The United States . King et al.

direct contrary, it remains to be seen how the parties regarded it, and what was the practical construction given to this instrument by both of them.

First, the colonial government did not put such a construction upon it as would vest in him the title to the thirty leagues square, and require the colonists to look to him, instead of the government, for their titles. They did not regard the land as his property. The letters of Baron de Carondelet to Filhiol, the commandant of the post, abundantly show this. Subsequent grants in the same tracts, made by the government from time to time, show it also. The inventory made after the death of De Maison Rouge by Filhiol, as commandant, it is admitted by the claimant, did not contain this land. This was in April, 1800, before the secret treaty of San Ildefonso.

He

not

Second, the Marquis de Maison Rouge puts no such construction upon this instrument. This is shown by his letters to Filhiol. In that of the 21st of March, 1796, speaking of the claims of a Mr. Morrison, he says,-" Mr. Morrison alleges that M. Miro has promised to him that quantity of land, but he does not say that it was not for him alone, but for the sixteen families and upwards of Americans he was to have brought into the country and settled in the Prairie Chatellraud. Moreover, he has promised to discover a saline. has fulfilled none of these conditions. This extent having been granted to him individually, it still remains in the domain of the king. He has no more right to claim it than I would have to consider myself as proprietor of the whole extent that has been granted to me, to settle agreeably to my contract with the families that I have announced to the government, and that they know to be in mission for this place." Others of the letters are equally explicit. In his will, dated the 26th of August, 1799, which is subsequent to the date of the alleged grant, he declares that he possesses property in Paris, Berry, and Querry, which has been confiscated; he gives a house and land which he had purchased to his maidservant; and he also mentions the place where he has all the articles necessary to build a saw-mill for cutting plank, and a pump-auger. But there is no mention of this tract of thirty square leagues, which is now claimed as his property. He nominates Louis Bouligny his legatee under a universal title: -"And also the residue and remainder of my goods. *839] rights, and actions, as well within as out of this province, in case my parents are dead, I constitute and name for my sole and universal heir the aforsaid Louis Bouligny." The defendants now claim the absolute title to thirty square

The United States v. King et al.

leagues of land under this clause of the will, by this description of goods, rights, and actions.

Third, the inventory which was made by the government officer does not include this land. It was made when the agent of the legatee was present, sent from New Orleans to look after the property of the deceased. Filhiol states that he made the inventory "in presence of M. Michael Pommier, charged with a power from M. Louis Bouligny," but there was not any land mentioned in the said inventory.

Mr. Gilpin, for the defendants in error.

Under the decision of this court at the last term, this case is now presented as if the decree and opinion given in January term, 1845, (3 How., 784,) had never been made. The case was then treated as an appeal, presenting for revision all the facts and law. It was, in fact, a petitory action brought here by a writ of error; and, having been tried below without a jury, under the provisions of the Louisiana Code of Practice, (Art. 494, 495,) which are adopted by the act of Congress of the 26th of May, 1824, (4 Stat. at L., 63,) the finding of the court on all matters of fact was conclusive, and not subject to revision. Parsons v. Armor, 3 Pet., 414; Hyde v. Booraem, 16 Pet., 169, 176; Minor v. Tillotson, 2 How., 394.

It appeared, too, on the argument at the last term, that the record before the court in 1845 was extremely imperfect,not presenting all the evidence which was before the Circuit Court, as required by the Louisiana practice on appeals, (Thayer v. Littlefield, 5 Rob. La., 153; Parkhill v. Locke, 15 La., 443; Mitchell v. Jewell, 10 Mart. (La.), 645; Davis v. Darcey, 1 Mart. (La.), 589,) nor correctly exhibiting the character of some of the material evidence which was presented. The depositions on which this court mainly relied, as establishing the certificate of Trudeau to the plano figurativo to be antedated and fraudulent, (3 How., 785,) were shown to be ex parte, and to have been contradicted by many witnesses whose evidence did not appear in the record.

What we are now to discuss is, therefore, a case presented by a writ of erior, founded on an allegation of an erroneous judgment of the Circuit Court of Louisiana on certain points of law apparent on the record.

What was the case before the Circuit Court?

By the treaty of the 30th of April, 1803, § 3, (8 Stat. at *Large, 200,) all the inhabitants of Louisiana, at the

time of cession, were protected in the full enjoyment [*840

of their property,-every species of property, real and perVOL. VII.-56.

The United States v. King et al.

sonal, whether held by complete or inchoate titles. Soulard v. United States, 4 Pet., 511; Delassus v. United States, 9 Pet., 117. The defendant King is in possession of a tract of 4,666 acres on the west bank of the Washita, from which the United States seek to evict him. He has vouched in warranty his grantor, the defendant Coxe, in the mode prescribed by the law of Louisiana. Civil Code, §§ 2476, 2493; Code of Practice, $$ 378, 380, 384. Coxe has answered, and claims to have been the owner under a title derived directly from the Marquis de Maison Rouge, to whom the Spanish government granted, on the 20th of June, 1797, a large tract, which continued to be the property of his devisee at the time of the treaty, and of which the tract in controversy is part. Coxe also asks, by way of reconvention, (Code of Practice, § 375,) that his own title to two thirds of the whole tract granted to Maison Rouge may be confirmed; the other one third being vested, as he alleges, in the heirs of Turner, as set forth in a document describing their respective interests, and marked Schedule A. On the trial, much evidence, documentary and parol, was offered on the part of the defendants to maintain, and on the part of the United States to deny, the validity of the grant to Maison Rouge, and the title of the defendants under it. It was chiefly denied on three grounds; first, that the grant of the 20th of June, 1797, was connected with, or supplementary to, a contract made on the 17th of March, 1795, between the Spanish government and Maison Rouge, for the settlement of emigrant families at Washita, the conditions of which agreement, it was contended, had not been fulfilled by him; secondly, that the land embraced in the grant had never been separated by a survey from the royal domain, the one certified by Trudeau being alleged to be antedated and fraudulent; and, thirdly, that the defendant Coxe had estopped himself from all claim under the grant by accepting a league square, which was patented to him by the United States on the 20th of December, 1842, pursuant to the provisions of the act of Congress of the 29th of April, 1816 (3 Stat. at Large, 328). The Circuit Court dismissed the plea of reconvention, found the grant of the 20th of June, 1797, to be valid, and adjudged the title of the defendants to be good. A full opinion was prepared, filed, and is annexed to the record, setting forth the grounds on which the decree was made.

What error of law in these proceedings appears by the record to have been committed by the court?

No exception was taken at the trial to the opinion *841] of the *court, or to the judgment; bills of exceptions

The United States v. King et al.

were taken, both by the plaintiffs and defendants, to decisions in regard to the admission and rejection of evidence; no other exceptions appear upon the record.

Although the decisions excepted to by the defendants are clearly erroneous, yet it is not now material to inquire into them, as the judgment of the court is in their favor. It would be material so to do, if the decision of this court should be in favor of the plaintiffs, and they entitle the defendants, in that event, to the protection of a venire de novo, instead of a final judgment against them, so that they may have the benefit of the evidence of which the decisions excepted to deprived them.

Was there any error in law in the decisions excepted to by the plaintiffs?

The first, fourth, and fifth bills of exceptions have been abandoned by the Attorney-General.

Was there any error in law, in the form or substance of the judgment itself, on a review of which by this court it can be legally reversed?

No exception has been taken to the opinion of the Circuit Court, or any portion of it; there is no agreed case; there is no agreed or reported statement of facts; there is no testimony reduced to writing and sent up by the clerk; there is no certificate that all the evidence received in the Circuit Court is, directly or indirectly, before this court. If, then, there is any error, (beyond those in the bills of exceptions already disposed of,) it must be in the mere terms and language of the decree itself. Now the rules by which this is to be ascertained are incontrovertible. So far as the decree establishes a matter of fact, it is conclusive, and cannot be revised. Penhallow v. Doane, 3 Dall., 102; Wiscart v. Dauchy, 3 Dall., 327; Jennings v. Thomas, 3 Dall., 336; United States v. Casks of Wine, 1 Pet., 550; Parsons v. Bedford, 3 Pet., 434; United States v. Eliason, 16 Pet., 301; Minor v. Tillotson, 2 How., 394; Phillips v. Preston, 5 How., 289. So far as the decree establishes a matter of law dependent on a certain state of facts, it is conclusive, unless there be a formal exception taken to such decision, with a statement of all the facts necessary to its revision. Dunlop v. Munroe, 7 Cranch, 270; Walton v. United States, 9 Wheat., 657; Parsons v. Armor, 3 Pet., 414; Carver v. Jackson, 4 Pet., 80; Hyde v. Booraem, 16 Pet., 169, 176; Phillips v. Preston, 5 How., 289; Louisiana Code of Practice, §§ 488, 489, 495; Porter v. Dugat, 9 Mart. (La.), 92; Mollew v. Thompson, 9 Id., 275; Kimball v. Lopez, 7 La., 175. that if any state of facts would sustain the decree, such state It is a presumption of law,

The United States v. King et al.

of facts was established in the Circuit Court. Campbell v. *Patterson, 7 Vt., 89; Butler v. Despalir, 12 Mart. *842] (La.), 304; Mitchell v. White, 6 Mart. (La.), N. s., 409 : Hill v. Tuzzine, 1 Id., 599; Piedbas v. Milne, 2 Id., 537; Fitz v. Cauchois, 2 Id., 265; Miller v. Whittier, 6 La., 72; Love v. Banks, 3 Id., 481. These rules apply as well to a decree of a court authorized to decide matters of fact, as to the verdict of a jury. Mayhew v. Thompson, 6 Wheat., 130: Livingston v. Story, 9 Pet., 656; Reynolds v. Rogers, 5 Ohio, 172; Franklin Bank v. Buckingham, 12 Ohio, 482; M'Girk v. Chauvin, 3 Mo., 237. Even if the decree is obscure or defective in form, or contains what is surplusage, yet it is sufficient if it follows the issue, and finds, affimatively or nega tively, the facts contested therein. Brown v. Chase, 4 Mass., 436; Deering v. Halbert, 2 Litt. (Ky.), 292; Todd v. Potter. 1 Day (Conn.), 238; Shepherd v. Naylor, 6 Ala., 638; Kerne v. M'Donough, 8 La., 187.

Examine by these rules, the errors alleged to exist in the terms and language of this decree.

First, it is said that the Circuit Court adjudicated the title to lands for which the United States have not sued. The language of the decree does not warrant this allegation; the dismissal of the plea of reconvention shows, conclusively, that the decree was confined to the lands claimed in the petition of the United States. The introduction of the title of Maison Rouge was by the United States, in their petition, wherein they declare it to be a pretended title, under which the defendants set up a claim which they deny. The terms of the decree (even if obscurely expressed) are inconsistent with any other judgment than that of the right of the defendant King to the tract conveyed and warranted to him by Coxe, and so described in Schedule A, which is the land sued for by the United States, and no more.

Secondly, it is said that the Circuit Court erred in adjudicating the instrument of the 20th of June, 1797, to be a grant to Maison Rouge. Now, in the first place, it is to be remarked that the Circuit Court do not say this; their decree is, that the grant of land under that instrument, and so held by the defendants, is valid; that their title to the possession of it, as against the United States, is sufficiently established, and that they ought to be quieted in that possession. Such decrees against a claim of the United States, in a similar action, have been sustained by this court even where the defendant has received no formal instrument of grant whatever. United States v. Fitzgerald, 15 Pet., 420. They will, in such case, protect an equitable as well as a strictly legal title; they will