U.S. Supreme Court
Gilmer v. Poindexter, 51 U.S. 10 How. 257 257 (1850)
Gilmer v. Poindexter
51 U.S. (10 How.) 257
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF LOUISIANA
On 30 January, 1835, Poindexter purchased from Thomas a right of entry in certain lands in Louisiana, with authority to locate the lands in the name of Thomas, and they were so located. Subsequently to such location, viz., on the right which Thomas then had, or thereafter might have, to the land so located, and authorized Poindexter to obtain a patent in his own name. The patent, however, was issued to Thomas, and not to Poindexter. This did not vest in Poindexter a legal title, which would enable him to recover in a petitory action, which corresponds with an action of ejectment. Poindexter did not take a legal title, either by direct conveyance or by estoppel.
On 20 November, 1835, Poindexter, by a conveyance of record, conveyed his right in the lands in question to Huston, and on the same day, by articles of co-partnership with Huston, not of record, authorized Huston to apply these for the mutual benefit of Poindexter and Huston.
A purchaser from Huston without notice is not affected by these articles.
On 30 June, 1834, Congress passed an
"act granting to General Philemon Thomas, of Louisiana, a tract of land, in consideration of the military services rendered by him in taking possession of that portion of West Florida included in the District of Baton Rouge."
By this act, Thomas was authorized to enter, without payment, two sections of land on any of the lands of the United States in the State of Louisiana.
On 30 January, 1835, Thomas executed a deed to George Poindexter in which, for the consideration of $7,500, he
"granted, bargained, and sold unto him, the said George Poindexter, his heirs and assigns, forever all the right, title, interest, and claim whatsoever, which he, the said Philemon Thomas, may have or might hereafter have in and by virtue of the recited act of Congress, and the said Philemon Thomas doth hereby authorize and empower the said George Poindexter to make the location or locations of the said twelve hundred and eighty acres of land for his own proper use and benefit, or proper use and benefit of his heirs or assigns, in the same manner, and with the same effect, as he, the said Philemon Thomas, might have done in his own name if this conveyance had not been made. "
On 20 November, 1835, Poindexter entered into articles of co-partnership with one Felix Huston in which it was stipulated that Poindexter conveyed to Huston the right of entry yet remaining unlocated, so that the said entry may be made in the name of Huston, and the said Huston agreed on his part to purchase eight thousand dollars' worth of floats, and hold the whole for the joint and equal benefit of Poindexter and Huston. The articles contained other stipulations, but they were not recorded and executed in the presence of William Burns, an attesting witness.
On the same day, viz., 20 November, 1835, Poindexter executed a deed to Huston, from which the following is an extract:
"And by these presents doth grant, bargain, sell, convey, and confirm unto the said Felix Huston, his heirs and assigns forever, all the right, title, interest, and claim whatsoever which he, the said George Poindexter, has, or heretofore may have had, or might hereafter have, in and by virtue of an Act of Congress of the United States approved June 30, 1834, granting Philemon Thomas, without payment, the quantity of twelve hundred and eighty acres of land, to be located on any of the lands of the United States within the State of Louisiana, at the proper land office, with a proviso, that the same shall be located in tracts of not less than six hundred and forty acres, according to legal subdivisions; which said land was conveyed by the said Philemon Thomas to the said George Poindexter, by indenture entered into on 30 January, A.D. 1835; which is of record in the District Court for the County of Washington, in the District of Columbia. And the said George Poindexter doth hereby authorize and empower the said Felix Huston to make the location or locations of the said twelve hundred and eighty acres for his own proper use and benefit, or the proper use and benefit of his heirs and assigns, in the same manner and with the same effect as he, the said George Poindexter, might have done in his own name, by virtue of the said act of indenture from the said Philemon Thomas to the said George Poindexter. And the said Felix Huston, being present, declares that he accepts this act with all its clauses."
This deed was recorded in the Parish of Concordia.
On 27 November, 1840, Thomas and Poindexter executed the following instrument, viz.:
"State of Louisiana"
"Parish of East Baton Rouge"
"Whereas, on 30 January, 1835, General Philemon Thomas, of this parish, for valuable consideration to him
in hand paid, sold and conveyed to me, George Poindexter, of the State of Mississippi, his right of entry, without payment, two sections of land on any of the lands of the United States, in the State of Louisiana, granted to the said Philemon Thomas by an act of Congress passed in the year 1834. And whereas, in order to complete the said location, the said Philemon Thomas executed to the said George Poindexter a power of attorney, with the right of substitution, authorizing the said location to be made in the name of him, the said Philemon Thomas; which location, according to the tenor and effect of the said power of attorney, was made on two sections of the lands of the United States in township eighteen north, range ten west, and in township nineteen north, range thirteen and fourteen west."
"Now, therefore, in order to enable the said George Poindexter to perfect his title by withdrawing from the land office at Natchitoches the final certificate of said location, he, the said Philemon Thomas, hereby, for himself, his heirs, executors, and administrators, transfers to the said George Poindexter, his heirs, executors, and administrators, all the right, title, interest, and claim which he, the said Philemon Thomas, has, or hereafter may have, in and to the two sections of land located as aforesaid in the name of said Philemon Thomas, and further does authorize the said George Poindexter to obtain a patent for the lands so located in his own name at the General Land Office of the United States at the City of Washington."
"And the said George Poindexter, being here present, accepts this transfer made in his favor."
"In witness whereof, the parties have hereto set their hands with me, Charles R. Tessier, a notary public, duly commissioned and sworn for said parish, and in presence of Raphael Legendre and Victor Allain, witnesses duly qualified at Baton Rouge, this 27 November, 1840."
"[Signed] PHILEMON THOMAS"
"CHARLES R. TESSIER, Notary Public"
On 26 March, 1841, a patent, describing the lands, was issued by the General Land Office to General Philemon Thomas, his heirs and assigns forever.
On the 10th of January, 1844, Huston executed a deed to James Washington Patten, residing in Buncombe County, North Carolina, reciting the origin of the title, and conveying 649 36/100 acres to Patten, his heirs and assigns, to their proper chanroblesvirtualawlibrary
use and behoof, forever. This deed was duly executed and recorded.
On 15 January, 1844, Patten executed to James Erwin a full power of attorney, authorizing him to sell the lands upon such terms as he might deem proper, execute deeds &c.
On 28 March, 1844, Erwin executed a deed to Gilmer, conveying the lands to him for $6,473.60, with a warranty of title.
On 20 February, 1847, Poindexter brought a petitory action in the Circuit Court of the United States for Louisiana, reciting the grant by Congress to Thomas, the deed from Thomas to himself, the location and the patent. By virtue of these documents, he claimed to be the legal owner and proprietor of the parcels of land therein described, and justly entitled to the possession thereof.
On 31 March, 1847, Gilmer answered. He referred to his deed from Patten, through Erwin, and cited him in warranty.
On 10 May, 1848, the judgment of the court was pronounced on the law and evidence in favor of the petitioner. The documentary evidence was ordered to be placed upon the record. The following bill of exceptions was taken, viz.:
"Be it remembered, that, on the trial of this cause, plaintiff offered in evidence a paper purporting to be articles of agreement between plaintiff and one Felix Huston, and to have been signed and sealed by them, and purporting to bear date November 20, 1835; said paper also purported to have been signed by one William Burns, as subscribing witness. No testimony was offered as to the sealing or delivery of said paper, or the time when it was made; the subscribing witness was not called to testify, but a witness was examined who testified that the names of said Poindexter and Huston, subscribed to said paper, were in the handwriting, of said parties. Witness knew nothing of the execution of said instrument. Defendant, by his counsel, objected to the reception of said paper in evidence, on the ground that there was no proof whatever of the time when it was signed, nor of the sealing and delivery of the same. Defendant objected also to the admissibility of said paper in evidence, even if the due execution thereof were duly proved, on the ground that it was a private act, not recorded, to which defendant was not a party, or of which he had notice; and on the further ground, that the effect of said paper in evidence would be to contradict, qualify, and explain the positive and direct admissions of plaintiff, made in his conveyance, by authentic act, to said Huston, on 20 November,
1835, which said authentic act of conveyance had been offered in evidence by the defendant. The objections of defendant were overruled by the court, and the paper received in evidence, to which defendant, by his counsel, excepts."
"Be it further remembered, that, on the trial of this cause, defendant offered to introduce testimony to prove the value of the improvements made by him upon the land in controversy, in support of his answer and plea in reconvention; the court refused to receive or hear said testimony, to which refusal defendant, by his counsel, excepts, and tenders this, his bill of exceptions, and prays that the same may be signed."
"THEO. H. McCALEB [SEAL] U.S. Judge"
A writ of error sued out by Gilmer brought the case up to this Court. chanroblesvirtualawlibrary
MR. JUSTICE DANIEL delivered the opinion of the Court.
This is a writ of error to a judgment of the Circuit Court of the United States for the District of Louisiana.
The defendant in error instituted a petitory action in the court just mentioned, to recover certain lands in Louisiana in the possession of James B. Gilmer, the plaintiff in error.
The petition of Poindexter sets forth, that by an Act of Congress approved on 30 May, 1834, entitled "An act granting to General Philemon Thomas a tract of land in consideration of military services &c.," the said Thomas was authorized to enter, without payment, two sections of land on any of the lands of the United States in Louisiana. That Thomas, on 30 January, 1835, sold to the petitioner this right of entry, and authorized him, or his substitute, to make the location in the name of Thomas. That the petitioner afterwards caused said location to be made on two sections of land in Louisiana, north of Red River, one of which described in parcels contained 619 36/100 acres, and is the land in controversy.
This after this location, viz., on 27 November, 1840, Thomas by notarial act transferred to the petitioner all the right, title &c., which he, Thomas, then had or thereafter might have to the two sections so located, and authorized the petitioner to obtain a patent therefor in his own name. That on chanroblesvirtualawlibrary
26 March, 1841, a patent was issued for the lands to Thomas, by virtue of which, and of the sale and transfer of 27 November, 1840, the petitioner avers that he became the legal owner of the lands claimed, and is entitled to the possession thereof. That Gilmer has taken unlawful possession of one section of the land in township 19, range 14, and refused to surrender it to the petitioner, who therefore prays judgment for possession of the land, and for rents and profits. The agreements between Thomas and Poindexter of 30 January, 1835, and of 27 November, 1840, and the patent to Thomas of 26 March, 1841, referred to in the petition, were filed as exhibits therewith.
The tenant in possession, Gilmer, after a general denial in his answer of any right or title to the land in the petitioner, alleges that he is the possessor and true owner of the land claimed, by purchase in good faith for valuable consideration from James W. Patten, by a notarial act executed in New Orleans on 28 May, 1844; that Patten's conveyance to him was with general warranty, and he therefore avouches Patten in warranty; and prays that, in the event of his eviction, he may have a recovery over against his warrantor, Patten, for the value of the land and improvements made by the defendant. This cause, according to the practice in the State of Louisiana, was tried by the court, without the intervention of a jury, and the court, after hearing the parties, by its opinion expressed on 10 May, but signed on 28 June, 1848, and considered as of the day last named, gave the following judgment, viz.:
"It is ordered, adjudged, and decreed, that judgment be rendered in favor of the plaintiff, George Poindexter, and against the defendant, James B. Gilmer, for the premises described in the plaintiff's petition, and that the said Gilmer surrender to the plaintiff the possession of the following described parcels of land &c., and that the plaintiff have a writ of habere facias possessionem to place him in legal possession thereof. The right of the plaintiff for mesne profits, and of the defendants to sue for improvements, is reserved respectively."
In addition to the documents above mentioned, filed as exhibits with the plaintiff's petition, there was offered in evidence on the part of the petitioner, and admitted by the court, an instrument of writing executed on 20 November, 1835, between Poindexter and one Felix Huston, in which it was amongst other things recited, that the parties to that instrument had formed a partnership for the purposes of purchasing lands of the United States, or preemption rights, or entries chanroblesvirtualawlibrary
of individuals, for the joint and mutual benefit of the parties, and that the said Poindexter, having purchased of General Philemon Thomas his right to locate the quantity of twelve hundred and eighty acres of land on any of the public lands in Louisiana, granted by an Act of Congress passed on 39 June, 1834, and having obtained of the said Thomas, on 30 January, 1835, a conveyance of his said right of entry, which yet remains unlocated, the said Poindexter agreed to convey to the said Huston his right of entry derived under the said deed, in the same manner as he acquired the same from the said Philemon Thomas, so that the said entry may be made in the name of the said Felix Huston, to be held by him for the joint and equal benefit of him the said George Poindexter &c. This instrument, being a private declaration of trust between Poindexter and Huston, not evidenced by any record or other public acknowledgment of the parties, was attested by a single witness, William Burns, who was not called at the trial to prove its execution, was received in evidence by the court without such proof, and its reception was excepted to for that cause. It does not appear, moreover, that a knowledge of this instrument was brought home either to Patten or to Irwin, his attorney in fact, from whom Patten purchased.
The plaintiff in error relied in the circuit court on the following proofs: 1st, on the act of Congress granting the right of entry to Thomas; 2d, on the public act and conveyance from Thomas to Poindexter, as recited in the petition; 3d, the plaintiff in error next adduced in proof a public and authentic act of sale and conveyance, on 20 November, 1835, to Huston, in absolute right, of all his, Poindexter's, title, interest, and estate in the grant to Thomas, then vested, or which might vest at any future period; 4th, the public authentic act of Huston, conveying the land in controversy with general warranty, on 20 January, 1844, and reciting in its terms the conveyance from Thomas to Poindexter of 30 January, 1835, and that of Poindexter to Huston of 20 November, 1835, and describing the land so conveyed as that "which was located by said Huston according to the provisions of the above-mentioned act of Congress;" 5th, the public authentic act of Patten, constituting Irwin his attorney in fact to sell and convey the lands purchased of Huston, and 6th and lastly the conveyance by Patten, by his said attorney, Irwin, of the lands in controversy to Gilmer, the tenant in possession in March, 1844, with warranty.
In considering this case it is proper to carry with us throughout, as a standard by which to test the proceedings in the circuit chanroblesvirtualawlibrary
court and the decision founded upon them, this controlling principle -- that the petitory action is a proceeding at law for the recovery of property, and can be maintained in the courts of the United States only where the right of possession can be shown, and, according to the principles and distinctions settled in this Court, corresponds in character with the action of ejectment at common law.
The petitioner or plaintiff therefore, in a petitory action, must recover upon the strength of his title, and that must be a legal, as contradistinguished from an equitable, title. @See 48 U. S. 847, and Livingston v. Story, 9 Pet. 632. Tried by this rule, we are unable to perceive how the claim of Poindexter, as set forth in his petition, even if unaffected by his transactions with Huston, can be maintained in this action. The petitioner alleges that he purchased of Thomas his right of entry in virtue of the act of Congress, and received from Thomas a power to make a location in the name of the latter.
By this transaction, no legal title to any certain or specific land was conveyed, for nothing specific or certain was then vested in Thomas, and the power of locating alleged in the petition was a power to locate, not in the name of Poindexter, but in that of Thomas. The petitioner proceeds to state that after these locations made by him, Thomas, by an authentic act before a notary public, on 27 November, 1840 a copy of which is filed with the petition, transferred to the petitioner all the right, title &c., which he then had, or thereafter might have, to the sections of land located in his name, and authorized the petitioner to obtain a patent therefor. He further alleges that afterwards, viz., on 26 March, 1841, a patent issued to Thomas for the lands located as aforesaid in his name, and that by virtue of these proceedings, viz., the transfer by Thomas in 1840, and the patent in 1841, the petitioner became invested with the legal title to the land in dispute. This alleged investiture of the legal title must have been supposed to rest upon an estoppel operated by the transfer and patent before mentioned, for, independently of such an operation, and by the literal terms of the patent, the title would certainly be in Thomas, and not in Poindexter. But we are of opinion that in this instance no estoppel has been operated. This legal effect can occur only where a party has conveyed a precise or definite legal estate or right, by a solemn assurance, which he will not be permitted to vary or to deny. It can have no operation to prevent the denial of an equitable transfer of title, which is not identical with the legal title or muniment of title which it may be relied on either to establish chanroblesvirtualawlibrary
or protect. An estoppel, it is said, should be certain to every intent, and therefore, if a thing be not directly and precisely alleged, it shall not be estopped. Co.Lit. 303a, 552b. So, too, it is laid down, that to the success of an estoppel it is obviously necessary that the grantor's want of a present vested estate should not appear on the deed itself, which would else contain internal evidence of its invalidity. 2 Sim. & Stu. 519; 3 Ad. & Ell. 12. And with regard to the mode of using an estoppel, it is said that it must be pleaded if there be an opportunity; otherwise, the party omitting to plead it waives the estoppel. See 2 Smith's Lead.Cas. 457, and the authorities there cited. Again it is ruled that an equitable title cannot be estopped by a verdict at law, for there is no such thing as an estoppel in equity. See Com.Dig., Estoppel § 1. Even upon the hypothesis, then, that the title set up by Poindexter under his agreement with Thomas could be regarded as a legal title, still, upon a comparison of the description of the property contained in those agreements with that of the land granted by the patent to Thomas, there is not that certainty and identity that are required by an estoppel, or such as will cause the land granted by the patent to Thomas to enure to Poindexter. But the right set up by Poindexter under his contracts with Thomas remains strictly an equitable right, and therefore neither Thomas nor his alienee could be estopped from averring a right in the land contained in the patent, in opposition to such equitable claim.
But in another aspect of the question, supposing the interest transferred to Poindexter by the agreements with Thomas of January 30, 1835, and May 14, 1839, could be so construed as to have passed to the former a legal title, and admitting, too, that the description of the property contained in those agreements accorded in precise terms with that of the lands granted to Thomas by the patent of March 20, 1841, it would still remain to be inquired, whether Poindexter has not parted with his title, and would not in this aspect of the case be estopped from setting it up against his alienee, and all claiming under such alienee.
It appears from the evidence which was before the court, and already adverted to in the statement of this case, that on 20 November, 1835, Poindexter sold and conveyed, by his public authentic act, and in absolute right and estate, to Felix Huston, all the right, title, interest, and claim which he then had, or thereafter might have, in and by virtue of an Act of Congress of 30 June, 1834, granting to Philemon Thomas the quantity of twelve hundred and eighty acres of land, to be located on any lands of the United States in Louisiana, chanroblesvirtualawlibrary
which said land was conveyed by the said Philemon Thomas to the said George Poindexter on 30 January, 1835; it further appears, that from Houston a regular title, by public authentic acts and written assurances, is deduced down to the defendant in possession, Gilmer. It is true, that in order to countervail the force of this title, the petitioner offered in evidence the agreement between himself and Huston of 20 November, 1835, creating a partnership between themselves, and purporting to convey to Huston all the title of Poindexter to the right of entry granted by act of Congress to Thomas, to be disposed of and applied by Huston for the benefit of the partnership; but it is equally true that this instrument, which was objected to by the plaintiff in error, was received without legal proof of its execution, and therefore should not have been admitted and considered by the court; and there being no proof in this record of any knowledge of the contents, or even of the existence, of this instrument on the part of the purchasers under the absolute and public deed from Poindexter to Huston, their title thus derived, for aught that appears, cannot be affected by the former instrument.
Upon the whole case, the petitioner in the circuit court, having failed to establish a legal title in himself to the premises demanded, could not maintain his action, and the judgment of the court should have been for the defendant. It is therefore the opinion of this Court, that the judgment of the circuit court be and the same is hereby
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District 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 circuit court in this cause be, and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein in conformity to the opinion of this Court.