
    
      MURRAY vs. BOISSIER.
    
    West'n District.
    
      Sept. 1821.
    If the plea of the general issue be followed by an averment, that the defendant has a better title than the plaintiff, the averment does not controul the plea.
    Appeal from the court of the sixth judicial district.
    The plaintiff, in propriâ personâ. The plaintiff and appellant, claims a tract of land, of ten arpents front, with the ordinary depth on each side of the bayou, or river Conan. His claim is founded on an order of survey, in the name of Marie Antoine, a sale from her to David Case, in whose name the claim was confirmed by the commissioner's report and the act of congress, and a sale from the said Case to the plaintiff. The plaintiff believed that the locus in quo was admitted by the answer of the defendant, and summoned no witnesses. He contends that the locus in quo is admitted, by the defendant’s answer, and if not, is proved by the notice of the defendant in the register office, which calls for “a tract of land at St. Maurice,” and by the witnesses examined on the part of the defendant, who are particularly entitled to belief in this case, as they are the legal owners of all right that Pierre Derbanne had to the land, if any he had, as they declare themselves heirs, and that they have given no title "in writing" to the land.
    
      The plaintiff's title is for a tract of land at a place called St. Maurice. The interested witnesses say that the place called St. Maurice is a point of high land; the defendant’s notice is for a tract of land at St. Maurice, at a point well known, and requiring no further description than the locus in quo is admitted by the answer, or by the witnesses who has the best title.
    The plaintiff has an order of survey for the land in controversy, regularly transferred to him by D. Case, for the sum of fifteen hundred dollars, as will appear by the sale in writing, and of record.
    The defendant has a confirmation of the favorable report of the commissioners by congress, for as much land as has been conveyed to him by Pierre Derbanne’s representatives. But this confirmation has been made in error, as will appear by comparing the testimony of a brother of the defendant, on which the report was made, and the testimony of the witnesses adduced on the trial of the cause. Boissier, the brother, proves an occupation, cultivation and possession, from 1786, until eight or nine years previous to the time of giving his testimony in February 1813, which brought the claim under the act of congress. The witnesses examined in the cause, prove that the land was occupied without a title; that at the death of Derbanne, the claim was not inserted in his inventory; and that it is forty or forty-six years since the vacherie of his ancestor was removed from St. Maurice (the time is in figures, and doubtful which) and it has not been possessed by them since.
    The confirmation is for so much land, not more than 640 acres, as was conveyed to the defendant, by the heirs of Derbanne; none has been conveyed on lite contrary, the heirs of Derbanne (or some of them will not convey.) This, however, will have no great weight, except as to the quantity.
    The case by their own statement is as first stated; the pleadings will shew that the locus in quo, is admitted, and the interested witnesses themselves prove it; I do not believe, that Brevel ever had a line established, it is consequently uncertain; the place called St. Maurice is certain, as I state above; the defendant, had he proved the facts, as they were before the commissioners, would not have had any title under the acts of congress, I apprehend that in this case, as both persons call for St. Maurices the court will give the preference to the title in good faith, against a title obtained in error, to give it no worse appellation.
    
      Mills and Bullard, for the defendant.
    The appellant claims a tract of land ten arpents, front on each side of the river Conan, bounded above by the land of J. B. Brevel, and below by vacant lands, under the petition and order of survey of Marie Antoine, of which he says the appellee is in possession. The appellee is in possession of six hundred and forty acres, by virtue of a settlement right, confirmed to him by an act of congress, under the recommendation of the commissioners, which is in the same section of country, but it is contended is not the same land.
    The evidence shews, that a quartier, or section of country, of considerable extent, on the Conan, is vulgarly known by the name of St. Maurice. The spot, where a man by the name of St. Maurice first settled, at a very early period, is the high point of land, where the defendant has made his improvements. This point or ecor, is also called at this time, St Maurice. This section of country is, what Marie Antoine calls in her requete, le lieu vulgairement nommé St. Maurice. Her requete has therefore, but one definite call; to wit. Brevel’s land above. Now, it is clearly proved that Brevel's improvement was more than a league from the defendant's settlement, higher up the river. Marie Antoine, and those who claim under, have never made any settlement on their land; never had a survey made; never performed any of the usual conditions of an order of survey; but the title, such as it is, remained dormant, until the inception of this suit. There being but one definite call, the applellant is bound by it; he must take his land adjoining J. B. Brevel, and running down the bayou for his front, and he cannot recover of the appellee, unless he can shew, that such a location would cover the land occupied by the appellee. He must recover by the strength of his title, the onus probandi is on him. The evidence shews that Brevel was a league and half above Boissier, and in the quartier, or the place vulgairement nommé St. Maurice.
    
    It is said by the appellant, that the locus in 
      
      quo is admitted by the answer. The first part of the answer is the general issue; a denial of all the facts and allegations contained in the petition. The most material allegation in the petition is, that the appellee is in possession of the land covered by the title of the appellant. If the appellee had gone no farther, and had relied on a naked possession, is the evidence sufficient to have entitled the plaintiff to a recovery ? The suit is in the nature of an action of tresspass; the fact of intruding upon the soil of the plaintiff, is the most essential to be made out. It was impossible for the defendant to be more particular in denying the identity of the land, in as much as the calls of the plaintiff's order of survey are not particularly set forth In the petition.
    In addition to the expressions of the order of survey, there are other circumstances which induce a belief, that Marie Antoine did not mean the identical spot, in the possession of the appellee. The family of Derbanne had occupied that place for many years, and it is not to be presumed, that she intended to ask for land already settled, or that the Spanish authorities would have sanctioned it.
    There can be no doubt that Boissier has a title out of government, a settlement right.—The manner in which he acquired it is not a question between the parties in this suit; if he has usurped the rights of the family of Derbanne, the certificate he had obtained, might be decreed in a suit between him and Derbanne's heirs to accrue to their benefit. The plaintiff cannot take advantage of that circumstance; by destroying our title he does not better his own.
    In fine, neither title has ever been located, and there is land enough in the place commonly called St. Maurice, for both of them; the appellant can take a league and a half from Brevel's land, down the bayou, and still leave us in possession of our settlement; a surveyor in locating the order of survey, would commence at Brevel’s line, and run down ten arpents; and this court, in deciding what the location ought to be, will do the same.
   Martin, J.

I concur in the opinion which my colleague is about to deliver.

Mathews, J.

In this case the plaintiff and appellant claims a tract of land, of ten arpents in front, situated in the parish of Natchitoches, on the bayou, or river Conan, at a place called St. Maurice.

The evidences of title offered by him, are a requete, order of survey, and favourable report of the land commissioners of the united state, and confirmation by the act of congress of 1816.

The requete, which is the foundation of his title, calls for the place above stated, and prays for land to be bounded above by J. B. Brevel, and below by vacant lands.

The defendant pleaded the general issue and prescription. By an amendment to the answer, in the original plea, after a general denial of the facts contained in the petition, the defendant alleged he had a better title to the land claimed, than the plaintiff. This is relied on by the latter, as an admission of the locus in quo, and he urges, that in consequence of this admission he produced no witness below, to fix with certainty the location of his land, believing that the decision of the case depended entirely on the strength of the opposite titles of the parties.

The onus probandi is always placed on him who alleges a fact, when it is denied: but it is most clearly otherwise, when it is admitted in the whole or in part. In the present case, a question arises, how far the general denial ought to be controled by the subsequent allegation of title. I am of opinion that this allegation does not impair the force and effect of the plea of the general issue. For should it prove to be true, that the plaintiff has no title to the land occupied by the defendant, it is clear that the latter has a better right to remain in possession than the former has to turn him out.

In a petitory action, the demandant must shew title, and make it out satisfactorily in all points, to entitle himself to a recovery, both as to title and identity of the land.

In this case the plaintiff has shewn a title for the quantity of land claimed in his petition, at a place vulgarly called St. Maurice. The defendant, by exhibiting the certificate of the land commissioners, and the act of congress of 1816, relating to land claims, has also shewn title to a tract of land, at the same place, of 640 acres, under what is called a settlement right, founded on no title, from the Spanish government, either in part or complete. I am inclined to think, that the title offered by the plaintiff is good, as to the land it calls for. Nothing in the evidence, as it comes up with the record, shews that his title must be located on the identical part possessed by the defendant. On the contrary, it is proved by the witnesses introduced by the latter, who were properly admitted to testify, as they do not appear to have been called to support their own interest, that the place called St. Maurice, is a district of considerable extent, and that the land of Brevel, which the plaintiff calls for, as his upper boundary, is distant from that occupied and claimed by the defendant, about one league.

Upon the whole, I am of opinion that the plaintiff and appellant has not made out his title to the land in the possession of the defendant and appellee.

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