
    
      BERNARD vs. SHAW & AL.
    
    Altho' a deed be void, as to the transfer of the vendor’s right, it may be resorted to as evidence of the quantity of land, which the apparent vendee, with the consent of the owner took possession of, against a stranger, without any color of title.
    Appeal from the court of the fifth district.
    Brent, for the plaintiff.
    This suit is brought to recover the possession of a tract of land consisting of thirty-three arpents front, with ordinary depth, upon both sides of the bayou Têche, in the full enjoyment of which the petitioner is disturbed by the defendants.
    Three of the defendants, viz : Joseph Prévost, John Shaw and Bartholomew Castillon, filed their answers and denied the facts in the petition.
    At the trial, the defendant Joseph Prévost, came into court in person and acknowleged the right of the petitioner, to recover possession against him, and judgment was accordingly rendered.
    West’n District.
    September, 1820.
    The other defendants, Shaw and Castillon, resisted the claim of the petitioner, and the court below gave judgment in their favour ; from which judgment this appeal is taken.
    Before I enter into the argument upon the testimony, I will call the attention of the court to the law which must govern this case.
    It suffices of a year's possession, if it has been peaceable and uninterrupted, to make the possessor be considered as a just possessor and even as a master, until the true owner makes out his title. Civil Code, 478, art. 23.
    
    It will be an easy task to shew from the testimony, that the present petitioner was in peaceable possession of the land for more than the time required.
    
      Frederick Pellerin proves that since 1804, to the present day, a period of upwards of 15 years, the petitioner has always peaceably possessed the land by himself and by his agents put upon it; that the petitioner went to France sometime ago, and during his absence, always possessed it, by persons whom he put upon it, and that he returned from France the last of 1815, and since then has lived upon the land.
    
    
      Agricole Fusilier, swore that two years previous to October 1819, the petitioner cut a road opposite to where the defendant Castillon’s house now stands through the woods, and has always used it since, and that the petitioner, “who lives not far from the wood, has always cut and used the wood on the land,” where he cut the road, and that the same has always been considered as the petitioner’s land.
    Here, then is clear positive proof, not only of possession one year, but more than 15 years, which must entitle the petitioner to recover the possession of the land, if the testimony is not contradicted by the defendants—let us examine their testimony.
    Godefroy Verrette was sworn on the part of the defendant. His testimony, so far from destroying the evidence on the part of the petititioner, strengthens it. He states that the defendant never entered on the land until February 1818—that he then cleared away two thirds only of an arpent and began to put up a cabin, but did not cover it or mud it or inclose it, and that the defendant never lived there and never had put a family there, never had any household or kitchen furniture there, and that he never moved upon the land, until about two or three months before he gave his testimony, which was about the time this suit was brought. This witness does not prove that the defendant never possessed the land more than a week or two before the suit was commenced. He says to be sure that about 
      eighteen months, before the present suit commenced, the defendant trespassed upon the petitioner’s land in February 1818, by making a little clearing and putting up the frame of a house, but that he left it and never returned to it or moved upon the land, until about three months before the time he was giving in his testimony, which was about the time this suit first commenced. So that this testimony, so far from destroying the testimony of the petitioner, establishes the fact that the defendant did not possess the land, that he never possessed it a sufficient time, to contend against the petitioner’s possession. The court can consider the entry of the defendant, in none other light than that of a trespass. He entered upon the land, remained a month or so, then left it, remained away more than a year, and returned only about the time this suit was commenced, when he first shewed a determination to take possession of the land: upon which the petitioner sued him.
    Pierre Bonvillain, the other witness, for the defendant, proves nearly the same thing as Verrette except he says expressly, that the defendant about two years ago began to put his cabin, that he then put up the posts and rafts and left it, until about two or three months before he gave his testimony.
    The court will see by this testimony, offered by the defendants, that they never possessed the land for a year, peaceably and uninterruptedly, as the law requires—on the contrary, they never possessed with an avowed intention of exercising ownerships, by residing upon it or cultivating it, until about the time this suit was brought, when they were immediately sued. How could the petitioner have acted differently from what he has, to secure his right? He would have done wrong to have sued, when they first entered upon his land: for, they soon left it, and he had every reason to believe never would return; and they left it, as this court will reasonably presume from the opposition of the petitioner to their settling there. After they had left it we see no act of ownership over it. They did not pay taxes for it, they did nothing by which it could be supposed they ever intended to return to it, and as soon as they did, the petitioner, who from the testimony of Frederick Pellerin and Agricole Fusilier, had peaceably and uninterruptedly possessed it since 1804, immediately commenced his suit.
    But, again the law is, “ if two persons claim the possession of property in dispute,” the one, who had been in possession of the property for the space of a year, before the disturbance given him by the other, will be maintained therein. Civ. Code, 475, article 25.
    
    Now, it is proven by the petitioner’s witnesses, that he had been in possession of the land in dispute since 1804, and that since 1815, he had resided upon it—so that he had possessed it a year, previous to the disturbance complained of, and ought to recover it from the defendant.
    How ought property to be possessed, in order to entitle the possessor to any kind of prescription? And, is not a year’s possession under our laws, a prescription of a year, and does not the prescription of a year, require the same kind of possession as that of ten years? It does. What says the law? “Prescription requires a continued, uninterrupted, peaceable, public and unequivocal possession." Civil Code, 480, art. 28.
    Here, if the possession was doubtful, the petititioner has the best probable title—for it is proven that since 1804, he has been in possession.
    To prove this title, the defendant offered in evidence a bill of sale, passed before the regular authority of Attakapas, on the 1st of March 1804, by the Chètémacha Indians to the petitioner, for the land now claimed, to shew that since then he had possessed in good faith and in virtue of a just title, which the court refused to read and rejected it, to which a bill of exceptions was taken.
    The court, certainly, erred in rejecting the petitioner’s deed, under which he had always held, and possessed the land in good faith, for upwards of fifteen years.
    
      The law says, “a man who becomes possessed of an immoveable estate fairly and honestly and by virtue of a just title, may prescribe for the same, after the expiration of ten years, &c. Civ. Code, 486, art. 67.
    “A just title is one by virtue of which, property may be transferred; such as a sale, though such title may not give a right to the estate." Civ. Code, 488, art. 68.
    I will, first, shew that the petitioner, in the words of the law, became possessed of the land, fairly and honestly, and I will then shew that his title was a just one: and if I shew these two things, this court must say that the court below erred and the petitioner will have that justice done here, he ought to have received below.
    
    I. The petitioner became possessed of the land fairly and honestly, because he used no fraud in purchasing the same. It was a fair honest purchase, by which the vendors to whom the land belonged, as will appear by a reference to Galvez’s order, in the record, page 16 & 8, sold the land to the petitioner for a valuable and, at that time, high consideration.
    
    The transaction was a fair one, because not forbidden, at that time, by any law of the country; but on the contrary such sales were daily made.
    This country was possessed by the United States, in the latter part of 1803. This sale was made in the beginning of 1804, on the 1st of March, whilst the laws of Spain relative to such sales were in force here, and before the law of congress, prohibiting such sales by Indians, was extended to Louisianana.
    By the laws of Spain, in force in Louisiana, such sale was legal, and the laws of Spain remained in force, until altered by the laws of Congress. In the case of Seville vs. Chretien, 5 Martin, 284, (near the middle of the page) this court has decided “that, in case of the cession of any part of the dominions of one sovereign power to another, the inhabitants, of the part ceded, retain their ancient municipal regulations, until they are abrogated by some act of the new sovereign.” Then, if such be the principle, and if it was legal under the Spanish government to make such sales, it was legal until the Spanish custom or law was abrogated, which was not done at the date of the sale 1st March 1804. The first law of Congress, which extended any of the laws of the United States to the territory of Orleans, was passed upon the 26th March 1804. Martin’s Dig. 148, sec. 7, § 156, sec. 11, subsequent to the date of the petitioner’s deed, which was a fair and legal deed when made, and the petitioner having obtained it legally, obtained it fairly and honestly.
    
      The next part of my argument will be taken up, in shewing this court that the sale to the petitioner was a just one, and such as the petitioner is entitled to prescribe under.
    II. A just title, is described by the law to which I have before referred, to be one by which property may be transferred, though such title may not give a right to the property. The same definition is given by Pothier. Pothier's Prescription, n. 57, 58,
    I will then ask the court, if the deed from the Indians to the petitioner for the land in dispute, is a sale in usual form. Immaterial whether it transferred the right to the land, is it not within the true definition and meaning of what the law defines just title? It is admitted in the bill of exceptions in record p. 6, that the said deed was for the very land in dispute, and I beg the court to refer to it, accompanying the bill of exceptions and see if it is not a good sale cloathed with every formality and what the law calls a just title. If it be so, the court below erred in its rejection, and the petitioner can avail himself of the ten years possession in good faith under that title, so as to recover from the defendants, who have no title at all to the land. He, certainly, possessed the land in good faith; for the laws of the country approved his buying it when he did, and he confidently expects that the government of the United States will approve the purchase.
    The ground upon which the court below refused the introduction of the deed of March 1804, was that the deed did not transfer the property to the petitioner, but that it yet belonged to the Indians. With due respect to that court, I think the idea a singular one in an action like the present. If such be the law, the Indians might take advantage of it, but most certainly the defendant cannot. Such has been the decision of this court in the case of Martin vs. Johnson and others, 5 Martin's Rep. 661, where the court says “The result (of the sale from the Indians being contrary to law) would be that the Indians have not been legally divested of their title, and could perhaps take advantage of it—but until then, the defendants hold in their right, and cannot be disturbed by others.” So is the case with the petitioner, he holds in the right of the Indians and cannot be disturbed by the defendants.
    From a full view of this part of the argument the court must be satisfied that the deed ought to have been received, and if it had that the petitioner would certainly have recovered of the defendants.
    It would at least have had this effect to shew that the petitioner, had the most probable title, which, would have entitled him to recover the land, from the defendants according to the law as written in Civil Code, 380, art. 28.
    The petitioner also offered in evidence proof of the payment of taxes to the United States, and this state, and the parish in which the land lies, yearly from the year 1807 to the trial, to shew that the said land had, during that time, been taxed as the petitioner’s and possessed by him—and the court refused the same, to which a bill of exceptions was also taken.
    The proof of paying taxes ought to have been received. It shewed the open, continual and unequivocal possession of the petitioner—the possession animo domini. It is one of the many kinds of testimony admitted to prove possession. Pothier, Prescription, n. 176.
    
      Brownson for the defendants.
    In replying to the arguments of the plaintiff’s counsel in this case, it is necessary, in the first place, to remark, that with respect to John Shaw, one of the defendants, there is no statement of facts. The gentleman, who was counsel for Castillon and Prevost only, and not for Shaw, as will appear by the answers filed, could not bind the latter to any statement of facts. This objection is material, because, besides the various difficulties to which the plaintiff’s pretentions are liable under this statement, it does not certify the facts truly as it respects Shaw. Indeed, it was understood, at the trial, that the idea of a judgment against him, was abandoned, and for that reason, no evidence for or against him was taken. This does not perhaps conclusively appeal from the transcript. But the court will observe that in the statement of facts, mention is always made of the defendant, not of the defendants. The reference too, where a pronoun is used, is always in the singular number. Thus he had not his family with him. But extracts are unnecessary. The court will see the whole statement of facts. If the gentleman signed as attorney for defendants, the reply is, that the answer was probably filed, before Joseph Prevost, one of the defendants, consented to confess judgment, and that the answer is itself stiled the “separate answer of Joseph Prevost and Bartholemew Castillon.” When afterwards, in signing the statement of facts, the gentleman attaches to his name the expression, “attorney for defendants,” he must be presumed to mean attorney for two defendants, whose answer he had filed. Perhaps it may be irregular to state, as it does not appear from the transcript, that John Shaw was made a defendant by mistake, from the resemblance between his name and Jones Shaw who is said to be within the limits claimed by the plaintiff. But if I am incorrect in this suggestion, the plaintiff’s counsel can set me right. The only questions therefore, which are before the court, as it respects John Shaw, are those, which arise out of the rejection of the deed, as evidence, and of the proof of the payment of taxes, or, in other words, those which are connected with the two bills of exceptions. Should these two opinions of the judge below be overruled, it is respectfully suggested, that the only thing the court can do, as against Shaw, would be to send the cause back for trial, with orders to receive the evidence offered. But it appears to me that the opinions of the judge can be supported, and that they are sound law. The plaintiff in his petition has called this an action of possession. He has not thought proper however, to rely simply upon possession without exhibiting his title. The case therefore did not present a mere naked question of possession, but a mixed one, of possession and title, and if it clearly appeared from the petitioner’s own shewing, that he had no title, the court could not give him the possession, which he asked. The Civil Code, 478, art. 23 says, in speaking of possession, that “the natural connection, which is between the possession and the property makes the law to presume, that they are joined in the person of the possessor, and until it be proved that the possessor is not the right owner, the law will have him, by the same effect of his possession, to be considered as such." This article, it is true, generally makes the possessor presumed to be the owner, but still it is a mere presumption, liable to be corrected by actual proof—and that presumption, let it be observed, is only to continue "until it be proved that the possessor of such a piece of property, is also the owner of it by virtue of such a title, and if it is found on examination to be no title at all, is not the presumption corrected by a more complete and perfect knowlege of the fact ? And would the court, after having this knowlege brought home to them, still persist in comitting an injury by putting a person, clearly without title, into possession ? Surely not. The case of Meeker’s ass. vs. Williamson & al. sindics, 4 Martin, 626, has settled this question. “But when the plaintiff puts at issue his right of possessing, as when he alleges that he is owner, and presents his title as the evidence of his possession, the simple fact of possessing is no longer the only question. The defendant is then allowed to dispute the validity of that title, and is maintained in the actual enjoyment of the premises, if the plaintiff fails to make his title good.” In this cause the plaintiff has put at issue his title, and offered the rejected deed as evidence of that title and of possession. But the court below, being of opinion that it was neither evidence of title nor possession, refused to admit it, to which opinion the plaintiff excepted. It is clear that the deed could not be evidence of possession, unless at the same time it were evidence of title. Possession is divided into two kinds, natural and civil, the one is actual, the other legal. Possidere corpore and possidere jure. The one is accomplished by entering into actual possession of the whole, the other by taking actual possession of part with intention to possess the whole, which intention is inferable from some legal or apparently legal title to the whole. It is proper then to enquire, whether the deed in question furnishes such an apparently legal title as to be the foundation for civil possession. It will not be pretended, that there was any actual possession, by the plaintiff, of the land where either of the defendants are located, that is, no part of it was ever inclosed, or possessed by any visible act of possession, except the trifling establishment, of which the evidence speaks, and the alleged purchase from the Indians. Had the defendants either of them intruded upon the the actual possession of the plaintiff, had they broken into his inclosure or committed any other violence upon his actual possessions, I will not undertake to say that the court might not have granted some relief. But as they have not done this, the only question is, whether the plaintiff has such a title to the whole tract purchased from the Indians, as to justify the extention of an actual possession of part to a civil possession of the whole. I think clearly he has not. This deed purports to have been executed by one Baptiste, calling himself chief of the Chitimacha Indians. It does not however appear, that the alienation was made with the permission or approbation of either of the Spanish government or of the Chitimachas themselves—both of which it is contended were necessary to the validity of the sale.
    It is contended that the Indian tribe itself could not, even in its collective capacity, have alienated this land without the consent of the government, who had at the time dominion of the country. It is said in 5 Mart. Rep. 658, that “the king of Spain, in taking possession of his dominions in America, disregarded the rights of the original lords of the soil, and declared himself sovereign of the country.” Again it is said, ibd. 660, “by the laws of the Indies 6, 1, 27, however, it is recognised that Indians can hold land, as well as other people may, that they can alienate it, with permission of the government.” The counsel for the defendants has not the means of refering to the laws here quoted. But from the expression used, it is inferred that the permission of government was essential to give validity to the act of alienation. It seems to have been the policy hitherto pursued by all the civilized nations, who have had Indians located within their jurisdictional limits, to treat them as persons under tutelage, as persons inopes concilii. Thus, the United States appoint agents to regulate commerce between them and the whites, and strictly prohibit all trafic carried on in any other way. By the act of March 30, 1802, n. 22, sect. 12, Graydon’s Dig. 231, it is declared, that “no purchase' grant, lease or other conveyance of land, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the U. States, shall be of any validity in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution,” and the same section proceeds to make it a misdemeanor in any unauthorised person to attempt to negotiate any treaty for lands with Indians. In the state of NewYork, we find the same regulations adopted, with respect to Indians within the limits of that state—And many decisions have taken place there, concerning the effect, which these regulations have upon rights, acquired under sales from them. In 7 Johnson, 290, when a patent had been issued to an Indian, “granting and confirming unto him” the lot in question, “to have and to hold unto him, his heirs and assigns as a good and indefeasible estate of inheritance forever,” it was decided that the Indian, tho’ he held the land in his individual right, and tho’ the highest species of estate known to the laws there, had been granted to him, yet that he 
      could not alienate without permission of the government. Judge Kent remarks, 296, that "the regulations in the act of 1801, all shew the sense of the legislature, that an Indian, in his individual capacity, is, in a great degree, inops concilii, and unfit to make contracts, unless with the consent and under the protection of a civil magistrate. The law not only protects Indians from any suit upon their contracts, but it declares specially that all alienations of land by the Brothertown and New Stockbridge Indians are void. These are just and human guards against the imposition and frauds, which that unfortunate people have not the power to withstand; The same provisions (continues the judge) prevail in the Spanish colonies; none of the Indians within the Spanish dominions can dispose of their real property without the intervention of a magistrate"—In 9 Johnson's Rep. 362, where a person, by a written license from the Peace makers of the Stockbridge Indians, granted pursuant to a vote of the nation, entered and cut down trees, of which he made shingles, it was decided that he was a trespasser, and could not therefore recover the shingles against a third person, who had taken and converted them to his own use, and the court, in giving their opinion, observe, “ that it was the wise policy of the statute to interdict all individual whites, from any negotiation, or any contract with the Indians, in respect to their lands, or any interest therein—such a complete and total interdict was indispensible to save the Indians from falling victims to their own weakness, and to the intelligence, and sometimes the cupidity of the whites.” I think therefore, I cannot be mistaken in supposing, that a sale of real property from a tribe of Indians, tho’ acting in their collective or national capacity, would be a mere nullity without the approbation of the government, within whose jurisdictional limits, they were at the time situated. This court has implied that such approbation would be necessary in saying that the Indians “can alienate with permission of government.” Judge Kent has said that the same provisions prevail in the Spanish colonies as in the state of New-York—that "none of the Indians, within the Spanish dominions, can dispose of their real property without the intervention of a magistrate.” We see that the United States have adopted similar regulations, in regard to the Indians, and it is believed, that the English government has not been behind other nations in the same policy—indeed, this sort of control seems necessarily to result from the pretentions, which these nations have assumed—and, tho' one object in these regulations has probably been to protect the Indians against their own weakness, yet these nations have probably at the same time had another object in view, and that is, to preserve the Indian lands from alienation as a property, in which they themselves had an interest. But the opinion of this court is quoted in the case of Seville vs. Chretien, 5 Martin, 284, where it is said “to be an incontrovertible principle of the laws of nations, that in cases of the cession of any part of the dominions of one sovereign power to another, the inhabitants of the part ceded retain their ancient municipal regulations, until they are abrogated by some act of their new sovereign.” Admitting this prohibition to sell without the permission of government, to be a municipal regulation, how could the necessity for that permission cease, on the change of government without some act, implying a change of regulations? Was any such change ever made? On the contrary, the act of 26th March 1804, expressly extends the laws of the United States, regulating the intercourse with the Indians, to Louisiana, thereby confirming instead of changing the ancient regulations on this subject, and requiring among other things the express consent of the government, as an indispensible requisite to the validity of a sale from the Indians. But is it clear, that the right of tutelage over the Indian nations is a municipal regulation? Is it not rather a political right than a municipal regulation? Is it not one of those incidents to sovereignty, which necessarily accompanies it, wherever it goes? And if the sovereign power passes from one nation to another, does not this right pass with it, and vest "eo instanti” in the new sovereign? Perhaps the act of congress, extending the laws of the United States to Louisiana, was necessary, so far as to give effect to the regulations prescribing the manner of enforcing them. But, was it necessary for the acquirement of the right in question? Did it vest any new right in the United States over the Indians? It appears to me that it did not. It appears to me, that as civilized nations have uniformly disregarded the rights of the “original lords of the soil,” have uniformly declared themselves sovereigns of the countries, over which they have extended their dominions, have uniformly imposed restraints upon alienations by the Indians, and assumed a right to grant or withold their approbation of such acts, and have, in most, if not, all cases, declared that such acts shall be considered void without such approbation, it appears to me, that the right in question, has now grown into a necessary incident of sovereignty, and is recognized in the national law of our times.
    But this deed is deemed, if possible, more fatally defective on the second ground; and that is that it does not appear to have been executed with the knowlege or approbation of the Chitimachas themselves. It seems to have been the single act of one famous Baptiste, called an Indian chief. It is he alone, that undertakes to sell out the whole possessions of the tribe. It is he alone, who consents to the terms of the sale. It is he alone, who receives the consideration, if any consideration was given. All these solemn acts, so important in the humble concerns of an Indian tribe, are confided solely to the wisdom, discussion and honesty of perhaps a drunken savage, who in a fit of intoxication would not scruple to sell his wife and children. It is believed not to be the practice among any of the Indian nations to confer such absolute and despotic powers upon their chiefs. It is thought to be the general custom of these people, even when they are not under the tutelage of some civilized nation, to act in council upon matters of such moment as the alienation of their territory. The plaintiff's counsel has taken much pains to shew, that the transaction was a fair and bona fide one. But how does it appear to have been fair? What proofs have been adduced of the fairness of the transaction? Nothing but the deed. And what does the deed prove? Why it proves itself. It proves that such a deed was given, and it proves nothing else. Whether the consideration, expressed in it, was ever given, we know not. Whether the Indian was drunk or sober, when he made his mark, we are equally uninformed. Whether he was wheedled into the measure by constant and repeated solicitation, or whether he sought the bargain himself, are facts, of which, we are also ignorant. But it is said to be in usual form—so also in all probability would be a deed taken from a lunatic, from a minor under puberty, or from any other person, deemed in law incompetent to make contract. If a tutor, without pursuing the necessary formalities, should attempt to sell the real property of his ward, tho’ the deed might be in perfect form in every other respect, yet if the fact, that it was the property of his ward, should appear from the instrument itself, it would forever stamp it with nullity, and no one could prescribe under it, not even in thirsty years—so also, it appears from the face of this deed, that a single Indian, without permission of the government, or of the tribe to which he belongs, has attempted to sell the possessions of the tribe. The illegality of the transaction is too glaring not to strike every one on the very production of the deed. It is not surely such a deed, as can lay the foundation of any real or apparent title. It can not assist prescription. On the contrary, it seems to me, it would stop it. There is no resemblance between this case and the one of Martin vs. Johnson & al. quoted by the plaintiff’s counsel. In that case, a sale had been made by the Indians in their collective capacity, as a tribe, not by an individual Indian. The approbation of the government had been expressly given. There was a bona fide sale, and nothing was deficient but a matter of form as to the manner of making the sale, that is, it was private, and the laws required that the property of Indians should be sold at auction. But every substantial requisite having been complied with, the rights of the Indians having been duly protected by the government, in the approbation, which they gave to the sale, and the title matured and completed by a certificate from the U. States, the court could not do otherwise than decide, that the mere formal objection, as to the manner in which a sale, so long acquiesced in, had been originally made, should not render totally void proceedings of such high solemnity. The present is however, a very different case. A large tract of land is assigned to a whole tribe of Indians by the government. The commandant is strictly enjoined as appears from the order of Galvez, the governor, to maintain them in possession, and all persons are prohibited from intruding upon them. The petitioner however, in violation of this order, has gone into the land, procured a deed from a single Indian, calling himself chief, without the consent of the tribe, either constructive or real, or the approbation of the government, and now alleges this trespass and intrusion as the foundation of a claim, and pretends that a deed thus obtained communicated to him a title, under which he can prescribe. It is conceived, that there can be no doubt, that the court below decided correctly, in rejecting the deed.
    As to the proof of having paid taxes, it would only have been good to establish civil possession: as there can be no civil possession without title, and the court had rejected the evidence of such a title, the proof offered became irrelevant and unnecessary. I leave this case with the court, feeling confident that the opinions given below will be sustained.
    Brent, in reply.
    I replying to the arguments of the defendants’ counsel, I shall be very short, for I do not conceive, that his reasoning has shaken, in the court, the position I have taken.
    His statement relative to John Shaw is correct—and I do not know how his name was inserted in the judgment of the court, as the suit was dismissed as against him. I only used his name with Castillon’s, as I found them compled together in the judgment.
    The defendant says there was no actual possession of the land, by the petitioner—by a reference to the statement of facts it will be seen that there was.
    The whole argument of the defendant’s counsel is built upon the title to the petitioner, from the Indians, being illegal. I think I have shewn in the opening of this case, that, even supposing the title to be illegal, it does not affect the petitioner's right to recover, through ten years prescription under a just title, and I have only to refer the court to the authority I before quoted to shew that it was a just title—and the defendants do not deny it in their argument, for they have not attempted to shew the contrary. If then the title was a just title, the petitioner can prescribe under it.
    It has been contended that this sale is an illegal one, because it was not approved by the government. It is admitted that, until the sale was approved by government, it was an incomplete sale, but it is contended, by the petitioner, that the sale in itself was a legal one, a necessary step towards the approbation, and that whether government will now approve or not, is a question between the government of the United States and the petitioner, but, that the sale being a legal one, a just title, the petitioner can prescribe under it against the defendants—nor does the authority referred to by the defendants from Martin’s Reports, contradict this principle. The supreme court makes a distinction between a void and voidable sale. In this case, the sale may be voidable, but it certainly was not void. The laws and customs of Louisiana, at the time it was made, authorised such sales : for the 
      act of congress forbidding them was not extended to Louisiana, as I have shewn before, until after this sale was made—and this sale being only a voidable sale, (if it be voidable at all) the authority is applicable and it is enbraced in the principles referred to before, as laid down in the case of Martin vs. Johnson & al. 5 Martin, 661.
   Martin, J.

delivered the opinion of the court. The plaintiff stated that he is the owner of a tract of land of thirty-three arpens in front, on both sides of the bayou Têche with the ordinary depth—that he has peaceably and uninterruptedly possessed it for upwards of a year and a day, and ten years before the institution of this suit, with a good and just title, and always paid the taxes therefor: notwithstanding which, a few months back, the defendants have entered on the said land and disturb and molest him in his possession: and, if the court deem it necessary, in this action for possession, to exhibit titles, he purchassed the premises, in the year 1804, from the Chitimachas Indians, who, in the following year, confirmed his title—that the land was, before such a sale the property of the said Indians and so recognized by the government of the province of Louisiana. He prayed to be restored to his possession and for general relief.

Shaw pleaded the general issue and that the possession, set up by the plaintiff, is a trespass against the Chitimachas Indians and the pretended sale is illegal and void.

Prevost and Castillon pleaded the general issue, and that they have a good title to the premises, under a lease from the Chitimachas Indians to J. B. Bourgeois.

At the trial the plaintiff offered in evidence a deed from the Chitimachas, dated March 1st 1804, for the premises, to the plaintiff, for the purpose of proving his possession, the land being a part of the tract mentioned in Galvez's order dated September 14, 1777. The court refusing to receive the said deed in evidence, the plaintiff’s counsel took his bill of exceptions.

He also offered the receipts of the collectors of taxes for the United States, the state and parish, for the taxes due or the premises from 1807 to 1819, inclusive, to shew that the land had always been considered as his, and to prove possession. The court refusing to receive these receipts in evidence, he took a bill of exceptions.

The court gave judgment that the defendant Prevost having, in open court, acknowleged the right of the plaintiff—the latter recover the land and costs against the former, and, the plaintiff having failed to establish his right of possession against the other defendants, that there be judgment for the latter. The plaintiff appealed.

The statement of facts shews that the plaintiff gave in evidence an order of governor Galvez of September 14, 1777, forbidding the inhabitants, in any manner, to molest the Chitimachas Indians of Grand Terre, in the establishment which they occupy and ordering the commandant to see that they be not molested and maintain them in the possession of their land.

Fusilier deposed that, two years ago, the plaintiff cut a road through the woods, opposite to the house, in which the defendant Castillon now lives and has ever since used it. That the petitioner, who now lives not far from the road, has always cut and used the wood upon the land, where he cut the road, and which is that which he always claimed as his own and was so considered: the defendant's cabin was on the bank of the bayou Têche, and the road began behind it and about ten arpents from it.

Pellerin deposed that for many years, he believes since 1804, the plaintiff has been considered as the owner and possessor of the land in dispute. That some time in 1805, the plaintiff placed an Indian named Penigou, in a cabin to keep possession of the land for him, which cabin was not more than an arpent, from the place on which the defendant now lives. As well as he recollects, it was several years since he saw what he ever told was the defendant's cabin. He believes the defendant never finished it nor lived in it, until within a few months. Penigou died about ten months ago. The plaintiff went to France in 1806 and returned in the latter part of 1815, or the first of 1816, and has ever since lived on the land he bought from the Indians, part of which is the land in dispute.

Verret, on the part of the defendants, deposed that in February 1818, the defendant for the first time went upon the land, made a clearing of two thirds of an arpent in front and one in depth, and began to built a cabin. He placed the posts, raised the roof and lathed it, but did not cover it, nor mud or inclose the house with any thing, nor made any door or windows. The defendant lived at the distance of about ten arpents, and to his knowlege the defendant did not live there. He went often to see them at work and never saw any kitchen or house furniture, and no inclosure or fence were put up. The defendant moved upon the land about two or three months ago, that is into the cabin, which he had began ; he finished it and now lives in it.

Bonvillain deposed that the cabin of Penigou, the Indian, was about ten arpents from the place on which the defendant now lives—that he lives in a cabin, which he began about two years ago, and which he finished and moved into about two or three months ago. Two years ago the defendant began to build the cabin, put up the posts and rafters and then left it, until he returned about two or three months ago.

It is admitted that the statement of facts does not relate to the defendant Shaw, as it is not subscribed by him nor his attorney, and does not appear to have been made with the consent of either of them, and the plaintiff’s counsel admits he considered the suit as dismissed, in regard to this defendant.

The action is clearly a possessory one only, altho’ the plaintiff has made a mention of his title. In suffices, therefore, that he should shew a possession for a year and a day, as the defendant has neither any title nor possessession during that time.

This he has done by the testimony of Fusilier and Pellerin, which shews that he took possession of a quantity of land (which includes the premises in dispute) under a deed from a chief of the Chitimachas Indians. Had the witnesses declared that the plaintiff possessed the land, under the oral permission of the owner—this would have sufficed. Now notwithstanding the deed may be void, as to the tranfer of the vendor’s right, it may be resorted to as evidence of the quantity of land to which the apparent vendee, with the consent of the owner took possession of, against a stranger, without the least color of title.

The title of the Chitimachas Indians must be admitted, since both the plaintiff and defendants claim under it.

It is therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and that the plaintiff do recover from the defendant the possession of the premises, with costs in both courts.  