among the many cases of .Spanish colonial grants which have come before this court, we are not aware of one, great. or small, in which a paper in language resembling this has. ever before been produced and claimed as a grant.

The note at the foot of this instrument has been relied on to prove that it was intended to be a grant.. We think it is not susceptible of. that construction, and ■ that its language proves the contrary. The note is a short one, and merely •says, that,. “ in conformity with his contract, the Marquis de Maison Rouge is not to admit or . establish any American on

It is objected, also, that the decision of the Circuit Court, upon the question of title, is not brought here by the writ of error, because no exception was taken to it in the court below: But no exception can be taken where there is no jury, and where the question of law is decided in delivering the' .final judgment of the court. It is hardly necessary to refer to authorities on' this point; but it may be proper to say, that in Craig v. The State of Missouri, 4 Peters, 427-, and in another case which wé shall presently notice, this court have held,

. Under this view of the subject, which brings the question of right directly before us for decision, it is-perhaps hardly necessary to-say. any thing as to the manner in which the judgment was entered in the Circuit Court. But if the defence of King could have been maintained, yet the language in which the judgment was rendered is open to serious objection. It may -have been intended to cover only the land in controversy in the suit against King.. But it may well bear the construction of being not only a judgment in favor of King, but also in favor of Coxe, for the large, portion of this territory to which he claims title in his answer, and for which he became plaintiff in recori-vention against the United States under the Louisiana practice. In. the opinion before mentioned, which was filed by the judge after the case had been removed by writ of error, he states that he overrules the plea in reconvention because it. placed the United States in the attitude of a defendant as to the land thus claimed. This decision is undoubtedly right. Bjit yet in the judgment, as stated in the record, the plea in reconvention is not overruled, and its language would rather seem to imply that it wás a judgment against the United States in favor of Coxe foi the land claimed by him in reconvención, ás well as in favor of King for the land sued for by the United States. 'If this is the meáning of the judgment, it would be obviously erroneous, even if King had made good his defence.. But it is unnecessary to decide what is its. legal construction, because, in either view of it, the judgment is erroneous, and must be reversed,

Neither is it necessary to examine in detail the' exceptions taken at the trial to the admission of testimony.. .In some unimportant particular, the evidence objected to. was' not admissible. But where, the court decides the fact and the law without the intervention of a jury, the admission- of'illegal»testimony* even if material, is not of itself a ground for reversing the judgment, nor. is it properly the subject of a bill of exceptions. If evidence appears to have- beén improperly admitted,

Mr. Justice McLEÁN, Mr. Justice WAYNE, Mr. Justice McKINLEY, and Mr. Justice GRIER dissented from this opinion. Mr. Justice McLEAN and Mr. Justice WAYNE filed opinions in writing, as follows.

Had not my brother judges pronounced the above opinion, I should not have supposed there could be any difficulty in determining the character and effect of the grant in question. Being in the minority, I shall only state some of the grounds on which my opinion has been formed.

The validity of the grant depends upon the laws .of Spain in 1797, the time it .bears date. Those laws .were foreign, and are required to be proved. The incorporation of Louisiana into the Union cannot affect this principle. The treaty of cession and the acts of Congress subsequently enacted, recognizing private rights in the ceded territory, only reiterated the well-established principles of the laws of nations. In the language of the act of Congress, we are to look “to the laws and ordinances of the government under which the plaim originated.”

On the 17th of March, 1795, the Baron de Carondelet, Governor of Louisiana, and others, entered into a contract with the Marquis de Maison Rouge, which was sanctioned by the king of

The Marquis performed much labor, and consequently incurred much expense, in the fulfilment of the contract. And on the 20th of June, 1797, the Baron de Carondelet and Andres Lopez Armesto executed to the Márqúis the following instrument : — “ Forasmuch as the Marquis, de Maison Rouge is near completing the establishment of the Washita, which he was authorized to make for thirty families, by the royal order of July 14th, 1795, and desirous to remove for the future all doubt respecting other families or new colonists who may come to establish themselves, we destine and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge, by virtue of the powers granted to us- by the king, the thirty Superficial leagues marked in the plan annexed to the head of this instrument, with the limits and boundaries designated, with our approbation, by the Surveyor-General, Don . Carlos Lareau Trudeau, under the terms and conditions stipulated and, contracted by the said Marquis de Maison Rouge,” &c.

“ Note, that, in conformity with his contract, the Marquis de Maison Rouge is not to admit or establish any American in the lands included in his grant.”

The certificate of the surveyor, Carlos Trudeau, laid down . the surveys with precision, stating the superficial total at two ‘hundred and eight thousand three hundred and forty-four superficial arpens, equal .to thirty leagues, &c. And the surveyor adds: —“It being well understood that the lands included ' in the foregoing plats, which are held by titles in form, or by virtue of a fresh decree of commission, are'not to compose a part of the thirty .degrees; on the contrary, the Marqqis of Maison Rouge promises not to injure any of the said occupants, promising to maintain and support them in all their fights, since if it should happen that the said thirty leagués should suffer any diminution óf the land occupied, there will be no objection or inconvenience to the said Marquis de Maison

This survey, being annexed to the patent and referred to in it, constitutes a part of the grant, with the conditions specified.

The error in the ^argument seems to be in supposing, this grant to have been issued in fulfilment of the contract of. 1795. The grant was in no way connected with that contract, except as showing the consideration on which the grant was- made to the Marquis, ánd with the express view of relieving the royal treasury, which was often without funds, from the charges imposed by the contract. Charles Tessier, now a judge in Louisiana, was chief clerk in the land-office, and who made out the grant, states, that “ Rendon and Morales successively filled the office of intendant, and being charged with the public finances, which were' greatly embarrassed for want of money, they made difficulties about paying for the families which Maison Rouge introduced and was authorized to introduce, and tried to get rid of farther advances to Maison Rouge.”/ And the witness says the land was not worth so much as the expenses of the government might amount to in the end. And J. Mércier, another witness, confirms the statement of Tessier.

The triith of these statements is sustained by the words of the grant. The royal order of. 1795 being referred to, the grant states: — “ And desirous to remove for the. future all doubt re- . specting. other families or new colonists who may come to establish themselves, we destiné and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge,” &c. Now it must be observed that the Marquis was the mere agent of the government under the contract of 1795. He was to have no interest in the land, nor did the government, in the contract', propose to pay him for his services. That this enterprise was deemed one of great importance is shown by the gratuity of land and money given by the government to families, and also in agreeing to pay the expense of their transportation. And the government being “ desirous to remove for the future all doubt respecting other families or new colonists who may come to establish themselves,” &c. These were no part of the families under the first contract, but “ other families.” So that the 'families or colonists which should come under the grant were not to come under the contract, but to settle under the .grant, having no claim on the government. This1 relieved the royal treasury from any further embarrassment on account of the contract of 1795, and removed all doubts in regard to such settlers.'

But was-this instrument a grant ? ■ Under the common law it was not a grant, but it .is one under the civil law. If the instrument separates the.land from the public domain, and appropriates it to the use of an individual, it is a grant. No words of inheritance or terms of grant are necessary by the civil .law. In this grant the words are, “ We destine and appropriate conclusively for' the establishment of the aforesaid Marquis,&c. Now these terms appropriate the land described “ conclusively.” Nothing, could be'-more specific than this. It separates the land designated in the plat from the lands in the crown,, and no subsequent condition was annexed. He had nearly completed the establishment of the Washita under the contract of 1795, and for these services the grant was made. If the grant had required the Marquis to do -certain things, as to settle a number of families, there would be some apparent ground to say, that' he, or those claiming under him, must show a preformance of the condition. But even in such a case the grant would be good, for the cession of the country by Spain to France,' and by France to the United States, within a short time after the grant, would have excused i;he performance of such, a condition, It would be strange indeed if our goven-ment should require the performance of a condition which exeluc "s our own citizens from benefits, and gives them to foreigners. This point has been decided in the case of Arredondo.

But the most conclusive answer to this view is, that the grant required no such condition, and that, in this respect,'it has no connection with the contract of 1795. That'contract, by this grant, was admittéd to be nearly completed, and there was no requirement ,tbat it should be completed. It was found •burdensome to the treasury, and was abandoned. Under that ■contract, titles were made.to the settlers, and not to the Marquis: And the land for the thirty families would have required a sm'all tract in comparison with that covered by the grant.

The commissioners appointed by the government to investigate land titles in Louisiana reported, in 1812, “ that the instrument .under date of the 20th June, .1797, is a patent, or what was usually, in Louisiana, denominated a title in form.”

This claim being before the House of Representatives in ■1817, a committee reported, that they “ aré of opinion that it is a legal and formal title, according to the laws and usages of the . province of Louisiana.” Other reports were made by a committee of the Senate confirmatory of the grant. The confirmation of the claim to a league square, by Congress, was, a recognition of the grant. On no other supposition could the act of the 29th of April, 1816, confirming • the league square, have been passed.

There can be no question that this grant' would have been held valid under the Spanish government, and, both by the treaty of cession and the laws of nations, it must be held valid by this government.' The largeness of the claim can be no objection to it. Tracts as large were given, for services, less meritorious than those rendered by the Marquis de Maison Rouge, by the Spanish government. Grants were made, under that government, for services, civil or military, performed or to be performed. And there was no service deemed more meritorious by Spain, except military service, than that of establishing colonies, reducing the country to cultivation, construct-, ing mills, and other improvements. The quantity granted was left generally to .the discretion of the governor or other officer who. represented his sovereign in making the grant.

. If this instrument be a grant which would have been held valid by the Spanish government, then we are bound in. good faith so to consider it. . And" I cannot entertain any doubt that it is a complete grant, and therefore I dissent from, the decision of a majority of the court.

Four of us do not concur with the majority of the judges in the judgment given by them in this case.

I will now give my reasons Tor not doing so, comprehending in what I shall say, as well I can, those objections which were urged, in our consultations upon the case, by Messrs. Justices McLean, McKinley, and Grier, against the judgment.

Apart from every consideration connected with the intrinsic validity of the grant, arid the defendants’ title under it, I regard this judgment as unwarranted either by the case presented on the record, by t^d conduct and decision of this court in respect to it. at the last term, or by the course and argument of counsel which have necessarily resulted from, and been limited by, that decision. Besides^ in my view, it does injustice to other parties, now regularly before the court, who were entitled to be heard, according to our rules and practice, before a decision was made which, in effect, decides their rights, and takes what may be their property from them, without a hearing,

j On thése grounds I dissent from the judgment. But in addition to them, the evidence'on the record, imperfect as it may seem to be to others as to the intrinsic merits of the defendants’ title, —- for that point does not purport to be now presented for our adjudication, -— is yet sufficient to satisfy me that the grant to the Marquis de Maison Rouge is, in form and substance, genuine, valid, arid cbmplete, conferring upon him, and those, who claim under him, a just and perfect title under the treaty by which Louisiana was ceded to the United States.

This suit was a petitory action, brought by the United States in the Circuit Court of '’Louisiana, in the year 1843, to recover from the defendant, Richard King, a tract of land of 4,606 acres, lying on the west side Of the Washita River, in that State. The defendant denied that the United States, had any title to the land; and he further prayed, in accordance with the law and practice of Louisiana, that, as he derived his title, by purchase from Daniel W. Coxe, Who had warranted it, he might be cited as warrantor, and made a party defendant in the suit.

Coxe came.in and filed his answer. He also denied that the United States had any title to the land; and he further alleged, that the tract in controversy was part of a large body of land to which his own title was a valid one, derived from the Marquis de Maison Rouge, who was an-inhabitant of Louisiana, to Miom the Spanish government had granted it in due form, and in whom it was legally vested previous to the treaty of the 30th of April, 1803, which' ceded that territory to the United States, and ‘guarantied to the inhabitants the full enjoyment of their property. In his answer, he further put in a plea of “recon-

By the Code of Procedure of Louisiana, (Art. 494. 495,) thé mode of proceeding in which must, by the provisions of the act of Congress of the 26th of May, 1824, (4 Stat at Large, 63,) regulate the practice of the courts of the United States in that district, either party is entitled to a trial by jury; but if that mode is not preferred, the issue of fact, as well as of law, is to be tried by the court, the finding of the facts by the court being, in that event, equivalent to'the verdict of a jury. This was done in the present case.

In the summer of 1843, the defendant and warrantor, Coxe, being anxious for the termination of the suit, entered into an agreement, which appears on the record, (page 80,) whereby it was stipulated that it should be immediately set down for trial, and he consented to the admission of much documentary evidence, chiefly derived from, or appended to, report's of committees of Congress. Among these documents was a pamphlet published by a person of the name of Girod, who was an adverse claimant .to a tract of land alleged to be within the Mai-son Rouge grant; and also several depositions, annexed to the pamphlet, which purported to have been legally taken in suits that had been instituted many years .before against the defendant Coxe.. It was also stipulated by the agreement, that bills of exceptions might be taken by either party, not only during' the actual trial, but even after the decision, until'the record, if there should be a writ of error, was transmitted to this court.

When the trial carne on, the plea of reconvention put in by the warrantor was dismissed by the court, “-because, under the practice' of Louisiana, it is to be regarded in the light of a new suit, and consequently places the government in the attitude of a defendant before the court.” (Record, 182.)

In addition to the documentary evidence admitted by the agreement, a number of -persons were examined at the bar. Their testimony appears to have been mainly directed to establish the genuineness and authenticity of the grant of Baron Carondelet to Maison. Rouge, and of the plano figurativo of Trudeau, the surveyor-general, which was annexed to itto rebut the contrary evidence derived from Girod’s pamphlet, and which was supposed to exist in the old depositions printed with it; and to show the complete validity of. the grant in question,

After a trial, which occupied several days, the Circuit Court found and decreed the grant of the 20th of June, 1797, to be a valid instrument, and adjudged the title under it of the defendant King, and Coxe, his warrantor, to be legal and good to the tract mentioned in the answer of the former, and in Schedule A annexed tb that of the latter. This, under the law and practice, of Louisiana, was a complete and definite finding .by the court of the facts at issue, — equivalent to the verdict of a jury.

No opinion was delivered by the court at the time this decree was given, but one was subsequently prepared and filed, and is annexed to the record. It presents in a cogent and succinct manner, but more in detail, the matters of fact, of which' the decree gives the summary result; and shows that they were founded on very full evidence, oral as well as documentary, and especially that the testimony derived from Girod’s pamphlet was, in the opinion of the court, conclusively disposed of by that of “ persons who had equal, if not better, opportunities of acquiring a knowledge of the facts set forth.”

No exception was taken on the behalf of the United States to any portion of this opinion, although the agreement gave full power to counsel to do so at any stage of the legal proceedings.

In the progress of the trial, however, five bills of exceptions were taken by the counsel of the United States to the rulings of the court, and three by the defendants. Upon the latter it is unnecessary to express an opinion, as the judgment was- in favor of the defendants, further than to remark, that, if it had been otherwise, they might have afforded a sufficient ground for its reversal.

The bills of exceptions on the part of the United States did not embrace any error in the opinion of the court, or in its de-' cisión of any legal point arising out of the validity of the grant, or its construction, or the Spanish law or practice in relation to such instruments, but were confined exclusively tb the rejection and admission by the court of certain documentary' evidence. To each bill of exceptions was annexed, separately and distinctly, the testimony connected with it and necessary to a decision upon it.

A writ of error was issued in behalf Of the United States, returnable to this court at Decémber term, 1843. With this writ of error were returned not only the five bills of

On this singular record,, the case was argued before this court on thé 24th of February, 1845. The opinion of the court ( 3 Howard, 773 ) was against the validity of the grant, the judgment of the Circuit Court was reversed, and the cause was remanded to it “ for further proceedings to be had thereon in conformity with the opinion of the court.”

In the argument of the case, reference was largely had to the documentary evidence improperly introduced into the record ; and the plaintiffs’ bills of exceptioñs, which alone were properly before the court, were scarcely adverted to.

The opinion of the cohrt was put upon the fact, which it considered established by the testimony, that the certificate of Trudeau, or the plano figurativo, annexed to the grant, was antedated and fraudulent; and that therefore, if the grant itself was a genuine instrument, it had not “■ the aid of an authentic survey to ascertain and fix the limits of the land, and to determine its location.” This opinion in regard to the genuineness of the certificate of Trudeau was thus expressed : — “ After an attentive scrutiny and collation of the whole testimony, we think it is perfectly clear that this certificate of Trudeau is antedated and fraudulent; and we refer to the evidence of Filhiol, McLaughlin, and Pommier, as establishing .conclusively that the actual survey, upon which this certificate was made out, did not take- place until December, 1802, and January, 180¿); and that the one referred to by the governor in the paper of 1797 (the alleged grant) was for land in a different place, and higher up the Washita River. We are entirely convinced that the survey now produced was not made in the life-. time of the Marquis of- Maison Rouge, who died in 1799, but after his death, and at the instance of Louis Bouligny, who, ac

It will be seen from this opinion, that the judgment of the, reversal of this court was not founded upon any error of law presented in the bills , of exceptions in the record, nor even upon any facts stated in those bills of exceptions; but that it was purely a judgment on the facts of the case, different from that which was found by the- Circuit Court of Louisiana, sitting without a jury, and found mainly upon the old depositions of three witnesses, which are in, the appendix to Girod’s printed pamphlet. Neither in the judgment, nor in the opinion of the court, did I concur at that time..

Upon the return of the record, with this opinion,, to the Circuit Court of Louisiana, on the 9th of May, 1845, the attorney of the United States moved that the case should be taken, up , for final decision. The attorney of the defendant, on the other hand, moved for a new trial, and prayed for a jury; and in an. affidavit, it was sternly urged upon the court, that, in the previous trial, the case had been prepared and conducted under the belief of the law being well settled, that, in a petitory action, in which neither party called for a jury, the finding- of the facts by the court would be considered by the Supreme Conrt as equivalent to a special verdict, and would not be reversed, except so far as they might be brought up by bills of exceptions. The affidavit then went onto show, not only that several witnesses, whose- testimony was not reduced to writing, had proved the genuineness of the certificate of Trudeau, and his unimpeachable official and private character, but that the very depositions of Pilhiol, McLaughlin, and Pommier, from which the Supreme Court took the facts on which it mainly relied, discarding from them the finding of the Circuit Court, were ex parte, and had been taken without notice to, or the knowledge of, the claimants under the Marquis of Maison Rouge. The affidavit then alleged that the defendants could again, prove before the jury, and corroborate with additional evidence, the facts which had been found by the court upon the former trial.

The Circuit Court overruled the application, and ordered a final judgment to be entered for the United States, and against

The suit was not, as this court admitted in its decision, “a controversy, in a court of equity, but in a court of law ; the petitory action brought by the United States in the Circuit-Court of Louisiana being in the nature of an action of ejectment.” ; 3 How. 787 .

No point has been more repeatedly and authoritatively settled, than that this court will not, upon a writ of error, revise or give judgment as to the facts, but takes them as found by the court below, and as they are. exhibited by the record. Penhallow v. Doane, 3 Dall. 102 ; Wiscart v. Dauchy, 3 Dall. 327 ; Jennings v. Thomas, 3 Dall. 336 ; Talbots. Seaman, 1 Cranch, 38 ; Faw v. Roberdeau, 3 Cranch, 177 ; Dunlop v. Munroe, 7 Cranch, 270 ; United States v. Casks of Wine, 1 Peters, 550.

The case of Parsons v. Bedford, 3 Peters, 434, was, like the present, a petitory action, instituted in the' District Court of Louisiana, and brought for review to this court, on a writ of error and bill of exceptions. It differed in one respect, — the facts wére found by a jury. The parol evidence, however, had not been written or entered upon the record, although requested by the plaintiff. That refusal was made the ground of an exception. This court decided that it was no error, not merely because the refusal was not matter of error, but because,.“if the evidence were before the court, it would not be competent for them to revérse the judgment for any error in the verdict of the jury.”

..By the. Code of Practice of Louisiana, (Art. 494, 495,) which, under the act of 24th of May, 1824, (4 Stat. at Large, 63,) is also the law by which the courts of the United States aré governed, the decree of the Circuit Court upoq the facts

In the year 1842, the effect which-was to be given to- the judgment of the court in Louisiana, asserting a conclusion of facts where a jury had been waived, was deliberately considered in the case of Hyde v. Booraem, 16 Peters, 176. It was then conclusively settled by this court, that it. had no authority, pn a writ of error, to revise ■ the evidence which the Circuit Court had before it, or the interpretation they placed upon it, or the conclusions they drew from it. This court then said,— “ That is the province of the judge himself, if the trial by jury is waived, and it is submitted to his personal decision. If either party in the court below is. dissatisfied with the.ruling of-, the judge on a matter of law, that ruling shoúld be brought before this court by an appropriate exception, in the nature of a bill of exceptions, and should not be mixed up with his supposed conclusions on matters of fact.” In. the subsequént case of Phillips v. Preston, 5 Howard, 290 , the point was treated as conclusively settled.

It should,, then, have been taken in this case as established, that every thing which was matter of fact in this controversy had been fixed beyond question in this court by the judgment of the Circuit Court of Louisiana; and that no portion of the proceedings' of that court remained open for revision here, but “such rulings on matters of law as were' brought before-us by an appropriate exception, in the nature of a bill of exceptions.”

No final opinion to this effect, was written by this court for publication in our reports after the argument at the last term. But such opinion was expressed unanimously by us in out consultation. And, in accordance with it, this court ordered, that “ the judgment rendered in this case at December term, 1844, (3 Howard,.788,) and all the' proceedings thereon and subsequent thereto, should be set aside and vacated, and the case, as it stood at the term aforesaid' previous to the said judgment, reinstated.” Under this last order, the case has been before us. .at the present term.

The case has been argued, and in my opinion properly argued, by the counsel for the defendants in error, upon the correctness of the rulings of the Circuit Court on matters of law,

The judgment of the Circuit Court has established the fact, that the grant made by the Baron de Carondelet, as the governor of Louisiana, on the 20th of June, 1797, to the Marquis de Maison Rouge, was valid under the laws of the French and Spanish governments then prevailing in Louisiana, and consequently continued to be so by the treaty which ceded Louisiana to the United States. It has therefore been properly treated as a question which, under the decisions I have' referred to, cannot, upon this record, now properly come before this court.

The validity of the grant must depend upon the genuineness of the instrument itself, and upon its sufficiency to give to the grantee a complete and formal title to the land mentioned in it, pursuant to the laws of Spain at the time it was .made. The ■ concurrence of these two facts is essential to the validity of the grant. It is therefore distinctly, but succinctly, affirmed in the judgment of the Circuit Court,' and must be taken to be established thereby. From the opinion of the Circuit Court, explaining its reasons for this judgment, it is apparent that both of these points were fully examined, proved, discussed, and decided upon. The assertion that the certificate of Trudeau to the plano figurativo has been' antedated, or is fraudulent, cannot be maintained. It rests solely ' upon evidence not worthy of credit, from the circumstances and manner, it has been introduced by Girod in his pamphlet, which is shown to have been contradicted, and which,- if it were necessary to sift it, would be found to present, intrinsic and abundant proof of . its own discrepancies and inconsistencies. That the grant is a complete and formal title to the land mentioned in it, pursuant to the laws of Spain, is also conclusively established. It depended on the laws and' usages of that government, on the performance of the necessary conditions, and, finally, on the recognition of the grant by the Spanish authorities as the complete and formal investment of the full ownership of the land embraced in it. All these were matters of fact susceptible of proof. That such proof was adduced, and, was sufficient, is an inference we aré bound to take from the finding of the court, as is shown by its judgment, to which they were necessary.. When we turn to the opinion which the Circuit Court,, has thought proper, though under no obligation to do so, to annex to its judgment, we find such wás explicitly the case. On each and every one of these points there was testimony in' tjie Circuit Court. On that testimony that court founded its decision, as a fact, .that the grant was a valid and complete one. It says, that the genuineness of the grant is “ conclusively .«stab-

The validity of the grant was therefore properly regarded as an established fact, not now open to argument, under the order of this court pursuant to which the case is now before us. . It has been so treated by the counsel of the defendants in error, without interposition or remark from the court/ And' therefore, as it is now made to form the principal, if not the sole, basis of the decision jHst expressed as that of the majority, it is a point upon which, in my. opinion, the counsel for the defendants have not had that hearing to which they are entitled, and which is necessary to a proper investigation of this important title. 'The points raised by the bills of exceptions taken by the United States are before this court on this writ of error, and they have been argued and may. be decided. It is otherwise with that of the validity of the grant.

If the only persons to be affected by this decision were the defendants on the record, it seems to me it would be improper to make it under the circumstances I have stated. But it has been brought to the notice of this court, before its judgment has been pronounced, that an act of Congress was passed on the 17th of June, 1844, (5 Stat. at Large, 676,) the object of which was to biiqg in the best form, for final adjudication, those long unsealed titles in Louisiana, arising unde/ the governments which existed there before the cession ; and that, under this law, the heits of Henry Turner, who are claimants under the land grant to the. Marquis of Maison Rouge, but to a far larger extent of land than the quantity now in controversy, are at this time de

Nor, in my opinion, aré these the only considerations which should have induced us to refrain from a hasty decision, with imperfect, evidence, on the validity of this grant. Pour years ago, we made a decision relying on this same imperfect record, which contained an assertion and statement of facts rested on evidence since acknowledged by us to have been illegal in itself, and which we now know is positively contradicted. If

If we examine the judgment of the Circuit Court now under review upon the principles that have been heretofore settled by this court, we shall- find no error in the “ rulings of the judge in a matter of law brought before this court by an appropriate exception in the nature of a bill of exceptions.” Hyde v. Booraem, 16 Peters, 176.

In regard to the three bills of exceptions which were taken by the defendants, also in the record, we need not say any thing, because they are not properly before us, and have not been referred, to in the argument. But it may hot be amiss to remark, that they afford another reason why a final judgment should not now. be entered against the defendants, though the decision of a majority of the court may be adverse to them, because they allege the rejection of important testimony in their favor in respect to the validity of-the grant, for reasons which, without expressing a conclusive opinion upon them, I may say were strongly and plausibly urged.

Let us now examine the bills of exceptions taken in behalf of the United States, to see whether they present any illegal ruling of the Circuit Court.

They are five in number, but the first, fourth, and fifth have been properly and candidly conceded by the Attorney-General to be untenable. I am to remark, then, upon the second and third.

The second is an exception to thg. admission in evidence of a petition of Daniel Clark, the grantor of the defendant, to the Intendant Morales, on the 1st of August, 1^03,. together with the alleged copy of a certificate, purporting to be signed by Leon

The plaintiffs’ third bill of exceptions was also' an objection to the admission of documentary evidence, namely, the report of the commissioners appointed under the act of the 3d of March, 1807, declaring that the grant to the Marquis Maison Rouge “ is a patent, or what in Louisiana was denominated a title in form, transferring to him the title, in as full and ample a manner as lands were usually granted by the Spanish government, subject, however, to the conditions stipulated in his contract with the government.” That such a report was made, and that the document in question was a copy, of it, was not disputed.^ Such an official act of the officers of the United States in regard to the title was certainly legal evidence in the chain of proceeding, whatever its bearing and effect upon the validity of the title may be. But, if this were not so, it will be enough to say, to dispose of this exception, that, in the course of the trial, another copy of this same document was introduced in evidence on the part of the United States.

These are the only exceptions to the judgment of the Circuit Court which .were taken at the trial, and which have been brought before this court in this record. Neither can be sustained ; nor do the majority of the court, in the opinion read by the chief justice, attempt to sustain them..

What, then, is there in the record, upon which. the majority of the court rely to warrant their judgment ?

.“ The court having maturely considered the law and the evidence in this case, doth now order, adjudge, and decree, that .the plaintiffs’ petition be dismissed; and that the-grant made by the Baron de Carondelet, as the governor of Louisiana, on the 20th June, 1797, to the Marquis de Maison $ouge, be, and the same is hereby, declared valid; that the said Richard King, defendant, and the said Daniel W. Coxe, the wárrantor, be, and they, are hereby, declared and recognized to be the lawful owners of the' parts of the said grants held by them, as described in the • answer of the said' Richard King, and in .■Scheduté A, and that they be quieted in the ownership and possession of the Same.”

.In this judgment, three patent errors are alleged to exist. It is- said that it adjudicates the title for lands for which the United States have not sued; that «the acceptance, by the defendant Coxe, of a league square, was an extinguishment of his claim to any other portion of the land; and that which was principally argued and urged was, that “the instrument executed by the Baron de Carondelet, On the 20th June, 1797, was not a grant to the Marquis de Maison Rouge.”. These errors are alleged to be apparent on the record, independently of any exception embracing them. None- such, it is- admitted, were taken in the. court below," or brought here.

Admitting, for the purposes of this argument, that- this court can reverse a judgment for such an irregularity, as is said to be in this, in its adjudication of the title for lands for .which the United States have not sued, without, however, conceding it - as,a fact that this court can properly do so, in a case brought to it upon.a writ of error, this is not the case for the. exercise, of such a power. -

The court" having decreed thát the petition of the United States should .be. dismissed, and that the defendant King should - be quieted in the ownership .and possession of that land for which the United States sued, is as “ définitivé a sentence,’,’ or judgment, as tlje court could have given upon the subject-matter of the suit. It put an end to the suit, and absolved thé defendant, in the languagé of the civil law of Spain, from the demand which’ had been made or suéd for.. Any thing put with it, growing out of the mode of proceeding in the trial, but separable "from that “sentence,” so as not to interfere with its execution, is,.in the . civil law of Spain under which the

But further, the language of the judgment, as to the land iipon which it is to operate, is explicit. It dismisses the petition of the United States, and quiets the defendant in the pos-, session of precisely, that land, in quantity and description, for which the United States sued him. Whether it was or was not the intention of the Circuit Court to adjudicate the' title to .other lands, in which the defendant King has no interest, but to which his warrantor, Coxe, may have a title, is of no consequence, for both are so discriminated in the judgment that they cannot be confounded; and were so, that each, might be independent of the other, or, in the language of the civil law of Spain, be firm and valid, from having passed into a thing adjúdged {cosa juzgada). Besides, such adjudication of a thing not sued for cannot vitiate the judgment for the thing that is sued for in this case; for, if the former.is not valid only because it is- for land, as this court says, not sued for, the other part of the judgment in favor of King is valid, it being for the very land which was sued for. The fact that King and Coxe claim dominion of parts of what they say they 'respectively own, under the same grant, and that the court affirms their rights under it, cannot render that part of the judgment in favor of King, less a judgment, because it is for a thing in con-

However, does the language of the judgment necessarily embrace any. other land than that which the United States claim in their petition ? • The inquiry should not alone be, whether the judgment may not bear that construction, but whether or not- it does not admit of another, more coincident with the case as it is on the record and appeared to be on the trial, and more ■in harmony with the duty of the judge who gave it,' in respect to the only “definitive.sentence’’ -which, under the civil law , hf Spain as it exists in Louisiana, can be given in a suit for real property where a warrantor appears to defend the respondent .to .the. action in the character of a plaintiff in reconvention. If the judgment will bear such a construction, though the language of it may not obviously show it, we are bound to give • that, of which it is susceptible, most favorable to its operative • accuracy, or “ executive process for a thing adjudged.” Now my reading of this judgment is, that the petition of the United States is dismissed, and that King is quieted in the ownership and possession, of the quantity of land for which the United States, sued’ him, on account of the court having found the fact óf the validity of the Maison Rouge grant, and that the further declaration in the judgment in respect to Coxe’s ownership of the other, lands in Schedule A, and that he is to be quieted in the enjoyment of them, is but an inference from the court’s finding, from the proofs in the case, that the Maison Rouge grant and survey were valid.. That it could not have been the intention of the.court to be a judicial sentence seems, to me certain,— first, because the court had disallowed or dismissed Coxe’s plea in reconvéntion, by which alone his title to other lands than that sued for was brought in question, and secondly, because the.only judgments which the Louisiana law permits’to be given in such a case are the affirmation of his title to the land by decreeing its ownership to his vendee, or the -disáffirmation of it, with a sentence against the warrantor for the purchase-money, with interest upon it from the final eviction, and for the value of the improvements and costs. Besides, in all fairness of construction, if we consider the words of the judgment in connection with what, manifestly, the Circuit Court, throughout the trialj thought was the only issue before it, do the words, “ that the said Richard King, and the said Daniel W. Coxe, warrantor, be, and they are. hereby, declared and recognized to be the lawful owners of the parts of said grant held by them, as described in the answer of the said Richard King and in the Schedule A,” imply an adjudication for more land than that for which King had been sued, and of which Coxe had been.the owner, as

■ In the case under consideration, the action was instituted by The United States against King, for the recovery of a tract of land" in the actual occupation of the ■ defendant.' The petition is in the general terms in which such pleadings are usually framed in Louisiana, and avers the invalidity of the title under which the defendant claims to hold the land, and the para-mount legal title of the United States. The answer of the defendant to this petition is equally general in its terms, and asserts, without any specification of details, the validity of his title, and controverts the allegations in the petition. So far the case is perféctly simple, and, being.followed by a general judgment for the defendant, so far as that judgment disaffirms the title of the United States and affirms that of the defendant, there is no ground upon which error can be alleged. In such a state of the case, without the intervention of the warrantor, I am warranted in saying, from the decision just read by the chief jus- • rice, that the judgment of this court would have been in favor of the judgmént of the Circuit Court. The supposed difficulty, however, which the case presents, and which has caused the reversal of.the judgment. of the-Circuit Court, arises from the circumstance, that King not only puts distinctly and simply in issue the question of title between himself and the United States, but he vouches, in warranty, Coxe, from whom, he

At common law, as is fámiliar to all of us, when an action is brought to recover real estate which a defendant holds by purchase from another, accompanied with'a-covenant-of warranty, the defendant may, at his option, elect either to give notice of the pending action to his vendor and warrantor, or to await the result of the suit, and, if judgment passes against him, sue upon his covenant of warranty. In the first case, the warrantor may take upon himself the burden of the'defencé;if he pleases, or may omit it. In either case, notice of the suit having been given to him, he is bound by the judgment. It' is, nevertheless, still necessary that an action upon the warranty should be brought against him to enforce his personal liability. And upon proof that he had notice of the first suit, the judgment against -his vendee will be conclusive evidence against him of the breach of his covenant.

If no such notice of the first suit be given to him, he may, in an action on the covenant, controvert the title of the original plaintiff, and require full proof of it to fix his liability. In all cases, however, the responsibility of the warrantor is judicially settled in the second suit.

The Louisiana law seeks' to accomplish precisely the same results by a speedier process. It permits the defendant to call, in warranty, the party from whom he derives title. The war-rantor may forthwith appear in court as a party, and in his own name defend the suit. Notwithstanding this, however, no judgment is entered against him at the suit of the original plaintiff; but in case he shall be adjudged entitled to the property in contestation, a second judgment is entered simultaneously, in favor of the original defendant, against his warrantor.

This subject was fully discussed in this case at our last term ; but, as I have remarked before, we have no report either of the argument or the decision. I depend upon my own notes of. that argument; and upon those, of Mr. Coxe, of counsel in the case, from which I have derived much information. In my view, however, of the Louisiana law and practice, it is clear that the original proceedings and pleadings between the original parties to the suit remain as they were before the intervention of- the warrantor, and the defence interposed by the warrantor cannot be made the foundation of any judgment to be rendered in favor of the*plaintiff in the original' action.

In this aspect of the case, the grounds upon which the present decision is made to rest, in the opinion of the court, are wholly dehors the record.

Be this, however, as it may, this point in the case, so vital in the vievv taken by the majority of the court, has not been argued by counsel-on either side. Nor'is it considered distinctly and independently in the opinion of the court. In the absence of both, I am not disposed to pass any definite judgment. It is a point, however, which must be surmounted or avoided to warrant the judgment just given by this court.

But it is said that Coxé’s acceptance of a league square was an extinguishment to any other portion of the land, and that there - was error because it is not so declared in the judgment. This is certainly a matter dehors the record. , Nothing concerning it is either on the face of the judgment or in the bills of exceptions. It is not in any way before this court, by any principle or rule of practice known to this court or any other court having the power to reverse, upon writs of error, the judgments of inferior courts.Some correspondence in regard to it is found, like Girod’s pamphlet, in the mass of documents improperly sent up with the record; but we have no means of knowing whether- or not it is the whole of the correspondence. I repeat, we cannot consider it by any known rule of judicial proceeding. Suppose it, however, to be before us for examination: can it. be contended that the acceptance of this league square by Mr. Coxe was an extinguishment of his claim to the rest of the land in

I will now consider, as briefly as I can, the only other error assigned by the majority of the court on this judgment. It is, that the Circuit Court-adjudicated- the instrument executed by the Baron de- Carondelet, on the 20th Jtine, 1797, to be a grant to the Marquis de Maison Rouge. -This is surely- not an

Accurately speaking, this is not the judgment of the Circuit Court upon the issue made and submitted by the pleadings. It is the reason or cause assigned for the judgment. The prayer in the petition ,of the United States is, that they may “ be decreed, by a judgment of this honorable court, to be the true and lawful owners of the aforesaid land and premises.” The judgment responsive to this prayer is, that “ King, the defendant, and Coxe, the warrantor, are declared and recognized to be the lawful owners,” and are to be quieted in the ownership and possession of the same. The portion, therefore, of the decree now excepted to is a reason of the court for rendering such judgment. It is no necessary part of the issue submitted for adjudication, or of the judgment actually given. . As a reason of the court, it is mere surplusage,-and can be altogether rejected without affecting the validity of the judgment. It is well settled, that, if a judgment be defective in form, yet if it follows and is responsive to the issue, and is substantially right in that respect, neither such defect, nor any surplusage contained in it, is a ground for error. Moore v. Tracey, 13 Wend. 282 ; Buckfield v. Gorham, 6 Mass. 447 ; Brown v. Chase, 4 Mass. 436 ; Deering v. Halbert, 2 Littell, 292; Todd v. Potter, 1 Day, 238 . In Louisiana, in the case of Keene v. McDonough, 8 Louisiana, 187, it is said, “ An erroneous reason, given in a judgment which is correct in itself, is no ground for reversal.” In any event, the reasoning of the court on which it either partially or wholly .puts its judgment, even if incorrect, can only form the ground of an exception to be submitted to the court below; and if- there persisted in, must be made the foundation of a bill of exceptions to be revised by this court. No exception whatever was taken to this portion of the judgment or reasoning of the Circuit Court.

If, however, the declaration, or decree embraced in the judgment, is an essential and necessary part of it, can it be revised by this court ? It is the assertion of a fact, depending exclusively upon the performance by the grantee of the conditions of the grant, and upon the laws and usages of Spain, in; cases where such instruments were issued and such conditions performed. Whether or not this fact was established is, as I have already shown, a matter belonging to the Circuit Court exclusively to decide. That court had before it the evidence of the performance of the conditions of the grant, and of the laws

And in the case of Carroll v. Peake, 1 Peters, 18, this court said, in the absence of proof to the contrary, if any possible state of the case can be imagined, or any amount of testimony supposed, necessary to sustain the opinion of the Circuit Court, this court will assume that such .a state of the case existed, and that such evidence was offered on the trial. ■ Whether or not this is a complete “title in form "under the'Spanish law, as it existed in 1797, and whether the conditions contained in it.(supposing the performance of them to be necessary to its validity) were performed, are purely matters of fact, depending upon evidence which was before- the Circuit Court. We ought, and .are bound, to presume they were legally and conclusively éstablished by that evidence. If so, the decree and judgment of the Circuit Court were free from error, and should be so affirmed by this tribunal.

I think I may say, that no errof assigned, either in the record or by a majority of,this court, in behalf of the United States, has been sustained. In my opinion, if the case could be justly decided now,' a judgment of affirmance should be entered. I wish sincerely that I could, consistently with what I have felt myself bound to do, close my remarks upon the course pursued by a majority of. the court in this case with what I have said. Something remains to be done.

In the opinion expressed by the majority of the court, they have deeméd it proper to discuss the validity of the • Maison Rouge grant, as if it were not affected in any way by the facts ascertained in the judgment of the court below, and as if in ‘every aspect, whether of fact as to the performance of the condition, or of legal effect according to the law and usages of Spain, its validity was here before us for examination and adjudication. This course I deem at variance with the settled law and practice of this court. But as I regard the grant to be clearly valid, and the opinion now given by the majority of this court against it as of the highest importance to one of the States

Under.the royal order of the 24th August, 1774, the governor of Louisiana had the amplest powers to grant lands, without limitation as to quantity, arid without the necessity of a confirmation by the Spanish government.' This power existed undiminished until the royal order of 22d October, 1798, when it was conferred on the Intendant. 2 White’s New Recopilacion, 245; United States v. Arredondo, 6 Peters, 727; United States v. Clarke, 8 Peters, 452.

After the treaty of -the 17th October, 1795, between, the United States and; Spain, by which the latter government relinquished its claim to the territory on the eastern side of the Mississippi north of the 31st degree of latitude, so that the settlements of the United States were rapidly approaching the inhabited portions of Louisiana, it became, even more than had been previously the case, an object of Spanish policy to promote the establishment of colonies of European emigrants on the outposts of Louisiana, and to encourage the. cultivation of wheat, so as to supply its inhabitants, and make them independent of the people of the United States for that food. ■ At no period "of Spanish colonization was the disposal of the public lands a source of revenue, as ours have been in the United States. Conditions of settlement on the performance of other stipulations were imposed, but in no instance was the payment of money exacted, except in a few cases in Florida, where grants of land were permitted by the king to be made by the Indians to individuals for depredations upon the latter. But money for the king’s revenue, or for colonial purposes, was never exacted in payment for land's granted. The land granted was usually limited in quantity, bu.t varied according to the objects for which the grant was made. Several ‘ cases determined in this court exhibit the ratification by it of grants made by the Spanish governors of Florida' and- Louisiana, from a few acres to hundreds of thousands of acres. ■ Every kind of consideration for them is also exhibited. Sometimes the settlement and cultivation by the grantee himself; sometimes by settlers to be introduced by him; at other, times, the construction of mills, or the establishment of large 'grazing farms; again, a reward for military services; sometimes -the liquidation and settlement of previously existing contracts. -Of all these considerations, and of many -others, which were-the foundation of grants of land by the Spanish governor, thé records of this court afford ample evidence.

The contract of March, 1795, was designed to .be the beginning of a national policy deemed by the Spanish government, and its representatives in Louisiana, essential to the independence of that province, and to the preservation of other territories of Spain still farther south.' The government, therefore, undertook to defray-all the expenses of its commencement, knowing that, after the settlement of thirty families in a wilderness,, others would be induced .to migrate to it, paying their own way, on account of that security which first settlers always give to new lands. The Marquis de Maison Rouge stipulated for nothing to be performed on his part but the introduction of thirty emigrant families into the province. • Evéry. other term of the agreement is to be performed by the Spanish government. The inspection of it, at pages 58 and 103 of the record, will, show that all the onerous stipulations were on the part of the Spanish authorities’, but none of them could in any way, or -by any' construction of it, result in any, pecuniary gain to Maison Rouge. Guides, and provisions, expenses of transportation, and grants of land and money, were to be furnished,given, paid, and made to the emigrants. Not a dollar was to be paid to the Marquis. The contract does not give him an acre of land. Not the smallest benefit from it was to come to him.

The Intendant, Morales, a man of vigorous' character,. and strict in his administration of the colonial finances, did not approve of the Baron de Carqndelet’s mode' of colonization in his contract with Maison Rouge, on account, óf the expenditures to which it led; but at the same time he expresses his opinion, that it was the policy of the Spanish government to “ have an extensive settlement on the Washita, to protect the possession

I cannot help thinking, topthat there is a caution In the terms of the grant, if taken in connection with the contract of 1795, very much in favor of its validity. As that contract did, it guards against the introduction of American settlers, which, under the former, the government had been able to prevent, by making its payments and grants of land only on proof that the families or emigrants' had come from Europe. And it not only forbids any interference with the previous settlers within the

Hitherto I havp endeavoured to show, in this part of the case, —made so, however, only by the decision of the majority of the court, — that the grant was authentic and genuine, from the internal evidence in it connected with that of the contract of 1795, and from the services of the Marquis in fulfilling that contract, in conformity with the national policy of Spain in respect, to settlers on the Washita. But I have done so more for the purpose of showing its reasonableness, and to resist suggestions against it, than with any intention of relying upon it myself, exclusively, as conclusive of the fact, of the execution of the grant by Carondelet, with the figurative plan of Trudeau contemporarily annexed; ■ for -the execution of the grant is proved by the witness Tessier, just as the law of Louisiana, or the civil law of Spain, required that it should be, for the purpose of verifying, in the trial of a suit, any instrument (escritura) upon which a party in it relies for establishment of his right.

. An instrument of writing (escritura) is every deed that is made by the hand of a public escribano, or notary of a corporation, or council (concejo), or sealed with the seal of the king, or other authorized “ person.” L. 1, tit. 18, p. 3. “ Hence arise the two kinds which- produce full faith and full proof; — one public, made by the. escribano or notary, with the solemnities prescribed by laws ” ; “ another authentic, which is that sealed by the king, bishops, prelates, and great men of the kingdom.” Either of these is, in suits, judicially proved, when such as are distinctively “ public ” are signed by a “ public escribano,” when it is not wanting in any required solemnity, and when the deed or original is confirmed by the register or protocol, in the escribamos records.; and when the deed is of that denomination called “ authentic,” — from being signed by the king, or an officer authorized by the royal order of the king, special or general, — the proof of such signature, and the instrument having a proper seal, establishes it, without any reference to. the protocol of it, in the public archives, when it appears that the protocol, or order for it, has been lost, or is beyond the jurisdiction of the court, so that the conformity between the original and the protocol cannot be ascertained by

Now, it is. by just such proof as I have mentioned, that the grant to the Marquis de Maison Rouge has been established in this case, as ah authentic original, proved not by one witness only, but by two, with a positiveness of declaration and knowledge of the fact of the signatures to the grant' that cannot be made stronger. Mr. Dubigny, Secretary of State for Louisiana, (pp. 53, 54, of the record,) says, that “he recognizes the signatures ‘ to the deed ’ of the aforesaid Baron de Carondelet, and of Don Andres Lopez Armesto, the secretary of the government of Louisiana, as genuine, and of the proper handwriting of these persons respectively; that the said instrument is in the handwriting of Charles Tessier,. Esq., of Baton Rouge, who was then first clerk in the secretary’s office ” ; and he “ moreover declares, that he had a knowledge thereof about the time it was issued, and that it (the grant) was a maker of public notoriety.” This affidavit was made by Mr. Dubigny in 1824, before Galvin Prual, Esq., a justice of the peace for the city of New Orleans. Nineteen years afterwards, on the 22d of May, 1843, Charles Tessier, Esq., the same person mentioned by Mr. Dubigny, is examined in this case, by vir-. tue of a commission for that purpose issued by the Circuit Court, and he says, in answer to the direct interrogatories put to him, repeating the same also to the cross-interrogatories, without deviation or alteration, except in other particulars, showing his forbearance in speaking of the transaction after such a lapse of time, — he says that “ he is above sixty-seven years of age; that he was a native of Louisiana; that he was, when the grant, was made, principal clerk in the office of the Spanish government for making grants of land') and that he is now the judge of the parish of East Baton Rouge; that the grant marked A is filled up in the handwriting of this- deponent, who was chief clerk of the Spanish government of Louisiana at1 the time, and did the land-office business in filling up grants; that he is familiar with the handwriting of the governor, Baron de Carondélet, and of Don Andres Lopez Armesto, secretary of the government; the deponent has often seen them both write and sign their names; the signatures of Governor Carondelet and Secretary Armesto to the document A are both genuine.” What more "than the testimony of these • two witnesses — both of unquestioned character, each in hi§ life signalized in their community by holding offices of public

The proof of the grant, then, is positive, but suspicion is attempted to be thrown upon it by the denial of the fact it recites, that the. figurative plan of Trudeau was annexed to it, when it was signed bjf the governor. And that denial rests upon Tessier’s forbearing to state positively that it was before him when he filled up the grant, and upon Girod’s pamphlet and the ex parte testimony annexed to it. Now, before any suspicion of the grant can arise from Tessier not being able to swear positively to that fact, it must appear that it was in the order of the business of the Spanish land-office, and that it was required by the laws and usages, of Spain in Louisiana, that such

But how can the contemporary annexation of. the' figurative plan to the Maison Rouge grant be denied in this case, after the proof of the signatures of the governor and secretary • to the grant ? Those officers assert in the' grant that it was annexed, with limits and boundaries designated by Don Carlos Trudeau. Now, unless these signatures are disproved, or it is proved that the governor, Carondelet, and the secretary, Armesto, had combined to practise a fraud upon their sovereign, by the assertion of a fact in a deed which did not exist, the fact that it was annexed to the grant when it was made cannot be denied. .The deed or grant, when proved, is good for all that it contains, whether

I will not take up further time by making any remarks upon the • suggestion, that the grant of June, 1797, was not meant to' convey land to the Marquis de Maison Rouge for himself, but was a grant for emigrants, as the contract of 1795 with him was, except, to say, that it would indeed be very singular if the two were for-the same purpose; that -in that of 1795 the government of Spain bore all the burdens of colonization, and in the grant of June 20th, 1797, no provision is made for such a purpose, but they were to be borne by the Marquis de Maison Rouge, an impoverished emigré, from France, and whose poverty in his humble residence in a wilderness, bought by him for a small price, is proved in the record, and rélied upon by this court, as it is shown in his will by his use of the word bienes as a reason that such a -grant was not made to him. He used that word bienes — as any other person who had been brought up

It is true that the language of the grant to the Marquis, after saying that he “ is near completing the establishment of the Washita, which he was authorized to make for thirty families by the royal order of July 14th, 1795,” does recite further, “ that, desirous to remove for the future'’ all doubt respecting other families or colonists who may come to establish themselves, we destine and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge the thirty superficial leagues marked in the plan annexed to the head of this instrument.” But the extension of colonization implied by it certainly cannot become a fact of a previous contract for that purpose, almost already completed, without the same terms for its enlargement as the king of Spain imposed upon his. treasury in the first contract, or other terms expressed and assented to by the Marquis. And I will further say, if this grant, from its terms, can be interpreted, to convey land for emigrants, of which the Marquis was only a trustee, that the terms used in it will be equally effective to convey to the Marquis the dominion of the land for himself, if the facts in the case and the reasoning upon them shall preponderate in favor of the latter interpretation. • In other words, the suggestion of the court in the opinion, of a conveyance having been in tended for colonists, and not for the Marquis, admits, so far as the suggestion conveys the first idea, that the words of the grant are sufficient to convey the land by such an instrument. There can be no objection to the grant, then, on account of a deficiency of formal terms of conveyance. Such services were never required by the civil law of Spain to make a good grant for land. Any words for that purpose are enough, in a grant from which an equitable title can be inferred for‘the grantee. The suit of the' United States against King is in the nature of a writ of ejectment. Inasmuch, however, as the distinction, so well known in England -and in our States in the United States, between courts .of équity and courts of common law does not prevail in

But let it be admitted, for the sake of the argument, that the instrument of June 20th, 1797, was designed to carry out more extensively the contract of 1795, either for the benefit of the settlers who had been already introduced under that, contract, or for other , colonists who might thereafter be placed upon the land by the Marquis, I cannot see how the right of. the United States to recoverin this action is in any way strengthened..

Whether, the thirty leagues were assigned to the Marquis for his own use, or in trust.for others, — whether he was tó be the •sole and exclusive, proprietor, or was tp hold it, as is contended, for the benefit of others, — is a question with which the United States have nothing to do. That is wholly betweén the Marquis, as holding the legal title, and those who may advance a claim as cesiui qite use.

In either case, the land was severed from the public- domain and became private property. It could not, in either case, pass,’ by any construction of the treaty, to the United States. They have neither a legal nor equitable title to the land. In order to entitle the United States to a judgment, they must affirmatively aver and prove a title in themselves.

The very pretension that the Marquis received this' grant as a trustee for others is as fatal, against a recovery by the United States as if the entire legal'and equitable title were conceded to be; as in my judgment it is clearly shown, to be, vested absolutely and exclusively in the Marquis de Maison Rouge.

I have written much upon this case, I know, — more than I usually permit myself to do in any case; but less would not have shown the judicial history of this, from the beginning of the action to its first appearance in this court, or our judgment and vacated judgment afterwards, and now the .course which this court has taken upon the writ of error to reverse the judgment of the Circuit Court.

One word more. The mandate upon the'decision here made is for the reversal of the judgtneht given in favor of King for the land for which the United States sued him. The case will

Order.

This cause came on to be heard on the transcript of the rec--ord from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to that court to enter judgment for the United States for the land described in the petition.