Marshall v. Fogleman , 14 La. 151 ( 1839 )

Strawbridge, J:,

delivered the opinion of the court.

The plaintiff claims twenty acres of land, being part of a larger tract of ninety-six acres situated on Bayou Bosuf, together with the back concession, which he alleges the defendant entered after having sold him the front.

The defendant., after an answer denying his right, and an. amended answer, filed a second amended answer, in which he admitted the plaintiff’s right, and agreed to a partition according to their written agreement. This agreement referred to a private act filed in the land office, a copy of which was produced at trial, but rejected as not being evidence. On the correctness of this decision, to which a bill of exceptions was taken, we do not decide, as we come to the same conclusions as though it had been admitted.

The defendant was owner of two tracts — No. 2, of ninety-six acres lying on Bayou Bceuf, acquired from the United States on the 20th May, 1831, and No. 1, lying in the rear and between No. 2 and the township line, which we understand to be the back concession spoken of, acquired from the United States 25th July, 1833.

Where a part of the calls and boundaries expressed in a deed are inconsistent with the stipulations in the con-tractof sale, and impossible to be complied with, they will be disregarded.

The act of sale from defendant to plaintiff bears date 22d October, 1833. From these dates it is clear that the defendant, owning both front and rear at the time of sale, the plaintiff had no right to the back concession, unless it had been specially conveyed by the defendant.

The difficulty is to ascertain where the twenty acres are to be laid off. The description in the act is of twenty acres, “ to be taken from the lower part of the tract on Bayou Boeuf running east to the township line, being the same entered on the 19th May, 1831, and a part of lot No. 2, purchased by an agreement between M'Daniel and the defendant.”

This agreement is the one, a copy of which was excluded as above stated. To run this line to the township line, the survey must cross the rear tract, and in doing this the land would not be taken from lot No. 2, purchased in May, 1831, but must cross and include a part of No. 1, purchased in July, 1833. To decide on this discrepancy, the only further guide left us is a plat made by order of the District Court, and the instructions of the defendant’s attorney given to the surveyor appointed by the court, which’ state that the land sold was part of the ninety-six acres, but still directs it to be laid off running to the township line. It is certain the land made part of the ninety-six acre tract. To lay it off “running to the township line,” was impossible, as this tract did not reach there. We therefore think the decree of the District Court, directing the twenty acres to be taken from the two tracts, was erroneous.

It is, therefore, ordered and decreed, that the judgment be reversed, and that the plaintiff recover the space marked on the plat by the red letters A, B, D, E, forming part of No. 2, containing ninety-six acres, entered 19th May, 1831, and that the defendant pay the costs of both courts.