The opinion of the Court was delivered by
Todd, J.
This case presents a controversy between plaintiff and defendant respecting the land described in the petition as the N. E. J Section 1, T. 20, K. 15, situated in the Parish of Caddo.
Both parties claim to have acquired it from the State, it being swamp [1028]*1028land and embraced in the donations of swamp lands made to the State by the United States under sundry Acts of Congress.
The plaintiff claims under an entry made on the 17th of March, 1862, by Chesley C. D. Williams, and several mesne conveyances from him.
The defendant claims under an entry made in 1878 and a patent issued the same year.
The plaintiff’s title being the oldest, must prevail, unless successfully impeached. It is assailed on several grounds, which are thus stated in the brief of defendant’s counsel:
1. In 1861 the land in dispute was nnsnrveyed, and belonged to the* public domain of the United States, and the State government, organized, in Louisiana at that time, had no power or authority to sell said land.
2. Because the pretended Receiver, who issued the receipt sued on, had no authority or power to sell said land, either as-the property of the United States or of the State of Louisiana.
3. Because said pretended sale was never recorded on the maps of the State Land Office, as expressly required by law.
4. Because, in 1861, the said land was not subject to sale or entry, and the said Williams entered said land not for himself, but for R. T. Noel, in fraud of the laws of the United States and of the State.
These several grounds we will proceed to consider:
Mrst. If the land in 1861 belonged to the United States, then neither party has a title to it, as both claim from the State, and the only title ever acquired by the State .was under the swamp land acts of 1849 and 1850, and approvals of the selections made thereunder, either by the Secretary of the Treasury or other proper officer, or by Act of Congress.
Approvals of the selections were made in 1852 by the Secretary of the Treasury, and subsequently, in 1857, by Act of Congress, and embraced the land now in dispute. These approvals covered all lands donated to the State, selected up to those dates, whether surveyed or unsurveyed, although, as will hereafter appear, the Acts contemplated that the lands would be surveyed before selected, and the approvals created a presumption that they were so surveyed.
If the lands in question belonged to the State at that time, and there was no legal obstacle in the way of the sale, by reason of some provision of the State law, the State had the power to make the sale, under-its government as then organized. It is true that, at the time, the State was a member of a Confederacy then at war with the United States, but that fact worked no forfeiture of title to her lands or any other property within her limits. The State had preserved her au[1029]*1029tonomy complete, possessing a government fully organized, each department thereof in the full exercise of all its powers and functions, and whose existence was in no manner affected by the state of war then existing.
Therefore, the State had the power to sell its lands.
Second. As to the authority of the Receiver to allow the entry and issue the certificate, it depended upon the provisions of the State law regulating the sales of the public lands. His capacity was sufficient, as an officer of the State government in charge of the land department, and the only question is, whether, in thus disposing of it by entry, he violated any law of the State.
It is irrged that this land was not subject to sale by private entry or under the right of preemption at that time, because, as alleged, it was then unsurveyed. This seems to be the main point in the controversy.
The Act 267 of 1861 forbade the sale of any public land, unless it had been offered for sale at public auction, by legal subdivisions, by the State, or had been so offered by the U. S. Government, and by same Act entries by preemption right could not be made before the lands were surveyed. This implied that no title could be acquired of the unsurveyed lands.
As stated before, the approval of these swamp lands to the State created the presumption that they had been surveyed.
The 2d section of the Act of 1849 authorized the Secretary of the Treasury to approve certified lists of swamp lands which had been surveyed by the State. The survey being a prerequisite to such approval, the legal presumption arises that it had been complied with, the approval having been made.
The counsel for the defendant, however, urges that this presumption is not conclusive, and that they have shown by proofs in the record, that the surveys were not then made. They point us to the survey made in 1872, called Parson’s Survey, as establishing this fact. This only proves that a survey of the Township embracing this Section was then made, but that is not conclusive against a prior survey having been made. That a survey of the whole Township, or of part of it, must have previously been made in 1840, appears from an abstract of the records of the U. S. Laud Office, which shows that, on the 27th of January of that year, the whole Township purports to have been offered at public sale, which, of course, pre-supposes that the whole of it had, even at that time, been surveyed. We refer to this in this connection, as establishing that more than one survey of the same lands may have [1030]*1030been made, but not as conclusive evidence that tbe land in dispute was at that time surveyed.
Tbe counsel of tbe defendant contend that the whole Township could not then have been offered, for a map or plat of the lands accompanying the abstract referred to shows that the Section embracing this laud could not have been offered and had not then been surveyed, because the area or number of acres of the Section is left blank. On the other-hand, we are pointed to another abstract in the transcript, showing that partial surveys of this Section were made as far back as 1837 and 1839.
Under this state of facts, we are not satisfied that the evidence submitted conclusively establishes that no survey of the lands had been made at the date of the plaintiff’s entry, or, in other words, that the legal presumption, arising from the approval of the lands on the part of the general government, has been rebutted. Giving full effect to the apposing proof, the several abstracts offered, non constat that there might not have been a survey of the land between 1849 and 1871, admitting that none was made previous to the year first mentioned, though no evidence of the samé may appear in the record, the abstracts from the land office records, found in the transcript, do not purport to comprise all the entries relating to the land in controversy.
Third. It appears that the entry of Williams, under which the plaintiff claims, was recorded in the office where it was made. If it was a valid entry, and the title to the land passed thereby, this title could not be divested by a failure to record in the office subsequently established} such failure could only raise the question whether the entry was ratified by the effect of Act 104, Sec.
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The opinion of the Court was delivered by
Todd, J.
This case presents a controversy between plaintiff and defendant respecting the land described in the petition as the N. E. J Section 1, T. 20, K. 15, situated in the Parish of Caddo.
Both parties claim to have acquired it from the State, it being swamp [1028]*1028land and embraced in the donations of swamp lands made to the State by the United States under sundry Acts of Congress.
The plaintiff claims under an entry made on the 17th of March, 1862, by Chesley C. D. Williams, and several mesne conveyances from him.
The defendant claims under an entry made in 1878 and a patent issued the same year.
The plaintiff’s title being the oldest, must prevail, unless successfully impeached. It is assailed on several grounds, which are thus stated in the brief of defendant’s counsel:
1. In 1861 the land in dispute was nnsnrveyed, and belonged to the* public domain of the United States, and the State government, organized, in Louisiana at that time, had no power or authority to sell said land.
2. Because the pretended Receiver, who issued the receipt sued on, had no authority or power to sell said land, either as-the property of the United States or of the State of Louisiana.
3. Because said pretended sale was never recorded on the maps of the State Land Office, as expressly required by law.
4. Because, in 1861, the said land was not subject to sale or entry, and the said Williams entered said land not for himself, but for R. T. Noel, in fraud of the laws of the United States and of the State.
These several grounds we will proceed to consider:
Mrst. If the land in 1861 belonged to the United States, then neither party has a title to it, as both claim from the State, and the only title ever acquired by the State .was under the swamp land acts of 1849 and 1850, and approvals of the selections made thereunder, either by the Secretary of the Treasury or other proper officer, or by Act of Congress.
Approvals of the selections were made in 1852 by the Secretary of the Treasury, and subsequently, in 1857, by Act of Congress, and embraced the land now in dispute. These approvals covered all lands donated to the State, selected up to those dates, whether surveyed or unsurveyed, although, as will hereafter appear, the Acts contemplated that the lands would be surveyed before selected, and the approvals created a presumption that they were so surveyed.
If the lands in question belonged to the State at that time, and there was no legal obstacle in the way of the sale, by reason of some provision of the State law, the State had the power to make the sale, under-its government as then organized. It is true that, at the time, the State was a member of a Confederacy then at war with the United States, but that fact worked no forfeiture of title to her lands or any other property within her limits. The State had preserved her au[1029]*1029tonomy complete, possessing a government fully organized, each department thereof in the full exercise of all its powers and functions, and whose existence was in no manner affected by the state of war then existing.
Therefore, the State had the power to sell its lands.
Second. As to the authority of the Receiver to allow the entry and issue the certificate, it depended upon the provisions of the State law regulating the sales of the public lands. His capacity was sufficient, as an officer of the State government in charge of the land department, and the only question is, whether, in thus disposing of it by entry, he violated any law of the State.
It is irrged that this land was not subject to sale by private entry or under the right of preemption at that time, because, as alleged, it was then unsurveyed. This seems to be the main point in the controversy.
The Act 267 of 1861 forbade the sale of any public land, unless it had been offered for sale at public auction, by legal subdivisions, by the State, or had been so offered by the U. S. Government, and by same Act entries by preemption right could not be made before the lands were surveyed. This implied that no title could be acquired of the unsurveyed lands.
As stated before, the approval of these swamp lands to the State created the presumption that they had been surveyed.
The 2d section of the Act of 1849 authorized the Secretary of the Treasury to approve certified lists of swamp lands which had been surveyed by the State. The survey being a prerequisite to such approval, the legal presumption arises that it had been complied with, the approval having been made.
The counsel for the defendant, however, urges that this presumption is not conclusive, and that they have shown by proofs in the record, that the surveys were not then made. They point us to the survey made in 1872, called Parson’s Survey, as establishing this fact. This only proves that a survey of the Township embracing this Section was then made, but that is not conclusive against a prior survey having been made. That a survey of the whole Township, or of part of it, must have previously been made in 1840, appears from an abstract of the records of the U. S. Laud Office, which shows that, on the 27th of January of that year, the whole Township purports to have been offered at public sale, which, of course, pre-supposes that the whole of it had, even at that time, been surveyed. We refer to this in this connection, as establishing that more than one survey of the same lands may have [1030]*1030been made, but not as conclusive evidence that tbe land in dispute was at that time surveyed.
Tbe counsel of tbe defendant contend that the whole Township could not then have been offered, for a map or plat of the lands accompanying the abstract referred to shows that the Section embracing this laud could not have been offered and had not then been surveyed, because the area or number of acres of the Section is left blank. On the other-hand, we are pointed to another abstract in the transcript, showing that partial surveys of this Section were made as far back as 1837 and 1839.
Under this state of facts, we are not satisfied that the evidence submitted conclusively establishes that no survey of the lands had been made at the date of the plaintiff’s entry, or, in other words, that the legal presumption, arising from the approval of the lands on the part of the general government, has been rebutted. Giving full effect to the apposing proof, the several abstracts offered, non constat that there might not have been a survey of the land between 1849 and 1871, admitting that none was made previous to the year first mentioned, though no evidence of the samé may appear in the record, the abstracts from the land office records, found in the transcript, do not purport to comprise all the entries relating to the land in controversy.
Third. It appears that the entry of Williams, under which the plaintiff claims, was recorded in the office where it was made. If it was a valid entry, and the title to the land passed thereby, this title could not be divested by a failure to record in the office subsequently established} such failure could only raise the question whether the entry was ratified by the effect of Act 104, Sec. 12, confirming sales of land made by the State from the 1st January, 1861 to the 14th October, 1864.
Fourth. As to the land being entered by Williams for the benefit of another person, and in fraud of the laws of the State, it is-sufficient to say that the evidence does not establish this. In the absence of such proof, the presumption must prevail that the officer did his duty, and issued the certificate, upon being satisfied that all the conditions for the entry had been complied with by the party in whose favor it was issued.
In addition to the above, we would state that, although the plaintiff claims title from the State upon the certificate of entry, an extract from the records of the land office where the entry was made, found in the transcript, shows that a patent for the land was subsequently received at that office. We think it was competent to establish this [1031]*1031fact by the extract referred to, and without the production of the patent itself.
In regard to the matter of improvements, we have carefully examined the evidence relating thereto, and think the Judge below did substantial justice between the parties.
Judgment affirmed.