This suit, although commenced as an action of trespass, is treated by both the plaintiff and the defendants as an action of homage.

Francois Jacques Ozenne was originally in possession of the land in controversy. On the 10th day of November, 1807, he sold to Maria Vincent L’Abbé, a tract of land described as “ une terre de sept arpens et demi de face, a prendre face sulla grande crevasse de la terre qu’occupe presentment Mr. Ozenne sur le Bayou Tortue, avec toute la profondeur qui trouvera au de la díte terre situé sur Tile appellée lTsle du Large, bien entendu que le 'bois de la díte isle sera partagé en égale portion entre le vendeur et l’aequéur pour prix et somme de sept cent cinquante piastres.” At this time, Francois Jacques Ozenne had not acquired title from the government to the lands in Ms possession.

*617la 1813, a certificate of confirmation issued to Maria Vincent Ozenne, for seven and a half arpents front, by about three in depth, in virtue of the sale from Frangois Jacques Ozenne to M. V. Ozenne, being certificate No. 2160. At the same time certificate of confirmation No. 2161, issued for three hundred superficial arpents immediately in the rear of the preceding, and having the same width with the depth of forty arpents.

The first of these tracts appears to have been ordered to be surveyed from the front tract bordering on the Bayou Tortee, and diminishing the depth of that tract.

The same day that these two certificates were issued, the Commissioners issued a certificate of confirmation in favor of Frangois Jacques Ozenne, for fifteen arpents front on the bayou by a depth of forty arpents.

The lands were surveyed in pursuance of the certificates of confirmation, and the surveys appear to have been approved by the Surveyor General.

Instead of following the channel of the so called “ crevasse,” the survey commences at a point where the “ crevasse” touches the northern side line of the tracts of land held by plaintiff and defendants, diverging from the course of the “ crevasse” at a considerable angle. The survey of the other of defendant’s tracts cuts the “ crevasse” near the middle of the tract, crossing it about the same angle.

The plaintiff contends that the true boundary is the center of the channel of the “ crevassethe defendants, that it is given by the survey made by the government of the United States.

The plaintiff maintains that the true construction of the deed from Frangois Jacques Ozenne is to give the defendants a front upon the “ crevasse,” and the Commissioners erred in confirming the tract to Maria Vincent Ozenne, in the form in which it was done, and that the confirmation must, therefore, inure to the benefit of the original owner. To support this position, counsel refer to the case of Sackett v. Hooper, 3 La. 101; and a dictum in Williams v. Close, 12 An. 877.

The court did not place the latter case upon the ground contended for in this case, and we say as our predecessors said in the case of Purvis v. Harmanson, that “ what we said arguendo cannot be considered as precedent.”

The cases of Purvis v. Harmanson, 4 An. 422; Thomas v. Phillips, 1 An. 546; and Otho Farmer’s Heirs v. John Fletcher, 11 An. 142, in harmony with the decisions of the Supreme Court of the United States, and are still adhered to by this court.

The title was in the government of the United States when the certificates of confirmation issued, and the land department was vested with exclusive jurisdiction to settle and fix the boundaries between the different claimants. The proper officers have acted in this instance. In the absence of all fraud on the part of the defendants, or any particular equity in favor of the plaintiff, effect must be given to their proceedings. Thus it is evident that the titles produced are favorable to defendants pretensions, and that it is unnecessary to put a construction upon the deed of 1801. But as patents have not yet issued, we shall maintain defendants only provisionally in possession of the tract of land in dispute.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that the plaintiff’s demand, as now presented, be rejected ; and that the defendants recover possession of the land in controversy, and that the boundary line between the plaintiff and defen*618dant be fixed at a straight line drawn between the points B and F, as shown by the survey and plat of Abner S. Miner, on file, and in confinnity to the approved surveys of certificates Nos. 2160 and 2161, under which defendants claim, subject, however, to any future action of the proper officers of the United States Land Office. And it is further ordered, that the plaintiff pay the costs of both courts.