52 U.S.

104
11 How. 104
13 L.Ed. 623

EVARISTE BLANC, PLAINTIFF IN ERROR,

v.
GEORGE W. LAFAYETTE AND JOHN HAGAN.
December Term, 1850

But where the commissioners erred in placing a claim in the second

species of the first class, and erred in supposing that such a claim was
already confirmed by the act of 1814, these errors prevent the act of 1820
from confirming the claim. It is consequently invalid.
THIS case was brought up from the Supreme Court of Louisiana, by a
writ of error issued under the twenty-fifth section of the Judiciary Act.
By agreement of counsel in the State court, many original documents
were used in the trial in the Supreme Court of Louisiana, which were left
out of the record when it was transmitted to this court. It did not,
therefore, furnish all the facts necessary for a complete statement of the
case, which, however, have been taken from other authentic sources.
It was a conflict between a patent issued for some land near New Orleans
to General Lafayette, in 1825, and a clam advanced by Blanc under an old
Spanish alleged grant. If the latter was not good, the patent to Lafayette
covered the land in dispute. Blanc claimed under Liotaud.
On the 23d of May, 1801, Louis Liotaud presented a petition to the
Intendant Morales, praying that a tract of public land be granted to him,
having six arpents front on the left bank of Canal Carondelet, with the
ordinary depth, if there should be such a depth vacant, being bounded on
the one side by the land of Carlos Guardiola, and on all the other sides by
public land. He states as a reason which entitled him to the favorable
notice of the Intendant, that his object was to establish a large garden and
drain the land, which would be advantageous to the public, and contribute
to the salubrity of the city. And he bound himself to conform to the
regulations relating to grants of land.
On this petition an order was made on February 11, 1802, which is

attested by Carlos Ximenes, the notary, in these words: 'Vistos: pasese

este expediente al agrimensor gnl. Don Carlos Trudeau para que en vista
de el informe lo conbeniente.' 'Let this petition be referred to the
Surveyor-General, Don Carlos Trudeau, in order that he may report his
opinion thereon.'
These appeared to be all the papers to support the claim. No survey was
ever made, nor any report upon the petition.
On the 12th of April, 1814, Congress passed an act (1 Land Laws, 242)
confirming certain claims in Louisiana. The title of the act is, 'An Act for
the final adjustment of land titles in the State of Louisiana and Territory of
Missouri.' By it certain claims were confirmed which had been presented
to the register or recorder of land titles in the mode pointed out by a
preceding law. Liotaud had filed a claim in the land-office, stating in his
application, 'This land is claimed by virtue of proceedings had before the
Spanish intendancy in 1801 and 1802, of which proceedings the
accompanying document is a true copy, as taken from the original in the
register's office for the eastern district of Louisiana.'
On the 20th of November, 1816, the commissioners made their report, and
noticed this claim as follows:
'Louis Liotaud claims a tract of land situated in the county of Orleans, on
the left bank of the Canal Carondelet, leading to the Bayou St. John,
containing six arpents in front and forty in depth, and bounded on one side
by lands granted by the Spanish government to Carlos Guardiola, and on
the other side by vacant lands. This tract of land is claimed by virtue of an
order of survey dated in the year 1802.'
The commissioners included this claim in the second species of the first
class of claims, on which the board reported as follows: 'We are of opinion
that all the claims included under the second species of the first class are
already confirmed by the act of Congress of the 12th of April, 1814.
On the 16th of January, 1817, the Commissioner of the General LandOffice transmitted this report to Congress, and on the 11th of May, 1820,
Congress passed an act (3 Stat. at Large, 573), entitled 'An Act
supplementary to the several acts for the adjustment of land claims in the
State of Louisiana.'The first section of this act was as follows: 'That the
claims for lands within the eastern district of the State of Louisiana,
described by the register and receiver of the said district in their report to
the Commissioner of the General Land-Office bearing date on the 20th of
November, 1816, and recommended in the said report for confirmation,

be, and the same are hereby, confirmed against any claim on the part of
the United States.'
So the matter stood until the year 1825, when, as has been already
mentioned, a patent was issued to General Lafayette, which included the
land claimed by Liotaud.
On the 1st of May, 1841, George Washington Lafayette, residing in
France, and John Hagan, residing at New Orleans, brought a petitory
action against Evariste Blanc, who claimed under Liotaud. The defendant
alleged that he then was, and had been for more than a year before the
commencement of the suit, in quiet possession of the land, and denied the
plaintiffs' possession or right of possession. He also pleaded the
prescription of twenty and thirty years.
In May, 1846, the cause came on for trial in the Parish Court in and for
the parish and city of New Orleans, when there was a judgment for the
defendant. The plaintiffs appealed to the Supreme Court of Louisiana, by
which, in January, 1848, the judgment of the Parish Court was reversed;
and to review this decision, upon the ground that his claim was confirmed
by an act of Congress, Blanc sued out a writ of error, and brought the case
up to this court.
It was argued by Mr. Bullard, for the plaintiff in error, and by Mr. Janin,
in a printed argument, for the defendants in error.
Mr. Bullard stated the case, and then proceeded.
The only question, therefore, which this court is called upon to solve is,
whether the claim of Louis Liotaud was confirmed by the act of the 11th
of May, 1820, and to that act and the report of the register and receiver to
which it relates, I proceed to invite the attention of the court.
The report of Harper and Lorrain was made in November, 1816, and was
laid before Congress by the Secretary of the Treasury. It is to be found in
extenso in the State Papers (Public Lands), Vol. III. pp. 254 et seq.
The claim of Liotaud, numbered 409, is classed by the register and
receiver in the second species of the first class.
The act of the 11th of May, 1820, provides, that 'all claims described in
this report and recommended for confirmation are confirmed.' See Laws,
Instructions, and Opinions, 1st part, p. 330, Act of 11th May, 1820.

In determining what particular claims were confirmed by this act, the

court ought, I think, to look at the whole report together, and if it appears
that the register and receiver regarded them as valid claims under the
various acts of Congress, in whatever form of words that opinion was
expressed, a liberal construction should be given to the act. It is true the
register and receiver say in relation to the claims classed with this, that in
their opinion they are already confirmed by a previous act of Congress in
1814. In this they were perhaps mistaken; but surely it is a strong form of
expression of an opinion that they ought to be confirmed. The court below
gave a very narrow and illiberal construction to the act, and, seizing upon
this expression, declared that it was a mistake, and that the act did not
confirm this claim. If they had looked further into the report they would
have found that the commissioners make favorable mention of this claim,
although they say they may have been mistaken in supposing that it had
already been confirmed. The truth is, as it appears to me, all the claims
thus classed, all that were not rejected by the register and receiver, were,
according to a just and liberal construction of the act, treated as valid
claims under the treaty, and confirmed by the act of 1820. They have
always been so treated and regarded by the Land Department of the
government, and this very claim is laid down on the public surveys of the
township in which it is situated.
If, then, in 1820, the government relinquished its title to the land in
controversy in favor of a claimant under an inchoate Spanish grant, it
seems quite clear that the same land could not validly be patented to
General Lafayette in 1825, as a donation, or in remuneration for eminent
public services. It no longer belonged to the domain. It is true no partent
ever issued to the confirmee, but the act of 1820 does not provide for
patents in such cases, and I presume this court will hold that the act itself
is a legislative grant of land with specific boundaries, and that the act of
Congress, together with a location and survey approved by the SurveyorGeneral, is equivalent to a patent. Such is the view taken of it by the
Department of the Interior. I admit the general rule to be, that the legal
title is still in the domain until a patent issues, but that rule only applies to
cases in which, by law, a patent is required for the perfection of the title of
the confirmee or purchaser, or other grantee.
The court of Louisiana further erred in looking behind the confirmation,
and deciding that the primitive inchoate title was not valid according to
the laws and usages of the government of Spain. They cite some old cases
from the Louisiana Reports to that effect, but those were cases in which
neither party had a legal title; both held under commissioners' certificates,
and had only equitable titles, and the court decided upon the comparative

value of the primitive titles. When the register and receiver have
recommended an ancient Spanish title for confirmation, and it has
accordingly been confirmed by an act of Congress, I conceive that it is
conclusive and cannot be opened. But even if the court had a right to look
behind the confirmation, it was in error in supposing that the imperfect
title of Liotaud was not valid under the Spainish law. In 1798, the
Governor-General was deprived by a royal cedula of the right of granting
lands, and that authority was vested in the intendancy. The forms of
proceeding in the tribunal of the intendant, with a view of obtaining a
grant of land, are familiar to this court. The person who desired to obtain a
concession of land presented his petition (requ ete) to the intendant. The
intendant, through the medium of a notary, made a written order referring
it to the surveyor-general, in order to ascertain whether the land was
vacant. In the particular case now before the court this was done. It does
not appear that the surveyor-general made any particular report, but it does
appear that he noted on a general plot of land near New Orleans, made by
order of the government, the tract of land solicited by Liotaud. Here all
further proceedings were arrested by the change of government in 1803.
The papers were filed in the office of the intendant, and marked with
others 'instancias pendientes,' or proceedings yet pending. The order, or
auto, of the intendant must be regarded as a primero decreto, and
equivalent to a warrant or order of survey under the preceding forms of
proceeding while the governor had the power to grant lands; although the
land thus solicited did not become the property, strictly speaking, of the
petitioner, yet under numerous decisions of this court I submit whether it
did not confer such a right as was protected by the treaty of cession. Be
that, however, as it may, the question now is, whether the claim founded
on such a commencement of title has been recommended by the
commissioners for confirmation, and confirmed by act of Congress; if so,
it clearly amounts to a relinquishment of title on the part of the United
States from the date of the act of Congress, and in 1825, the date of
Lafayette's patent, must be regarded as a rightful claim, and not embraced
in the grant to Lafayette by his patent.
Mr. Janin, for the defendants in error, made the following points:1st.
There never was a grant or order of survey, or even a permission of
settlement, in favor of Liotaud. There was a petition and an order to
Trudeau to give his opinion on it, and that is all. The petition was of the
23d of May, 1801, the order was not made on it until the 11th of February,
1802. And we have a plan introduced by the defendant, dated the 1st of
March, 1802, purporting to be a plan of the concessions in the
neighborhood of New Orleans, executed by Trudeau by order of Morales.
On this the land claimed by the defendant is designated as 'Terreno

solicitado per Don Louis Lioto (Liotaud).' Trudeau, therefore, knew of

this claim, and if he did not report on it, it was not unintentionally.
Possibly he knew that it conflicted with the claims of Castillon and
Griffon (see Turner's survey of 1825), possibly he thought that the land
ought to be reserved for the commons of the city; but whatever might be
his reason, certain it is that he did not report on it, still less survey it.
Adjoining this is another tract, marked on that plan 'Terreno solicitado per
Don Gilberto Guillemard.' That tract was no doubt claimed and petitioned
for in the same manner and form as Liotaud's. And yet it is included in the
undisputed portion of General Lafayette's grant. Very probably the
petition was, and perhaps still is, in the same bundle of 'instancias
pendientes' in which Liotaud's petition was found. And as Liotaud's
petition was No. 107, fol. 61 (see Lawson's certificate) of the 'instancias
pendientes,' we have the assurance that there are at least 106 other such
claims which have the same merit as Liotaud's. But he was the only one to
claim a confirmation on an abandoned, neglected, or rejected petition.
And he did not (see his notice) pretend that he had an order of survey. His
claim was based on 'proceedings.' It is thus he qualified his petition and
the order of reference. But no Spanish law or act of Congress is extant
recognizing a claim to land merely because it was asked for.
2d. This claim has never been confirmed. This case is identical with that
of Orillon v. Slack, 11 La. Rep. 591. Reboul and Franchebois's claims,
discussed in that case, are embraced in the same report as Liotaud's, and
separated from it by only three claims. 3 Public Lands, 255, 256. The
court held that the report of the register and receiver of November 20,
1816, that these claims were already confirmed by the act of April 12,
1814, was not a recommendation that they should be confirmed, and as
the act of May 11, 1820, confirmed only such claims as were embraced in
the report and recommended for confirmation, it did not confirm the
claims in question. The register and receiver did not recommend them for
confirmation, because in their opinion they were already confirmed.
Whether they were right or wrong in this opinion, they certainly did not
recommend them. They left them where they were. On such claims as
were confirmed by the act of April 12, 1814, they were not to make a
report recommending them for a second confirmation, nor did they do so;
but they were authorized, by the third section of that act, to issue at once
certificates of confirmation, which the Commissioner of the General
Land-Office was to examine, and which were to be followed by patents.
The opinion expressed in the report of November 20, 1816, on these
claims, is a disclaimer of jurisdiction, and no more. That opinion has
never been taken into consideration or sanctioned by Congress; it is
therefore of no weight with the court, who must examine for themselves

whether indeed the act of April 12, 1814, did confirm Liotaud's claim.
And by examining that act it will appear beyond argument that the
opinion of the register and receiver was erroneous.
The confirmatory provisions of that act are contained in the first and
second sections. They confirmed only claims which were embraced in
previous reports of commissioners, or registers and receivers, and which
were based on incomplete French or Spanish grants or concessions, or
warrants or orders of survey, which had been filed in the proper offices,
and when it appeared by the report of the commissioners, or registers and
receivers, that the concession, warrant, or order of survey contained a
special location, or had been actually located or surveyed before the 20th
of December, 1803. None of thevarious kinds of claims confirmed by that
act resembles Liotaud's.
3d. General Lafayette's patent was issued in strict compliance with the
acts of Congress relating to this subject. He was first to locate the land,
then have it surveyed, and on the presentation of the survey, together with
the certificate of the register, stating that the land is not rightfully claimed
by any other person, the patent was to issue. On the survey in evidence in
this claim, the land involved in this suit is represented as vacant.
But the defendant contends that the register was mistaken, that the
certificate should have shown that this land 'was rightfully claimed by
Liotaud,' and that his rights could not be defeated by the register's error.
It is more than probable that the register, when he gave that certificate,
discovered that his error was in having expressed, in 1816, the opinion
that Liotaud's claim was already confirmed. And having discovered this
error, it was his duty to state that this land was vacant.
4th. If it was true that Liotaud's claim was confirmed by the act of May
11, 1820, and had it been patented, it would yet have to give way to
General Lafayette's patent. Liotaud could only obtain a confirmation and a
patent in defiance of law. 'If the patent has been fraudulently obtained, or
issued against law, it is void.' Stoddard et al. v. Chambers, 2 Howard, 318.
If a confirmation has been fraudulently obtained, no certificate of survey
will be issued, and the patent will be withheld. Opinion of AttorneyGeneral Wirt, of November 25, 1824, Collection of Laws, Opinions, and
Instructions relating to the Public Lands, Vol. II. p. 24. Opinion of
Attorney-General B. F. Butler, of July 31, 1839, Ibid. p. 1040. Such a
confirmation, such a patent as are here hypothetically assumed to have
taken place, could only be the result of fraud. It was a fraud on Liotaud's

part to present his petition as giving him a claim to land, and to rely upon
the register and receiver's ignorance of the Spanish language. If those
officers had recommended such a claim for confirmation, it would also on
their part have been either fraud, or such gross negligence as the law
assimilates to fraud. Intending not to act on this claim or recommend it for
confirmation, they examined it perhaps very hastily, and allowed
themselves the more easily to be misled by Liotaud's misrepresentations.
5th. Had Liotaud's claim been confirmed, either by the act of April 12,
1814, or by that of May 11, 1820, it would yet not have severed the land
from the domain, for the claim is indefinite and its location uncertain, it
never was surveyed, and no plan was filed with it when the confirmation
was claimed. It was a claim for six arpents front on the left bank of Canal
Carondelet, with the ordinary depth, if that depth could be found, bounded
on one side by the land of Carlos Guardiola, and on all the other sides by
public land. 'Until a concession is located, it can give no claim to any
specific tract of land.' Bissell v. Penrose, 8 Howard, 341.
The description in the claim would permit its location on one side of
Guardiola's land as well as on the other. Guardiola owned two arpents
front on Canal Carondelet, running back between parallel lines to
Gravier's plantation; this strip of land is nearly parallel to the real line of
the city of New Orleans, and half a mile distant from it. If Liotaud's claim
was located on the city side of Guardiola's land, it would conflict with
General Lafayette's 114 acres; if located on the other side, no conflict
would exist between those parties. The direction of the said lines and the
extent of the claim are equally uncertain. Nor is the obscurity of the claim
removed by possession, for Liotaud never exercised any act of possession,
and the plaintiff in error was the first to attempt equivocal acts of
possession, the land being all swamp.
This case falls under the principles discussed in Bissell v. Penrose, 8
Howard, 332. There a New Madrid patent was declared void, because it
had been located upon land duly claimed under a Spanish concession, and
therefore withheld from sale. And it was admitted that, if the Spanish
concession had not been located by a survey, the patent would have
prevailed; in other words, the land would have been considered as public
property not detached from the domain. Whether the act of Congress, by
which a claim is confirmed, requires the issuing of a patent or not, a
definite designation by a survey is equally necessary to separate the land
from the domain and deprive the United States of the right of disposing of
it. Such has also always been the doctrine of the Supreme Court of
Louisiana. In the present case that court said (3 Annual Reports, 61): 'This

location, unsupported by any survey, or by actual possession, before the

change of government, would be too indefinite and uncertain to prejudice
the plaintiffs in error [here the defendants]. We take the rule to be, that, in
order that the confirmation may have the force and effect of a patent, the
description in the inchoate title, or in the act of Congress, must be such as
will identify the land. If it will fit another place better, or equally well, it
is defective, and will not protect the holder who can show no original
possession against a subsequent location, made under the authority of
Congress.' See also Lefebvre v. Comau, 11 La. Rep. 321.
Mr. Justice WAYNE delivered the opinion of the court.

The plaintiff in error having claimed the land in dispute under an act of
Congress, and the construction of that act by the Supreme Court of Louisiana
having been against the claim, the case is brought here under the twenty-fifth
section of the judiciary act of 1789, to have the opinion given in that court
reviewed by this tribunal.

The question presented is, whether or not the claim of Louis Liotaud for a tract
of land situated in the Eastern District of Louisiana was confirmed by the act of
Congress of the 11th of May, 1820 (3 Stat. at Large, 573), against any claim to
the land by the United States, so that an entry could not be made upon it in
favor of Major-General Lafayette.

The plaintiff in error claims under Liotaud. That claim will be found in 3
American State Papers, Public Lands, 224.

It is, 'that Louis Liotaud claims a tract of land, situated in the county of
Orleans, on the left bank of the Canal Carondelet, leading to the Bayou St.
John, containing six arpents in front, and forty in depth, and bounded on one
side by lands granted by the Spanish government to Carlos Guardiola, and on
the other side by vacant lands. This tract of land is claimed by virtue of an
order of survey dated in the year 1802.' This memorandum is found in the
report of the commissioners for ascertaining and adjusting claims to land in the
eastern district of the State of Louisiana. It was transmitted to Congress on the
16th of January, 1817, by Josiah Meigs, the General Land Commissioner. 3
American State Papers, Public Lands, 222.

The claims were divided into three general classes:

1. Such as stand confirmed by law.

1. Such as stand confirmed by law.

2. Those which the register and receiver thought ought to be confirmed.

7
8

3. Such claims as in their opinion could not be confirmed under existing laws.

The first class comprehended three species of claims:1. Such as were

founded on complete titles, granted by the French or Spanish governments. 2.
Claims resting upon incomplete French or Spanish grants or concessions,
warrants, or orders of survey, granted prior to the 20th of December, 1803. 3.
Claims rejected by a former board of commissioners, merely because the lands
claimed were not inhabited on the 20th of December, 1803.

10

Liotaud's claim is put by the register and receiver in the second species. 3
American State Papers, Public Lands, 224.

11

This report was acted upon by Congress. It declared that 'the claims for lands
within the eastern district of the State of Louisiana, described by the register
and receiver of the said district, in their report to the Commissioner of the
General Land-Office, bearing date the 20th of November, 1816, and
recommended in the said report for confirmation, be, and the same are hereby,
confirmed against any claim on the part of the United States.' Act of May 11,
1820, ch. 87, (3 Stat. at Large, 573).

12

The register and receiver had said in their report, that all the claims included
under the second species of the first class were already confirmed by the act of
Congress of the 12th of April, 1814. In this they were certainly mistaken, as
they were also in placing Liotaud's claim in what was termed in their report the
second species of the first class of claims.

13

The record does not contain a copy of the order of survey in favor of Liotaud,
mentioned by the register and receiver, dated as they say in the year 1802. Nor
is there in it either of those documentary papers, uniformly given by the
intendants-general of Spain when grants of land were made. We have not
before us either a grant or order of survey in favor of Liotaud. Nothing to make
the claim an inchoate right, upon which a title could be enlarged, in favor of
Liotaud. Indeed, we do not know any thing from the record about it, and all
that we do know of the claim is the memorandum of the register and receiver
already recited. That discloses that the order of survey mentioned had been
given after the cession of Louisiana by his Majesty to the republic of France.
Register Harper and Receiver Lawrence say in their report that Liotaud's claim

is founded on an order of survey dated in the year 1802. Apart from the
consideration that the order for a survey is dated after the time when Spain had
parted with her political sovereignty to grant land in Louisiana, there is no
proof of any thing having been subsequently done by Liotaud, or by any
official of Spain, to give to Liotaud even an inchoate equity to the land. The
claim, then, could not be rightfully, nor was it understandingly, put by the
register and receiver under the second species of the first class of claims of
incomplete French or Spanish grants or concessions, warrants, or orders of
survey granted prior to the 20th of December, 1803.
14

Liotaud's claim, having been mistakenly put where we find it, it is neither
within the letter nor the intention of the act of the 11th of May, 1820,
confirming titles to land described by the register and receiver. Congress meant
to confirm claims to land under some documentary right from France or Spain,
and not claims by persons without any such proof. Liotaud's claim, then, under
which the plaintiff in error asserts his right, does not interfere with the patent
for the same land issued by the United States in favor of Major-General
Lafayette. It is admitted in the case, that the defendants in error have acquired
the rights of General Lafayette to the lands in dispute. All of us think that there
was no error in the judgment of the Supreme Court of Louisiana, and its
judgment is affirmed.

Order.
15

This cause came on to be heard on the transcript of the record from the
Supreme Court of the State of Louisiana, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this court, that
the judgment of the said Supreme Court in this cause be, and the same is
hereby, affirmed, with costs.