Montfort Wells and another v. John Compton and another, 3 Rob. 171

Garland, J. In this court, in addition to the able opinion of the judge, we have had the benefit of an argument distinguished for its ability, and of the counsel of one of our associates, who was not present when the cause was tried. The first question by which we are met, is a plea of res judicata.

It appears that in the year 1830, the plaintiffs, with their three co-heirs in the succession of Samuel Levi Wells, instituted a petitory action against the defendants, in which they claimed of them fifteen hundred arpens of land — five hundred arpens on the west side of the bayou Bceuf, and one thousand arpens on the east side, situated at the Biloxi village, bounded above by the plantation of Judge Mathews. They claimed, by inheritance from their father, his rights derived from the Indians, through Miller and Fulton.

In answer to that action, the defendants set up as their title, the same deed of conveyance now presented, in which there is a clause that the legal title to the land is to remain in Samuel Levi Wells until Leonard B. Compton shall have paid the price ; and as there, was no record evidence of his having paid it, the plaintiffs hoped to recover, supposing that he had not done so, or could not prove it, if he had. The case turned on that question entirely, as an inspection of the record, and the decision of this court, in 3 La. 164, will show.

The plaintiffs failed in that suit, but it will be seen that the matters now in controversy were not involved in it. There was no question of boundary, nor was it the purpose of the parties to fix the point of commencement under the deed. The judgment says, that the plaintiffs shall take nothing by their suit, and quiets the defendants in their possession and title to the land claimed. But the question where that land is, was not in any manner touched or decided. The judgment gives no more than the deed gave. Besides this, the parties are not claiming in the same capacity, nor by virtue of the same right.

This suit is in effect an action of homage. The plaintiffs do not dispute the validity of the defendants’ title, so far as it goes, but allege that they have got possession beyond the true boundary. The case does not come within the meaning of

article 2265 of the Code, and the settled doctrines of this court. 7 Mart. N. S. 430. 5 La. 474. 19 La. 318. A number of bills of exception were taken on the trial to the opinions of the judge admitting or rejecting testimony, which we will proceed to notice. The first was taken by the plaintiffs to the opinion of the court rejecting as evidence, the record and depositions in the case of Leonard B. Compton v. George Mathews. They offered them to prove, first, that that suit anti the present are substantially the same, viz. to fix the boundaries of the tract of land sold by Samuel L. Wells to L. B.

Compton, now; in controversy; secondly, to show that L. B. Compton claimed that the elm tree in the first turn of the bayou below the Biloxi village, was the proper point of beginning, from whence to survey the land claimed by him at that time. But the court rejected all “ the evidence, except the record to prove rem ipsam, and the testimony of Kenneth McCrummen as hearsa}1- evidence, and the plats referred to in his evidence.” The grounds of objection are stated by the judge in a very long opinion. We think that he erred in confining the evidence to the narrow grounds which he did.

He ought to have admitted it, to prove the acts and conduct of the party, and have given them their legal effect. The great ■ question at issue, was, where was the true point, to begin to run the twenty-five arpens line. As the contract did not fix it in a manner satisfactory to all parties, the declarations and acts of the parties contesting were admissible, to prove what their understanding of the agreement was. The judge says, there is no doubt but that the declarations of Leonard B. Compton would be admissible to show that the elm tree was the proper point of beginning.

If his parol declarations were admissible, we see no reason why his declarations in a petition, filed in court, should be rejected.

As the plaintiffs were not parties to that suit, they cannot avail themselves of the statements so made as judicial admissions, absolutely binding on the party, and conclusive as to his rights; but we have no doubt that the allegations made, ought to be considered as other declarations would be, and as such as forming a link in the chain of circumstances going to prove that the plaintiffs and Compton at one time entertained the same opinion, as to the meaning of the expressions in the deed.

The plats made under the order of the court, so far as they show acts of the party, ought also to have been admitted as circumstances, and proper consideration should have been given to them. The general rules in relation to the

interpretation of contracts, require us to examine the whole conduct of the parties in relation to them, and thereby judge of their meaning. Civ. Code, art. 1951. The statements of the witnesses taken down in the suit of Compton v. Mathews, cannot be received as evidence for the plaintiffs, unless it be perhaps the declarations of the deceased surveyor to explain.his operations, or to use them, as in the case of Alexander Compton, to discredit the evidence given on this trial. 8 Mart. N. S. 382. 13 La. 76.

The next bill of exceptions was taking by the defendants, to the opinion of the court receiving in evidence a plat made by McCrummen, the parish surveyor, of a survey made by him under the order of the court in the case of Compton v. Mathews, and also his testimony on the trial of that case. The judge admitted it as hearsay testimony, to show the directions and requests of L. B. Compton, when the survey was made to establish the boundaries of the tract of land purchased by L. B. Compton of Samuel L. Wells.

It was proved that McCrummen and the chain carriers were dead, and that he was the parish surveyor, and had made the survey under the order of the court. We think the judge did not err. Surveyors are officers known to the law, appointed by the Governor and Senate ; they give bond, and take an oath to perform their duties; they are required to keep a record of their proceedings, and to give copies, which are evidence in the different courts of the State. B. & C. Dig. 796, sec. 1, p. 798, sec. 10.

They are specially required faithfully to execute all orders of survey directed to them by any of the courts in the State ; and they make surveys generally. Ibid. p. 796, sec. 4. The acts of such officers are entitled to due weight, and if they are dead, we see no objection to appealing to their recorded testimony in a suit, to explain their acts, when it is required or necessary to understand them. 2 Phillipps on Evidence, 629, 632, 633, 634, 635. 6 Peters, 341. 7 Cranch, 296. The defendants offered in evidence the record of the suit of the heirs of Wells v. J. and L. B.

Compton, for the purpose of supporting their allegation of the plaintiffs’ rights having been precluded and settled by it. The latter objected, on the ground that the case was between other parties and for a different cause of action. The judge would not receive it as evidence, but admitted it to prove rem ipsam, and the defendants excepted. We think the judge should have admitted the record, to prove what the parties claimed, and what had been decided, and have given it such legal effect as it was entitled to. The objections seem to have been more to the effect of the evidence, than to its admissibility.

The plaintiffs were parties to that suit, though in a different capacity, and connected with others ; yet, if they had impaired or compromised any of their rights by that suit, or the court had decided on them, the defendants certainly had a right to the full benefit of every thing that had been adjudged. 2 Chi tty’s Equity Digest, 990, 991. In relation to the defendant’s bill of exceptions to admitting in evidence the plat of the whole Indian claim, approved by John Dinsmore, Principal Deputy Surveyor, we do not think that the judge erred.

There is no doubt that the certificate was sufficiently formal, and the effect of the plat should have been considered. The defendants excepted to the opinion of the judge, excluding the sixth, seventh, ninth, and'tenth interrogatories propounded to Alexander Compton, and the answers thereto, on the ground that the interrogatories contained leading questions. The judge, we think, erred.

The interrogatories are somewhat of the character stated ; they ask the questions in an affirmative and negative form, yet they do not, in our opinion, so clearly indicate the answers to be given, as to authorize their rejection entirely. After the plaintiffs and defendants had closed their evidence, the former offered as rebutting evidence, a plat of survey signed by K.

McCrummen, parish surveyor, and the record of the same; to which the defendants objected, on the grounds that this was not rebutting evidence, but evidence in chief; that the survey was an ex parte proceeding, not made under an order of court, or of other competent authority, and that none of the statements made in the notes were on oath ; that the defendants were not present when the survey was made, nor ever notified to attend; and that it is not properly certified. This plat is dated in March, 1830.

In the proces-verbal, the surveyor states that, at the request of one of the plaintiffs, he has surveyed, measured, and marked, the boundaries of a tract of land on the bayou Boeuf, in conformity to a sale made by Levi Wells to Leonard B. Compton, in the year 1808, for 1000 arpens. He. states that he began at the elm tree on the next turn below the Biloxi village, and ran up parallel to the ascertained base of the Indian purchase. He then gives the courses, distances, marks, &c., so as to contain 1000 arpens.

He states that written notices were given to the parties, that the survey would commence on the 15th March, 1830, and that John and Leonard B. Compton were present on the ground, and made no objection to the location of the tract. This plat is certified to be recorded in book A of the Records of Surveys, for the parish of Rapides, on pages 160 and 161, and the certificate is signed by the surveyor.

The court admitted the plat, and notes of reference, so far as necessary to explain the same, on the ground that its introduction to that extent was authorized by law ; but refused to receive the proces-verbal farther than it went to explain the diagram ; and rejected that part which stated that the parties were notified, and that they were present at the survey, and made no objection thereto, on the ground that the surveyor could not legally give such a certificate. To the latter part of this opinion the plaintiffs excepted, and to the former the defendants took their bill of exceptions.

Articles 829, 830, and 831 of the Civil Coda specify in what manner a surveyor shall act, when called upon to fix the limits between adjacent proprietors. He must make a proces-verbal of his work, in the presence of two witnesses, called for the purpose. He is to notify the parties in writing to attend if they think proper, which he must mention, and to make a record of his proceedings and plans, and of all other necessary acts.

We have before stated that, by different acts of the legislature, important duties are required of parish surveyors ; and their official acts and certificates, when their duties are performed, are entitled to full faith and credit in all of our courts. The only serious defect we see in the proces-verbal of McCrummen is, that it is not attested by two witnesses; but the defendants did not object to it on that ground. They assert roundly that no such document can be given in evidence against them, for the causes before stated.

We think that the operations of parish surveyors, when reduced to writing, and represented by plats, as required by law, are legal evidence of what is stated in the procés-verbal. It is important that these records should be regularly kept, as they are the legal evidence of the establishment of boundaries.

There would be but little security that boundaries would be permanent, if the procésverbal made by the parish surveyor when fixing them, ceased to be evidence as soon as he was dead or out of office; and a defendant might compel a plaintiff to prove, in every instance, by parol testimony, that notices were given, and that the parties attended. In many cases this could not, from the lapse of time, be established ; and in this, no other means exist of proving the survey but by the procés-verbal, the surveyor being dead.

We are of opinion that the judge did not err, in receiving the document as far as stated in the defendants’ bill of exceptions ; but that he did err, in rejecting that portion set forth in the plaintiffs’ bill. He should have received the whole document, and have weighed it, with other circumstances. Under art. 835 of the Code, a party is not prevented by such a survey, from resorting to a court of justice to rectify any erroneous proceedings or injury that may result from it.

The remaining bills of exception it is unnecessary to notice ; and as we are approaching the merits of the case, it may be proper to mention a few other facts connected with it, and to recapitulate some already stated. There cannot be a doubt that, when Samuel L. Wells, in the year 1808, sold to Leonard B. Compton the quantity of one thousand superficial arpens on the east side of the bayou Bceuf, none of the parties knew where the dividing line between the lands of Fulton and Wells was ; but that they only supposed where it probably would be.

From the testimony of Josiah Johnston it is clear that no line had been marked, as he says that L. B. Compton and Mathews established a boundary, where they supposed it to be, several years after their respective purchases from the original proprietors. We have very little doubt but that both Wells and Compton believed it to be about twenty-five arpens, from the first turn in the bayou below the Biloxi village to Fulton’s line, and that in the area they proposed to make there would be something approaching to one thousand superficial arpens.

The proprietors of the Indian claims, at that time, contended that their depth was eighty arpens on each side of the bayou, or at the least forty arpens. For the latter quantity they were confirmed, and the location made by McCrummen gave that depth, which location was approved by John Dinsmore, Principal Deputy Surveyor for the south-western land district, who had authority to do so. In the answer filed by the defendants in this suit, they admit that, at the time of the sale from Satríuel L. Wells to Leonard B.

Compton, the former was the owner to a depth of forty arpens from the bayou, and on the western side the sale specially conveys to that depth.

Had the location of McCrummen not been disturbed, there would be no necessity for the defendants to go below the elm tree, to get the quantity of land they claim, as there would have been a sufficient quantity back to give it; but it pleased the Commissioner of the General Land Office, and some other officers of the general government, to change this location since the commencement of this suit, whereby a line running from the elm tree, parallel with the upper line of the tract, has been so much shortened, that the quantity cannot be found.

It does not appear from the record that the plaintiffs ever assented to this change, nor is it shown what particular agency the defendants had in effecting it; but it appears, from one or more of the affidavits made by John Compton, to obtain a continuance of the case, that he knew that such a purpose was agitated, and approved of it. The main difficulty in this case is to ascertain the point on the bayou where the twenty-five arpen line is to commence. That once fixed, every thing else follows as a consequence.

The old Civil Code, page 270, articles 56 to 64, and the present Code, articles 1940 to 1957, lay down precise rules for the

interpretation of contracts, and embody the principles contained in the best commentators on the jurisprudence of those countries, from whence we have drawn many of our laws. The decisions of this court have been based on them repeatedly; and the doctrine that the intent of the parties is to be ascertained, and effect given to it, and to all the clauses of the contract, have become legal axioms (8 Mart. N. S. 365); and no construction is to be given that will render important expressions useless. 9 Mart. 635. The intention of the parties must be determined by the words of the contract, if il can" be done.

Their interests must be looked to ; and other words may be referred to, as may other contracts, when the intention of the one under consideration is doubtful. When a clause is susceptible of two

interpretations, it must be understood in that in which it may have some effect. The manner in which one or both of the parties have executed the contract, or acted under it, with the expressed or implied assent of the other, also furnishes a rule of

interpretation. Civ. Code, art. 1951. And finally, in a doubtful case, the agreement is to be interpreted against him wdio has contracted the ooligation. Arts. 1952, 1953. The doctrine that the seller must put the purchaser in possession of what he purchases, is admitted ; and it is further admitted, that if one owns a large tract of land, the first purchaser must have his portion before a second one. We will now analyze the contract of sale.

First, a point was to be fixed, at the first turn of the bayou below the Indian village ; secondly, a line was to run twenty-five arpens, parallel with the base line of the whole tract; thirdly, the line was to run to the bayou, and, with it to the place of beginning; fourthly, if the area thus formed, did not contain one thousand superficial arpens, the deficiency was to be laid off back of the line first run, between parallel lines, which were to be at right angles with the said line.

It is perfectly clear from this statement, that both Wells and Compton supposed, at the time, that the area made by them would comprise one thousand superficial arpens, and that the line first to be run would be a back line, if that quantity of land was found, if not, that the deficiency was to made up back of it, between parallel lines. That they believed there would be an abundance of land in the rear, cannot be doubted, for the Indian claims were supposed to have been eighty arpens in depth, and the defendants admit that they were forty.

It is a well settled rule, in all surveys, that courses and distances must yield to natural and ascertained objects. The Supreme Court of the United States say it is a universal rule. 6 Wheaton, 580. 5 Cond. Rep. 194. The first turn in the bayou Bceuf is a natural object, and wherever that is, the line must begin. It is to be observed, that in this deed a peculiar phraseology is used. It does not use the general word hend of the bayou, but it speaks of the first turn in it. The Civil Code, art. 1941, tells us, that the words of a contract are to be understood ‘in their common and usual signification.

Now we will suppose a man of common sense to be placed at the point where the Biloxi village stood, looking down the bayou, and to be asked where the first turn in the stream is ? Can any one believe that he would point across the bend, to his right, and say it is there, or that it may be a little farther up, or that it may be any where on the lower or upper side of the bend. It may be well to state that, for some distance below the village, the bayou is nearly straight; it then makes a bend or curve for a considerable distance, and runs back again towards the same point.

It appears to us, that the most common and usual signification of the first turn, would be the first clear deviation or deflexion from a direct course, or, at the most, that it could not go beyond the apex, or most projecting point in the curve. Let us suppose, for a moment, that the line were to commence at the point contended for by the defendants ; what would be the result?

To run it parallel with Walther’s base line of the whole claim, as laid down by Phelps, the surveyor would have at once to cross the bayou, and after running for a short distance on the west side of it, would be forced to cross again to the east, and after running for several arpens in the water, or very close to it, would go on his course, without having given a single arpent of land on the west side to the defendants, because they were not to have any there.

Again, the point of departure contended for by the defendants, is about nine arpens below the point where the bayou first changes its direction, at the elm tree. We have said, that we do not doubt, but the parties to the sale supposed, that the area first described would probably contain one thousand superficial arpens ; and taking this to be true, would it not have been a very vain thing to run a line along the front, or in the bayou, for eight or nine arpens, and not have thereby given the purchaser any land.

He would have a line only, between the water and the land, on the banks of the stream belonging to the seller. Besides this absurdity, we are met by another. In prescribing how the area is to be formed, the deed directs certain lines to be drawn, and the meanderings of the bayou to be then followed to the place of beginning. If this be complied with, in order to get to the beginning, for which the defendants contend, it would be necessary to cross the first, or twenty-five arpens line, or to run on it for eight or nine arpens, without adding once inch to the extent of the area.

We can see no motive that the parties could have, for fixing aline that was not to give to one, nor take from the other; and it is not probable that any one would have extended a line a great distance, merely to cut off the front of his land. But, say the counsel for the defendants, the line must have been intended to commence lower down on the curve, for it has been since ascertained that a line of twenty-five arpens in length cannot be run, beginning at the upper part of the curve, without running into the limits of a neighboring proprietor ; and the line must be that long.

We have no doubt but the contracting parties expected this line would be twenty-five arpens in length, and designed it to be so. But those expectations have not been realized, because the parties were in error as to the facts. If it had not been intended to fix the point for the line to begin on the upper turn of the bayou, how could it be known at what point below it was to commence, as the line of Fulton was not then known ?

The counsel reply, (and so the defendants have alleged in their answer,) our line must commence at Fulton’s, now Mathews’, lower line, and run down until we get twenty-five arpens; but this is in direct opposition to the deed, which says, that the line must run up, and not down. We will now see how the defendants, for a long time, understood this clause in the deed. In the suit which Leonard B. Compton instituted against Mathews, Ke alleges that he claims according to a plat of survey filed with his petition.

It is shown that this plat fixed the lower boundary at the elm tree ; and the defendants adhered to it until they were defeated in that suit. They pointed out this tree to surveyors as being the correct point from which to commence running the line ; and, after the plaintiffs purchased the land adjoining them, they still admitted this tree to be the proper boundary, but did not give up the land below it. The counsel for the defendants say that these acts and admissions were made through error, but whether of fact or law is not precisely stated.

Suppose this to be true, has it not been very clearly shown that Wells was also in error, in supposing Fulton’s lower line to be so near? We think it has, and consider the one error as excusable as the other. But, say the defendants, if you do not permit us to run our line down the bayou, we shall not get the quantity of land which we purchased. This may be true ; but the deed does not say that you are to go down the bayou to get the quantity. It says that you must go back, and that does not mean that you must go in front. But, repeat the counsel, if confined in this way, we must lose the land sold to us.

In answer to this, it may be asked, is this the fault of Samuel Levi Wells ? When he sold to you, all parties supposed that he had a great depth to his claim. You say yourselves that he had forty arpens in depth, when you bought; and if you have lost it since, he is only responsible in warranty. There is a special clause in the conveyance providing for the case of the United States, not recognizing the claim, and it is possible that the warranty may go beyond the stipulation in the act itself, as against the heirs of Samuel Levi Wells ; but, upon that point, we express no opinion.

The defendants allege that they purchased a certain quantity of land out of a larger tract belonging to Samuel Levi Wells, and that he, or his heirs, are bound to deliver it to them. It is very true that the defendants agreed to purchase a certain quantity, but they bought with a particular boundary and within certain limits, and they cannot claim beyond them. The case relied on in 6 Mart. N. S. 700, is one in which a certain quantity of land was sold, without boundaries, to be taken out of a larger tract, and it was correctly held that the first purchaser must be satisfied.

In this case, the heirs of Samuel Levi Wells are not parties. The plaintiffs do not sue as such, and none of the pleadings call upon them to answer in that capacity. The plaintiffs claim rights purchased from the estate of their father; they may be responsible as his heirs, but they are clearly not responsible as such, until called on in a legal manner. We will now return to that part of the case, defining what is the first turn in the bayou, below the Biloxi village.

The defendants say that their right to consider any part of the bend or turn, as a proper place for their first line to begin, has been decided by this court, in the case of Compton v. Mathews, 3 La. 139-145. The learned judge who delivered the opinion of the court in that case, says, “ the most definite and controlling call in this title, is, at the first turn in the bayou below the .Biloxi village. By the plat of survey returned in this cause, it appears the plaintiff has taken for his departure, in running the base line, an elm tree which is at the upper end.

The expressions in the title, ‘ at the first turn in the bayou? would be satisfied, either by a location on the lower end, or the upper end of the turn. Were it material in this case to decide the point, it would, perhaps, be correct to say, that a middle point between the upper and lower ends, formed the proper beginning. The plaintiff,fit appears, once entertained the idea, that any spot at the turn would satisfy these calls.” Again the court say, “ this call, we see, was at the first turn in the bayou, below the Beloxi village.

Expressions which gave the purchaser the same right to begin at the lower part of that turn, as on the upper.” In relation to this opinion, it is proper to observe that it is merely an obiter dictum. It was not necessary to the decision of the case, as was mentioned by the court, and the plaintiffs in this case were not parties to it; and we doubt very much, whether the court would, with the same evidence and reflection that we have given' to the subject, again say, that the first turn in the bayou means any portion of the bend or curve.

The defendants did, at one time, appear to think, that any part of the turn would satisfy the call of -the title ; but it appears that they abandoned this idea, and most perseveringly acted on a different one for a number of years ; or, to make the most of their conduct, it would seem that they intended to be prepared for any contingency, and, if they could not get the land above, to try to get it below, after having approved a proceeding by which it could not be had in the rear.

To what has been said in previous decisions of this court we always look with much respect, although the reasons assigned may not have been exactly called for; and, in mpst cases, we concede our own impressions, to preserve uniformity in the decisions of this tribunal. We will, therefore, in this case, go as far in fixing the point of beginning, as the court intimated it would do in the case of Compton v. Mathews. That is, we will fix the point at the apex, (if the expression be a proper one,) or most projecting part of the curve, at ordinary high water mark in the bayou.

This will place the line, according to the plats and evidence, some distance below the elm tree, and .entitle the plaintiffs to recover up to it. In doing so, we give the defendants as much land as possible, without directly violating the plain meaning of the expressions used in the sale. The judgment of the District Court is, therefore, annulled and reversed ; and we do further order and decree, that the plaintiffs, Montfort and Thomas J. Wells, do recover of the defendants, John Compton and the legal representatives of Leonard B.

Compton, deceased, all the land below a line to commence on the bayou Bceuf, at the point marked by this court, in red ink, S. C., on the plat made by A. G. Phelps, Parish Surveyor, under the order of the District Court; and that a line be drawn from said point to the back line of the claim of Miller and Fulton, as represented by the plat made by A. S. Phelps, United States Deputy Surveyor, approved Oct. 8th, 1837, parallel with the line A. B. on said map of said A. G. Phelps, Parish Surveyor, and at right angles with the baseline of Walther’s survey, as represented on said Phelps’ plat.

And the said plaintiffs are quieted in their title to all the land below said line, and the defendants to all above it. The defendants to pay the costs of this appeal, and all those in the District Court up to this time. The line now established, to be run at the expense of both parties. And, as relates to rents, fruits, and improvements, it is ordered that this case be remanded to the District Court, to be proceeded in according to law ; and in the mean time no writ of possession to be issued. Bollard, J. having been of counsel in this case, did not sit on its trial.