
    
      HOOTER'S HEIRS vs. TIPPETT.
    
    Appeal from the court of the sixth district.
    In a suit for land where the pretentions of the parties are alike in law and equity, he who is in possession will prevad.
   Porter, J.

delivered the opinion of the court The plaintiffs state that they are the heirs of the late Jacob Hooter, who in his lifetime presented a requete, for a tract of land on the left bank of the Bayou Rapides, containing ten arpents in front, with the ordinary depth of forty: that he had it surveyed by an authorised surveyor under the Spanish government, and that the claim founded on these proceedings, was regularly entered with the register of the land office in the name of the estate of Jacob Hooter.

They further state, that the defendant, after this entry was made, procured an illegal sale to be made of the said tract of land, by the judge of probates of the parish of Rapides, and prevaded upon the commissioners of the United States to issue a certificate in conformity with said sale in the name of the defendant.

The petitioner concludes with a prayer that the plaintiffs may have possession adjudged to them and that the title may be decreed to be in them.

West'n Dis’ct

October, 1826

The answer denies all the allegations in the petition, avers title in the defendant, under the commissioner’s certificate; by prescription of ten years under a just title. That the land was settled previous to the 20th December, 1803, by permission of the Spanish authority by defendant. That the title of the plaintiffs has been acquired by him in virtue of the sale by the court of probates in the year 1808, and concludes by a prayer that he may be reimbursed for valuable improvements which he has made on the premises.

The judge below decided against the plaintiffs, and they appealed.

The evidence shows that a requete issued in the name of the plaintiff’s ancestor, that it was entered in the land office in their name, and that a certificate issued in favor of defendant. The commissioners state that the U. States relinquish their title, in consequence of the requete already mentioned, and proof of settlement on or previous to the 20th of December, 1803.

But this settlement is proved to have been made by the defendant, and in his own name. There is no evidence that the plaintiffs ever occupied, or cultivated the land in question, or that the survey which they allege in the petition was made.

Baldwin for the plaintiffs, Wilson for the defendant.

This case presents a conflict between two parties, each presenting the weakest title to the soil that can be well imagined. The plaintiffs shew permission to settle without settlement, and the defendant settlement without permission. The plaintiffs have obtained no relinquishment of soil from the government of the United States, and that produced in favor of the defendant was issued on the settlement by him it is true, but also on the requete of the plaintiff’s ancestor. Under such circumstances, we consider the pretentions of each about equal in law and equity, and the defendant being in possession cannot be disturbed.

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