THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.
On the 30th of 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 the 30th of January, 1835, Thomas executed a deed to George Poindexter, in which, for the consideration of $7500, 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 the 20th of November, 1835, Poindexter entered into articles of copartnership 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., the 20th of 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 30th, 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 the 30th day of 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 the 27th of November, 1840, Thomas and Poindexter executed the following instrument, viz.:–
Parish of East Baton Rouge.
'Whereas, on the 30th day of 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 27th day of November, 1840.
(Signed,) PHILEMON THOMAS,
'CHARLES R. TESSIER, Notary Public.'
On the 26th of 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 use and behoof, forever. This deed was duly executed and recorded.
On the 15th of 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 the 28th of March, 1844, Erwin executed a deed to Gilmer, conveying the lands to him for ...