*463Tne judgment of the court (King, J. absent,) was pronounced by
Rost, J.On the 19th March, 1836, Franklin W. Lea entered certain lands in the parish of St. Helena, at the land office for the Greensburg land district. Lea paid for the land, and’ received from the land office two receipts for the price, numbered 450, 451. On the 26th of May, 1837, Lea sold these and other lands to the plaintiff, by an authentic act, which was recorded in the parish of St. Helena, on the 10th of July, 1837, without transferring the receipts, or making any mentino of them. In 1842, Congress passed an act, the first section of which provides: “That, in all cases where lands shall have been entered at the land office in the Greensburg, late St. Helena, land district, in the State of Louisiana, where the United States cannot issue patents therefor, owing to the errors and imperfections of the public surveys, or to conflicting claims, it shall be lawful for the person having made such entries, or his or her heirs or legal representatives, or grantees, or their heirs or legal representatives, who may be legally and equitably entitled to the same, after a demand of the patent, and a refusal to issue the same, to surrender his or her certificate of purchase to the secretary of the treasury to be cancelled ; and, upon such surrender, it shall be the duty of the secretary of the treasury to refund, without interest, the purchase money for such lands to the person entitled to the same, out of any money in the treasury not otherwise appropriated.”
In 1844, the plaintiff, considering himself the grantee of Lea, applied to the treasury department for the return of the price paid by Lea, under this act of 'Congress. His claim was approved, but, before the money was paid to him, the defendant made opposition, alleging, as he now alleges, that the lands were purchased by Lea with his money, and for him. The defendant founds this pretension on a document under private signature, posterior in date to the title of the plaintiff, purporting to be a transfer of these lands from Lea to him, in which Lea states that he had entered them with the money of the defendant; and upon a receipt signed by Lea, and dated 10th March, 1836, for $900, to be used in entering lands lor the defendant. The secretary of the treasury being unable to determine to whom the claim belonged, referred the parties to the State courts. In conformity with this decision, the present action was commenced.
The plaintiff asks the delivery of the receiver’s receipts, alleged to be in the defendant’s possession, or $469 37, the value of those receipts. He also claims-damages. There was judgment in his favor in the District Court, and the defendant appealed.
We consider it as undeniable that the application of Lea for the entry and purchase of the land, which has given rise to this controversy, and the payment o-f the price by him, would not have divested the United States of the title, even-if the land had been subject to entry ; and that Lea would only have acquired-an equitable title, which although sufficient to maintain a petitory action, remained within the discretion of Congress, until a patent issued. Lefebvre v. Comeau, 11 La. 321. Stark v. Orillon, 13 La. 56. Guidry v. Woods, 19 La. 334. Lott et al. v. Prudhomme et al. 3 Rob. 141. Metoyer v. Larenaudière, 6 Rob. 139. Wilcox v. Jackson, 13 Peters 498.
We believe it to be equally true that, if the entry was made without warrant of law, the rights of the public were in no manner affected by it—that no equitatable title vested in Lea; and the only claim of his grantees, in this case, is for the return of the money paid by him to the receiver, and placed by the latter in the national treasury. Guidry v. Woods, 19 La. 339. Carroll v. Stafford, 3 Howard 450.
*464Under this view of the law, it becomes material to enquire whether the land applied for was subject to entry and purchase.
Judge Woodruff testifies that the treasury department has refused to grant patents for the lands entered in the St. Helena land district, and referred to in the pleadings, upon the ground that the acts of the officers at the St. Helena land office were unauthorized and illegal, and that no authority had been granted by law for the disposal and sale of said lands; that the President proclaimed the sale of those lands, but that the act of Congress, under which it was proclaimed, did not embrace that district. The counsel for the plaintiff alleges error in this decision of the secretary of the treasury, and insists that we should disregard it.
The constitution of the United States vests in Congress the exclusive power of disposing of, and making all needful rules and regulations, in relation to, the public lancjs. We have no authority to interfere with the primary disposal of the soil. The matter rests exclusively with the general government, which has, from the beginning, acted upon it by legislation, through boards of commissioners, receivers and registers, under the final supervision of the secretary of the treasury. The decisions of that officer, made within the jurisdiction vested in him, cannot be reviewed by us.
But it seems to us moreover, that the application of the plaintiff to be refunded the sum paid, is an acquiescence on his part in the decision. Upon his application, the comptroller of the treasury wrote to him as follows: “On the 15th of October, 1844, the first auditor of the treasury reported to this, office, in persuance of the act of Congress of the 29th of August, 1842, the sum of $819 37 for a payment to you, as assignee of Franklin W. Lea, for lands erroneously sold to the said Lea, at the land office at St. Helena, per receiver’s receipts, nos. 450, 451, 452.”
After this application, and the action of the treasury department upon it, the plaintiff is estopped from alleging that he acquired an equitable title to the land, and that he United States held it in trust for him. The right of ownership of the United States was no more affected by the illegal acts of their agents, than it would have been if any other person not connected with the land office had attempted to dispose of the land.
The claim being merely for a sum of money, our next inquiry must be whether either of the parties to this suit is the grantee of Lea, within the meaning of the act of Congress.
The plaintiff contends: 1st. That the subrogation of warranty, in the sale from Lea to him, gives him the right to claim the certificates from the defendant, and to receive their amount from the United States. 2d. That by the payment of the money in the treasury, the United States became the debtors of Lea, and the debt was transferred to the plaintiff before the United States had been notified of the alleged transfer to the defendant. 3d. That the transfer to the defendant is under private signature, and has no date against the plaintiff.
The sale from Lea to the plaintiff was the sale of a thing belonging to another, and therefore null. The subrogation of warranty stipulated could not affect the United States as vendors, because they had not sold. That subrogation was upon a contract which did not exist, and can produce no legal effects.
It appears to us that the United States cannot be considered as debtors of Lea, in the ordinary sense, on account of the money paid by him to the receiver, and placed by the latter in the treasury; but, if they should be, the plaintiff has not shown a legal transfer of the certificates. In the transfer of debts to a third *465person, the delivery takes place between the transferer and the transferee by the giving of the title. C. C. 2612. The titles in this case are undoubtedly the certificates; and, we cannot understand the act of 1842 otherwise than as meaning, by grantee, the rightful owner of them.
The plaintiff having failed to show his right to the certificates, his petition must be dismissed. But this decision is not to be understood as recognizing the claim of the defendant to the fund in the treasury. The private act under which he claims is, like the title of the plaintiff, a mere transfer of land. It seems 'to be admitted thathé holds the certificates, which it is the object of this suitto recover from him. But he has failed to produce them in court, and to show that they were either assigned or actually delivered to him by Lea, Who is admitted to have died in 1838. These are facts which it was in the power of the defendant to prove, if they existed; and we are bound to presume that they did not. Without an assignment, or proof of actual delivery, the possession of the certificates, if shown, would give him no better title to them than he would have to a promissory note, payable to the order of Lea, held by him, without endorsment, or proof of transfer and delivery. Art. 2612 C. C. pre-supposes that When the title is not transferable by delivery, and does not bear upon its face evidence of the lawful possession of the holder, delivery must be made.
It is not material, in a legal point of view, that the’money paid by Lea came from the defendant. The equity of his case is no greater, than that of the plaintiff, who received no consideration for the price he paid. The applications and entiles were made in the name of Lea, and his legal representatives are the owners of the certificates until a valid transfer is shown. As the case is presented to us, the defendant’s possession is the possession of Lea.
It is therefore ordered, that the judgment in this case be reversed, and the plaintiff’s petition dismissed, with costs in both courts.