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ALMONESTER V. KENTON, 50 U. S. 1 (1850)

U.S. Supreme Court

Almonester v. Kenton, 50 U.S. 9 How. 1 1 (1850)

Almonester v. Kenton

50 U.S. (9 How.) 1


State courts have a right to decide upon the true running of lines of tracts of land, and this Court has no authority to review those decisions under the twenty-fifth section of the Judiciary Act.

Where the decision was that the true lines of the litigants did not conflict with each other, but the losing party alleged that her adversary's title was void under the correct interpretation of an act of Congress, this circumstance did not bring the case within the jurisdiction of this Court.

Nor is the jurisdiction aided because the state court issued a perpetual injunction upon the losing party. This was a mere incident to the decree, and arose from the mode of practice in Louisiana, where titles are often quieted in that way.

This case was brought up upon the ground that there was drawn in question the validity of a statute and an authority exercised under the United States, and the decision was against the validity of the said statute or authority; also that there was drawn in question the construction of a clause of a treaty and of a statute of the United States, and the decision was against the title, right, and privilege specially claimed and set up under such clauses of said treaty and statute.

As the suit was more analogous to an ejectment than to any other remedy known to the common law, it will be best explained by showing the title set up by the respective parties. The first step in the proceedings was the filing of the following petition on December 28, 1831.

"To the Honorable the District Court of the First District of the State of Louisiana. The Petition of Joseph Kenton, residing in the City of New Orleans, respectfully shows: "

"That your petitioner is the lawful and only proprietor and

Page 50 U. S. 2

owner of a tract of land situated in the rear of the City of New Orleans between the inhabited part of the city and the Bayou St. Jean, said tract having two arpents front on the southwesterly side of the Canal Carondelet, near the first half-moon, and extending in depth between parallel lines to Common Street, on which also it fronts, the one side line being seventeen arpents ten toises and two feet, and the other seventeen arpents and five toises in length, all of which appears more particularly by a plan of said tract of land drawn by Charles F. Zimpel, late a sworn surveyor, dated 11 February, 1835, and deposited in the office of Theodore Seghers, Esq., notary public of this city, on which plot your petitioner's tract of land is designated as No. 3 and is marked on the general plan of the City of New Orleans executed and published by the said Charles F. Zimpel, 'Wdw. Fleitas.'"

"Your petitioner acquired said tract of land of Jean Manuel Fleitas, Barthelemy Fleitas, and Virginie Fleitas, wife of Louis Aime Pigneguy, by Act passed before the said Theodore Seghers, notary public, on 19 May 1835."

"Your petitioner alleges that from that period until the present time he has had the quiet possession of said tract of land, and that those from whom he derived title have had the peaceable and uninterrupted possession of the same, under perfect titles, for upwards of thirty-five years."

"Your petitioner further shows that notwithstanding the premises, Mrs. Michaela Leonarda Almonester, the wife of Joseph Xavier Celestin Delfau, Baron of Pontalba, separated from bed and board from the said husband by a judgment of the tribunal of the first instance, at Senlis, in France, bearing date 25 February, 1836, has, by her agent, Noel Barthelemy Le Breton, residing in this city, offered for sale at public auction, to be sold on the 28th day of this present month, through Messrs. Mossy & Garidel, auctioneers, a certain tract of land divided into a great number of lots, fronting on the bayou road and extending across the Canal Carondelet, over the property of your petitioner, to Common Street."

"Your petitioner further shows that the said Noel Barthelemy Le Breton has been constituted the general and special agent at New Orleans of the said Mrs. Pontalba by powers of attorney executed before Berceau and his colleague, notaries at Paris, in France, where she resides. That your petitioner has amicably requested the said agent to desist from this intended sale as far as it affects the above-described property of your petitioner, and would disturb him in the peaceable possession thereof, but he refuses to yield to said request. "

Page 50 U. S. 3

"Your petitioner therefore prays that a writ of injunction may issue enjoining the said Mrs. Pontalba and Noel Barthelemy Le Breton, her agent, as well as Messrs. Mossy & Garidel, the above-mentioned auctioneers, from proceeding to sell, until the further order of the court, such of the above-mentioned lots of ground as are situated on the above-described tract of land belonging to your petitioner."

"Your petitioner further alleges that the said Mrs. Pontalba and her agent pretend title to the aforesaid property of your petitioner and hold out to the public that your petitioner has no title to the same, and by their deeds and words aforesaid have caused him damage to the amount of five thousand dollars, which he is entitled to recover, and to have them enjoined from ever pretending title to said property."

"Wherefore your petitioner respectfully prays that the said Mrs. Pontalba, by her agent Noel Barthelemy Le Breton, may be cited to appear and answer this petition and to set forth by what title she claims the property above described of your petitioner, and that after all due and legal proceedings judgment may be rendered in favor of your petitioner against the said Mrs. Pontalba, that the sale by her of any part of the above-described tract of land belonging to your petitioner be perpetually enjoined and that she may be moreover perpetually enjoined from pretending title to said property, that she be condemned to pay to your petitioner five thousand dollars damages, with all costs of suit; and that your Honor would afford all such other and further relief as the nature of his case may require, and as to justice and equity may belong. As in duty bound &c."

"[Signed] ISAAC T. PRESTON, Att'y for Petitioner"

To this petition the defendant filed the following answer.

"The Answer of Michaela Leonarda Almonester, the Wife separated from bed and board of Joseph Xavier Celestin Delfau Pontalba, herein represented by Noel Barthelemy Le Breton, her attorney in fact, to the petition filed in this Court at the suit of Joseph Kenton, of New Orleans: "

"This respondent comes now into court by her counsel, and for answer says that she denies all and singular the facts and allegations in the said petition set forth. And this respondent, further answering, says that the plaintiff could derive no title whatsoever to the property by him claimed from the transfer unto him executed by Jean Manuel Fleitas, Barthelemy Fleitas, and Virginie Fleitas, per act before T. Seghers, notary, of 19 May, 1835. "

Page 50 U. S. 4

"This respondent denies that the plaintiff's vendors had at any time any good title to the property by them sold, or were ever in possession thereof."

"This respondent, on the contrary, contends that she is the sole and lawful proprietor of the land claimed by the plaintiff, and that she has had title to as well as possession of the same for fifty-five years and upwards."

"That this respondent further says that the injunction sued for and obtained by said Kenton against the sale of said property was unjust, illegal, and malicious, and has inflicted injury to the interests of this respondent to an amount exceeding twenty-five thousand dollars, wherefore this respondent prays that said injunction be dissolved at the costs of the plaintiff, that she be permitted to reconvene against him and have judgment for the said sum of twenty-five thousand dollars, and to that effect that the said Kenton be cited to appear and answer this petition in reconvention and be condemned as prayed for."

"And this respondent prays for all other and further relief which the nature or equity of the case may require."

"And this respondent will ever pray &c."



"C. DERBIGNY, Of Counsel"

Much documentary evidence was filed, and oral testimony taken in open court, all of which was inserted in the record.

When the cause came on for trial, in February, 1838, the plaintiff, Kenton, produced a Spanish grant, dated 20 May, 1801, issued to Carlos Guardiola, by Don Ramon de Lopez y Angulo, the intendant of Louisiana, and a regular chain of conveyances from the original grantee down to himself. This grant covered the land in dispute.

The defendant claimed title under the following documents:

1st. A concession to Louis Cezaire Le Breton, in 1752.

2d. A concession to Alexandre Latil, in 1764.

Upon the trial, the district court decided that neither of these concessions included the land in controversy.

The defendant then relied upon a plea of prescription which had been previously filed, being a plea of prescription of ten, twenty, and thirty years. But the court overruled the plea for each of these periods of time.

The case was carried by appeal to the Supreme Court of the State of Louisiana, where the argument involved the following points, viz.:

1. That the grant to Guardiola was void, because, after 1 October, 1800, the date of the Treaty of San Ildefonso,

Page 50 U. S. 5

Spain was no longer the sovereign of Louisiana, and because the 14th section of the Act of Congress passed on 26 March, 1804, declared all such grants to be null and void. But the court overruled these objections to the grant, and also decided that the district court was right in saying that the two concessions set up by the defendant did not cover the land in dispute, and in saying also that the plea of prescription was not well founded. The supreme court therefore affirmed the judgment of the district court; which was that the injunction served upon the defendant should be made perpetual.

A rehearing was afterwards granted on the single question whether Guardiola's grant was protected by the proviso to the 14th section of the Act of Congress of 26 March, 1804. That section declares

"That all grants for lands within the territories ceded by the French Republic to the United States by the Treaty of 30 April, 1803, the titles whereof were, at the date of the Treaty of San Ildefonso, in the Crown, government, or nation of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining of any grant, title, or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and to have been from the beginning, null and void, and of no effect in law or equity; provided, nevertheless, that anything in this section contained shall not be construed to make null and bona fide grant, made agreeable to the laws, usages, and customs of the Spanish government, to an actual settler on the lands so granted for himself, and his wife and family; or to make null and void any bona fide act or proceeding done by an actual settler, agreeably to the laws, usages, and customs of the Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement in either case was actually made prior to 20 December, 1803,"


After the rehearing, the court decided that the grant to Guardiola was embraced in the proviso which protects actual settlers before the cession to the United States, and was also protected by the treaty of cession itself.

From this judgment a writ of error brought the case up to this Court.

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