
    FONTENEAU'S HEIRS vs. PEROT.
    Appeal from the court of the sixth disirict.
    In the year 1786, J. B. Piedferme presented presented to the then commandant, at Natchitoches, his petition, asking permission to settle on a tract of land, which he describes as situated about nine leagues above that posts on the Red River, at a place called the Fayard, containing about eighty arpens, on the high land side of the river, unfit for cultivation, forming a fer a cheval from one high land to the other, and fit only for a cattle farm, for which he designed it. He prays a grant or concession of said land, together with fifteen arpens front on the opposite bank, for cultivation. This permission was given by the commandant-and in January, 1787, the governor-general of the province made an order of survey on the petition, directing the surveyor-general to lay out forty arpens only, in the place mentioned, with the ordinary depth, together with fifteen arpens on the opposite side of the river.
    
      A question, the object of which is to obtain a general finding both of the law and fact, cannot be especially submitted to the jury.
    West. District.
    Sept 1817.
    In the year 1795, Piedferme, the grantee, sold to Louis Fonteneau, the ancestor of the plaintiffs, the fifteen arpens on the cultivable side of the river, and on the opposite side on high land, at a place called the Fayard, a tract of land, bounded below by the landing of the vendor, and above by the bayou des carpes. In the deed of sale, he describes the land as having been acquired by concession from the Spanish government, under date of the 13th of January, 1787, dont il transporte le titre au sr. acque-reur. After the purchase above recited, and during the lifetime of Fonteneau, the defendant, Perot, settled on the river, about forty arpens above the landing mentioned in the sale, Two or three arpeus above his house is a bayou, now generally called the bayou des carpes, but said. to have been known formerly by the name of the bayou do potraire. At the distance of about four or five arpens from the landing, near where the high lands recede from the river, is the bed of another bayou, said to have been known formerly by the name of the bayou descarpes. This suit was instituted to get possession of the land occupied by Perot, the defendant, as included in the purchase of their ancestor from Piedferme-before the trial in the court below, the parties submitted questions of fact to the jury, to have their special finding thereon, according to the statute of 1817.
    The defendant, on his part, submitted the following questions, to wit:
    1. How far is the bayou des carpes from the landing of Piedferme?
    2. If there be several bayous des carpes, which is the one referred to in the plaintiffs' title?
    
      3. Was not the upper bayou known by the name of the bayou du potraire?
    4. How far is it from the landing?
    5. Were not the surveyors, under the Spanish government, bound, in case the commandants had not given sufficient room to place all the settlers with parallel lines and right-angled boundaries, to follow the course of the river, to establish the front of each, and divide the points, to apportion their respective depths?
    6. Is the defendant on the land claimed by the plaintiffs?
    7. Was the possession of the defendant in good faith, and what is the value of his improvements?
    8. Where is the place called the fer a cheval?
    9. Has the defendant any title to the land in dispute, and in what words is it expressed? 10.
    10. Does the plat of survey, marked B, cor- rectly represent the bends of the river and the adjacent lake?
    The facts submitted on the part of the plain- tiffs, related solely to their written titles. The
    The defendant offered evidence to shew, that the bayou referred to in the plaintiffs' title is at the distance of only four or five arpens from the landing or lower boundary there described; that West. the upper bayou was known at that time by the name of the potraire, and generally to shew the local situation and extent of the plaintiffs' purchase. This evidence was rejected by the court, and all the facts submitted were stricken out, except the 9th and 10th, and the jury limited to a finding of the written titles. To this the defendant's counsel excepted, and judgment being entered in favor of the plaintiffs for the whole forty arpens, an appeal was taken to this court.
    
    Baldwin, for the plaintiffs.
    The plaintiffs in the court below, now appellees, claim the whole extent of land granted to Piedferme, un- der the purchase of their ancestors, That grant was for forty arpens front on the river, with the ordinary depth at the Fayard. The deed from Piedferme to Fonteneuu, to give a more clear description of the land, describes it as extending from the landing of the vendor, to the bayou des carpes, but does not specify the number of arpens. The bayou known by that name, at the distance of about forty arpens above, must be taken to be the one referred to in the deed. If the descriptive part of the deed leave any doubt as to the intention of the par- ties, and extent of the purchase, what follows. follows. fully explains it. It goes on to say, that the land thus sold, came to the vendor by concession from the Spanish government, dated the 13th January 1787 "dont il transporte, le titre au sr. acquerear", This expression then clearly proves, that no reservation was made, and that it was the intention of the vendor to part with his whole interest in the forty arpens front, together with the fifteen on the other side. The, court below, therefore, did right in rejecting parol evidence, which would go to vary or al- ter in any degree, the written title of the plain- tiffs, and in striking out those facts which could only be established by a species of evidence, in its nature inadmissible.
    But the defendant is forever estopped and precluded from contending, that the ancestor of the plaintiffs acquired less than forty arpens, by his own act. In 1807, the present defen-dant accepted a conveyance of a tract of land from Adley, which is by the deed, declared to be bounded below by the forty arpens of Fonteneau. Recitals in authentic instruments, are full and conclusive evidence between the parties, and cannot afterwards be denied or gainsaid by them, 2 Poth. 82-The defendant having pur- chased lands, bounded below the forty arpens of Fonteneau, shall not now be admitted admitted to say, thiat he had less thaii that quantity, and thereby change the location of his own purchase.
    The judgment ought therefore to be affirmed.
    Bullard and Murray, for the defendant.-
    This case comes up on two bills of exceptions, to the opinion of the court below. In rejecting parol evidence to shew the extent and bounda-ies of Fonteneau's purchase, and in striking out certain facts submitted to the jury by the defendant for a special verdict.
    The only question for the consideration of this court appears to be, whether the facts thus stricken out or any of them, were pertinent and proper, if so, the court erred in striking them out, and in rejecting the only kind of evidence by which they could be ascertained or established. By reference to the deed from Piedferme, to Fonteneanu, it appears that the land conveyed on the highland side of the river, is described as laying between the debarquement of the vendor, and the bayou des carpes. It is contended on the part of the defendant, that there is much less than forty arpens between these given points, and that it does not embrace the plantation of the defendant. It becomes therefore important, to ascertain the precise distance between these boundaries. The first fact there fore was material, pertinent and proper, and the court erred in rejecting it.
    But it is said that there are two bayous, known by the name of the bayou des carpes, and the plaintiffs contend, that the upper one must be assumed to be the one referred to in the deed, in as much as it is at the distance of about forty arpens from the landing. To this it may be answered, that if there be two of the same name, it is an ambiguity in the deed, arising from facts .or circumstances foreign to the deed, and may he explained by parol evidence. Phillips, 110. The court therefore erred in striking out those questions of fact which relate to that point, and generally in rejecting parol evidence to establish the extent, boundaries and local position of the purchase of Fonteneau.
    It is further asserted by the plaintiffs’ counsel, that their title papers contain intrinsic evidence, that their ancestor acquired by purchase from Piedferme, the whole of his original grant, and that the expression used in the deed, “dont il transporte le titre” necessarily, ex vi termini implies it. To this it is answered, that the delivery or transfer of the title papers, amounts to nothing more, than a species of tradition of the thing sold, and as furnishing to the vendee a proof of title in the vendor, but can never be construed to convey a greater interest that is clearly expressed and stipulated in the deed of sale, between the parties, by a legal construction of which, their intentions are to be ascertained. Civ. Code, 350, art. 29.
    Nor ought the defendant to be precluded, or estopped from saying that Fonteneau acquired less than forty arpens, from the circumstance of having accepted a conveyance from Adley, by which it is recited or declared that the land sold, was bounded below by the forty arpens of Fon-teneau. The authority cited from Pothier, declares, that recitals in deeds, are final and conclusive between the parties only, when the recitals have a reference to the disposition. It is difficult to conceive, what reference the recital above mentioned, has to the dispositions of the act of the parties. It relates neither to the quantity or extent of the land sold, nor to the chain of title, nor to the warranty; and neither of the parties at the time, had any interest in opposing a recital so totally irrelevant. It would appear extraordinary if the plaintiffs could patch up a defect in their own title, by relying on a deed to which neither they nor their ancestor were a party.
   Martin, J.

delivered the opinion of the court, The first four questions, having the same object, viz. to ascertain the situation of the bayou, which is given by Piedferme in his deed of sale, to the plaintiffs’ ancestor, as the upper limit of the land sold, may be considered together.

In the description of the land sold, with regard to its contents and situation, the defendant contends that two points only are mentioned; the landing and the bayou. The first is not disputed : nothing seems therefore to remain, but to ascertain the second. It cannot be denied, that the first four questions lead to the discovery of this desideratum, if so they must be pertinent to the issue, and the judge erred, in striking them out.

He assumed it as an uncontroverted fact, that Piedferme had transferred to the plaintiffs’ ancestor, all his right and title to the whole of the land granted, him by the Governor General; and this says the court “ because the deed does not express it as part of his claim, or part of his grant, but generally and without limitation, the claim or grant, which he obtained from the Spanish government.” The price or consideration is taken as conclusive evidence, that he did not purchase the small quantity of land only, which is included within the boundaries described in the deed. The transfer of the pathe paper title by Piedferme to his vendee, is taken also as conclusive evidence (at least with what precedes) of an intention of parting with the whole land granted.

Admitting the correctness of this mode of reasoning, which we are not prepared to, and which it is unnecessary that we should do, our inquiry will be materially aided, by a knowledge of the situation and relative distance of the only two points, by the aid of which, the vendor and vendee appear to fix the situation and contents of the land sold.

The fifth question appears to be a question of law, which the judge properly withdrew from the jury.

The sixth appears also to have been properly withdrawn, as the object of it was to obtain a general finding of the law and fact, which cannot be asked as a special one.

It may be important, in case the plaintiffs support their allegations, and damages be assessed, that the defendant should shew a bona fide possession, and as the value of his improvements may likewise, with propriety be considered, we therefore think the district judge erred in striking off the seventh question.

The place called fer a cheval, being referred to in the title papers, the defendant ought to be he indulged in the desire which he manifested, of having its situation correctly ascertained.

Baldwin for the plaintiffs, Porter for the defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and the cause be remanded for trial, with direction to the district judge, to reinstate and submit to the jury, all the questions of fact striken out, except the fifth and sixth.  