Mr. Justice DANIEL
delivered the opinion of the court.
This is a writ of error to a judgment of the Circuit Court of the United States for the District of Louitiana.
The defendant in error instituted a petitory action in the court just mentioned, to recover certain lands in Louisiana in the possession of James B. Gilmer, the plaintiff in error.
The petition of Poindexter sets forth, that by an act of Congress approved on the 30th day of May, 1834, entitled “ An Act granting to General Philemon Thomas a tract of land in consideration of military services, &c.,” the said Thomas was authorized to. enter, without payment, two sections of land on any of the.lands of the United States in Louisiana. That Thomas, on the 30th of January, 1835, sold to the petitioner this right of entry, and authorized him, or his substitute, to make the location in the name of Thomas. That the petitioner afterwards caused said location to be made on two sections of land in Louisiana,.north of Red River, one of which (de-' scribed in parcels) contained 619-,^ acres, and is the land in controversy.
That after this location, viz. on the 27th of November, 1840, Thomas by notarial act transferred to the petitioner all the right, title, &e., which he, Thomas, then had,.or thereafter might have, to the two sections so located, and authorized the petitioner to obtain a patent therefor in his own name.' That on
the 26th of March, 1841, a patent was issued for the lands to Thomas, by virtue of which, and of the sale and transfer of the 27th of November, 1840, the petitioner avers that he became the legal owner of the lands claimed, and is entitled to the possession thereof. That Gilmer has taken unlawful possession of one section of the land in township 19, range 14, and refused to surrender it to the petitioner, who therefore prays judgment for possession of the land, and for rents and profits. The agreements between Thomas and Poindexter of the 30th of January, 1835, and of the 27th day of November,, 1840-, and the patent to Thomas of the 26th day of March, 1841, referred to in the petition, were filed as exhibits therewith.
The tenant in possession, Gilmer, after a general denial in his answer of any right or title to the land in the petitioner, alleges that he is the possessor and true owner of the land claimed, by purchase in good faith for valuable consideration from James W. Patten, by a notarial act executed in New Orleans on the 28th of May, 1844; that Patten’s conveyance to him was with general warranty, and he therefore avouches Patten in warranty; and prays that, in the event of his eviction, he may have a recovery over against his warrantor, Patten, for the value of the land and improvements made by the defendant. This cause, according to the practice in the State- of Louisiana, was tried by the court, without the intervention of a jury, and the court, after hearing the parties, by its opinion expressed on the 10th day of May, but signed on the 28th of June, 1848, and considered as of the day last named, gave the following judgment, viz.: — “It is ordered, adjudged, and decreed, that judgment be rendered in favor of the plaintiff, George Poindexter, and against the defendant, James B. Gilmer, for the premises described in the plaintiff" petition, and that the said Gilmer surrender to the plaintiff the possession of the following described parcels of land, &c., and that the plaintiff have a writ .of
habere facias possessionem
to place him in legal possession' thereof. The right of the plaintiff for mesne'profits' and of the defendants to sue for improvements, is reserved respectively.”
In addition to the documents above mentioned, filed as exhibits with the plaintiff’s petition, there was offered in evidence on the part of the petitioner, and admitted by the court, an instrument of writing executed on the 20th day of November 1835,. between Poindexter and one Felix Huston, in which it was amongst other things recited, that the parties to that instrument had formed a partnership for the purposes of purchasing lands of the United States, or preemption rights, or en
tries of individuals, for the joint and mutual benefit of the parties ; and that the said Poindexter, having purchased of General Philemon Thomas his right to locate the quantity of twelve hundred and eighty acres of land on any of the public lands in Louisiana, granted by an act of. Congress passed on the 30th of June, 1834, and having .obtained of the said Thomas, on the 30th of January, 1835, a conveyance of his said right of entry, which yet remains unlocated, the said Poindexter agreed to convey to the said Huston his right of entry derived under the said deed, in the sanie, manner as he acquired the same from the Baid Philemon Thomas, so that the said entry may be made in the name' of the said Felix Huston, to be held by him for the joint and equal benefit of him the said George Poindexter, &c. This instrument,' being a private declaration of trust between Poindexter and Huston, not evidenced by any record or other public acknowledgment of the, parties, was attested by a single witness, William Burns, who was not called at the trial to prove its execution, was received in evidence by the court without such proof, and its reception was excepted to for that causé. It does not appear, moreover, that a knowledge of this instrument was brought home either to Patten or to Irwin, his attorney in fact, from whom Patten purchased.
The plaintiff in error relied in the Circuit Court on the following proofs: — 1st. On the act of Congress granting the right of entry to Thomas. 2dly. On the public act and conveyance from Thomas to Poindexter, as recited in the petition. 3dly. The plaintiff in error next adduced in proof a public and authentic act of sale and conveyance, on the 20th of November,' 1835, to Huston, in. absolute right, of all his, Poindexter’s, title, interest, and estate in the grant to Thomas, then vested, or Which might vest at any future period. 4thly. The public authentic act of Huston, conveying the land in controversy with general warranty, on the 20th of January, 1844, and reciting in its terms the conveyance from Thomas to Poindexter of the 30tb of January, 1835, and that of Poindexter to Huston of the 20th of November, 1835,- and describing the land so conveyed .as that “which was located by said Huston according to the provisions of the above-mentioned act of Congress.” 5thly.. The public authentic act of Patten, constituting Irwin his attorney in fact to sell and convey the lands purchased of Huston. And 6thly, and -lastly, the conveyance by Patten, by his said attorney, Irwin, of the lands in controversy to Gilmer, the tenant in possession in March, 1844, with warranty.
In considering this case, it is. proper to carry with us' throughout,. as a standard by which to test the proceedings in the Cir
cuit Court and the decision founded upon them, this controlling principle, — that the petitory action is a proceeding at law for' the recovery of property, and can be maintained in the courts of the United States only where the right of possession can be shown, and, according to the principles'and distinctions settled in this court, corresponds in character with the action of ejectment at common'law.
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Mr. Justice DANIEL
delivered the opinion of the court.
This is a writ of error to a judgment of the Circuit Court of the United States for the District of Louitiana.
The defendant in error instituted a petitory action in the court just mentioned, to recover certain lands in Louisiana in the possession of James B. Gilmer, the plaintiff in error.
The petition of Poindexter sets forth, that by an act of Congress approved on the 30th day of May, 1834, entitled “ An Act granting to General Philemon Thomas a tract of land in consideration of military services, &c.,” the said Thomas was authorized to. enter, without payment, two sections of land on any of the.lands of the United States in Louisiana. That Thomas, on the 30th of January, 1835, sold to the petitioner this right of entry, and authorized him, or his substitute, to make the location in the name of Thomas. That the petitioner afterwards caused said location to be made on two sections of land in Louisiana,.north of Red River, one of which (de-' scribed in parcels) contained 619-,^ acres, and is the land in controversy.
That after this location, viz. on the 27th of November, 1840, Thomas by notarial act transferred to the petitioner all the right, title, &e., which he, Thomas, then had,.or thereafter might have, to the two sections so located, and authorized the petitioner to obtain a patent therefor in his own name.' That on
the 26th of March, 1841, a patent was issued for the lands to Thomas, by virtue of which, and of the sale and transfer of the 27th of November, 1840, the petitioner avers that he became the legal owner of the lands claimed, and is entitled to the possession thereof. That Gilmer has taken unlawful possession of one section of the land in township 19, range 14, and refused to surrender it to the petitioner, who therefore prays judgment for possession of the land, and for rents and profits. The agreements between Thomas and Poindexter of the 30th of January, 1835, and of the 27th day of November,, 1840-, and the patent to Thomas of the 26th day of March, 1841, referred to in the petition, were filed as exhibits therewith.
The tenant in possession, Gilmer, after a general denial in his answer of any right or title to the land in the petitioner, alleges that he is the possessor and true owner of the land claimed, by purchase in good faith for valuable consideration from James W. Patten, by a notarial act executed in New Orleans on the 28th of May, 1844; that Patten’s conveyance to him was with general warranty, and he therefore avouches Patten in warranty; and prays that, in the event of his eviction, he may have a recovery over against his warrantor, Patten, for the value of the land and improvements made by the defendant. This cause, according to the practice in the State- of Louisiana, was tried by the court, without the intervention of a jury, and the court, after hearing the parties, by its opinion expressed on the 10th day of May, but signed on the 28th of June, 1848, and considered as of the day last named, gave the following judgment, viz.: — “It is ordered, adjudged, and decreed, that judgment be rendered in favor of the plaintiff, George Poindexter, and against the defendant, James B. Gilmer, for the premises described in the plaintiff" petition, and that the said Gilmer surrender to the plaintiff the possession of the following described parcels of land, &c., and that the plaintiff have a writ .of
habere facias possessionem
to place him in legal possession' thereof. The right of the plaintiff for mesne'profits' and of the defendants to sue for improvements, is reserved respectively.”
In addition to the documents above mentioned, filed as exhibits with the plaintiff’s petition, there was offered in evidence on the part of the petitioner, and admitted by the court, an instrument of writing executed on the 20th day of November 1835,. between Poindexter and one Felix Huston, in which it was amongst other things recited, that the parties to that instrument had formed a partnership for the purposes of purchasing lands of the United States, or preemption rights, or en
tries of individuals, for the joint and mutual benefit of the parties ; and that the said Poindexter, having purchased of General Philemon Thomas his right to locate the quantity of twelve hundred and eighty acres of land on any of the public lands in Louisiana, granted by an act of. Congress passed on the 30th of June, 1834, and having .obtained of the said Thomas, on the 30th of January, 1835, a conveyance of his said right of entry, which yet remains unlocated, the said Poindexter agreed to convey to the said Huston his right of entry derived under the said deed, in the sanie, manner as he acquired the same from the Baid Philemon Thomas, so that the said entry may be made in the name' of the said Felix Huston, to be held by him for the joint and equal benefit of him the said George Poindexter, &c. This instrument,' being a private declaration of trust between Poindexter and Huston, not evidenced by any record or other public acknowledgment of the, parties, was attested by a single witness, William Burns, who was not called at the trial to prove its execution, was received in evidence by the court without such proof, and its reception was excepted to for that causé. It does not appear, moreover, that a knowledge of this instrument was brought home either to Patten or to Irwin, his attorney in fact, from whom Patten purchased.
The plaintiff in error relied in the Circuit Court on the following proofs: — 1st. On the act of Congress granting the right of entry to Thomas. 2dly. On the public act and conveyance from Thomas to Poindexter, as recited in the petition. 3dly. The plaintiff in error next adduced in proof a public and authentic act of sale and conveyance, on the 20th of November,' 1835, to Huston, in. absolute right, of all his, Poindexter’s, title, interest, and estate in the grant to Thomas, then vested, or Which might vest at any future period. 4thly. The public authentic act of Huston, conveying the land in controversy with general warranty, on the 20th of January, 1844, and reciting in its terms the conveyance from Thomas to Poindexter of the 30tb of January, 1835, and that of Poindexter to Huston of the 20th of November, 1835,- and describing the land so conveyed .as that “which was located by said Huston according to the provisions of the above-mentioned act of Congress.” 5thly.. The public authentic act of Patten, constituting Irwin his attorney in fact to sell and convey the lands purchased of Huston. And 6thly, and -lastly, the conveyance by Patten, by his said attorney, Irwin, of the lands in controversy to Gilmer, the tenant in possession in March, 1844, with warranty.
In considering this case, it is. proper to carry with us' throughout,. as a standard by which to test the proceedings in the Cir
cuit Court and the decision founded upon them, this controlling principle, — that the petitory action is a proceeding at law for' the recovery of property, and can be maintained in the courts of the United States only where the right of possession can be shown, and, according to the principles'and distinctions settled in this court, corresponds in character with the action of ejectment at common'law.
The petitioner or plaintiff, therefore, in a petitory action, must recover upon the strength of his title, and that must be a legal, as contradistinguished from' an equitable title. See United States
v.
King et al., 7 How. 846, 847, and Livingston
v.
Story, 9 Peters, 632. Tried by this rule, wé are unable to perceive how the claim of Poindexter, as set forth in his petition, even if unaffected by his transactions with Huston, can be maintained in this action. The petitioner alleges that he purchased of Thomas his right of entry in virtue of the act of Congress, and received from Thomas a power to make a location in the name of the latter.
By this transaction, no legal title to any certain or specific land was conveyed, for nothing specific or certain was then vested in Thomas, and the power of locating alleged in the petition was a power to locate, not in the name of Poindexter, but in that of Thomas. The petitioner proceeds to state, that, after these locations made by him, Thomas, by an authentic act before a notary public, on the 27th of November, 1840 (a copy of which is filed with the petition), transferred to the petitioner all the right, title, &c., which he then had, or thereafter might have,, to the sections of land located in his name, and authorized. the petitioner to obtain a patent therefor. He further alleges, that afterwards, viz. on the 26th day of March, 1841, .a patent issued to Thomas for the lands located as aforesaid in his name, and that by virtue of these proceedings, viz. the transfer by Thomas in 1840, and the patent in 1841, the petitioner became invested with the legal title to the land in dispute. This alleged investiture of the legal title must have been supposed to rest upon an estoppel operated by the transfer and patent before mentioned, for, independently of such an operation, and by the literal terms of the patent, the title would certainly be in Thomas, and not in Poindexter. But we are of opinion that in this instance no estoppel has been operated. This legal effect can occur only where a party has conveyed a precise or definite legal estate or right, by a solemn assurance, which he will not be permitted to vary or to deny. It can have no operation to prevent the denial of an equitable transfer or title, which is not identical with the legal title or muniment of title which it may be relied on either to estab
Iish or protect. An estoppel, it is said, should be certain to every intent, and therefore, if a thing be not directly and precisely alleged, it shall not be estopped. Co. Lit. 303
a,
352 b. So, too, it is laid down, that to the success of an estoppel it is obviously necessary that the grantor’s want of a present vested estate should not appear on the deed itself, which would else contain internal evidence of its invalidity. 2 Sim. & Stu. 519; 3 Adol. & Ell. 12. And with regard to the mode of using an estoppel, it is said that it must be pleaded if there he an opportunity; otherwise, the party omitting to plead it waives the estoppel. See 2 Smith’s Leading Cases, 457, and the authorities there cited. Again, it is ruled, that an equitable title cannot be estopped by a verdict at law, for there is no such thing as an estoppel in equity. See Com. Dig.
Estoppel
(§ 1). Even upon the hypothesis, then, that the title set up by Poindexter under his agreement with Thomas could be regarded as a legal title, still upon .a comparison of the description of the property contained in those agreements with that of the land granted by the patent to Thomas, there is not that certainty and identity that are required by an estoppel, or such as will cause the land granted by the patent to Thomas to enure to Poindexter. But the right set-up by Poindexter under his contracts with Thomas remains strictly an equitable right, and therefore neither Thomas nor his alienee could be estopped from averring a right in the land contained in the patent, in opposition to such equitable claim.
But in another aspect of the question, supposing the interest transferred to Poindexter by the agreements with Thomas of January 30th, 1835, and May 14th, 1839, could be so construed as to have passed to the former a legal title; and admitting, too, that the description of the property contained in those agreements accorded in precise terms witn that of the lands granted to Thomas by the patent of March 20th, 1841, it would still remain to be inquired, whether Poindexter has not parted with his title, and would not in this aspect of the ease be estopped from setting it up against his alienee, and all claiming under such alienee.
It appears from the evidence which was before the court, and already adverted to in the statement of this case, that on the 20th day of November, 1835, Poindexter sold and conveyed, by his public authentic act, and in absolute right and estate, to Félix Huston, all the right, title, interest, and claim which he then had, or thereafter might have, in and by virtue of an act of Congress of the 30th of June, 1834, granting to Philemon Thomas the quantity of twelve hundred and eighty acres of fend, to be located on any lands of the United States in Lou
isiana, which said land was conveyed by the said Philemon Thomas to the said George Poindexter on the 30th day of January, 1835; it further appears, that from Huston a regular title, by public authentic acts and written assurances, is deduced down to the defendant in possession, Gilmer. It is true that, in order to countervail the foree of this title, the petitioner offered in evidence the agreement between himself and Huston of the 20th of November, 1835, creating a partnership between themselves, and purporting to convey to Huston all the title of Poindexter to the right of entry granted by act of Congress to Thomas, to be disposed of and applied by Huston for the benefit'of the partnership; but it is equally true, that this instrument, which was objected to by the plaintiff in error, was received without legal proof of its execution, and therefore should not have been admitted and considered by the court; and there being no proof in this record of any knowledge of the contents, or even of the existence, of this instrument'on the part of the purchasers under the absolute and public deed from Poindexter to Huston, their title thus derived, for aught that appears, cannot be affected by the former instrument.
Upon the whole ease, the petitioner in the Circuit Court, having failed to establish a legal title in himself to the premises demanded, could not maintain his action, and the judgment of the court should have been for the defendant. It is therefore the opinion of this court, that the judgment of the Circuit Court be, and the same is hereby, reversed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for’the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.