1 Free. Ch. 178 | Miss. Chanc. Ct. | 1844
The statements of the complainants’ bill, so far as it is necessary to consider of them in disposing of the demurrer, are, that on the 7th of October, 1837, they purchased of an Indian woman, by the name of Ta-na-cha, a tract of land, being section 20, town. 3, range 2, west, which she claimed as a reservation, under the sixth article of the Chickasaw treaty of May, 1834. That on the 6th of October, 1837, one day preceding the purchase, said woman was enrolled and located on said section “by the agent and chiefs of the Chickasaw nation.” That the secretary of war had so construed the treaty, that no deed would be valid until the locar tion was confirmed by the president. They took'no deed at that time, but procured the Indian woman to make to one E. P. McDowell a power of attorney, authorizing him to make title in her name. That McDowell, on the 2nd April, 1838, accordingly made them a deed; but that dying immediately afterward, they were not able to complete the deed by procuring the necessary certificates of the agent and examining agent. That on the 1st of June, 1838, they procured from Ta-na-cha a confirmation of that deed, as also a deed directly from herself, having previously procured from two of the chiefs a certificate of her competency, which latter deed was proved for registration on the 7th of December, 1838. That they took possession of the land in November, 1837, and that by themselves, and those claiming under them, that possession has been continued to the present time. That defendants (claiming by virtue of a deed purporting to be from the same Indian, bearing date 31st March, 1836, and approved 13th February, 1838, by the agent representing the president,) have in
To this bill there is a general demurrer. As both parties claim to derive title indirectly under the Chickasaw treaty of May, 1834, their respective pretensions must depend mainly upon a sound construction and application of the provisions of that treaty. Amongst other things, it is provided by the sixth article of the treaty, that a section of land within the territory, which was the principal subject of the treaty, should be reserved to each male and female of the Chickasaw tribe, not being the heads of families, and who were of the age of twenty-one years and upwards; a list of whom was to be made out and filed with the agent, and by him certified to the register and receiver, who was to cause such reservations to be located. The fourth article of the treaty assumes that there were many of the Chickasaw Indians who were incapable of managing their own affairs, and were subject to be imposed upon by designing men. To guard against fraud and imposition, it requires that in order to the validity of a conveyance from an Indian of his reservation, a certificate of capacity to contract, and a certificate that a fair consideration had been paid, should have been obtained, and finally an indorsement in the deed by the president of the United States, or his agent for that purpose, that the same was approved. It was said in argument, that these conditions and restrictions could not be rightly implied. The ultimate title to the lands in question being in the United States, subject to the Indian right of occupancy, it was, doubtless, competent for the two pow
The principle is well established, that the donor of a thing may annex to his gift or grant such .conditions, precedent or subsequent, as he may choose, provided they be not against law. It is true, that in conveyances between private persons any conditions in restraint of the right of alienation are generally held void. But the restrictions imposed by the treaty do not come within die reason or policy of that rule; they may. be said to be rather descriptive of the mode, than restrictive of the right of alienation; or perhaps they may be more properly regarded as conditions subsequent. The complainants not having complied with any of the requirements of the treaty, (except that of procuring the certificate of the capacity of their vendor,) the question arises, what title, any, did they acquire by virtue of .their deed from the Indian? for if they do not show prima fades, good equitable title in themselves, the bill must be dismissed. The rule that the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary’s, being equally regarded by courts of law and equity — the complainants’ title must depend in part upon the character of the title of their vendor at the time of the purchase. Had the Indian woman any right or title to the land in question, at the date of her sale to complainants? and was that right a legitimate subject of contract and sale prior to the completion of its location? In regard to the first branch of-the proposition, I apprehend there can be no doubt. The facts that she was of the Chickasaw tribe, not being the head of a [family, and of the age of twenty-one years or upwards, of themselves, gave to her, under the treaty,' a right in the abstract to a section of land. The subsequent acts of enrollment and location required by the treaty, do not create the right, but merely serve to locate and attach it specifically to definite prescribed boundaries. Rutherford v. Green’s Heirs, 2 Whea. 196. See 6th Art. Chic. T.
The second branch of the proposition is to my mind equally clear. It is how the well settled doctrine, that even a mere possibility, clothed with an interest in real estate, may be made the subject of contract, which a court of equity will inforce. Hobson v. Tenor, 2 P. Wms. 191; Wright v. Wright, 1 Ves. sr. 408. And
I conclude, then, that the -Indian reservation right to a section of land was the proper subject of a contract of bargain and sale, even before location was made to the extent of creating an equity in favor of the vendee, and that a subsequent location, together with a deed made in accordance with such contract and carried through the forms prescribed by the treaty, would pass the title to the vendee; and that, as between the parties themselves, and as to third persons with notice, the deed would relate back to the date of the contract for purchase. 2 Wheat. 196.
Indeed it will appear that the acts required by the treaty to give validity to the conveyance of the Indian right, do not precede but follow the contract for purchase. The fourth article of the treaty (after reciting that there were some of the Indians incapable of managing their own affairs) proceeds thus: “It is agreed that the reservations hereinafter admitted shall not be permitted to be sold, &c. unless it appear, by the certificate of at least two (of seven persons) there designated, that the party claiming or owning the same is .capable to manage and take care of his affairs; which fact, to the best of his knowledge, shall be certified by the agent, and that a fair consideration has been paid — and thereupon the deed shall be valid: provided,” &c.
It will thus be seen that the Indian is not legally incapacitated to contract, in the first instance, for a sale of his reservation; but that, in order to the ratification and ultimate validity of such contract, it must pass through the forms prescribed by the treaty, as evidence of its fairness. The title passes by virtue of the deed from the Indian, and not from the United States, through the approval of its agents, as seemed to be supposed by counsel in argument. The whole title of the United States was parted with and ested in the Indians, to the extent of the reservations made in the treaty, and became specific and perfect so soon as the Indians were enrolled and located. The treaty requires that these titles should not be conveyed by the Indians except in the manner there provided for. These provisions were intended for the benefit and protection of the Indians only.
Having thus shown that the complainants acquired an equitable
Where individual rights vest under a treaty, its meaning, in reference to them, is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts. It must receive such construction as will best effectuate the intention. See Vattel Ch. 17.
Suppose that an Indian, entitled to a reservation, should make a full and fair sale of it, and that, while the purchaser was in the course of completing his title under the treaty, a third person, with full notice of the first sale, should seduce the Indian into a second sale, and, by concealment and misrepresentation, added to a supe
The complainants’ bill alleges that the defendants, with full knowledge that the land in question had been previously located in the name of their vendor, fraudulently availed themselves of said location by substituting a different Indian of the same name. Such a case is not distinguishable, in principle, from that of a person purchasing the legal estate with full notice of the prior equitable title of another, or of a subsequent purchaser having , notice of a prior unregistered conveyance to a third person. In both these cases courts of equity hold that it would be unconscionable to permit the second purchaser to retain the advantage which he had thus gained. See Sugden on Vendors, ch. 16, sec. 5-10, ch. 17, sec. 12; 2 Mass. R. 506; 9 John. R. 457.
It has also been held that where a man fraudulently obtains a patent in preference to one having a prior equitable title, and this is proved, a court of equity has jurisdiction, and will afford ample relief. Benzeni v. Lenoir, Dev. Eq. Rep. 225; White v. Jones, 1 Wash. 116.
But there is another view in which the complainants may be relieved against the consequences of their failure to complete their title. The requirements of the treaty upon this subject are in the nature of conditions subsequent. Without pretending to advert to the various distinctions, upon the subject of estates upon condition,
Courts of equity never lend their aid in the divesting of an estate for even a breach of a condition subsequent, though they will often interfere to prevent such a consequence. See 4 John. Ch. R. 431; Popham v. Bamfield, 1 Vernon.
I conclude, then, from this view of the case'—
First. That the sale by the Indian woman, even before her location was completed, gave the complainants an equitable title.
Second. That such title was not forfeited by the failure of the complainants to obtain the several certificates and approval required by the treaty; they having been prevented from doing so, as they allege in their bill, by the fraud of the defendants; and,
Third. That the complainants show such a case as prima facie entitles them to the relief sought by the bill.
But it was insisted by the counsel for the defendants, that, admitting the complainants to have obtained by their contract an equitable claim, which would give jurisdiction to this court, yet as the defendants have procured the title through the agency of the persons designated by the treaty, that such acts amounted to an adjudication of the title in their favor, which is final and conclusive in its nature, not subject to be overhauled or called in question by any tribunal whatever. At the hearing of the case I was strongly inclined to the same view; but, upon more reflection and examination, I think it will appear that the grounds upon which the argument proceeds are not sustainable. In the first place, it may be well doubted whether the acts of the several persons to whose scrutiny and sanction the Indian conveyance was subjected, are not purely ministerial, partaking no more of the character
But admitting these persons to have acted judicially, and to have possessed the highest attributes of a judicial tribunal, it becomes important to inquire, 1st. What subjects were within their jurisdiction? 2nd. Whether as between the parties to this controversy any question was adjudicated which is conclusive upon the complainants in this court? The simple questions submitted for the judgment and decision of the agents, were, 1st. Whether the Indian was competent to contract? and, 2nd. Whether he had been paid a fair consideration for his land? The adjustment of these inquiries constituted the full scope and purpose of their jurisdiction. They were not erected into a tribunal to decide upon conflicting claims arising between purchasers from the same Indian or from different Indians. Their duties bear no resemblance to those of Commissioners that have frequently been appointed by Congress with full power and for the express purpose of deciding finally upon controversies between adverse claimants, as in the case reported in 7th Wheaton. This then being the limit of their jurisdiction, it is needless to say they could have decided no question as between the parties to this controversy. They merely decided that the defendants had practiced no fraud on the Indian, he or she being competent to trade, and having received a fair consideration. They did not decide that the complainants’ purchase gave them no title; or that if it did, it was not such as would prevail against the defendants. The claim of the complainants, from any .thing that appears in the bill, was not before them in contest with that of the defendants. No adjudication is conclusive beyond the matter decided; nor then, unless that matter was within the jurisdiction of the tribunal making the decision.
This view of the case would be decisive of the demurrer; but as the character of the defendants is brought to view by the bill, and was ably discussed at the hearing,-it may be well to advert to it; — it may seem to guide the parties in the future progress of the case. The defendants having the oldest deed, if it had appeared from the bill that their vendor is the same under whom the complainants claim according to the view which I have taken of the case, I should have had no difficulty in sustaining the demurrer
From this opinion an appeal was taken to the High Court of Errors and Appeals, and the following are the briefs of counsel and the opinion of the court in that tribunal, affirming the decree of the chancellor.
delivered the opinion of the court.
The appellees exhibited their bill in chancery to enjoin proceedings in a possessoiy action, instituted by the appellants. The material allegations in the bill are,’ that by treaty with the Chickasaw tribe of Indians, concluded on the 24th of May, 1834, certain quantities of land were reserved to the Indians. That a certain Indian woman was duly enrolled according to the provisions of the treaty as being entitled to one section of land, which it is averred was located for her, being the land in controversy,
Considering the allegations in the bill to be admitted by the demurrer, we might easily dispose of the case, so far as to settle this preliminary controversy, without going into an enquiry into the nature of complainants’ title. Possession alone is a protection against a title obtained in fraud. But the nature of the Indian title has been discussed by counsel on both sides, and a proper respect for the arguments of counsel requires of us at least a brief review of the grounds assumed in the argument.
It is averred in the bill that the Indian has made a deed, but that the requisite certificates have not been procured, in consequence of the fraud practiced by the appellants. The Indian then had the fee, and perhaps strictly the certificates should have been procured before a sale or conveyance, and yet there is nothing in the treaty which authorizes us on a fair construction, to consider these as conditions precedent. Suppose the Indian had conveyed and after the conveyance the requisite certificates had been procured, then of course the title would be perfect. What would make it perfect? Not the certificates alone, but first the deed and then the certificates. On procuring the certificates, the deed would relate back to the time of its date. It is to be inferred from a part of the fourth article, that the certificates were mere requisites or links in the chain of conveyance, the deed being the first step towards a complete title. This conclusion is justified by the language employed. After providing that two of the seven persons named shall give a certificate that the party is capable of managing his or her affairs, and that the agent shall also certify to the same effect, and that a fair price has been paid, it proceeds as follows: “and thereupon the deed of conveyance shall be valid, provided, the President of the United States, or such other person as he may designate, shall approve the same, and endorse it on the deed.” This language seems to pre-suppose the existence of the deed before the certificates are required to be given, and that
The Indian then had a title to the land, and on the 7th of October, 1837, she entered into a contract to convey, and gave a power of attorney for that purpose. The attorney afterwards conveyed, but the deed was never properly proven, in consequence of which defect, the Indian herself afterwards conveyed, and her conveyance would have been perfect with the proper certificates, which the parties were prevented from procuring by the fraudulent acts of the respondents. The first step towards a perfect conveyance was performed, the subsequent steps were prevented by the respondents, to the prejudice of complainants. The equitable title is thus abundantly shewn; which I understand to be a right imperfect at law, but which may be perfected by the aid of a court of chancery, either by compelling parties to do that which in good faith they are bound to do, or by removing obstacles interposed in bad faith, to the prejudice of another. A mere entry it seems has been held to constitute an equity. Certainly a contract for the purchase of land does, when founded on a sufficient consideration, .and entered into with the proper solemnity. In this case there was a contract. The title is not a complete legal title, but it can be perfected by a court of chancery, at least so far as to remove the impedimentsfimproperly interposed.
But it is further insisted, that the respective rights of the parties have undergone a proper investigation by the agents appointed for that purpose, who determined the matters before them as judicial officers, and that their decision in favor of the respondents is final and conclusive, and cannot be reviewed collaterally by any other .tribunal.
These agents were not judicial officers; they were not empowered to settle and determine the rights of parties, or any right whatever. The seven persons mentioned in the 4th article, were confined in their duty to certify to a single question of fact, to wit, that the Indian who was about to sell his reserve was capable of taldng care of his own affairs; and the Indian agent had only to certify to the additional fact, that a fair price had been paid. These certificates were mere preliminaries to a sale, and not even obligatory on any one, as the President still had the power to approve pr
It-is frequently the case that different modes of defence may be adapted to different parts of the bill, but if it contain an allegation of fraud, it is a general rule that the allegation of fraud must be denied by answer, whatever defence may be adopted as to the other parts of the bill; because fraud gives jurisdiction to the court and lays a foundation for relief, hence a general demurrer to a bill containing such an allegation cannot be allowed. So if the defendant should plead to the bill, he must still deny the fraud by answer as well as by averment in the plea. Mitford’s Pleading, 239—298. An application of this rule to the case before us must show the impropriety of the demurrer, so far at least as the allegation of fraud is to be met by it. The demurrer admits that the deed was filled up long after it was executed ; that the certificates were procured by fraud and misrepresentation; that one Indian was substituted for another; and certainly, with such facts admitted, k court of chancery could not hesitate to entertain jurisdiction and give relief. Decree affirmed.