Godeau v. Phillips

Porter, J. delivered the opinion of the court. This is a petitory action. Both parties claim under a purchase made from the government of the United States, the fractional section No. 15, in township No. 2, south, in range No. 4, east, agreeably to the township plat returned by the United States surveyor to the land office at Opelousas. The plaintiff’s purchase was made under the laws of the United States, according pre-emptions to settlers on public lands; and the act of the fourth of May, 1826, extending the time of payment to persons so circumstanced. The defendant bought under the statute passed by Congress on the third of March, 1811, the tenth section of which authorises the register to dispose of at private sale, any lands that remained unsold, after having been offered at public auction. The plaintiff obtained from the government of the United States a patent, which he .produced and gave in evidence. The defendant’s title was carried no farther than the1 payment of [62] the purchase money and the register’s receipt. See United States Laws, 591, 653, 631, 904. The defendant, in addition to the plea of the general issue, and the assertion of title in himself, charged the plaintiff, in the answer, with having obtained his pre-emption right by fraud and through false testimony. The testimony introduced on that head on the trial is contradictory. The jury who tried the cause seemed by their verdict 'to have considered it to preponderate in favor of the plaintiff, and we cannot say we are dissatisfied with their conclusion. This part of the case disposed of, we have next to examine which of the parties have the best title in law to the premises. The defendant’s purchase was made and completed by the payment of the price, on the 22d of February, 1827. The phdntiff made his first payment on his pre-emption entry on the 18th November, 1818; but did not pay the balance due thereon until the 25th April, 1827. The township in which ^ ^ocus 9U0 *s situated, had been previously to the defendant’s purchase offered for sale by order of the President of the United States. The acts of Congress which conferred on the settlers on public lands a pre-emption right, vested a legal title in the buyer, as soon as the purchase was made, and the money paid according to the conditions prescribed in those acts. And the title thus acquired could not be legally divested, unless the settlers failed to make the subsequent payments conformable to law. Any forfeiture that could have arisen from that circumstance in the present instance, has been waived by the act of Congress of May 4th, 1826; and of this law the plaintiff has availed himself. The defendant however contends, that his purchase being complete previous to that of the plaintiff, his title is a better-one. The opinion we have just expressed on the right which the settler acquires by the law granting him a pre-emption, sufficiently answers'this pretension. The government of the United States could not, even had they desired to do so, have taken the land from the settler, who, under the faith of acts of Congress, entered the portion of the public land which he was permitted to acquire, and paid for it. But in the precent [63] case no such intention existed on their part. It is proved beyond doubt, that the sale to. the defendant originated in the error of the register. He thought the plaintiff had entered the fractional section 16, instead of 15. The former could not have been legally entered, it. being that which is reserved by law for the us.e of public schools.; and the latter, it is clearly shown, is the section on which the plaintiff was settled, which he entered, and for which he made a payment so far back as the year 1818. And these remarks bring us to a bill of exceptions taken on the trial by the defendant, which would have been noticed earlier, had we not conceived it would be better understood after the case was gon.e through on the merits. The register at Opelousas, as soon as he discovered the mistake which he had made in selling the land to the defendant, wrote to the commissioner of the general land office at Washington, stating the I fact, and recommending the sale should be annulled. Tbe commissioner immediately answered him, declaring the purchase to be, illegal, and directed the, money to be returned ■*' n i mi \ V_ to the defendant. JL he testimony of the, register at Opelousas was taken, by deposition, and in his answer to the interrogatories propounded to him, he gave a transcript of this letter from the, office at Washington, This portion, of the deposition was objected to because the statements therein contained were not sworn to. The judge overruled the objection, and W.e, think correctly. The plaintiff had a right to introduce, a the letter to prove rem ipsaim, that is-to say, that it had, been, written, and that the agent of the vendor had' ordered; the-repayment of the purchase- money. The opinions contained in. it could not affect the cause, and did not prevent the plaintiff from availing himself of that part of it which was legal evidence. If- the defendant, deemed it important, expressly to exclude from the jury those matters in the letter which were irrelevant or improper to be laid before them, he should specially have objected, on that ground, and prayed the judge’s instructions-to the jury accordingly.. There is another bill of exception which, from no notice being taken of it in argument, Ave presume Ayas abandoned. [64] We have looked into it, and a decision either way on the question which it presents could not, it appears to. us, affect the case on its merits. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.