
    William Robertson, Trustee, v. Samuel Wood et al.
    An agreement under private signature, not recorded, between A. and certain other persons, that lands purchased by him in his own name are to be conveyed to them, can have no effect against third persons. The apparent title being in A., the property is bound for judgments recorded against him.
    The receipts of receivers of public moneys for the price of public lands, are sufficient basis for a petitory action, and vest such a title in the owner to subject .the lands to the mortgage resulting from the recordation of a judgment against him.
    APPEAL from the District Court of Concordia, Farrar, J.
    
      Thomas P. Farrar for the plaintiff,
    contended : “ The land was entered by Rowley, and in his name, and was paid for by him ; it was, consequently, his property. True, he may have signed a written promise, that upon a partition of the land, he would convey to R. N. Wood and J. B. Moore, the one-half of it, upon their paying the original cost. This article was not signed by either Wood or Moore, and of course, was not binding upon them, unless they chose to avail themselves of it. The land, then, by the very terms of the articles, was to remain the property of Rowley, until such time as the partition should take place. If Wood and Moore then chose to avail themselves of this promise of Rowley, and to pay the price, they could compel him to divest himself in their favor of his title to one-half of it. These were, however, potestative conditions, entirely in their power, and under their control. We may admit that a person, fully cognisant of this promise of Rowley, could not, by combining with him, defeat the contingent rights of Moore and Wood, resulting from it. Those rights were purely contingent. The article was not signed by them ; they were not bound by it. If they had refused to accept it, or to pay the price, he would have no power to enforce it against them, and the land would have continued to belong to him. They had until the partition should take place, to decide. In 1840, Rowley placed his title upon record. A few days after, he mortgaged this same land as his property, Suppose the mortgagee to have been ignorant of this written promise of Rowley, can the validity of his mortgage be doubted 1
    
    There is no pretence that either the officers of the commercial bank, or the plaintiff, were aware of the existence of this pretended promise of Rowley. In 1841, when they obtained and recorded their judgment against Rowley, the records of the parish showed this land to be his property, not only by the registry of his title, but by the dispositions he had made of it as his property. The first public intimation that any other person had any right or interest in the land was given the 6th September, 1842, by the conveyance from Rowley to Samuel Wood, more than one year after the plaintiff’s judgment against Rowley was recorded.
    We contend, that this pretended promise of Rowley, which may be regarded as a counter letter, can have no effect against the plaintiff, because the bank was a third party. C. C. art. 2522, No. 32. And this promise or counter letter, having never been recorded, was null and void, as to all persons acquiring rights upon the property of their debtor, Rowley. C. C. arts. 2236, 2242, 2417. 4 R. R. 338. In the suit of StocJclon v. Briscoe, 1st Ann. 250, the court decided, that “the plaintiff might have taken advantage of the non-recording of the act, when the property belonged to the party who may be considered in default in not recording his title.” Also, 2 Ann. 598, 787.
    
      H. B. Shaw, curator ad hoc, for defendants,
    contended : That Rowley was only a trustee to the use of Wood and Moore, and for a temporary convenience. Rowley was at that time the owner of very large property, and no apprehensions were entertained of any such result as this, by having the certificate issue in his name. The patent for this land had not issued, at the time of the transfer made in pursuance of the original agreement. Rowley then had no title to the land, other than an apparent equitable title as against others, the legal title was in the United States Government, and, according to decisions of this court, his entry was liable to be cancelled at the pleasure of the Government. The real equitable title to one undivided half of that section was in Wood and Moore, from whom it was transferred to defendants. There is no pretence of fraud in this transaction, unless the italicized word “ pretended,” which figures so conspicuously and so often in plaintiff’s brief, be taken as a charge. The defendants contend that there was never in Rowley such a title to this tract of land, as subjects it to the judicial mortgage of plaintiff, and ask that the judgment of the district court, which was rendered after long deliberation'; be affirmed.
   The judgment of the court was pronounced by

Eustis, C. J.

The object of this suit is to subject to a judicial mortgage, the North-East half of section 35, township No. 9, range 9 East, in possession of the defendants. The judgment from which the mortgage results, was rendered against Charles N. Rowley, on the 25th of June, 1841, and was duly recorded in the parish of Concordia, where the land was situated.

On the 16th of December, 1839, C. N. Rowley entered the land at the land-office, in Ouachita, and paid for it, taking the usual duplicate receipt in his own name, which he recorded in the parish of Concordia, on the 24th of November, 1840. He afterwards, jointly with his wife, mortgaged this land by an authentic act. On the 6th of September, 1842, Rowley appears to have sold his interest in one-half the land to Samuel Wood, under whom the other defendants claim. This sale could not defeat the judicial mortgage previously recorded against Rowley.

But, it is contended by the counsel for the defendants, that in the purchase from the United States, Rowley was merely the trustee of Wood and another, for one-half the land, it having been purchased by Roioley, on their joint account, and Rowley binding himself to convey the half to them, on an amicable partition, and on their refunding Rowley their share of the purchase money. It is sufficient to say, that the evidence by which the interest of Wood and Moore, his associate, is supported, is under private signature, aided by verbal testimony, and can have no effect against third persons. The apparent title of record was in Rowley, and the property was bound by judgments recorded against him. Stockton v. Craddick, 4th Ann. 283. Hyams v. Richardson, 1 Ann. 286.

It is also contended by the counsel, that at the time of the transfer of the half of the land to Wood, which was in pursuance of the original agreement, the patent for the land not having been issued, Rowley had no other than an equitable title; the legal title being in the United States, and his entry being liable to be cancelled. It is true, that, under the jurisprudence of the United States, until the patent is issued, the fee of land is considered as being in the Government, But this constitutes no objection to the recognition by courts of other evidence of tide from the Government, as sufficient ground for recovery in an action for the land, or as proof of a right of property. Bagnell et al. v. Broderick, 13 Peters, 436.

Lands held under instruments like those exhibited as the title of Rowley, are considered as entering into the domain of private property, and may be liable to taxation. Carrol v. Safford, 3 Howard, 461. The formal receipts of the receivers of public moneys for the price of public lands, have always been held by our courts sufficient basis for a petitory action, in which the land itself could be recovered. McGill v. McGill, 4 Ann. 265.

We therefore conclude, that, under our jurisprudence, the title by which Roioley held the land, to wit, the receipt of the receiver, was sufficient to make the land his property, so as to subject it to the judicial mortgage resulting from the judgment against him. We think the district court erred in rendering judgment against the plaintiff.

It is therefore decreed, that the judgment of the district court be reversed, and that the North-East half of section 35, township No. 9, and range 9 East, according to the plan on file, be subjected to the mortgage resulting from the recording of the judgment of tlie commercial bank, against Charles N. Rowley, of date the 25th June, 1841, the defendants paying the costs in both courts.  