THIS case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act.
The facts in the case are stated in the opinion of the court.
It was argued by Mr. Baxter and Mr. Johnson for the plaintiff in error, and by Mr. Lawrence and Mr. Taylor for the defendants.
The following notice of the points for the plaintiff in error is taken from the brief of Mr. Baxter:
I. John Bell was the purchaser of the land from the United States, and James Bell had no right or interest in it.
The receiver's receipt and his certificate prove the purchase was made by John Bell, and vested in him all the inchoate title which could be vested by the purchase.
It was the duty of the register to issue a certificate conforming to the receiver's receipt.
On this receipt, no certificate of purchase could lawfully be given to any other person than John Bell or his assignee; and an assignment, to be acted on by the officers of the land office, must be executed before the register, or a judge, or justice of the peace; must be preserved in the register's office until certificate granted, and must then be sent to the Department. And in the certificate to the assignee the name of the original purchaser must be inserted throughout, except in the last entry, preceding the words 'shall be entitled.' (See Circular to Registers of July 5, 1805, Land Laws, 2d vol., 257-'8; do. May 5, 1821, 307; do. May 29, 1820, 302; May 5, 1831, sec. 19, p. 446; sec. 32, pp. 451 and 466.)
No assignment by John Bell, the purchaser, to James Bell, exists, nor is it pretended any ever was made. The insertion of the name of James Bell in the register's certificate was a mere misnomer.
The cancellation of this certificate affords stringent evidence that this was a mere error, and it is confirmed by the fact that when the patent was demanded, John Bell held the certificates, on the production of which the patent was to issue.
II. James Bell having no right or interest in this land, the attempted sale under the execution of St. John Fabre & Co. against James Bell was a nullity, and created no estate, right, or interest, in the supposed purchaser, Smith, or those claiming under him, and gave to him or them no right to demand a patent, either to James Bell, or to them as assignees of James Bell.
Code of Louisiana, article 2,427: 'The sale of a thing belonging to another person is null. It may give rise to damages, when the buyer knew not the thing belonged to another.'
Under an execution, the interest of the debtor, only, in the property can be sold. The right of a stranger to the record and proceeding will not pass thereby.
III. James Bell having no title or interest in this land, and the pretended purchasers under the execution not having acquired any right or interest therein, John Bell was the only person who could be recognised by the United States as entitled to a patent, and the act of making a patent in the name of James Bell was an accident, which, if uncorrected, would defeat the contract of sale; but which, by the practice of the land office and the law of the land, might be corrected as long as the patent was in the power of the land office. And if such erroneous patent had been delivered, it might be returned and cancelled; and if the holder refuses to deliver it up to be cancelled, the United States may institute proceedings to cancel it, or may authorize the party injured to institute such proceedings in the name of the United States. (See Putnam's Case, and Opinion of Mr. Wirt, 2 Land Laws, 27-'8; Opinion of Mr. Wirt, p. 24; Master's Case, pp. 32, 34; Opinion of Mr. Butler, 86-'7; Regulations, May 4 and 6, 1836, pp. 92-'3; Opinion of Mr. Butler, pp. 123-'4.)
For the common-law doctrines, reference is made to the 17th vol. Viner, p. 78, title Prerogative, letter (G b 2.)
The King's grant is void in five cases: 1st. When he is misinformed. 2d. Misrecital shall avoid it. 3d. If the King be deceived in matter of fact or matter of law. 4th. Want of form. 5th. When the thing granted is in the King, or comes to him in another manner than he supposes.
In Barwick's case, (5 Coke, 94,) it is said: 'And it is a maxim, that if the consideration which is for the benefit of the Queen, be it executed or be it executory, or be it on record or not on record, be not true or be not duly performed, or if prejudice may accrue to the Queen, by reason of the non-performance of it, the letters-patent are void.'
In the case of the Alton Woods, (1 Coke Rep., 51 a,) it held, if the King's grant cannot take effect, according to his intent, it is void.