GONSOULIN'S HEIRS v. GULF CO., 116 F. 251

McCORMICK, Circuit Judge, after stating the case as above, -delivered the opinion- of the court.

The assignment of errors presents substantially but two propositions for our consideration, the first of which is that the United States did not part with its title to the land sued for herein until the issuance of its patent to the plaintiffs’ ancestor, in 1878, and there had been no prior severance of said land or property from the public domain; second, that the court erred in holding that the defendant or any of the authors of its title had held or enjoyed such possession of the said land or property as is or would be sufficient to support or acquire a title to the same, under the Civil Code of Louisiana, by prescription or adverse possession; that the only claim of right under which said property was ever at any time held ’by any of the persons upon whose supposed title or possession the defendant relies was to such right, title, and interest as may have been had in said property by the vendor or author from whom the several parties in question purchased; that a party who owned such .a title does not possess as owner, and hence his possession is not sufficient to operate a title by prescription, however long may be its duration, and that the court erred in not so holding; and that vunder the whole of the evidence and testimony offered and introduced on the trial of the cause the defendant could not maintain its claim to title by the prescription of iq years established by the Civil Code of Louisiana.

As is shown in the foregoing statement of the case, the plaintiffs’ title had its origin in the Spanish grant made in 1783, and from a careful consideration of the treaty of cession from France to the United States of the Louisiana territory, and of the different sections of the act of March 3, 1807, respecting claims to lands in the territories of Orleans and Louisiana (2 Stat. 440), and of the

preamble and

section 1 of the act of April 29, 1816 (3 Stat. 328), it may well be doubted whether the land claimed by the plaintiffs in error ever belonged to the United States, or that the title thereto was ever in the United States, in the sense now suggested by the plaintiffs in error. But, however that may be, it seems clear to us that by the act of 29th of April, 1816 (the

preamble and the first

section of which, in effect, say of the claim of these plaintiffs that their title and claim to the land “be, and the same are hereby, confirmed,” and the provision of the third

section is “that in all cases-not provided for by law for patent certificates to issue, every person, and the legal representative of every person, whose claim to a tract of land is confirmed by this or any former act, and who has' not already obtained a patent certificate for the same, shall, whenever his claim shall have been located and surveyed according to law, be entitled to receive from the register of the land office at Opelousas, in the state of Louisiana, * * * • a certificate stating that the claimant is entitled to a patent for such tract-of land by virtue of this act”)’, and by the survey of the land embraced in the plaintiffs’ claim, duly made by authorized surveyors, and approved on August 1, 1838, by H.

T. Williams, surveyor general of Louisiana, and an authenticated plat of the land as thus surveyed having been approved by the surveyor general on December 8, 1842, at this last date, if not before, the full title to the land- in question became vested in the grantees, and the patent when issued upon the same survey, more than 30 years thereafter, added nothing to their right, and served only as more convenient evidence of the .title already and long theretofore held by them.

There is no substantial conflict in the testimony that those under whom the defendant holds-have, had continuous, exclusive possession of the land involved in this suit, and embraced in the plaintiffs’ title, from some time in the year 1827' to June 30, 1898, the date of the filing of this suit. Therefore the defendant’s claim of title under the prescription of 30 years is clearly and fully established, and justified and required the trial judge to give the peremptory instruction directing the jury to find for the defendant.

Here our consideration of this case might, and probably should, close; but, as we have considered the other proposition involved in the assignment of errors, we may be allowed to observe that the deed of the 25th of July, 1809, by the judge of the parish court of Attakapas, describes the land which had been seized to be “all that tract or parcel of land known by the name of ‘Belle Isle,’ situated near the mouth of the Atchafalaya, in the parish aforesaid”; and the granting clause declares that the grantor does, in consideration of the premises recited, “grant, bargain, sell, assign, and set over to the said John N.

Kershaw, his heirs and assigns, all the above-described tract or parcel of. land, situated as aforesaid, containing the whole island of 1,500 acres, more or less,” etc.; and the deed from Kershaw to Johnson also declares that the grantor “hath granted, bargained, and sold, and by these . presents doth grant, bargain, and sell, unto the said Henry Johnson, his heirs and assigns, all that certain tract of land called the island of ‘Belle Isle,’ situated near the mouth of the river Atchafalaya, in the parish aforesaid, containing 1,500 acres, more or less, together with all the appurtenances and advantages whatsoever thereunto belonging or in any wise appertaining; * * * and the said John N.

Kershaw, for himself and his heirs, the said tract or parcel of land, and every part thereof, against him and his heirs, and against every other person or persons whatsoever, to the said Henry Johnson, his heirs and assigns, will forever warrant and defend.” Under these deeds Walter Brashear held, when, .on the 1st day of May, in the year 1822, the heirs of Gonsoulin and others brought' suit against him in the district court of the Fifth district, parish of St. Mary, in which they “represent that, notwithstanding their right and title to the said land, a certain Walter Brashear, of the parish of St.

Mary, has entered upon the said tract of land and taken possession of the same.” After the death of Walter Brashear, under the judgment -against his heirs rendered by the circuit court for the district of Louisiana fieri facias duly issued and was levied upon the property of the estate of Walter Brashear, including the land in controversy, and was duly sold and conveyed by the marshal for the district of Louisiana to Robert B.

Lawrence as the purchaser, the deed being in the due and customary form for judicial sales, and expressing “that I, the said marshal, in consideration of the premises, and by virtue of the law in such case made and provided, do sell and transfer the said above-described property [with the exception above noted] to the said Robert B. Lawrence,” etc.

These conveyances appear to us to undertake to pass the land itself, or all property in the land, to the grantees, and cannot in reason, or as we read them in the light of the Louisiana decisions, be held to be in any sense quitclaim deeds, or such as are not translative of property, and not adequate to support the claim of the 10-year limitations provided by the laws of Louisiana.

If these deeds are conveyances translative of property such as, with proper proof of possession, will support the claim under the 10-year statute of limitations, the defendant’s claim under that statute is abundantly made out, and thereby the peremptory instruction given by the trial judge was also not only justified, but required. Finding no error in the judgment of the circuit court, it is affirmed.