
    John F. Morrough, Administrator, v. Johnson Moss.
    A confirmation by act of Congress is a title upon which the claimant can maintain a petitory action.
    APPEAL from the District Court of Calcasieu, Overton, J.
    
      Swayze and Moore, for plaintiff.
    B. F. Linton, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, acting as administrator of the succession of Isaac Foster, deceased, claims from the defendant the last installment due on a tract of land purchased by the said defendant at the probate sale of the said succession. The defence is, that the land purchased was one of the Rio Hondo land claims which, under the act of Congress passed in reference to them, were to be located exclusively on the west side of the Calcasieu river, and that the claim sold to the defendant was in part located on the east side of that river, by reason whereof the defendant is entitled to a diminution of the price.

The defendant further alleges, in a supplemental answer, that his vendor had no title to the land; that the claim has never been located in the manner required by law ; and that the commissioner of the general land office cannot issue a patent certificate for it. He prays for five hundred dollars damages. There was judgment in favor of the plaintiff for the sum claimed, and the defendant appealed.

The proces verbal of the sale describes the tract of land as containing about six hundred acres, and as being situated on the west side of the Calcasieu river. It is in evidence that the title of Foster to the land is based on a Rio Hondo claim, which was confirmed to the extent of six hundred and forty acres by act of Congress approved on the twenty-fourth of May, 1828. The defendant has further adduced a certificate of the register of the land office, stating that the plat of the township in which this claim is situated, represents it as including lots four and five of section ten on the east side of Calcasieu river; but the plat itself is not in evidence, and we have no means of ascertaining whether the extent of lots four and five is sufficient to entitle the defendant to a diminution of the price, under article 2470 of the code; but besides, the defendant alleges in his answer, that the survey is illegal, and that no patent certificate has issued. There is, therefore, nothing definite or binding upon him in the location of which he complains, and the errors of the survey, if any exist, can still be corrected.

The confirmation by act of Congress, is a title upon which the defendant can maintain a petitory action.

It has been urged, in argument, that the order of the judge for the probate sale is not shown. This ground is not found in the answer. The defendant, on the contrary, expressly admits the purchase as alleged in the petition. This admission is sufficient to bind him.

The judgment is affirmed, with costs.  