
    
      GONSOULIN’S HEIRS vs. BRASHEAR.
    
    Appeal from the court of the fifth district.
    A party who obtained the governor's order to be put in possession of vacant land, in 1783, but does not appear to have taken it, cannot evict one who obtained a similar order in 1802, and is in possession under it.
   Porter, J.

delivered the opinion of the court. The plaintiffs claim a tract of land in possession of the defendant, who pleads title to it in himself.

Both parties assert a right to the premises in virtue of orders of survey issued by the Spanish government, and since confirmed by the commissioners of the United States. The locus in quo is admitted to be the same.

That of the plaintiff is eldest. It is dated in the year 1783. The petitioners in their requete state, that the island which they solicit is situated about four leagues to the west of the mouth of the river Chaffalaya, and that they wish to obtain a title in order that they may form an establishment, to supply the capital in case of need with pork and bacon.

West’n Dis'ct

August, 1826.

The commandant of Attakapas certifies, that the land solicited is of no value, except for the objects mentioned in the requete. The governor directs the surveyor general, to place the petitioners on the land solicited, conformably to their memorial.

From the issuing of this order of survey up to the time of applying for the commissioner’s certificate, in the year 1816, it does not appear that the plaintiffs or those under whom they claim, ever exercised any acts of ownership over the land in question. They never placed slaves or hogs on it, as they stated in the petition they would do: nor ever paid taxes on it as making a part of their property. An attempt was made on the trial to prove they had complied with the engagement contained in their requete, but the evidence wholly fails to establish it.

The title of the defendant is founded on an order of survey, dated in the year 1820. An actual survey of the premises was made. An actual settlement took place, and with the exception of three or four years absence, during which time taxes were regularly paid, the land has been inhabited up to the commencement of this suit.

The government of the United States have relinquished their title to both, and the parties so far as their rights may depend on any sanction from that source, stand with equal pretentions before the court. They are therefore both thrown back on their titles, under the former government. If these titles were complete grants, their date would decide the question, for the title having once passed from the sovereign to the subject, he could not grant it to another. But the orders of survey on which each of the parties claim, left the title or dominion of the soil vested in the government. They furnished an equitable right to those in whose favor they issued, to demand a title of the grantor, but nothing more; a reference to the various negotiations made by the Spanish authorities during the time Louisiana was possessed by that government, we think clearly shews, that the dominion of the soil was not to be considered as vested in the person applying for land, until the grant issued. The government of the United States when they took possession of the country, by requiring all those who had inchoate titles to present them for approval, shewed that they considered they required confirmation, and a patent to vest the title.

As therefore the legal title was not vested in either plaintiff or defendant under the former government, their rights must be decided by ascertaining which of them had the strongest equitable one, or in other words, which of them according to the laws, usages, and customs prevailing while that government had possession of Louisiana, would have had the best right to the premises.

We think there cannot be a doubt the defendants would. The policy of the Spanish government, as is well known, was to invite emigration and promote the settlement of the country. All the general regulations in relation to land in the province, and almost every order of survey they issued, proves that the motives just mentioned were the ruling ones. Repeated proclamations of the governors declared all orders of survey null, the land conceded in which, was not settled within a limited time. The plaintiffs pretentions tried by this test are entirely defective. In 1783 their ancestor applied for the land, and held out to the government as an inducement to grant it, that it was unfit for any other purpose but that of raising hogs, and that if given to him he would proceed to place slaves and swine there to succour the capital with meat of that kind. During the space of nineteen years that had elapsed from the granting this order of survey until the issuing the second, he failed to comply with the promise. It was not surveyed, nor settled, nor even taxes paid on it. Under such circumstances, as there was no legal obligation on the part of the government to issue a grant for the land, we are satisfied there was no moral one. And we are of opinion that if the parties now before us were each claiming a title from the Spanish government had it remained here, and contesting the validity of each others pretentions, that the title of the defendant would prevail.

Simon & Baker for the plaintiffs, Brownson for the defendant.

This opinion renders it unnecessary to examine the question of prescription.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  