# United States v. King (48 U.S. 833)/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions McLean Wayne
United States Supreme Court
48 U.S. 833
United States v. King
'KING AND COXE
v.
UNITED STATES.
Supreme Court of the United States, December Term, 1847.
'Upon examining the record now before the court, and referring to the points originally in controversy and still remaining undecided, the court are of opinion, that the matters in dispute can be more conveniently and speedily heard, and finally determined, by reinstating the case in this court in the condition in which it stood at December term, 1844, previous to the judgment rendered at that term: and the counsel for the respective parties having, upon the recommendation of the court, consented to reinstate the case in the manner proposed,--
'It is thereupon, with the consent of counsel, as aforesaid, ordered, that the judgment rendered in this court at December term, 1844, and all the proceedings thereon, and subsequent thereto, be, and the same are hereby, set aside and vacated, and the case as it stood at the term aforesaid, previous to the said judgment, reinstated. And it is further ordered, that it be placed on the docket of December term, 1848, to be argued at that term on such day as the court may assign,-the United States being, as before, the plaintiffs in error, and King and Coxe the defendants.'
The case was therefore before the court just as it stood prior to the argument of it, as reported in 3 Howard, 773.
The history of the case is there given, and all the documents upon which the claim of King and Coxe was founded are set forth at large. It is unnecessary, therefore, to repeat them here.
The United States being plaintiffs in error, the argument was opened and concluded by Mr. Toucey, (Attorney-General,) who was replied to by Mr. Coxe and Mr. Gilpin, on behalf of the defendants in error.
All the parts of their arguments are omitted, except those which bear upon the points decided by the court.
The Reporter has his own notes of Mr. Coxe's argument, but prefers to print the argument of Mr. Gilpin, as that gentleman has been kind enough to revise the notes of his argument.
Mr. Toucey, (Attorney-General,) for the plaintiffs in error.
Whether the paper dated 20th June, 1797, signed by the Baron de Carondelet, was a grant to the Marquis de Maison Rouge of a complete title to the thirty square leagues, is the principal question presented upon the record. It is supposed, that, under the Spanish or any other government, if a grant from the sovereign is set up and relied on, it would be necessary to appear, that there was an intention to make such grant. The intention is the principal thing. It is the essence of the act. It is the disposing will which governs, when expressed. It lies at the foundation of all law and every contract. The rule that the intention must govern is not the property of any one system, but a maxim of universal law. If such an intention to make a grant do not appear, but the direct contrary, the supposition of a grant is absolutely excluded. And if this be the state of the case upon the face of the assumed paper title, the result will be fortified, if it be possible, by the fact, that the practical construction of both parties was in accordance with it. Such is the precise condition of the grant now alleged as a complete title in this court.
It will be necessary to see,-1st, what was agreed to be done, on the part of the Spanish government; 2d, what was actually done, in pursuance of that agreement; and 3d, in what light it was viewed by the parties after it was done, or the practical construction.
First, what was agreed to be done by the Spanish government. This is in the form of a written agreement, clearly expressed, and not liable to misinterpretation, bearing date March 17th, 1795. From this paper it appears there were certain 'families who proposed to transport themselves' to Louisiana. The Marquis proposes to bring thirty families, 'for the purpose of forming an establishment with them, on the lands bordering upon the Washita.' The government agrees,-1st, to pay two hundred dollars to every family of two laborers, and in proportion; 2d, to furnish them with a guide, and provisions, from New Madrid to Washita; 3d, to pay for transportation of their baggage and implements, not to exceed three thousand pounds for each family; 4th, to give each family of two four hundred arpens of land, ten arpens by forty, and in proportion for a greater number; 5th, to give the same to their European servants with families, after six years. This contract was signed, 'that it might come to the knowledge of those families who propose to transport themselves hither.' It proposes to give nothing to any one but the thirty families who are to constitute the establishment, and their European servants. It stipulates to give nothing to De Maison Rouge for his services, neither land nor money. There is not a stipulation in it for his benefit. The whole benefit stipulated, including the land promised, is to go to the thirty families composing the establishment. The whole contract was for their benefit. This is the clear, express, unequivocal contract at the outset, and there is no pretence that it was ever modified. The compensation to De Maison Rouge for his services was to be derived elsewhere, if he had any; either from collateral advantages, or through the emigrants, or in some other mode, which does not appear, except in the case of Alexander Lawrence, where the Marquis secured the right to take to himself either the money or the land. This was the contract, 'for the establishment on the Washita of the thirty families of farmers destined to cultivate wheat,' which was approved by the king, 'in all its parts.' Thus, and thus only, it became obligatory upon the Spanish government, and its officers derived their authority to carry it into effect. The effect of it was to constitute the Marquis de Maison Rouge an agent of the Spanish government; it clothed him with authority to act in its name; it was his letter of credence to the emigrants who proposed to come; and that was its avowed object, as expressed in the concluding paragraph. When used by the agent in treating with the emigrants, and acted upon by them, it became a complete and perfect contract between the Spanish government on the one hand, and the emigrants on the other, by which they were entitled to demand of the government the stipulated benefits. Thus far, then, there is no intention manifested by the Spanish government to bestow these benefits upon the government agent, or to permit them to be intercepted by him; but the express language of the contract, which received the royal assent, shows the direct contrary in every particular. Having this safe ground at the outset,-certain knowledge of the previous contract, of the land promised to be given, of the persons to whom it was to be given, and of the agency of De Maison Rouge,-it will be difficult to go astray afterwards, in tracing the acts of public functionaries, done in pursuance of this contract, and by virtue of this authority.
The absence of the usual formalities tends strongly to show that here was no grant or concession. There was no petition for a grant to De Maison Rouge. He did not ask for any land. There is no decree or adjudication granting a petition. There is no warrant of location, permit to occupy, or any other formality, giving him possession, with promise of title upon performance of the usual or the stipulated conditions. There was no consideration proceeding from him, moving the government, or that could be supposed to move the government, to grant to him this territory with the colonists upon it. He had introduced no emigrant at his own expense. The government had introduced all the families at its own expense. It had paid their transportation, furnished them with guides and provisions, given them a bounty in money, and promised them and their servants lands in proportion to their numbers. It had even paid the expenses of De Maison Rouge, as appears by the letter of Baron de Carondelet of the 1st of August, 1795, to Filhiol, the commandant of the post. 'The journey of M. Maison Rouge has cost more than five hundred dollars.'But to come to the paper alleged to be a grant to De Maison Rouge. Why should the Spanish government give the whole territory to him? It does not appear, upon the face of the instrument, that the government intended a benefit to him. The words are, 'We destine and appropriate for the establishment of the aforesaid Marquis de Maison Rouge.' It is called his establishment by way of distinction. Here is no grant in form to him, nor to any other person. The instrument does not name any grantee, nor contain words of grant. All the precedents require both. The instrument begins with the cause of the designation of the land. Because the establishment was nearly complete, it had become desirable to remove, for the future, all doubt respecting other families or new colonists who might come to establish themselves. The lands are expressly designated for the establishment, and the original contract, the king's approval, and the recital in this instrument, all show that the establishment is the colony of thirty families. The fact that the lands comprised in the figurative plan, as it is called, are the identical lands to be given to the emigrants composing this colony, is entirely decisive against the idea of a grant to De Maison Rouge. It was not the intention of the Spanish government to require the colonists to look to him for the title to their lands, but directly to the government, who introduced them, paid their expenses, gave them a bounty in money for coming, and promised to give them their lands upon the condition of inhabiting and cultivating them. The government did not intend to invest him with the title, because that would incapacitate it to perform its contract with the colonists, and with the European servants who should at the end of six years have become heads of families. The original contract, being specifically referred to, is incorporated in this instrument as fully as if recited verbatim, and the lands are designated under it, for the purposes set forth in it. There is no escape from the conclusion. The designation of the lands for the colony is expressly made 'under the terms stipulated and contracted for 'by the Marquis; and the royal order approving of that contract, and authorizing it, is expressly referred to by name, description, and date. The effect of this act of the government was merely to prescribe certain limits within which these colonists should receive their lands, when they should become entitled to them, and within which other emigrants should not be permitted to intrude, without the consent of government. That is the effect produced, and it is the only effect produced. It does not come up to the standard of an inchoate title to De Maison Rouge. He had no title at all,-no promise of title to him upon the performance of conditions, express or implied, imposed by the act of the parties or by act of law.
Having thus shown what the government contracted to do, and what the government had done, and that neither in the one nor the other was there manifested an intention to convey this land to the Marquis de Maison Rouge, but the direct contrary, it remains to be seen how the parties regarded it, and what was the practical construction given to this instrument by both of them.
First, the colonial government did not put such a construction upon it as would vest in him the title to the thirty leagues square, and require the colonists to look to him, instead of the government, for their titles. They did not regard the land as his property. The letters of Baron de Carondelet to Filhiol, the commandant of the post, abundantly show this. Subsequent grants in the same tracts, made by the government from time to time, show it also. The inventory made after the death of De Maison Rouge by Filhiol, as commandant, it is admitted by the claimant, did not contain this land. This was in April, 1800, before the secret treaty of San Ildefonso.
Second, the Marquis de Maison Rouge puts no such construction upon this instrument. This is shown by his letters to Filhiol. In that of the 21st of March, 1796, speaking of the claims of a Mr. Morrison, he says,-'Mr. Morrison alleges that M. Miro has promised to him that quantity of land, but he does not say that it was not for him alone, but for the sixteen families and upwards of Americans he was to have brought into the country and settled in the Prairie Chatellraud. Moreover, he has promised to discover a saline. He has fulfilled none of these conditions. This extent not having been granted to him individually, it still remains in the domain of the king. He has no more right to claim it than I would have to consider myself as proprietor of the whole extent that has been granted to me, to settle agreeably to my contract with the families that I have announced to the government, and that they know to be in mission for this place.' Others of the letters are equally explicit. In his will, dated the 26th of August, 1799, which is subsequent to the date of the alleged grant, he declares that he possesses property in Paris, Berry, and Querry, which had been confiscated; he gives a house and land which he had purchased to his maid-servant; and he also mentions the place where he has all the articles necessary to build a sawmill for cutting plank, and a pump-auger. But there is no mention of this tract of thirty square leagues, which is now claimed as his property. He nominates Louis Bouligny his legatee under a universal title:-'And also the residue and remainder of my goods, rights, and actions, as well within as out of this province, in case my parents are dead, I constitute and name for my sole and universal heir the aforesaid Louis Bouligny.' The defendants now claim the absolute title to thirty square leagues of land under this clause of the will, by this description of goods, rights, and actions.
Third, the inventory which was made by the government officer does not include this land. It was made when the agent of the legatee was present, sent from New Orleans to look after the property of the deceased. Filhiol states that he made the inventory 'in presence of M. Michael Pommier, charged with a power from M. Louis Bouligny,' but there was not any land mentioned in the said inventory.
Mr. Gilpin, for the defendants in error.
Under the decision of this court at the last term, this case is now presented as if the decree and opinion given in January term, 1845, (3 Howard, 784,) had never been made. The case was then treated as an appeal, presenting for revision all the facts and law. It was, in fact, a petitory action brought here by a writ of error; and, having been tried below without a jury, under the provisions of the Louisiana Code of Practice, (Art. 494, 495,) which are adopted by the act of Congress of the 26th of May, 1824, (4 Stat. at Large, 63,) the finding of the court on all matters of fact was conclusive, and not subject to revision. Parsons v. Armor, 3 Pet. 414; Hyde v. Booraem, 16 Pet. 169, 176; Minor v. Tillotson, 2 How. 394.
It appeared, too, on the argument at the last term, that the record before the court in 1845 was extremely imperfect,-not presenting all the evidence which was before the Circuit Court, as required by the Louisiana practice on appeals, (Thayer v. Littlefield, 5 Rob. 153; Parkhill v. Locke, 15 Louis. 443; Mitchell v. Jewell, 10 Martin, 645; Davis v. Darcey, 1 New Series, 589,) nor correctly exhibiting the character of some of the material evidence which was presented. The depositions on which this court mainly relied, as establishing the certificate of Trudeau to the plano figurativo to be antedated and fraudulent, (3 Howard, 785,) were shown to be ex parte, and to have been contradicted by many witnesses whose evidence did not appear in the record.
What we are now to discuss is, therefore, a case presented by a writ of error, founded on an allegation of an erroneous judgment of the Circuit Court of Louisiana on certain points of law apparent on the record.
What was the case before the Circuit Court?
By the treaty of the 30th of April, 1803, § 3, (Stat. at Large, 200,) all the inhabitants of Louisiana, at the time of cession, were protected in the full enjoyment of their property, every species of property, real and personal, whether held by complete or inchoate titles. Soulard v. United States, 4 Pet. 511; Delassus v. United States, 9 Pet. 117. The defendant King is in possession of a tract of 4,666 acres on the west bank of the Washita, from which the United States seek to evict him. He has vouched in warranty his grantor, the defendant Coxe, in the mode prescribed by the law of Louisiana. Civil Code, §§ 2476, 2493; Code of Practice, §§ 378, 380, 384. Coxe has answered, and claims to have been the owner under a title derived directly from the Marquis de Maison Rouge, to whom the Spanish government granted, on the 20th of June, 1797, a large tract, which continued to be the property of his devisee at the time of the treaty, and of which the tract in controversy is part. Coxe also asks, by way of reconvention, (Code of Practice, § 375,) that his own title to two thirds of the whole tract granted to Maison Rouge may be confirmed; the other one third being vested, as he alleges, in the heirs of Turner, as set forth in a document describing their respective interests, and marked Schedule A. On the trial, much evidence, documentary and parol, was offered on the part of the defendants to maintain, and on the part of the United States to deny, the validity of the grant to Maison Rouge, and the title of the defendants under it. It was chiefly denied on three grounds; first, that the grant of the 20th of June, 1797, was connected with, or supplementary to, a contract made on the 17th of March, 1795, between the Spanish government and Maison Rouge, for the settlement of emigrant families at Washita, the conditions of which agreement, it was contended, had not been fulfilled by him; secondly, that the land embraced in the grant had never been separated by a survey from the royal domain, the one certified by Trudeau being alleged to be antedated and fraudulent; and, thirdly, that the defendant Coxe had estopped himself from all claim under the grant by accepting a league square, which was patented to him by the United States on the 20th of December, 1842, pursuant to the provisions of the act of Congress of the 29th of April, 1816 (3 Stat. at Large, 328). The Circuit Court dismissed the plea of reconvention, found the grant of the 20th of June, 1797, to be valid, and adjudged the title of the defendants to be good. A full opinion was prepared, filed, and is annexed to the record, setting forth the grounds on which the decree was made.
What error of law in these proceedings appears by the record to have been committed by the court?
No exception was taken at the trial to the opinion of the court, or to the judgment; bills of exceptions were taken, both by the plaintiffs and defendants, to decisions in regard to the admission and rejection of evidence; no other exceptions appear upon the record.
Although the decisions excepted to by the defendants are clearly erroneous, yet it is not now material to inquire into them, as the judgment of the court is in their favor. It would be material so to do, if the decision of this court should be in favor of the plaintiffs, and they entitle the defendants, in that event, to the protection of a venire de novo, instead of a final judgment against them, so that they may have the benefit of the evidence of which the decisions excepted to deprived them.
Was there any error in law in the decisions excepted to by the plaintiffs?
The first, fourth, and fifth bills of exceptions have been abandoned by the Attorney-General.
Was there any error in law, in the form or substance of the judgment itself, on a review of which by this court it can be legally reversed?
No exception has been taken to the opinion of the Circuit Court, or any portion of it; there is no agreed case; there is no agreed or reported statement of facts; there is no testimony reduced to writing and sent up by the clerk; there is no certificate that all the evidence received in the Circuit Court is, directly or indirectly, before this court. If, then, there is any error, (beyond those in the bills of exceptions already disposed of,) it must be in the mere terms and language of the decree itself. Now the rules by which this is to be ascertained are incontrovertible. So far as the decree establishes a matter of fact, it is conclusive, and cannot be revised. Penhallow v. Doane, 3 Dall. 102; Wiscart v. Dauchy, 3 Dall. 327; Jennings v. Thomas, 3 Dall. 336; United States v. Casks of Wine, 1 Pet. 550; Parsons v. Bedford, 3 Pet. 434; United States v. Eliason, 16 Pet. 301; Minor v. Tillotson, 2 How. 394; Phillips v. Preston, 5 How. 289. So far as the decree establishes a matter of law dependent on a certain state of facts, it is conclusive, unless there be a formal exception taken to such decision, with a statement of all the facts necessary to its revision. Dunlop v. Munroe, 7 Cranch, 270; Walton v. United States, 9 Wheat. 657; Parsons v. Armor, 3 Pet. 414; Carver v. Jackson, 4 Pet. 80; Hyde v. Booraem, 16 Pet. 169, 176; Phillips v. Preston, 5 How. 289; Louisiana Code of Practice, §§ 488, 489, 495; Porter v. Dugat, 9 Martin, 92; Mollew v. Thompson, 9 Martin, 275; Kimball v. Lopez, 7 Louis. 175. It is a presumption of law, that if any state of facts would sustain the decree, such state of facts was established in the Circuit Court. Campbell v. Patterson, 7 Verm. 89; Butler v. Despalir, 12 Martin, 304; Mitchell v. White, 6 N. S. 409; Hill v. Tuzzine, 1 N. S. 599; Piedbas v. Milne, 2 N. S. 537; Fitz v. Cauchois, 2 N. S. 265; Miller v. Whittier, 6 Louis. 72; Love v. Banks, 3 Louis. 481. These rules apply as well to a decree of a court authorized to decide matters of fact, as to the verdict of a jury. Mayhew v. Thompson, 6 Wheat. 130; Livingston v. Story, 9 Pet. 656; Reynolds v. Rogers, 5 Hamm. 172; Franklin Bank v. Buckingham, 12 Ohio, 482; M'Girk v. Chauvin, 3 Missouri, 237. Even if the decree is obscure or defective in form, or contains what is surplusage, yet it is sufficient if it follows the issue, and finds, affirmatively or negatively, the facts contested therein. Brown v. Chase, 4 Mass. 436; Deering v. Halbert, 2 Litt. 292; Todd v. Potter, 1 Day, 238; Shepherd v. Naylor, 6 Ala. 638; Keene v. M'Donough, 8 Louis. 187.
Examine, by these rules, the errors alleged to exist in the terms and language of this decree.
First, it is said that the Circuit Court adjudicated the title to lands for which the United States have not sued. The language of the decree does not warrant this allegation; the dismissal of the plea of reconvention shows, conclusively, that the decree was confined to the lands claimed in the petition of the United States. The introduction of the title of Maison Rouge was by the United States, in their petition, wherein they declare it to be a pretended title, under which the defendants set up a claim which they deny. The terms of the decree (even if obscurely expressed) are inconsistent with any other judgment than that of the right of the defendant King to the tract conveyed and warranted to him by Coxe, and so described in Schedule A, which is the land sued for by the United States, and no more.
Secondly, it is said that the Circuit Court erred in adjudicating the instrument of the 20th of June, 1797, to be a grant to Maison Rouge. Now, in the first place, it is to be remarked that the Circuit Court do not say this; their decree is, that the grant of land under that instrument, and so held by the defendants, is valid; that their title to the possession of it, as against the United States, is sufficiently established, and that they ought to be quieted in that possession. Such decrees against a claim of the United States, in a similar action, have been sustained by this court even where the defendant has received no formal instrument of grant whatever. United States v. Fitzgerald, 15 Peters, 420. They will, in such case, protect an equitable as well as a strictly legal title; they will not give back to the United States property which has been separated from the royal domain. But, besides, if the Circuit Court has adjudged this instrument to be a valid grant,-a complete title in form,-have they erred, or, if they have erred, can this court revise such error?
Even if the Circuit Court committed an error, this court cannot revise it. It is a question of fact. If the instrument was signed by the governor,-if it was in the form required by the Spanish law,-if there was a survey ascertaining the land granted, if the conditions of the grant were performed by the grantee,-then the instrument was a valid grant. All these are questions of fact; they have been adjudged affirmatively by the Circuit Court; they cannot be revised here. If the Circuit Court erred, their error was in no sense an error of law; if any state of facts whatever could establish, in point of law, such a decree as they have made, that state of facts must be presumed to have been proved. In any event, this decision of the Circuit Court is not their judgment on the point at issue; it is merely their reason for the judgment; it is mere surplusage; if omitted entirely, the decree would still have been responsive to the issue.
It is not, then, necessary-it is not even competent-for this court to inquire whether the grant of the 20th of June, 1797, was a valid grant, even if the point were presented by the record, which it is not. But were that point examined, the decree of the Circuit Court would be fully sustained. The power of the governor to make the grant is indisputable; and the language of the grant is, according to the Spanish law, such as to convey an absolute title. United States v. Arredondo, 6 Pet. 728; United States v. Clarke, 8 Pet. 436. It was located by a survey,-a plano figurativo,-made by the surveyor-general. The conditions contained in it were performed, and were formally certified so to have been by the competent Spanish authorities. The objections-the only objections-have been two, both of which are futile. The genuineness of the certificate of the surveyor-general was disputed; this objection has been now but faintly pressed, if not entirely abandoned. It rests on the ex parte evidence of McLaughlin, Filhiol, and Pommier, which will not stand the test of examination. The performance of the conditions has been denied by an ingenious argument, which seeks to connect the grant of 1797 with the contract of 1795, though in reality the first was meant to supersede the last,-to take its place. The contract involved the Spanish government in heavy expenditures, and was particularly adverse to the policy of Morales, then becoming all-powerful in the civil administration of Louisiana. It was considered by him desirable, especially after the treaty of 1795, to promote large settlements of foreign emigrants, excluding the Americans, in that part of Louisiana, but, at the same time, to avoid the heavy expenditures and numerous inconveniences of the contract system. Hence the grants to Maison Rouge and Bastrop, in lieu of the previous plan of contracts and payments by the government. To suppose that the former was a continuance, of, and not a substitute for, the latter, is not only unsustained by any evidence, but is adverse to the very objects the Spansh government sought to attain.
Mr. Chief Justice TANEY 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 report of the case in 3 Howard, 773; and the attention of the court not having been drawn to the difference between an appeal in the State practice and the writ of error from this court, it did not, in considering the case, advert to that distinction. And being of opinion that the weight of evidence was against the authority of that instrument, it rejected it as not legally admissible, and, proceeding to decide the case as if it were not before the court, it reversed the judgment which the court below had given in favor of the defendants. Upon reconsideration, however, we were unanimously of opinion, that the decision of the Circuit Court upon this question of fact must, like the finding of a jury, be regarded as conclusive; that the writ of error can bring up nothing but questions of law; and that, in deciding the question of title in this court, the paper referred to must be treated and considered as authentic, and sufficiently proved. And in order that the defendants might have the benefit of the decision in the Circuit Court, the case was reinstated in this court at the last term, to be heard and decided upon the questions of law presented by the record, as it was originally brought up, without prejudice from the former decision of this court.
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 other 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 de Carondelet 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, he 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 indefeasible title to the land therein mentioned, and that, from the date of the said instrument, it ceased to be a part of 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 emigrant families on the Washita River, in Louisiana, under a contract made by him with the Baron de Carondelet, dated March 17, 1795, and approved by the king of Spain on the 14th of July in the same year. And he then proceeds, in his answer, to assume the character of plaintiff in reconvention, and prays that the grant of the 20th of June, 1797, to the Marquis de Maison Rouge may be declared valid, and that he and King may be recognized to be the lawful owners of the parts of the said grant held by them, as described in the answer of King, and in a schedule annexed to his (Coxe's) answer, and that they may be quieted in the ownership and possession of the same, and that the United States may be ordered to desist from treating and considering any part of said grant, as designated in a certain survey by John Dinsmore, referred to particularly in his answer, as public property.
Upon this issue the parties proceeded to take testimony, which is set out in full in the record. A great part of it is immaterial, and 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 practice, 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, be 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 questions 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 law and equity is recognized everywhere in the jurisprudence of the United States, and prevails (as this court has repeatedly decided) in the State of Louisiana, as well as in other States. And if these defendants had possessed an equitable title against the United States, as contradistinguished from a legal one, it would have been no defence to this action. But no such title is set up, nor any evidence of it offered. The defendants claim under what they insist is a legal title, derived by the Marquis de Maison Rouge from the Spanish authorities.
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 Carondelet in 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 time in force in the province of Louisiana, the instrument of writing dated in 1797 passed the title to the land described in the figurative plan of Trudeau to the Marquis de Maison Rouge, as his 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 construction.
Confusedly, therefore, as this record has been made up, and loaded as it is with irrelevant and unnecessary parol testimony, the facts upon which the question of title arises are as fully before us as if they had been set forth in the form of a case stated; the disputed question as to the authority of the plan of Trudeau being, so far as this writ of error is concerned, finally settled by the decision of the Circuit Court.
We proceed, then, to examine 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 United 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 or 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.
It 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 this 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 those whom he invited to remove to his establishment, and it does not appear to have been thought necessary, and perhaps was not desirable, that his compensation or his interest in forming the colony should be made public. That was a matter between him and the Spanish authorities, which doubtless was understood on both sides. And whether it was to be in money, or in a future grant of land, does not appear. Certainly it was not to be in the land on which this establishment was to be formed, because the government was pledged to grant it to the colonists. The provincial authorities, it seems, had not the power, by virtue of their official stations, to enter into this agreement. After it was drawn, it was transmitted to the king of Spain for his approval; and he ratified and confirmed it by a royal order. All that was done under it, therefore, was done under the authority of this special order, and not by virtue of any power which belonged to the provincial officers, in virtue of the offices they held.
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 attached 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 the 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 questioned, that, in doing this, he was, by the agreement, to act as the agent of the government, and not as the proprietor of the land.
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 acknowledge 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 a grant to Maison Rouge.
It begins by reciting 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 contracted 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 the other families or new colonists. It is to be for the exclusive use of the colony which Maison Rouge was to establish, to prevent the apprehension of disturbance from other persons; and it is declared to be under the same terms and conditions, in order to satisfy those other families, or new colonists, that the liberal provision made for the thirty families would also be extended to them. And the instrument also states that this territory is appropriated for 'the establishment aforesaid,' that is, for the establishment authorized by the contract of 1795, and not for one to be made under a new contract; and it further states, that it is made by virtue of the powers granted by the king,-evidently referring to the royal order which was before mentioned in this instrument, and showing that the provincial officers who signed it were acting under special authority, and not under their general powers to grant land. Every expression in this instrument indicates that it was executed to remove doubts which might arise under the previous contract, and to carry that plan into full effect. There is not a word or provision in it which implies that there were any doubts about the rights of Maison Rouge under his contract, or that he was to have any other rights under this than were given to him by his former agreement. The land is appropriated for 'the establishment aforesaid.' In other words, it was to be the same establishment, with the same rights, but with limits more distinctly defined, and the rights of other families and new colonists who might unite themselves with the original thirty more clearly recognized.
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 Maison Rouge, and that this instrument intended to reward him. Besides, the last instrument would be unmeaning and unintelligible without referring to the first, and construing them together. It would be impossible, without taking the two agreements together, to understand from the last what was meant by the establishment of the Marquis de Maison Rouge, or how it was to be formed, or what were to be the privileges of the new colonists, or what were the conditions contracted for by Maison Rouge. None of these things are specified in the instrument of 1797. It refers for them to the former contract.
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 acquainted with the colonial usages and forms. Thus, for example, in the case of Arredondo and Son, reported in 6 Peters, 694, where the 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 individual, 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 with 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 the lands included in his grant.' The lands mentioned in this note are undoubtedly the lands described in the body of the instrument, and his establishment was to be formed on them. The note apprises him, that, in doing so, he must conform to his contract, and not admit any American. There was therefore a pre existing contract in relation to this settlement, by which the rights of the parties were defined, and by which Maison Rouge was prohibited from admitting or establishing Americans upon this land. The contract referred to is evidently the contract of 1795. We hear of no other. The thirty families which Maison Rouge was to introduce under that agreement were to be emigrants,-Europeans; and he is to conform to this stipulation, in introducing the other families and new colonists, in the thirty superficial leagues marked out on Trudeau's plan. They were not to be Americans. The establishment formed on this land was therefore to be made under the contract of 1795, and the rights of both parties regulated by it. The note in question was appended, because the body of the instrument referred only to the undertakings of the government, and without this note Maison Rouge might have regarded himself as absolved from his agreement as to the character of the additional or new colonists. But how could he be required to conform to his contract, unless the contract spoken of was to be carried into execution upon this territory? The words, 'lands included in his grant,' which are used in the note, mean nothing more than the lands set apart and appropriated by this instrument for his establishment; and to give them any other meaning would make this brief note unmeaning and inconsistent with itself. He was not to admit or establish Americans in the territory destined and appropriated for the establishment which he was to form, under the contract of 1795, that contract requiring this establishment to be formed of emigrants. This appears to be the plain meaning of this note, and we can see nothing in it that will justify a different construction, or give any reason to suppose that a grant was intended to Maison Rouge as his private property.
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 we shall presently notice, this court have held, that, where the Circuit Court decides, as in this case, both the fact and the law, no exception can regularly be taken. Even in a court of common law, an exception is never taken to the judgment of the court upon a case stated, or on a special verdict; yet the judgment is subject to revision in the appellate court. The same rule must prevail where the facts upon which the inferior court decided appear in the record;-like a case stated, the question in the superior court necessarily is, whether the judgment of the court below was erroneous or not upon the facts before it, as they are certified in the record.
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 reconvention 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. But 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 was a judgment against the United States in favor of Coxe for the land claimed by him in reconvention, as well as in favor of King for the land sued for by the United States. If this is the meaning 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 particulars, 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 been improperly admitted, the appellate court will reject it, and proceed to decide the case as if it was not in the record. This is the rule laid down in the case of Field et al. v. The United States, 9 Pet. 202, and is undoubtedly the correct one. It is certainly proper, where evidence supposed not to be legal is received by the court, to enter on the record that it was objected to. But this is done to show that it was not received by consent, and a formal bill of exceptions is not required to bring it to the notice of the superior court. It may, however, be done in that form, if the parties and the court think proper to adopt it; and the objections have been so stated in this case, in conformity, we presume, with the Louisiana practice. But as the material evidence in the case was all legally before the Circuit Court, it would be useless to examine whether errors were committed as to portions of it which are altogether unimportant. And this court being of opinion, for the reasons hereinbefore stated, that this instrument of writing relied on by the defendants did not convey, or intend to convey, the land in question to the Marquis de Maison Rouge, the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to enter a judgment for the United States for the land described in their petition.
Mr. Justice McLEAN, 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.
This cause came on to be heard on the transcript of the record 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.

## Notes

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