Cousin v. Labatut

THIS case was brought up, from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act.

As this case will probably be much referred to hereafter, as settling some general principles of great importance, it may be well to state in this report the precise nature of the certificates of confirmation and order of survey.

Under the act of Congress of April 25, 1812, (2 Stat. at L., 713,) Cousin presented a donation claim to the commissioners appointed under that act. On the 2d of January, 1816, the commissioners reported as follows upon this claim, calling it No. 255, and placing it in class B. (See American State Papers, Public Lands, vol. 3, p. 56.)

By whom claimed. Original Claimant. Nature of claim, and from what

authority derived.

F. Cousin Stephen Rene  Order of survey.

Date of claim. Quantity claimed. Where situated. By whom issued. When surveyed.

Sept. 10, 1789  1,000  St. Tammany  E. Miro

By whom surveyed. Inhabited and cultivated from to      General remarks.

It will be observed that the name of the original claimant is here said to have been Stephen Rene. No survey or location of the land was made under this certificate.

In 1819, Congress passed an act (3 Stat. at L., 528) confirming this claim amongst many others, and on the 8th of June, 1820, the register and receiver gave to Cousin the following certificate:

[Certificate of Confirmation.]

Commissioner's Report, Letter B, Certificate No. 178.

LAND OFFICE, ST. HELENA.

In pursuance of the act of Congress passed the 3d of March, 1819, entitled 'An act for adjusting the claims to land, and establishing land offices for the district east of the island of New Orleans,' we certify that claim No. 255, in the report of the commissioner marked B, claimed by Franchis Cousin, original claimant, Stephen Rene, is confirmed as a donation, and entitled to a patent for one thousand arpens, situated in St. Tammany, and claimed under an order of survey dated 10th September, 1798.

Given under our hands, this 8th day of June, 1820.

Attest: (Signed) CHARLES S.C.OSBY, Register.

F. HERAULT, Clerk.

FULWER SKIPWITH, Receiver.

It will be observed that the name of the original claimant is here mentioned as Stephen Rene, and there is no mode of survey pointed out, the original order of survey not being produced.

In 1822, Congress passed an act (3 Stat. at L., 707) giving to the registers and receivers power to direct the location and manner of surveying the claims to land confirmed by the act of 1819.

On the 21st of September, 1826, the register and receiver gave to Cousin the following order of survey:

[Order of Survey.]

LAND OFFICE, ST. HELENA.

Francis Cousin, Certificate No. 178, Dated June 8th, 1820.

ST. TAMMANY, Sept. 21, 1826.

Francis Cousin claims a tract of one thousand arpens of land, situate in the parish of St. Tammany, as purchaser from his father, Francis Cousin, deceased, who bought it from Louis Blanc, who bought it from the original owner, Gabriel Bertrand, and in virtue of certificate No. 178, dated 8th June, 1820, and signed Charles S.C.osby, register, and Fulwer Skipwith, receiver, in which certificate it is alleged by this claimant that it is erroneously set forth that Stephen Rene was the original claimant; it appearing that this tract of land is fronting on Bayon la Libert e, bounded below by the tract of land of Mr. Girod, and above by a tract of land belonging to claimant.

It is ordered that this claim be located and surveyed with a front extending on said bayou, from the land of said Girod to that of claimant above, and from these points on the bayou to run back for quantity.

Given under our hands, this 21st day of September, 1826.

(Signed) SAMUEL J. RANNELLS, Register.

WILL KINCHEN, Receiver.

The difference between this certificate and the other, as respects the derivation of title, will be manifest upon comparing the two.

Upon this subject, the Supreme Court of Louisiana made the following remarks:

'The counsel for plaintiff also objects to the certificate of 8th June, 1820, on account of the vagueness of description of the land donated. We consider this objection to be well founded. The description is, 'One thousand arpens, situated in St. Tammany.' It is plainly impossible to locate land by such a description as this. And when such is the case, the grant can produce no effect. (16 Peters, U.S. v. Miranda; 10 Howard, Villalobos v. U.S.; 15 Peters, U.S. v. Delestine; 11 Howard, Lecompte v. U.S.; 5 Annual, Ledoux v. Black.)

'It is proper here to mention that the order of survey of 10th September, 1798, mentioned in the certificate, is not produced, although formally called for by the opposite party. Had such an order of survey ever been given in evidence before the commissioner of land claims, it would have been recorded in the archives of the land office. (See acts of Congress of 1812 and 1819, above quoted.)

'But no such record appears.

'It was probably a consciousness of this defect in his title, which induced the defendant's ancestor to procure from Rannells and Kinchen, the successors of Cosby and Skipwith in the office of register and receiver of the land office at St. Helena, the order of location and survey of the 21st September, 1826, which the defendants offer in evidence.

'This paper sets out by declaring that the first certificate had erroneously stated the origin of defendant's title, gives another and totally different origin to the same as the correct one, and orders a survey to be made, and the defendant's donation to be located on the Bayou Libert e, between the lands of certain proprietors named. The survey of Vanzandt was made in conformity to this order.

'We view the amended certificate of the 21st September, 1826, and the survey under it, as nullities. For the certificate of Cosby and Skipwith followed strictly the report of the commissioner of land claims, confirmed by the act of Congress of 3d March, 1819. Therefore, in correcting that certificate, Rannells and Kinchen took upon themselves to correct the report of the commissioner of land claims, and to make the act of Congress apply to a claim which was not mentioned in that report, and which was consequently never before Congress.

'The Supreme Court of this State, in the case of Newport v. Cooper, (10 La. Rep.,) decided that the register and receiver of the land office at St. Helena were without power, by law, to reverse and annul a certificate granted by their predecessors. By parity of reasoning, are they without power to make amendments in such a certificate, which falsify the act of Congress on which the first certificate was based? If the claimant could not locate the land claimed by him, under his claim aspresented to the commissioner of land claims, and reported to Congress, that was a misfortune which the land officers at St. Helena had no power to remedy, by fabricating for him a new claim, seven years after the action of Congress upon the report.'

Under the order of September 21, 1826, Vanzandt made a survey in 1845, which was one of the evidences of Cousin's title.

The history of the case in the State courts of Louisiana is given in the opinion of this court.

It was argued by Mr. Janin for the plaintiff in error, and Mr. Benjamin for the defendants.

Mr. Justice CATRON delivered the opinion of the court.