Almonester v. Kenton

THIS case was brought up, by writ of error, from the Supreme Court of the State of Louisiana for the Eastern District. It was brought up upon the ground that there was drawn in question the validity of a statute and an authority exercised under the United States, and the decision was against the validity of the said statute or authority; also, that there was drawn in question the construction of a clause of a treaty and of a statute of the United States, and the decision was against the title, right, and privilege specially claimed and set up under such clauses of said treaty and statute.

As the suit was more analogous to an ejectment than to any other remedy known to the common law, it will be best explained by showing the title set up by the respective parties. The first step in the proceedings was the filing of the following petition, on December 28, 1831.

'To the Honorable the District Court of the First District of the State of Louisiana. The Petition of Joseph Kenton, residing in the City of New Orleans, respectfully shows:

'That your petitioner is the lawful and only proprietor and owner of a tract of land situated in the rear of the city of New Orleans, between the inhabited part of the city and the Bayou St. Jean; said tract having two arpents front on the southwesterly side of the Canal Carondelet, near the first half-moon, and extending in depth between parallel lines to Common Street, on which also it fronts; the one side line being seventeen arpents ten toises and two feet, and the other seventeen arpents and five toises in length; all of which appears more particularly by a plan of said tract of land drawn by Charles F. Zimpel, late a sworn surveyor, dated the 11th day of February, (1835,) and deposited in the office of Theodore Seghers, Esq., notary public of this city, on which plot your petitioner's tract of land is designated as No. 3, and is marked on the general plan of the city of New Orleans, executed and published by the said Charles F. Zimpel, 'Wdw. Fleitas.'

'Your petitioner acquired said tract of land of Jean Manuel Fleitas, Barthelemy Fleitas, and Virginie Fleitas, wife of Louis Aime Pigneguy, by act passed before the said Theodore Seghers, notary public, on the 19th day of May (1835).

'Your petitioner alleges, that from that period until the present time he has had the quiet possession of said tract of land, and that those from whom he derived title have had the peaceable and uninterrupted possession of the same, under perfect titles, for upwards of thirty-five years.

'Your petitioner further shows, that notwithstanding the premises, Mrs. Michaela Leonarda Almonester, the wife of Joseph Xavier Celestin Delfau, Baron of Pontalba, separated from bed and board from the said husband, by a judgment of the tribunal of the first instance, at Senlis, in France, bearing date the 25th day of February, (1836,) has, by her agent, Noel Barthelemy Le Breton, residing in this city, offered for sale at public auction, to be sold on the 28th day of this present month, through Messrs. Mossy & Garidel, auctioneers, a certain tract of land divided into a great number of lots, fronting on the Bayou road and extending across the Canal Carondelet, over the property of your petitioner, to Common Street.

'Your petitioner further shows, that the said Noel Barthelemy Le Breton has been constituted the general and special agent at New Orleans of the said Mrs. Pontalba, by powers of attorney executed before Berceau and his colleague, notaries at Paris, in France, where she resides. That your petitioner has amicably requested the said agent to desist from this intended sale as far as it affects the above-described property of your petitioner, and would disturb him in the peaceable possession thereof, but he refuses to yield to said request.

'Your petitioner therefore prays that a writ of injunction may issue, enjoining the said Mrs. Pontalba and Noel Barthelemy Le Breton, her agent, as well as Messrs. Mossy & Garidel, the above-mentioned auctioneers, from proceeding to sell, until the further order of the court, such of the above-mentioned lots of ground as are situated on the above-described tract of land belonging to your petitioner.

'Your petitioner further alleges, that the said Mrs. Pontalba and her agent pretent title to the aforesaid property of your petitioner, and hold out to the public that your petitioner has no title to the same, and by their deeds and words aforesaid have caused him damage to the amount of five thousand dollars, which he is entitled to recover, and to have them enjoined from ever pretending title to said property.

'Wherefore your petitioner respectfully prays that the said Mrs. Pontalba, by her agent Noel Barthelemy Le Breton, may be cited to appear and answer this petition, and to set forth by what title she claims the property above described of your petitioner; and that, after all due and legal proceedings, judgment may be rendered in favor of your petitioner against the said Mrs. Pontalba; that the sale by her of any part of the above-described tract of land belonging to your petitioner be perpetually enjoined; and that she may be moreover perpetually enjoined from pretending title to said property; that she be condemned to pay to your petitioner five thousand dollars damages, with all costs of suit; and that your Honor would afford all such other and further relief as the nature of his case may require, and as to justice and equity may belong. As in duty bound, &c.