James Moore Wayne

“ The portion, therefore, of the decree now excepted to is a reason of the court for rendering such judgment. It is no necessary part of the issue submitted for adjudication, or of the judgment actually given. As a reason of the court, it is mere surplusage, and can be altogether rejected without affecting the validity of the judgment. It is well settled, that, if a judgment be defective in form, yet if it follows and is responsive to the issue, and is substantially right in that respect, neither such defect, nor any surplusage contained in it, is a ground for error. ”

“ It was well known, before the contract of 1795 was made with Maison Rouge, and from the execution of it by him, that settlers could not be induced to fix their residences in such a wilderness then, without gratuities of land and money, and their transportation being paid. These were to be borne, therefore, by the Marquis. It is not at all improbable, if his life had been spared to carry out his design, that the cost of it would have left him but a small part of what at first seems, from the magnitude of the grant, to be a principality. Time only has ever repaid the actual cost of colonization ”

“ It is, that the Circuit Court adjudicated the instrument executed by the Baron de Carondelet, on the 20th June, 1797, to be a grant to the Marquis de Maison Rouge. This is surely not an error brought before this court by a proper exception, and more, it is not an error apparent upon the record. It not only is not in any bill of exceptions, but it is not a ruling of the Circuit Court which was at any time formally objected to, directly or indirectly, in the court, below. If it is an error, it exists in the language and office of the judgment itself,-nowhere else. ”

“ The inquiry should not alone be, whether the judgment may not bear that construction, but whether or not it does not admit of another, more coincident with the case as it is on the record and appeared to be on the trial, and more in harmony with the duty of the judge who gave it, in respect to the only 'definitive sentence' which, under the civil law of Spain as it exists in Louisiana, can be given in a suit for real property where a warrantor appears to defend the respondent to the action in the character of a plaintiff in reconvention. ”

“ And so essential is the propriety and policy, in jurisprudence, of putting an end to further controversy after a judgment rendered, though there may be surplusage in it, that no instance can be found in our books, nor in the English reports, of a judgment set aside, in a court of review, which distinctly finds the issue between the parties, on account of other matter in it, unless upon exceptions taken to the court's ruling of the law in the case applicable to the issue. ”

“ Spain, by which the latter government relinquished its claim to the territory on the eastern side of the Mississippi north of the 31st degree of latitude, so that the settlements of the United States were rapidly approaching the inhabited portions of Louisiana, it became, even more than had been previously the case, an object of Spanish policy to promote the establishment of colonies of European emigrants on the outposts of Louisiana, and to encourage the cultivation of wheat, so as to supply its inhabitants, and make them independent of the people of the United States for that food. ”

“ The prayer in the petition of the United States is, that they may 'be decreed, by a judgment of this honorable court, to be the true and lawful owners of the aforesaid land and premises.' The judgment responsive to this prayer is, that 'King, the defendant, and Coxe, the warrantor, are declared and recognized to be the lawful owners,' and are to be quieted in the ownership and possession of the same. ”

“ Inasmuch, however, as the distinction, so well known in England and in our States in the Unites States, between courts of equity and courts of common law does not prevail in Louisiana, what in England would be recognized as a purely equitable title may serve as well in a court in Louisiana as a perfect legal title, either to maintain the claim of the United States, or as a defence on the part of the defendant against such demand. ”

“ The assertion that the certificate of Trudeau to the plano figurativo has been antedated, or is fraudulent, cannot be maintained. It rests solely upon evidence not worthy of credit, from the circumstances and manner it has been introduced by Girod in his pamphlet, which is shown to have been contradicted, and which, if it were necessary to sift it, would be found to present intrinsic and abundant proof of its own discrepancies and inconsistencies. That the grant is a complete and formal title to the land mentioned in it, pursuant to the laws of Spain, is also conclusively established. ”

“ At common law, as is familiar to all of us, when an action is brought to recover real estate which a defendant holds by purchase from another, accompanied with a covenant of warranty, the defendant may, at his option, elect either to give notice of the pending action to his vendor and warrantor, or to await the result of the suit, and, if judgment passes against him, sue upon his covenant of warranty. ”

“ Still, the grant was an inducement for the Marquis to attempt to colonize it. The man who has fallen from a high estate into nothing, seizes upon ventures to regain his elevation, and the greater the risk he may run and overcome, the greater will be his pride at his re exaltation, or, if of another temper, his thankfulness to Providence for his success.
I cannot help thinking, too, that there is a caution in the terms of the grant, if taken in connection with the contract of 1795, very much in favor of its validity. ”

“ That court had before it the evidence of the performance of the conditions of the grant, and of the laws and usages of Spain in regard to it. We have not. Nay, more, we are bound to presume that this judgment was right, so far as it did or could, by any possibility, depend upon a matter of fact. Every matter of fact necessary to sustain it will be presumed to have been proved, and will be taken by this court to have been fully proved in the Circuit Court. This is a principle too well settled, alike by the common law and the law of Louisiana, to need discussion. ”

“ Their testimony appears to have been mainly directed to establish the genuineness and authenticity of the grant of Baron Carondelet to Maison Rouge, and of the plano figurativo of Trudeau, the surveyor-general, which was annexed to it; to rebut the contrary evidence derived from Girod's pamphlet, and which was supposed to exist in the old depositions printed with it; and to show the complete validity of the grant in question, so far as it depended on the Spanish laws and the recognized and settled practice of the Spanish government. ”

“ But there is more. Tessier further says, that 'he has a personal knowledge of the time when the said grant was made and issued, because he filled it up at the time of its date; his knowledge was therefore personal, as he performed the service; the grant was not a secret, but of public notoriety; that the grant was denominated and considered a titulo en firma, and was such complete and perfect evidence of title as not to require any other to validate or strengthen it; that he was familiar with the operations, forms, usages, and customs of the land department under Governor Carondelet ”

“ Such services were never required by the civil law of Spain to make a good grant for land. Any words for that purpose are enough, in a grant from which an equitable title can be inferred for the grantee. The suit of the United States against King is in the nature of a writ of ejectment. ”

“ An instrument of writing (escritura) is every deed that is made by the hand of a public escribano, or notary of a corporation, or council (concejo) , or sealed with the seal of the king, or other authorized 'person.' L. 1, tit. 18, p. 3. 'Hence arise the two kinds which produce full faith and full proof;-one public, made by the escribano or notary, with the solemnities prescribed by laws' ”

“ He was the surveyor-general, whose duty it was to make for the governor, by his order, such a figurative plan, before the governor could make the grant. A plan is made purporting to be signed by Trudeau, his signature is proved to be genuine, the governor and his secretary recognize it to be such by making a grant according to it; the character of Trudeau for private virtue and official ability and integrity is proved by those who knew him. ”

“ It also agreed to facilitate their passage to the place of settlement, supply them with provisions, to pay for the transportation of them and their luggage, when they came by sea to New Orleans, and to grant to every family containing two white persons fit for agriculture four hundred arpens of land, and a corresponding proportion for more or less. ”