Carrere v. City of New Orleans , 162 La. 981 ( 1926 )

This is a petitory action in which plaintiff seeks to be decreed the owner of squares 490 and 491, fronting on Broad street, and bounded by Melpomene avenue, S. White, Erato, and Thalia streets in the city of New Orleans. The defendant, the city of New Orleans, claims that these squares are located within the 80 arpents line of the Livaudais tract, which it is contended was acquired by John McDonogh on February 10, 1836, by notarial act of sale from Morgan, Peters, Chase, and Pierce, under title tracing back, through Jacques Francois Enoul Livaudais, to an adjudication made in the succession of Broutin and wife to De Pontalba, on April 17, 1760, by the Supreme Council of the Province of Louisiana.

Defendant contends that this adjudication was, in effect, a grant from the French government, and that the city of New Orleans, as colegatee with the city of Baltimore under the last will and testament of John McDonogh, became the owner of an undivided one-half interest in this property, by virtue of the joint bequest made by the testator to said legatees for public school purposes.

The contention of plaintiff, on the other hand, is that the adjudication in question was a mere judicial sale, or decree made by an ordinary court of justice, and was not, in any proper sense, a governmental act or concession from the French authorities.

Plaintiff trades title to what is called the Macarty grant, which is asserted to be a special grant made by the Baron de Carondelet to Jean Baptiste Macarty in the year 1795.

Plaintiff claims title also under an alleged grant, or confirmation, to the claimants of the Macarty grant by Congress in the year 1823, and contends that this grant, or confirmation, was made prior to that of the claimants of the McDonogh tract, and must, therefore, take precedence over the title of the city of New Orleans, holding under the McDonogh claim, which was confirmed by Congress in 1858 as to all of the land in the Broutin or Livaudais tract, extending from the 80 arpents line to the apex of the triangle within the limits of which the Broutin or Livaudais tract is embraced.

Plaintiff asserts title, also, in the alternative, under a state auditor's deed.

1. Issues similar to these here involved arose in City of New Orleans v. Union Lumber Co., 145 La. 476, 82 So. 588. The court held in that case that the document offered in evidence and indorsed, a "Copy of Concession to J.B. Macarty of the 22 of December, 1795," "shows that the so-called grant from the French [Spanish] government in 1795 to Macarty was an exchange of property made by the government with Macarty, and not a grant or patent."

The transfer from France to Spain by the secret Treaty of Fontainebleau occurred on November 3, 1762, was published at Versailles, April 21, 1764, and printed in New Orleans in October, 1764.

The nature and extent of the Treaty of Fontainebleau is made plain by the decision of the Supreme Court of the United States in the case of United States v. D'Auterive, 10 How. 609,13 L. Ed. 560, from which I quote the following:

"On the 3d day of November, 1762, by a treaty, or, as it is termed in the language of the king, by `a special act,' done at Fontainebleau, Louis XV ceded to the King of Spain the entire province of Louisiana, including the island and city of New Orleans. The character and extent of this act of cession, as evinced by the instructions from the French king, dated at Versailles, April 21, 1764, should be noted in this place, as they are decisive of the relative positions of the parties to that act, and of the extent of their powers posterior thereto, over the territories or persons comprised within its provisions. Nothing surely can be more comprehensive or absolute than the transfer announced by the King of France, or the declaration of his relinquishment of all power or rights in the subject transferred. The language of the French king to D'Abadie, director general and commandant of Louisiana, is as follows: `Having ceded to my very dear and best beloved cousin, the King of Spain, and to his successors, in full property, purely and simply and without exceptions, the whole country known by the name of Louisiana;' he proceeds to command his director general, that, on the receipt of his instructions, `whether they come to your hands by the officers of his Catholic majesty, or directly by such French vessels as may be charged with the same, you are to deliver up to the Governor or officer appointed for that purpose by the King of Spain, the said country and colony of Louisiana, and the posts thereon depending, likewisethe city and island of New Orleans, in such state andcondition as they shall be found to be in on the day ofthe said cession; being willing in all time to come that they shall belong to his Catholic majesty, to be governed and administered by his Governors and officers, and be possessed by him in full property, and without exceptions." (Italics ours.)

Notwithstanding the absoluteness in terms of said treaty, and the absence of any provisions for the protection of the titles to the land of the inhabitants, I am of the opinion that the cession by France to Spain of the "whole country known by the name of Louisiana" cannot be understood as a cession of the private property of the French inhabitants to the Spanish government.

On the transfer of the sovereignty of a country, the inhabitants are protected in the possession of their private property. Such is the law of the nations, even in case of conquest. Kenton v. Leonarda, 1 Rob. 343, 350.

In United States v. Percheman, 7 Pet. 51, 8 L. Ed. 604, Mr. Chief Justice Marshall, as the organ of the court, said:

"It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change; it would have remained the same as under the ancient sovereign."

These decisions are equally applicable, in so far as its effect upon private property is concerned, to the cession made by France to Spain of the territory of Louisiana under the treaty of 1762.

The Supreme Court of the United States, in the case of United States v. Arredondo et al., 6 Pet. 711, 8 L. Ed. 555, say that they will decide "whether the land in controversy was the property of the claimants, before the treaty, and if so, that its protection is as much guaranteed by the laws of a republic, as the ordinances of a monarchy."

In Lavergne's Heirs v. Elkins' Heirs, 17 La. 230, the Supreme Court of this state held that:

"The treaty which ceded Louisiana to the United States expressly guarantees to all the inhabitants equal rights and privileges with other citizens and protects and maintains them in the enjoyment of their property. Article 3 of the treaty of cession, vol. 1, Land Laws, p. 43; Delassus v. United States, 9 Pet. 133, 9 L. Ed. 71."

It is well settled that land severed from the public domain by the French or Spanish authorities and set apart as private property did not pass to the United States under the treaty of Paris on April 30, 1803, which ceded to them "all public and unappropriated lands." United States v. King, 3 How. 773,11 L. Ed. 824.

It is my opinion, therefore, that the adjudication and sale made to De Pontalba in 1760, under an order of the Supreme or Superior Council of the Province of Louisiana, in the succession of Broutin and wife, had the legal effect of separating this tract of land from the French public domain and setting aside the same as private property.

Spain did not acquire the Broutin tract under the treaty of 1762, for this reason.

In fact, Spain did not obtain possession of Louisiana until 1769, and then only by force of arms.

Baron de Carondelet did not become Governor and intendant of the provinces of Louisiana and West Florida until December 30, 1791.

The so-called grant to Macarty from Baron de Carondelet was made in the year 1795, under Spanish, and not under French, domination.

In order to ascertain the powers of the Supreme or Superior Council of the Province of Louisiana towards the close of the French régime in 1760 I quote the following from "the Legal Institutions of Louisiana," an article by the Hon. Henry Plauche Dart, appearing in the Louisiana Historical Quarterly, vol. 2, No. 1, p. 102:

"The archives of the Superior Council from its organization under the Edict of 1719 to the Spanish period comprise deeds, mortgages, marriage contracts, wills, inventories, records of trials, civil and criminal opinions and judgments, in brief, here lies the evidence of every judicial act and of other transactions that required consent, approval, or execution by the government. The clerk's notarial records, and those of other notaries, are mingled in the hodgepodge. Besides these there are innumerable documents, papers and data on every imaginable subject."

"The Superior Council was the body of the government and combined in itself the executive, legislative, and judicial departments. The court and its sheriff, the conveyance and mortgage office was a part of the system. It had also the custody of notarial records of deceased, resigned and removed notaries. Its clerk was ex officio notary, a practice that still survives. There appears to have been no system of registry such as we have devised, but the law made the deposit with the council the first evidence of all such transactions throughout the province." Tr. 27592, p. 140.

In the year 1728, the council of state promulgated an edict requiring those who claimed ownership or possession of land in the province of Louisiana under grant from the company of the West to appear before the Superior Council within six months from the registry of the decree in said province and to exhibit before that body their titles or claims for confirmation.

It was provided in said decree that all unoccupied and unimproved lands, or lands for which no title was presented, should be forfeited and should fall within the public domain.

The Supreme or Superior Council was ordered to enforce this ordinance. "Under this system," says Fortier, "a number of early land grants was forfeited, the titles of others were completed, and the custom then established was continued until the beginning of the Spanish domination."

See article, "the Legal Institutions of Louisiana," cited supra, pp. 96, 97; Fortier's History of Louisiana, vol. 11, p. 35; Gayarrie's History of Louisiana, vol. 1, p. 391.

In enumerating the powers of the Supreme or Superior Council Fortier states that:

"It acted as a tribunal and administered the affairs of the colony according to the laws, edicts and ordinances of France and the customs of Paris. * * * It was this council that in 1722 directed the removal of the seat of government to New Orleans, and the next year began the exercise of police power. In 1724 it enacted the Black Code. However, it was given a supervisory authority over land titles by the king, who also at the same time authorized it to remove and appoint at will an inferior court of its own members. By 1748 it acquired a discretionary authority over land titles, and in 1763 issued the decree dispossessing the Jesuits of their plantations." Fortier's History of Louisiana, vol. 2, p. 518.

It is clear, therefore, that the Supreme or Superior Council was the head of the land department of the French government in the province of Louisiana from the year 1728 until the beginning of the Spanish domination in 1769.

The adjudication of the Broutin plantation to De Pontalba April 17, 1760, was not made by the order of an inferior court.

As recited in the procès verbal of said adjudication, the sale to De Pontalba of this property was effected "by virtue of an order of the Supreme Council of the Province of Louisiana, under date of the 9th of February last, rendered at the request of Mr. Delfant de Pontalba, De La Ronde, and Ignace Brontin, coheirs in the Succession of the deceased Mr. and Mrs. Broutin, Plaintiffs, versus Mr. Marigny De Mandeville, also coheir, in the said Succession, Defendant, the said order decreeing, according to the opinions of the King's Attorney General, that the immovables unsold belonging to said succession, should be immediately sold to the highest and last bidder, etc."

The adjudication was made by "Charles Marie Delalande Dapremont, councilor judge of said council, commissioner nominated to that effect, accompanied by Mr. Jean Baptiste Raquet, councilor of said council, acting as the King's Attorney General," after having transported themselves "to the bar of the court with the clerk and usher of said council, for the purpose of receiving the first outcry and bid for a parcel of land and plantation belonging to said succession."

The property adjudicated to De Pontalba as the last and highest bidder is described in the procès verbal of adjudication as "a piece of land and plantation belonging to the succession of the deceased Mr. and Mrs. Broutin, situated at about one league above and on the same side of this city, going up the river, adjoining on one side the plantation of the succession of Mr. Delino, deceased, and on the other that of Mr. Carminada, having eleven and a half arpents front by the whole depth which might be found, and following the point of the compass, the said land ending in a point in its said depth, like the other land adjoining it in that part; with all the quantity of ten and one-half arpents of land front, to be taken from the limits of the forty arpents depth of the land of the said Mr. Delino, deceased, by the whole depth which might be found there; and following the point of the compass it has to run, this portion of the ground belonging likewise to the succession of the said Mr. Broutin, deceased, who reserved it to himself at the time he sold the ten and a half arpents between parallel lines from the front part to said Mr. Delino, deceased, by forty arpents in depth only, as appears by the titles which will be delivered to the highest bidder as the whole stands, appurtenances and dependencies, without reserve."

It is declared in the procès verbal of said adjudication that "the said King's Attorney General, we, councilor, judge, commissioner aforesaid, and undersigned, have adjudged, and do hereby definitively, purely, and plainly adjudge the said land, plantation, appurtenances, and dependencies, as the whole now stands, to the said De Pontalba, as the highest and last bidder."

This adjudication was made for the price of "thirty-nine thousand seven hundred pounds," and was signed by Delalande and Raquet in their respective capacities, as councilors, judge, commissioner, and King's Attorney General, and by Pontalba and De La Ronde.

As we have seen, this sale was effected under the order of the Supreme or Superior Council, over which presided all of the officers of the king duly commissioned by him as councilors. The Supreme or Superior Council was the highest tribunal of the King of France in the province of Louisiana, and was vested with general and original jurisdiction in civil and criminal matters.

While the trial of certain civil and criminal cases, in order to expedite the public business, was committed to ordinary jurisdiction, with members of the Supreme Council presiding, we have been unable to find any edict which has placed under such jurisdiction the sale of succession property, or other probate matters.

See article, "The Legal Institutions of Louisiana," pp. 95, 96, published also in Southern Law Quarterly, Nov. 1918.

As expressly stated in the procès verbal, the councilors making this adjudication had been nominated by the Supreme or Superior Council for the purpose of executing the order of that body. In other words, the Supreme or Superior Council enforced its decree in the Pontalba Case through two of its own members. The property adjudicated is expressly declared to be the private property of the deceased, Broutin and wife, is recognized and sold as such, with minute description, and according to "titles which will be delivered to the highest bidder." Unquestionably, these titles had been examined by the Supreme or Superior Council of the Province of Louisiana, and the property sold in the succession of Broutin and wife had been fully recognized as the private property of decedents before the order was granted by the Council for the sale in the succession proceedings.

All grants and deeds to land were required to be registered with the Supreme or Superior Council, as the governing body, and as the head of the land department of the French government in the colony of Louisiana.

It is plain, therefore, under this state of facts, that the adjudication made to De Pontalba of the Broutin tract or plantation in 1760 was an act of the French government through its Supreme or Superior Council, acknowledging the private ownership of this property as vested in the succession of Broutin and wife, approving the titles to same, and thereby relinquishing any claim that the King of France as sovereign might have to the land in question as a part of the public domain.

Manifestly, the effect of this adjudication was to sever from the lands of the crown, and to set aside as separate property, the Broutin tract adjudicated to De Pontalba in 1760 under the French régime.

While the De Pontalba adjudication was not a governmental act of formal grant or concession, executed and delivered under seal, yet, necessarily, such adjudication must be construed, either as a confirmation of the original grant, or at least as a relinquishment of any right or title of the sovereign in or to the property adjudicated, and must be accepted as an acknowledgment on the part of the French government that the property disposed of was private property, in the possession and occupancy of the decedents and their heirs, and therefore actually severed from the public domain of the province of Louisiana at the date of said adjudication.

It follows, therefore, that the Broutin tract or plantation, adjudicated to De Pontalba in 1760, formed no part of the public and unappropriated territory of the Province of Louisiana, acquired by Spain in 1862, or by the United States under the Treaty of Paris in 1803.

The grant or exchange, if it may be so termed, made by the Baron de Carondelet in 1795 to Macarty, of any part of the Broutin tract, subsequently acquired by Livaudais, and thereafter by John McDonogh, was therefore null and void.

The decision in the Union Lumber Company Case, above cited, holding that the Carondelet concession to Macarty is "an exchange of property made with the French (Spanish) government," is clearly contrary to the former decisions of this court as to the nature of the alleged Macarty grant.

In Fleitas v. Mayor and Aldermen of New Orleans, 1 Mart. (N.S.) 430, it was held that the grant claimed by Macarty was not, in any proper sense, a complete grant, but a mere order for a survey.

This conclusion was reached by the court, after a most careful and thorough review of the deposition of Vicento Sebastian Pintado, formerly deputy surveyor general of the province of Louisiana.

The decision in the Fleitas Case was rendered in July, 1823, and was affirmed in Pontalba v. Copland, 3 La. Ann. 86.

Again, the claims of Pontalba were adjudged to be superior to those of Macarty in Moore et al. v. Pontalba, 13 La. 571.

In the decision of the board of commissioners for the Eastern district of the Territory of Orleans, communicated to the House of Representatives January 9, 1812, as to claim 194 of Jean Baptiste Macarty, it is said:

"Jean Baptiste Macarty claims a tract of land, situate back of the city of New Orleans, and adjoining the Canal Carondelet, containing about 1,300 acres. The claimant pretends that this land was surveyed for him, by virtue of an order of the Baron de Carondelet, dated 1795, and that the papers relating to his title have since been destroyed by fire. In support of this, he exhibits a certificate of Pintado, who states that the survey was executed by him, by order of Carondelet. Admitting it as a fact that the land was surveyed for him by order of Baron de Carondelet, it must have been upon condition that the land was vacant; but it appears clearly that the whole of this land was covered by grants antecedent to the period that the land is stated to have been surveyed by the claimant; we therefore reject the claim." Tr. No. 19439, p. 274.

We must decline, therefore, to accept the holding in the Union Lumber Company Case that the Macarty claim, though not a grant, was "an exchange of land with the French (Spanish) government," for the simple reason that the Spanish king was powerless to cede to Macarty, by grant or exchange, the private property of a French subject, acquired by him prior to the cession of the Louisiana territory to Spain by the King of France.

"The king cedes that only which belonged to him," as is said in the Percheman Case.

I find no conflict in the conclusion reached by me with the decision of the Supreme Court of the United States in the case of United States v. Ducros, 15 How. 38, 14 L. Ed. 591, in which it is said:

"The proceedings before Carondelet in 1793, in the settlement of the estate of Louis Toutant Beauregard, could not be construed as a confirmation of the French grant, from the mere circumstance that in theinventory, decedent's estate is described as runningback to the Lake. Carondelet could not be said to confirm, in his political capacity, a title which isnot even stated in the mere formal proceedings beforehim in his judicial capacity." (Italics mine.)

The case at bar and the Ducros Case are entirely different. The procès verbal of the adjudication admits that the land adjudicated to De Pontalba by the Supreme Council of the Province of Louisiana belonged to the succession of Broutin and wife, specifically describes the property adjudicated, and tenders the titles to same to the adjudicatee.

The chief officers of the French king, the Governor, the two Lieutenant Governors, the Attorney General, etc., were members of the Supreme or Superior Council, which was the body of the colonial government, the head of its Land Department, and the official custodian of all grants, deeds, etc. Gayarre's Hist. of La. vol. 1, pp., 251, 252.

I cannot agree, therefore, with the holding in the Union Lumber Co. Case that the adjudication to De Pontalba in 1760 by the Supreme Council was nothing more than the mere decree of an ordinary court of probate jurisdiction. In my opinion, this adjudication went much further in legal effect, and operated either as a confirmation of the original grant under which the Broutins held this property, or, at least, as a relinquishment by the French king of any claim to same as a part of the crown lands of the Province of Louisiana.

Thus far it has been seen that Macarty derived no title from the so-called Carondelet grant in 1795, as to any portion of the Broutin, Livaudais, or McDonogh tract.

2. The Macarty claim was confirmed by Congress in 1823, only "against any claim on the part of the United States." Act of Congress, Feb. 28, 1823, c. 15 (U.S. Stats. at Large, vol. 3, p. 727); Tr. No. 19439, p. 249.

The Livaudais claim was confirmed at the same time and by the same act to the depth of 80 arpents.

The McDonogh claim was confirmed by Congress in 1858 as to all of the land in the Broutin-Livaudais tract, back of the 80 arpents line and running thence to the apex of the triangle including said tract. The act of Congress ordered no patents issued either to the Macarty claimants, or to Livaudais, in 1823. A patent was ordered to issue in 1858 "as in ordinary cases to the legal representatives of John McDonogh; provided that this confirmation may be construed as a relinquishment of all rights and title of the United States, and shall not prejudice the legal claim of any other party, should such exist." Act of Congress, June 7, 1858, c. 119 (U.S. Stats. at Large, vol. 11, p. 545); Tr. No. 19439, p. 247.

It is clear from the language of the acts of Congress confirming the Livaudais, Macarty, and McDonogh claims that the United States government created no new titles in the confirmees, but merely quitclaimed as to them any title that the United States might have to these lands. Macarty and his heirs and assigns had no legal title to this property, either in 1795, 1823, or in 1858, under any grant from or exchange with the Spanish government.

The act of Congress in 1823 did not, by any means, pretend to confirm the so-called Carondelet-Macarty concession made in 1795.

The United States had no right to, or title in, this property, either in 1823 or in 1858, for the simple reason that the French government had recognized the Broutin tract as private property, and as severed from the public domain in 1760, when the adjudication was made to De Pontalba in the succession of Broutin by the Supreme Council of the Province of Louisiana. The Broutin tract did not pass, therefore, to the United States as a part of the public and unappropriated lands of the French government under the Treaty of Paris.

Land titles, protected by treaties made by the United States with foreign powers, are beyond the jurisdiction and control of Congress, as such treaties constitute a part of "the supreme law of the land," under article 6 of the federal Constitution. For this reason, the act of Congress confirming in 1823 the Macarty claim did not affect either the priority or the validity of the McDonogh claim, which in itself, is a complete legal title protected by the Treaty of Paris, under which France ceded to the United States in the year 1803 the Territory of Louisiana. It was not within the power of Congress by enactment either to add to or to take from the McDonogh title, or to divest it of its quality as an antecedent grant.

3. Nor has plaintiff in this case acquired squares 490 and 491 by the prescription of ten years' acquirendi causa.

"The plaintiff in an action of revendication must make out his title, otherwise the possessor, whoever he be, shall be discharged from the demand." Code of Practice, art. 44.

Plaintiff alleges in his petition that the city of New Orleans is in the physical possession of the property in dispute in bad faith, and claims ownership thereof, without any legal right or title thereto.

The evidence shows: That in the year 1908 the city of New Orleans caused a wire fence to be built around squares 490 and 491, the title to which is in controversy in this case, and also posted signs on the property offering the same for sale.

That since the year 1908, the New Orleans park commission has used these squares for a city nursery, under the authority of the city government. The evidence further shows that under a permit issued in 1879 by Mayor Behan, Essex Johnson took possession of square 490, built a house upon this square, and cultivated thereon a truck garden during that year, and that Johnson, as a licensee of the city of New Orleans, has been continuously in the possession of this square since that date. Squares 490 and 491, in controversy in this suit, were inclosed by a common fence, without a dividing line. It is clear, therefore, that plaintiff had not been in the actual possession of the property in question during a period of ten years, under title translative of property, prior to the filing of the present suit.

4. At the date of the institution of this suit, December 31, 1925, the city of New Orleans and its authors in title, John McDonogh, had held this property under titles running back 165 years to the original Pontalba adjudication in 1760.

The plantation belonging to the succession of Broutin and wife measured 127 1/3 arpents in depth from the Mississippi river, when the side lines of this triangular tract were projected to a closing point or apex, as required by the title of Broutin, and as set out in the adjudication to De Pontalba in 1760. This is conceded in the report of Canonge and Carter, register and receiver of the United States Land Office, made in 1837 on claim No. 39 of McDonogh, which was confirmed in 1858 by Congress. Tr. No. 19439, pp. 242, 247.

It is stated in this report also that Jacques Francois Enoul Livaudais in the year 1821 had claimed, before the register and receiver, for the tract owned by him, a depth of 80 arpents, which was confirmed by Congress in 1823, as Livaudais did not have at the time he entered his claim the original papers proving that the land extended in the rear until one line crossed or intersected the other in a point, as all adjoining tracts do — a fact stated in the Broutin title in the adjudication to De Pontalba in 1760. Tr. No. 19439, pp. 242, 247.

It is declared in all of the acts of sale of the Broutin tract or plantation from 1760 to 1768, i.e., in those made from the succession of De Pontalba to Dargeton, from Dargeton to Jacquelin, from Jacquelin to Le Marquis, and from Le Marquis to Chantalon, that the tract of 11 1/2 arpents front is conveyed "by the depth and point of compass it runs to," and that "the overplus of said angle forms consequently the superficies of the land actually sold," i.e., after the deduction from the triangular tract of the 10 1/2 arpents front, with 40 arpents depth, sold to Delino de Chalmette by Broutin in 1851.

It is true that the original Broutin tract is described in these acts of sale as "having 22 arpents front by 80 in depth."

Whether the area conveyed by these deeds contained more than 80 arpents in depth is a matter not now before this court, and I express no opinion on that question, as we are concerned here only with the titles to property lying within the 80 arpents line.

It must be conceded, however, that from 1760 to 1818 all of the acts of sale were made with full warranty, and with an estimated depth of 80 arpents, which the Broutin-Livaudais-McDonogh tract unquestionably contains.

In 1826 Jacques Francois Enoul Livaudais transferred to his wife, then separated from him in bed and board, his plantation measuring "sixteen arpents thirteen toises, and more if it is to be found, fronting the river (Mississippi), of which nine upper arpents have a depth of eighty arpents, and the surplus shows a depth of forty arpents."

This sale, as to the property above described, was made "under all guaranties of right." It is also declared in said act that:

"The said seller sells, together with the said plantation, and without reserve, all buildings of whatever kind now on said plantation, and in their present state; also all the rights which may have been recognized as belonging thereto according to said seller's titles, and beyond all of the depths already established, without any guaranty on his part for these same eventual rights, which he declares to have never alienated."

As to what the "eventual rights" of Livaudais beyond the 80 arpents line might be is wholly immaterial in this case, as it is apparent that the title transferred to Mrs. Livaudais by him is with full warranty up to the 80 arpents line, which not only extends from the front of the property to that depth, in the upper 9 arpents, but also to a depth of 40 arpents, from the 40 arpents line in the rear of the lower 7 arpents.

All of the titles of Jacques Francois Enoul Livaudais referred to in the act of sale to his wife call for three different tracts of land acquired by him, to wit: Tract No. 1, containing "about three arpents eighteen toises, front on the river, by a depth of 80 arpents, purchased by him from Jacques Philipe Enoul Dugue Livaudais, Francois Joseph Enoul Dugue Livaudais, Charles Enoul Dugue Livaudais, and Louis Harang and wife, Mrs. Jeanna Maria Genevieve Enoul Dugue Livaudais, who purchased this property at a sale in the succession of Jacques Enoul Livaudais June 11, 1817.

Tract No. 2, described as "a tract of land containing ten arpents in front upon 80 arpents in depth, attaining on one side to land owned by Madame widow Parris (Panis), and on the other side by another owned by the aforesaid Santiago Enoul Livaudais," the father of Jacques Francois Enoul Livaudais.

This land is described in the marriage contract of Jacques Francois Enoul Livaudais with Maria Celeste de Marigny Mandeville, made November 20, 1797.

The marriage contract was signed before a notary and two witnesses by the contracting parties and by the parents of both.

The property therein described was "an advance of inheritance," or donation inter vivos, made to Jacques Francois Enoul Livaudais by his father, Santiago Enoul Livaudais, at the time of his son's marriage, as recited in the act of sale made by Livaudais to his wife in 1826.

Tract No. 3, purchased December 13, 1803, by Jacques Francois Enoul Livaudais from Jacques Philipe Enoul Livaudais, is described as "two arpents of ground front, situated on the side of the Tchoupitoulas (road), now in this city, by eighty arpents deep, adjoining on one side the land of the vendor, and on the other the land of the purchaser, the same which belongs to me, having acquired it from Mr. Chantalon the third of March seventeen and sixty nine." Chantalon acquired from Pierre Marquis, September 9, 1768, all of the Broutin tract adjudicated to De Pontalba in 1760, and described in the Chantalon deed as "having eleven arpents and two in front by the depth and point of compass it may have, which said plantation heretofore formed a right angle of which the basis fronting the river had twenty-two arpents front by eighty arpents in depth, but the late Mr. Broutin, to whom it belonged, having sold ten arpents and a half front by forty arpents only in depth to said Sr. Delino, and in two parallel lines, the overplus of said angle makes the surplus of the ground which the said sellers sell actually."

There is a break in the chain of title from Chantalon, "but," as is said in the opinion of the Court of Appeal in the Quaker Realty Company Case, 10 Orleans Reports, 84, "it is admitted that an original act of sale by Chantalon to Santiago Livaudais (father of Jacques Francois Enoul Livaudais) before Garic on March 3rd, 1769, is not among his archives."

As the record in the Quaker Realty Company Case is a part of the record in the present suit, I note the admission made in connection with the case at bar.

The title of Jacques Francois Enoul Livaudais is based therefore upon ancient titles and possession running back to the Pontalba adjudication in 1760.

The Livaudais plantation, acquired through regular chain of title, clearly contained at least a depth of 80 arpents.

Pierce, Morgan, Peters, and Chase purchased this property on February 24, 1832, from Madame Maria Celeste de Marigny Mandeville, the wife, separated in bed and board, of Jacques Francois Enoul Livaudais, she having acquired same from her husband in part payment of her dotal claims. The said tract of land or plantation was sold by Madame Livaudais to Pierce et al. as "measuring sixteen arpents twenty toises, more or less, front on the river Mississippi, with all the depth thereto belonging, by virtue of the titles of the property hereafter enumerated, and with the width they may have in the rear in virtue of said titles. The said tract of land or plantation is bounded on the upper limit by the property of Mr. Lassize, and on the lower limit partly by the property of Robert Layton, now used as a rope walk; together with its dependencies, etc., without any exceptions, the whole well known of the purchasers who have at leisure visited the premises, and want no other designation thereof."

It is further stated in said act of sale that:

"In order to enable the aforesaid purchasers to examine and study the history of the titles of property depending from and belonging to the said tract of land, the said vendors acting as aforesaid (the agents of Mrs. Livaudais), have presently delivered the copies of all the deeds and transactions relative to said tract of land or plantation, from the twenty-third day of February, one thousand eight hundred and twenty-six, at which time Mr. Livaudais sold, per act before Lafitte, the said tract of land to his wife, the said Mrs. Livaudais, down to the twenty-second day of April, one thousand seven hundred and fifty-one, at which time Mr. and Mrs. Broutin sold to Delino de Chalmette a certain tract of land of larger extension, a portion whereof is the tract of land presently sold, the receipt of which copies the said purchasers do hereby acknowledge."

The above declarations in the act of sale to Pierce et al., not only show that the purchasers were personally and well acquainted with the premises purchased, but, in addition to this, they had presented to them copies of the various acts of sale, not only from the date of the adjudication of this property to De Pontalba by the Supreme Council of the Province of Louisiana in the year 1760, but as far back as the year 1751, when Mr. and Mrs. Broutin sold a part of this property to Delino de Chalmette.

There can be no question as to the knowledge of Pierce et al., the purchasers, as to the extent of this property, nor as to the fact that such extent was supported by the deeds delivered to them, covering a period of 75 years between the sale to Delino de Chalmette in 1751 and the sale to Mrs. Livaudais in 1826. A regular chain of title is disclosed in the act of sale by Mrs. Livaudais to Pierce et al.

John McDonogh purchased this property from Pierce et al. in 1836. The mere fact that his vendors did not guarantee the title to the land in the rear of the 40-arpent line, or the lower line (or lake side) of St. George (now Howard) street, is unimportant, as the title of Mr. Livaudais to this property is unquestionably good and valid up to the 80 arpents line.

While Pierce, one of the vendors of McDonogh, reserved any right acquired by him to a lot or parcel of ground containing 180 acres purchased from the New Orleans Canal Banking Company, Samuel Kohn, Laurent Millaudon, and John Slidell, by an act of sale executed before Jules Mossy, notary public, bearing date June 4, 1833, it is stated in said reservation:

"But he does not reserve any right which he has acquired from the said Mrs. Livaudais by the aforementioned act before Louis T. Claire, notary, on the said twenty-fourth day of February, eighteen hundred and thirty-two, each party thereby standing upon the merits of their respective titles, as if the said Levi Pierce was no party to this act."

In other words, Pierce warranted the title to John McDonogh as far as "any right which he has acquired from Mistress Livaudais," but not otherwise.

In my opinion, the title of Mrs. Livaudais, having been acquired from her husband, the true and lawful owner of this property, is good and valid, as he held under a regular chain of title from De Pontalba and the Broutins, and the reservation of Pierce, otherwise, is immaterial, as his authors in title claim under the Macarty grant.

The Court of Appeal for the parish of Orleans, in the case of Quaker Realty Co., 10 Orleans Reports, 79, has reviewed the McDonogh claim and the Macarty-Carondelet grant in a most thorough and able manner, and has upheld the McDonogh claim as founded upon a valid and complete grant, and as a title complete by itself and requiring no act of confirmation by the United States.

In that decision the 80 arpents line was declared to begin near Hagan avenue in the Broutin or Livaudais tract, and squares 495, 501, 502 and 503 in said tract were declared to be located within said line and to be the property of the city of New Orleans. These squares lie adjacent to squares 490 and 491, involved in this suit.

This court, through Mr. Justice Sommerville, the organ of the court, in City of New Orleans v. Union Lumber Co., 145 La. 476,82 So. 588, refused, on April 13, 1914, an application for a writ of review of the Quaker Realty Company Case, under No. 20568 of the docket of this court.

In the case of John McDonogh v. United States (No. 42) on the docket of the United States District Court, Eastern District of Louisiana, sitting in chancery, in which McDonogh sought to have the validity of his title inquired into and decided, the opinion of the court, in part, is as follows:

"It is true, as contended by the district attorney, that the claim of the petitioner in this case is not founded upon a formal grant, warrant, or order of survey made by the civil government at the date alleged. But the French colonial government, through its authorized officer acting in a judicial capacity, in ordering the sale of the land in question, for the purpose of settling the affairs of the succession of Broutin, who had possessed the land as owner until the period of his death, recognized the title of Broutin, and thus divested the government of all right to claim it. A grant may be made as well by a direct recognition of title as by a formal investiture of title in terms. It is entirely immaterial whether the right of Broutin was derived originally from possession, or by a delivery of title, in the words usually employed, if the petitioner can show a clear recognition of his title by the lawful authority of the sovereign exercising dominion over the country. The acts of the sovereign are binding upon his successors, and both the laws of nations and the stipulations of the treaty of 1803, protect the petitioner in the enjoyment of the land, which he holds by a regular chain of title from the original owner. I am, therefore, of the opinion that this claim must be confirmed under the provisions of the act of 1824, revived by that of 1844." Tr. No. 19439, United States v. McDonogh, pp. 127, 128.

An appeal was taken from this decision, and the Supreme Court of the United States, in passing upon the case in United States v. Roselius, 15 How. 36, 14 L. Ed. 590, said in part:

"Now, the title set up by the petitioner is a complete legal title; and if he can establish the facts stated in his petition, his title is protected by the treaty itself and does not need the aid of an act of Congress to perfect or complete it. For undoubtedly, if the possession of the land has been held continuously by the petitioner and those under whom he claims under the judicial sale made by the French authorities in 1760, the legal presumption would be that a valid and perfect grant had been made by the proper authority, although no record of it can be found."

The case was reversed on appeal solely for want of jurisdiction in the lower court.

McDonogh filed his petition in the United States District Court for the Eastern District of Louisiana in May, 1846. He set out in that petition his title from Morgan, Pierce, Peters, and Chase by notarial act of sale passed on or about February 10, 1836, and the different mesne conveyances of said property traced back to the adjudication to Pontalba in 1760 of the Broutin plantation by the Supreme Council of the Province of Louisiana, alleging that said sale and adjudication, by the order and authority of said council, was fully equivalent to a patent to said land. He alleged also the continuous possession by his authors in title and by himself of this property. Tr. No. 19439, United States v. McDonogh, pp. 3, 4, and 5.

The act of adjudication to De Pontalba in 1760 describes the property sold specifically and as "a parcel of land and plantation belonging to the succession of Mr. and Mrs. Broutin, deceased," and "definitively, purely, plainly adjudged the said land, plantation, buildings, appurtenances, and dependencies, as the whole now stands, to the said Mr. De Pontalba, as the highest and last bidder."

Both possession and cultivation by the Broutins in 1760 are conceded by the adjudication itself. The Broutin plantation is conveyed in each of the subsequent acts of sale to Dargeton, Jacquelin, Le Marquis, and Chantalon, with its main house, kitchen, store, dryhouse, negro cabins, yard, garden, and, in some instances, with crops hanging by the roots, slaves, stock, etc., as per inventory. Possession by Livaudais and his wife is fully shown by deed of Mrs. Livaudais to Morgan, Pierce, Peters, and Chase in 1832, and in deed from these purchasers to John McDonogh in 1836.

In the opinion or report of Cannonge, register, and Carter, receiver, of the United States Land Office at New Orleans, of date November 22, 1837, in referring to the McDonogh claim, No. 39, and other claims therein mentioned, it is stated that:

"A careful and particular examination of these claims proves satisfactorily to our minds that they are all based upon good titles, French and Spanish grants, ancient possession, and continuous cultivation, according to the requisites of the law." Tr. No. 19439, pp. 242, 247.

It is also stated by the register and the receiver, in the opinion or report made by them on the McDonogh claim, based on the Pontalba adjudication, that:

"This document is the most perfect government title that could be issued; it is fully equivalent to a patent." Tr. No. 19439, pp. 242, 247.

In an extract from American State Papers, containing the report of S.H. Harper, register of the land office for the Eastern district of Louisiana, approving the claim of J.F.E. Livaudais, the following declarations are made:

"No. 74. Jacques Francois Enoul Livaudais claims a tract of land situate in the parish and county of Orleans, on the left bank of the Mississippi, near the city of New Orleans, containing 19 3/4 arpents front and 80 arpents in depth."

"This land is held partly in right of inheritance and partly in right of purchase; the whole founded on an original French Concession. I am therefore of the opinion that the claim ought to be confirmed." Volume 3, of American State Papers, Public Lands, Gale and Seaton's Edition, p. 584; Duff Green Ed. p. 512; Tr. No. 19439, pp. 248, 250.

In report No. 358, 35th Congress, 1st Session, from the committee on private land claims, House of Representatives, after stating that no action was ever taken by Congress on the favorable report made on the McDonogh claim by the register and receiver of the land office at New Orleans in 1837, and after reviewing the history of the litigation by McDonogh in the federal courts as to his claim, it is said:

"In this anomalous condition, thrown out of court because his title was found not to be imperfect; with no power to which an appeal can be taken except to the legislative department of the government, the representatives of McDonogh ask that Congress will, without delay, confirm their claim to the said tract of land, which has been held in undisputed possession, occupancy and cultivation, since before 1760. And as your committee can suggest no reason why it should not be done, herewith report a bill and ask its adoption." Tr. No. 19439, pp. 264, 265.

The present record is replete with proof that the Broutin tract, adjudicated to De Pontalba in 1760, had been held in possession continually by McDonogh and those under whom he claimed, at the date of his suit in the United States District Court for the Eastern District of Louisiana.

The facts stated in the petition filed by McDonogh in the federal court in the year 1846 have been established in this case, and I adhere to the opinion of the Supreme Court of the United States, that McDonogh has "a complete legal title," which "is protected by the treaty itself, and does not need the aid of an act of Congress to perfect or complete it." United States v. Roselius, 15 How. 36, 14 L. Ed. 590.

John McDonogh died in the year 1850. His will was duly probated, and the cities of New Orleans and Baltimore were recognized as universal legatees, and sent into possession by decree of court. Tr. 19439, pp. 76, 77.

Even if the Carondelet grant to McCarty should stand the test, as a Spanish concession, as to form, and even if the act of Congress should be construed as confirming this grant the McDonogh claim needs no such confirmation, and, being prior in date to the Macarty grant, must prevail over it, as far as any encroachment by the Macarty grant as to the land within the 80 arpents line is concerned.

For these reasons, I am of the opinion that the decision of this court in City of New Orleans v. Union Lumber Co.,145 La. 476, 82 So. 588, is erroneous, both as to the holdings that the so-called Macarty grant is an exchange of lands with the French (Spanish) government, and that the priority of confirmation of the Macarty claim by Congress gave priority of title to the claimants holding under the same, and also as to the holding, if it may be so construed, that Broad street is the 80 arpents line of the Livaudais or McDonogh tract. The line was properly fixed as beginning near Hagan avenue in the Quaker Realty Company Case, above cited, and is correctly located as appears on the map in the record, designated as "Descriptive Sketch, after the Survey Made by Davey Waddill, Dated Nov. 23, 1907." See testimony of Waddill, Tr. 27592, pp. 73, 74, 82; Tr. 19439, pp. 91, 92, 154, 156; testimony of Warren, Tr. 19439, pp. 104, 106.

As the McDonogh claim calls for a depth of at least 80 arpents, it becomes a mere matter of measurement, or surveying, in order to fix the location of this line. Much confusion has arisen, not only in the decision in the Union Lumber Company Case, but in the testimony of the witnesses, as to the location of the 80 arpents line. This has resulted from confounding the property line of the McCarty grant, which intersects and conflicts with the McDonogh grant at Broad street, with the 80 arpents line in depth of the latter grant.

5. Under my view of the case, I do not find it necessary to pass upon the pleas of prescription tendered by the defendant, the city of New Orleans, whose title to this property is good and valid, under the will of the late John McDonogh. The alleged bad faith of defendant in taking possession of these squares of ground is therefore a matter eliminated from discussion and consideration.

6. The additional title asserted by plaintiff in the alternative is under a state auditor's deed.

Plaintiff contends that the state had acquired squares 490 and 491 in 1885 for nonpayment of state taxes assessed in the name of John Irwin in 1882 and 1883. On January 25, 1895, the state sold said squares to Edwin Irwin, the author in title of plaintiff.

The will of McDonogh conveyed the title or ownership of the property embraced by the legacies to the universal legatees, the cities of New Orleans and Baltimore, for the purpose and support of public education, in the proportion of one-half to each. State v. Executors of McDonogh, 8 La. Ann. 171.

The property in question is, therefore, public property, and, as such, exempt from assessment and taxation. Const. 1879, art. 207; Martin v. Louisiana Central Lumber Co., 150 La. 181,182, 90 So. 553.

It follows, therefore, that the adjudication of these squares to the state in 1885 for nonpayment of state taxes was illegal, null, and void.

Edwin Irwin therefore did not acquire title to squares 490 and 491 under auditor's deed evidencing the sale made to him by the state in 1895, and conveyed no title to those holding under him, including plaintiff.

7. The plea of estoppel urged by plaintiff, to the effect that the defendant, the city of New Orleans, has recognized his title, and is estopped from denying same, because its officers have assessed and collected taxes on the property in dispute in the name of some of the authors of plaintiff in title, is not well founded.

The collection of any and all taxes, licenses, claims, or debts due to the political corporations of the state is to be made "within such time and in the manner provided by existing state laws, or in the manner that may hereinafter be provided by state laws relative to the collection of taxes due to the state." Act No. 119 of 1882; Const. 1921, art. 10, § 14; Act No. 315 of 1910, § 61.

The city of New Orleans cannot be estopped from claiming its property, by the acts of its officers, because of illegal assessments of such property and the collection of taxes by them under the same. Quaker Realty Co. v. Labasse, 131 La. 996,60 So. 661, Ann. Cas. 1914A, 1073; Slattery v. Heilperin Leonard,110 La. 95, 34 So. 139; Cordill v. Quaker Realty Co., 130 La. 933,58 So. 819; Martin v. Louisiana Central Lumber Co., 150 La. 181,182, 90 So. 553.

Judgment was rendered in the court below in favor of the plaintiff, upon the authority of the City of New Orleans v. Union Lumber Co., 145 La. 476, 82 So. 588, the basis of the judgment being that plaintiff had proved his title to the property to be the more ancient and the better title.

As the Union Lumber Company Case should be overruled in so far as the holdings made therein may affect the property claimed by the city of New Orleans within the 80 arpents line, the judgment of the trial court should be set aside, and judgment should be rendered in favor of the city of New Orleans recognizing its title to the property herein claimed as legal and valid.

For these reasons, I respectfully dissent from the opinion of the majority of the court.