The judgment of the court was pronounced by
Rost, J.The plaintiffs claim one undivided half of several adjoining tracts-of land, under the following circumstances: Their father acquired during marriage, a warrant, issued in favor of one of the companions of Lewis and Clarke, which authorized him to locate three hundred and twenty acres of public land previously offered for sale by government, or to give it in payment of public lands at the rate of two dollars per acre. He occupied at the time, with his family, a portion of the public domain, which was not offered for sale till after the death of his wife. When he was authorized to do so, he acquired a portion of those lands, and others adjoining them, with the warrant. Under the settlement commenced during the,community and continued after its dissolution, he purchased another portion; the remainder was purchased under the settlement right of another person, also acquired by him pending marriage.
The plaintiffs allege that the defendants are in possession of the lands without title, and claim one undivided-half of them, on the following grounds: 1st, That the warrant and settlement rights belonged to the community existing between their father and mother. 2d, That the purchases made by their father after its dissolution, should inure to their benefit, for one undivided half. 3d, That the document on whiclrthe defendants claim titlo, if proved, purports to bo a promise *195of their father, to sell all his lands on lake Bruin, and must be understood as conveying only the land he had; that is to say, one undivided half of the whole.
The defendants set up title by purchase from Daniel Sexton by their ancestor, and want of notice. The case was tried in the first instance, before a jury, whose finding was in favor of the defendants, and the plaintiffs have appealed from the judgment rendered on the verdict.
The defendants offered certain evidence to prove the existence, loss and contents of the title under which they claim, to the introduction of which the plaintiffs’ counsel excepted, on the ground that the existence and loss of the instrument was not sufficiently shown; that the evidence adduced was not supported by the oath of the party; that the genuineness of the original act was not proven, and that it had not been properly recorded.
There is no error in the decision of the court below overruling those exceptions. The original was recorded as required by art. 2250 of the Civil Code, in order to have effect against third persons; and the sworn declaration of the subscribing witness establishes, prima facie, its genuineness. The defendants are the widow and minor heirs of the original purchaser, and as it has not been shown that the title was ever in their possession, they cannot be required to swear that they lost it. The evidence of the loss satisfied the court and jury, and, in our opinion, justified the introduction of the secondary evidence adduced by the defendants. The proof of loss which will authorize the introduction of inferior evidence, must depend on the particular circumstances of each case. 7 Mart. N. S. p. 548.
The title, of which the record is offered, is a promise of Daniel Sexton, to sell to the defendants’ ancestor, for the sum of §5,500, all his lands on lake Bruin, supposed to contain, in the whole, seven hundred and eighty acres, under the penalty of §10,000. It is supported by an assignment to the purchaser, for value received, of the receipts given by the receiver of the land office to Sexton, for the price of all the lands purchased by him, and also by delivery of the land at the time, and actual possession ever since by the purchaser and his heirs.
The plaintiffs excepted to the introduction, in evidence, of the receipts of the land office and of the transfer of Sexton, on the ground that the subscribing witness should have been produced, or at least an attempt made to procure his tes. timony. It is proved that this witness resides out of the State, and, under the uniform practice of our courts, the signature of Daniel Sexton was properly proved by other witnesses.
Two other documents were also offered in evidence, to prove circumstances tendingto corroborate the sale. The plaintiffs excepted to their introduction, on the ground that it was not shown that the subscribing witnesses were either dead or absent, and that they alone were competent to prove the signature of Daniel Sexton. It appears that subposnas were taken out for those witnesses, upon which the sheriff made return that, after diligent search and inquiry, there were no persons of that name to be found in the parish. The court erred in suffering the signature to be proved by other witnesses, under that showing. The degree of diligence in the search for subscribing witnesses to private acts, is the same which is required in the search for a lost paper; it must be a strict, diligent and honest inquiry and search, 1 Greenleaf’s Evid. p. 574.
The sheriff’s return of non est inventus, on the subpoma, is not, by itself, a compliance with the rule.
*196But disregarding this evidence, there is no reason to doubt the reality of the transfer and the good faith of the purchaser. We consider that the defendants have made out their allegation, that their ancestor was a purchaser without notice: and this court has repeatedly decided, that such purchasers cannot be disturbed, by reason of frauds committed by their vendors, unless their participation in them is proved. In"the case of Tippet and others v. Everson, which does not materially differ from the present, judge Mathews, a high authority in questions Evolving equitable considerations, said: “Whether this court would interfere to enforce the inchoate rights of settlers on the domain of the United States, and to determine on the preference which is to be given to one or the other of two individuals contending for a right of pre-emption, while the contest remains between the original settlers, is unnecessary to determine. The defendant is an innocent purchaser, without^notice of the claim of the plaintiffs, and ought not to be disturbed in his property and possession, on so vague and uncertain a title.” 8 Mart. p. 719.
We concur in these views. The land in this case was not purchased till after the dissolution of the community. That acquired with the warrant could not have been purchased during its continuance, because it had not been offered for sale. The title to the land never vested in the community, and whatever equitable claim the plaintiffs may have against their father, the title of the defendants is unaffected by it. Judgment affirmed.