LEFEBVRE vs. COMEAU ET AL., 11 La. 321

Bullard, J., delivered the opinion of the court. This is a petitory action, in which the plaintiff sets up title to a tract of land, in the parish of Lafayette, described to be the north-east and north-west quarters of

section thirty-four, and the south-east and south-west quarters of

section twenty-seven, in township 10 south, range 5 east.

He asserts title to the same, under a purchase from the United States, in pursuance of the act of Congress of 1814, granting pre-emption rights to actual settlers. xi.c sale of a l,ract °(Iímd the register and receiver, under g,’anüng0 pre-even without a lleiice’ of* tide, emmínf'taíüie, purchaser will hold against one who buys sub-seiiuu,ub'- The defendant denies the right of the plaintiff, and sets up aright to four hundred and eighty-five acres, and sixty-six'' hundredths of the same land, in virtue of his settlement and cultivation, prior to the year 1803, and a confirmation of his claim by act of Congress in 1816.

He also pleads prescription. The documentary evidence in the cause, shows, that on the 20th November, 1818, the plaintiff purchased the land described in his petition, of the proper land agents of the United States at Opelousas, in virtue of his right of preemption ; and that in pursuance of the acts- of Congress, then in force, he paid at the time of his purchase, a part of the price, and the balance was paid, and a final patent certificate granted on the 15th of June, 1829. This court has uniformly held, that such a sale even without a patent, is evidence of title out of the government.

The 1 \ ° government is completely divested by such a sale, made in pursuance of

an act of Congress, conferring authority on the register and receiver. The land was specifically described by the numbers of range, township and section, according to the general system of the public surveys. Unless, therefore, it should appear that the defendants, or those under whom they hold, were at the date of the plaintiff’s purchase, own- * 1 ersof the land by an anterior title, or that they have acquired a better right by prescription, it seems to us clear that the plaintiff must recover. The claim of J. B.

Comeau, before the land commissioners, (and which forms the basis of his title) is described to be for four hundred and eighty-five acres and sixty hundredths, in thepriarie of C6te G-elée, by settlement. The evidence in support of it appearing contradictory, it was merely recommended for confirmation. By

an act of Congress in 1816, the report-was adopted and the claim confirmed. It was not until 1830, that the claim was surveyed and located under the authority of the United States, in such a manner as to conflict with the claims of the plaintiff, and to cover part of the land previously purchased by him. This claim is extremely vague as to its calls ; nor is there any evidence in the record which satisfies us that any part of the settlement .made by Comeau, before the change of government, was upon either of the quarter sections which the plaintiff had a right to purchase, and which he did purchase in 1818.

That the defendant was entitled to the quantity of land claimed by and confirmed to him, we do not doubt, but it does not follow that the surveying department could locate it in such a manner as to deprive the plaintiff of any part of his purchase. By its terms the defendant’s title does not necessarily embrace any part of the plaintiff’s-land, and we are not prepared to admit the authority of the government itself, to take what they had already sold. The evidence of possession, is, in our opinion, insufficient to establish prescription.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and it is further adjudged and decreed, that the plaintiff do recover and be .quieted in his title to the tract of land described in his petition, and that the defendants pay the costs of both courts.