This writ of error brings before us a judgment of the Supreme Court of Louisiana, under the twenty-fifth section of the judiciary act of 1789.
On the 15th of June, 1837, a patent was issued by the United States to Elijah Evans and Levi Blakeley for one hundred and thirty-three acres and eight hundredths of an acre, being lots numbered one and three of section six in township sixteen of range thirteen east, in the district of lands subject to sale at Ouachita, Louisiana. The patentees having settled upon the above tract, and each having made improvements thereon, claimed a pre emptive right under the act of the 29th of May, 1830. The second section of that act provides,-'That if two or more persons be settled upon the same quarter-section, the same may be divided between the two first actual settlers, if by a north and south, or east and west, line the settlement or improvement of each can be included in a half-quarter-section.'
The plaintiff applied, by petition, to the Ninth District Court of Louisiana for a partition of the above tract, which, it seems, was submitted to a jury, and on the trial of which 'the judge charged the jury that the act of Congress of May 29th, 1830, entitled 'An act to grant pre emption rights to settlers on the public lands,' was not applicable to the case before the court and jury; that the said act had no binding force as to the dividing or partitioning lands granted to settlers on the same quarter-section or fractional quarter-section after issuing a patent therefor, but that such division and partition must be in conformity with the laws of Louisiana and the principles of equity and justice.' To which charge an exception was taken, and on which an appeal was prosecuted to the Supreme Court of the State, which affirmed the judgment of the District Court.
How the parties to this suit became interested in the tract of land above patented does not appear from the record. In the petition and answer, they are represented as owners of the premises, and they are treated as such by the District and Supreme Courts of Louisiana.
The second section of the preemption law above cited refers to a quarter of a section, which contains one hundred and sixty acres; and as the tract of which partition is demanded is less than a quarter, it does not come within the law. Had application been made for a division of the tract to the proper department of the government, before the emanation of the patent, it could not, as we suppose, have been considered as coming within the act, so as to authorize a partition and a patent to each of the claimants. A patent having been issued to the claimants for the tract jointly, as tenants in common, and they having conveyed the land, which has become vested in the parties to this record, it is now a question on what principle a division shall be made.
If the parties entitled to the pre emptive right might have applied for a partition under the act of Congress, but preferred taking the patent as issued, it is difficult to perceive how the present claimants could go behind the patent, in the assertion of a right which was waived by those with whom it originated. The patent vested in the patentees a joint interest as tenants in common, and the same interest was conveyed through their grantees down to the present owners. It does not appear, and the court cannot presume, that any greater or different right was conveyed than that which is shown on the face of the patent.
In this view, we think the decision of the Louisiana court was correct. It directed a partition on equitable principles, under the local law, reserving to each claimant his improvements. And it appears from the facts in the case, that this could not be done by straight lines running north and south or east and west.
As the right asserted in this case by the plaintiff does not arise under an act of Congress, this court has no jurisdiction by the twenty-fifth section.
There seems to have been no allowance of the writ of error, and it was directed to the District instead of the Supreme Court of Louisiana. As this court can only revise the judgment of the highest court in the State which can exercise jurisdiction in the case, the writ of error should be directed to such court; unless the record shall have been transmitted to an inferior tribunal. But, independently of these irregularities, we think that this court have no jurisdiction under the act of Congress, and on this ground this suit is dismissed.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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