# Surgett v. Lapice

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United States Supreme Court
49 U.S. 48
Surgett v. Lapice
THIS was an appeal from the Circuit Court of the United States for the District of Louisiana.
It was a possessory action in the sense of the Code of Practice of that state, originally commenced by Lapice and Whittlesey, in the Ninth District Court of the state of Louisiana, in and for the parish of Concordia, against Surgett, who was a citizen and resident of the state of Mississippi; and at whose request it was removed into the Circuit Court of the United States.
On the 21st of November, 1829, Surgett purchased several lots, from number 28 to number 35 inclusive, in township 5, range 9, east, in the Ouachita district in Louisiana, which lots fronted on the Mississippi River.
On the third Monday of November, 1829, the President of the United States issued a proclamation, offering the public lands in this township for sale.
On the 15th of June, 1832, Congress passed an act (4 Stat. at L., 534), entitled 'An act to authorize the inhabitants of the state of Louisiana to enter the back lands.' This act provided that every person who, by virtue of any title derived from the United States, owns a tract of land bordering on any river, creek, bayou, or water-course, in the said territory, and not exceeding in depth forty arpens, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of, his own tract, not exceeding forty arpens, French measure, in depth, nor in quantity of land that which is contained in his own tract, at the same price and on the same terms and conditions as are, or may be, provided by law for the other public lands in the said state, &c., &c. 1. Provided, however, that the right of preemption granted by this section shall not extend so far in depth as to include lands fit for cultivation, bordering on another river, creek, bayou, or water-course. And every person entitled to the benefit of this section shall, within three years after the date of this act, deliver to the register of the proper land office a notice, in writing, stating the situation and extent of the tract of land he wishes to purchase; and shall also make the payment or payments for the same, at the time and times which are or may be prescribed by law, for the disposal of the other public lands in the said state, at the time of his delivering the notice aforesaid being considered as the date of the purchase. 2. Provided, also, that all notices of claims shall be entered, and the money paid thereon, at least three weeks before such period as may be designated by the President of the United States, for the public sale of the lands in the township in which such claims may be situated, and all claims not so entered shall be liable to be sold as other public lands, &c. And if any such person shall fail to deliver such notice within the said period of three years, or to make such payment or payments at the time above mentioned, his right of pre emption shall cease and become void; and the land may thereafter be purchased by any other person, in the same manner and on the same terms, as are, or may be, provided by law for the sale of other public lands in the said state.
On the 14th of July, 1834, a part of the land lying back of the lots owned by Surgett was entered at the land office by Whittlesey and one Sparrow, whose interest was afterwards purchased by Lapice.
On the 24th of February, 1835, Congress passed another act (4 Stat. at L., 753), extending the time given by the former act to one year from the 15th of June next.
On the 17th of March, 1836, Whittlesey entered the remaining portion of the lands back of Surgett's lots.
On the 20th of May, 1836, Surgett made application to enter the lands in controversy, which had been taken up by Whittlesey and Sparrow, and by Whittlesey. At the same time, he made a tender of the purchase-money, which was refused by the receiver, in consequence of the following indorsement upon the application by the register:--
'By reference to the official township map, it will be seen that the land called for in the above application is such as is exempted from the right of back concession (so called) by the first proviso if the act under which the applicant claims, which reads, ('meaning the right to the back land,') shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or water-course. Now, from the evidence in this office, the land embraced in the rear of the above lots or fractional sections is fronting on another bayou, and that the same is fit for cultivation, the fact of a part being good land, above or during high-water mark, is on file herewith. Under the circumstances of the case, the land called for in part has been entered by other persons as public land, subject to private entry, and the application is rejected, so far as the action of this office can decide, subject to the decision of the department.'
On the 10th of April, 1840, Lapice and Whittlesey filed a petition in the Ninth District Court of the state of Louisiana, which is known by the laws of that state as an 'action of jactitation,' or 'slander of title.' The petition 'shows, that one Francis Surgett, residing in Adams county, in the state of Mississippi, has heretofore, at various times, and on divers occasions, slandered the title of your petitioners to the aforesaid tracts of land, and still continues to do so, by giving out in speeches and otherwise, and public proclaiming, that he the said Surgett is the rightful and true owner of said tracts of land, and not your petitioners; alleging that the said Whittlesey and Sparrow acquired from the United States no legal and valid right thereto, and threatening the said Sparrow and your petitioners with a suit to recover the same; that your petitioners and the said Sparrow, while part owners, have frequently requested said Surgett to desist from the slandering their title, or to bring suit to establish his own title thereto, if any he has; but he has refused, and still refuses, either to desist or to bring suit as requested; that said acts of the said Surgett have damaged your petitioners five hundred dollars.'
The petition then prays, 'That, after due proceedings had, the said Surgett be ordered to set forth his title to the tracts of land described in the aforesaid petition, if any he has, and establish it contradictorily with your petitioners; that unless he produces a good title paramount to your petitioners, that judgment be rendered in their favor, quieting them in their title and possession of said land, and that the said Surgett may be forever enjoined from setting up any claim or pretensions to the same; that your petitioners recover five hundred dollars damages against the said Surgett, and the costs of suit to be taxed, and for general relief in the premises, &c.'
On the 10th of June, 1841, Surgett, being a citizen and resident of Mississippi, removed the cause to the Circuit Court of the United States for the District of Louisiana.
On the 3d of December, 1841, Surgett filed his answer, in which he denied altogether that the petitioners had any title to the lands, but claimed that the title was in himself. The answer then proceeds thus:-'Respondent pleads in reconvention that he himself is the true and lawful owner of so much of the said lands claimed by the plaintiffs, as are embraced in the aforesaid back concessions claimed by him, and prays that he may be decreed to be the legal owner thereof, that the certificates granted by the commissioners of the land office to Sparrow and Whittlesey, or either of them, may be avoided and annulled; and that, if patents have already issued in their favor for said lands, the plaintiffs may be decreed to convey all their right, title, and interest, by virtue of said patents, to your respondent; that he may be quieted in his title and possession thereof, and may recover judgment against said plaintiffs for the sum of one thousand dollars damages, sustained by him in consequence of their illegal pretensions, and for general relief in the premises.'
Under commissions to take testimony, thirteen witnesses were examined, as to the nature and character of the bayou called Mill Bayou, in the rear of Surgett's lots. It is impossible to insert all this evidence.
On the 7th of April, 1845, the Circuit Court passed the following decree:--
'The court, having duly considered the law and the evidence in this case, doth now order, adjudge, and decree, that the plaintiffs Lapice and Whittlesey be quieted in their title to, and possession of, the land set forth and described in their petition, and that the defendant, Francis Surgett, be for ever enjoined from setting up any claims or pretensions to the same. It is further ordered, adjudged, and decreed, that the said defendant do pay the costs of this suit.'
From this decree Surgett appealed to this court.
The case was argued by Mr. Lawrence and Mr. Jones, for the appellant, and Mr. Brown and Mr. Johnson (Attorney-General), for the appellee.
The points raised by the counsel for the respective parties were the following:--
For the appellant.
1. As to jurisdiction.
A motion has been made to dismiss this case for want of jurisdiction, because (it being an action at law, and not a suit or proceeding in equity) it should have been brought here by writ of error and not by appeal.
This was a petitory action originally commenced by the appellees in the State Court of Louisiana, in the manner authorized by the laws of that state, and removed at the instance of the appellant into the Circuit Court of the United States. It is known in the Louisiana Code as an 'action of jactitation,' or 'slander of title,' and may be brought by any one having a colorable title to, or possession of, land or other property, against any person claiming title to the same, to compel the latter to establish his title, or else to punish him for the slander. If the fact of claiming title is denied, and no title is asserted, the trial is upon that issue alone, and would undoubtedly be a trial at law. But if the fact of the supposed slander is admitted, and the defendant sets forth his title, the original action is at an end; the answer becomes the ground of another suit; the former defendant becomes the actor, the plaintiff, and the trial becomes one as to the respective titles of the parties to the thing in controversy. And it makes no difference, according to the Louisiana practice, whether the defendant in the suit for slander commences a new suit by petition founded on his title, or whether he does it by his answer in the same suit. In either case, it is in substance a new suit and another trial. Livingston v. Hermann, 9 Mart. (La.), 656, 700, 722; Hewit v. Seaton et al., 14 La., 160; Millaudon et al v. McDonough, 18 Id., 106; Proctor v. Richardson et al., 11 Id., 188.
When, however, the answer is made the groundwork of a new suit in the Circuit Court of the United States, where the distinction between suits at law and suits in equity is established, the character of the suit will be determined by the subject-matter and the general character of the proceedings. If the controversy is one appropriate exclusively to equity jurisdiction, and if the proceedings partake mostly of the character of equity proceedings, the suit is one in equity, so far at least as to entitle it to be brought up to this court by appeal rather than by writ of error. McCollom v. Eager, 2 How., 61; Parish v. Ellis, 16 Pet., 454; Parsons v. Bedford et al., 3 Pet., 447.
The equity jurisdiction of the courts of the United States is the same in one state as in another and wholly independent of the local law of every state, without distinction.
Accordingly, the extension of a common law remedy to an equitable right, by the local law of any state, does not take away the equitable remedy proper to the courts of the United States. 1 Story Eq., §§ 57, 58; 3 Story on Const., 506, 507, 644, 645, and cases there cited.
The remedies in the courts of the United States must be at common law or in equity, not according to the practice of the state courts, but according to principles of common law or equity, as distinguished and defined in that country from which we derive our knowledge of those principles. Robinson v. Campbell, 3 Wheat., 222.
Being a case which, upon general principles, is a peculium of equity, its jurisdiction in the Circuit Courts of the United States was not taken away by a law of Massachusetts giving the common law courts jurisdiction of the same matter. United States v. Howland, 4 Wheat., 115.
By parity of reason, in Pennsylvania the legal remedy by ejectment, although extended by state law and practice to equitable titles, cannot be sustained on such title in the Circuit Court of the United States in that state; but the plaintiff must still show a paramount legal title. Swayze v. Burke, 12 Pet., 23. See Vatier v. Hinde, 7 Id., 274; Golden v. Prince, 3 Wash. C. C., 313; Pratt v. Northam, 5 Mason, 95.
All these principles have been extended and applied in their utmost latitude, and with additional illustrations, to Louisiana. See Livingston v. Story, 9 Pet., 655; S.C.., 13 Id., 368; Ex parte Poultney, 12 Id., 474; Ex parte Myra Clarke Whitney, 13 Id., 404.
And see all these reviewed, and the doctrine reasserted, in Gaines et ux. v. Relf et al., 15 Pet., 9; Gordon v. Hobart, 2 Sumn., 401.
Lastly, this court has decided, in effect, that the United States, in conferring chancery jurisdiction on the courts in Louisiana, have imposed no foreign law on the state, nor introduced any foreign or new principle of jurisprudence. The whole innovation went to further, in that state, than a mere change in the mode of obtaining a judicial end, for which the local law is there supposed to afford an adequate remedy in another form. Gaines et ux. v. Relf, Chew, et al., 2 How., 650.
Although in Louisiana, as in many other of the United States, there are no distinct forums of law and equity, yet an equity jurisprudence (not materially distinguishable, either in its principles, in its practical ends, or in the means of accomplishing its ends, from that which other states have borrowed from the equity system of England) is incorporated with the general jurisprudence of the state, and is administered by the same courts and the same remedies.
Those remedies, in their practical forms, in their processes, and in their reach and effect, (though not precisely conformed in all respects to the rules of equity practice prescribed to the courts of the United States,) are fashioned after the same model as those of the equity side of the English Chancery styled the Forum Romanum; and are quite appropriate to all the most comprehensive heads of equity cognizable in the courts of the United States. Civil Code of Louisiana, Art. 21, 1958 to 1962, recognitions of equity eo nomine.
Actions whereby contracts, &c., may be set aside by the active interference of the court, (over and above the universal right of defence on equitable grounds,) as effectually and extensively as by any form of procedure in any court of equity.
C. Code, Art. 1854 to 1874, 2567 to 2578, 2634 to 2636, Lesion; 2496 to 2518, Redhibition; 1841 to 1843, Nullity resulting from Fraud; 1876, Contracts vitiated by Fraud, &c., may be avoided either by exception or actions.
Code of Practice, Louisiana, sections treating of Petition and Citation, Art. 170 to 207; of Conservatory Acts, 208, 209; of Sequestration, 269 to 283; of Injunction, 296 to 309; of Appearance and Answer, 316 to 329; of Exceptions, 330 to 346; of Interrogatories, 347 to 356; of Incidental Demands, 362 to 364; of Intervention, 389 to 394; of Parties to Suits, 101; [[|of Amendment]]s, 419 to 440; of Trial which is regularly on hearing before the court and only allowed by jury sub modo, 476 to 492 and 493 et seq.
1st. The subject-matter of this suit was one of exclusive equity jurisdiction. Surgett had an equitable title to the land in controversy, his opponents had a colorable legal title and possession. In no state, (except Pennsylvania,) where law and equity jurisdictions are distinct, could he stand for one moment in a court of law. His equitable title could be asserted only in a court of equity against the legal title of his adversaries.
2d. The forms of proceeding were more nearly allied to proceedings in chancery than to proceedings at common law. They commence by petition, in which the ground of complaint and relief sought are set forth. The defendant is ruled to answer. The answer admits, denies, or avoids the facts in the petition, or sets forth new matter upon which the defendant may recover if sustained. Interrogatories are filed. The case is heard by the court on the facts and the law, and ends by a decree. See Justice McLean's opinion in Parsons v. Bedford, 3 Pet., 450.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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