Blacksmith v. . Fellows

| NY | Oct 5, 1852

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There was originally a dispute between the states of New York and Massachusetts as to a large tract of land of which the locusin quo was a part. In 1786 that dispute was settled by a cession from Massachusetts to New York of the government, sovereignty and jurisdiction of the lands in controversy, and by a cession from New York to Massachusetts of "the right of preemption of the soil from the native Indians and all other right or title of New York" to the same.

The lands were then in the independent occupancy of a nation of Indians and were owned by them and all that Massachusetts acquired by the cession to her, was the exclusive right of buying from the Indians when they should be disposed to sell.

This right was duly vested in Ogden and Fellows by proper conveyances from the state of Massachusetts, and they thus became seized of all the white man's right over these lands, except that of sovereignty which still remains in the state of New York.

The Indian title, however, was not yet extinguished and the Indians were in the actual possession of the land, and before Ogden and Fellows could enjoy any benefit from this grant from the state of Massachusetts, it was necessary for them to acquire the Indian right.

Various steps were taken for that purpose. It is unnecessary here to enumerate them. It is enough for the purposes of the question now before us to know that in May 1842 a conveyance from what purported to be the chiefs and headmen of the Seneca nation of Indians was executed to Ogden and Fellows, with the assent of an officer of the state of Massachusetts and a commissioner on the part of the U.S., by which it was agreed that the Indian title to four different tracts of land known as the Buffalo, the Cattaraugus, the Allegany and the Tonawanda reservations was valued at $202,000, that the Indians should retain the occupation and enjoyment of the Allegany and Cattaraugus reservations, and they thereby conveyed to Ogden and Fellows the whole of the Buffalo and Tonawanda reservations; that the Indians should be paid the consideration for that grant as follows: $100,000 should be regarded as the value of their title to the whole four tracts, and $102,000 as the value of their improvements on the same four tracts, and so much of those sums should be paid by Ogden and Fellows as the value of the title and improvements on the Buffalo and Tonawanda tracts should bear to the value of the title and improvements on all the tracts; such amount to be determined by arbitrators to be chosen as therein mentioned.

Those arbitrators were to employ suitable surveyers to explore and examine to ascertain the entire quantity in all the tracts and award and determine the amount to be paid to each Indian for his improvements on the two tracts conveyed. And Ogden and Fellows were to have possession of the forest lands within one month and of the improved lands within two years after the report of the arbitrators should be filed in the war office, provided that the amounts awarded for improvements should on the surrender of the possession be paid to the president of the United States, to be distributed among the owners of the improvements in the sums awarded to each by the arbitrators.

This indenture was incorporated into and formed part of a treaty made at the same time between the United States and the same chiefs and headmen.

Afterwards arbitrators were appointed agreeably to the terms of the treaty and indenture, and they executed their duty as to all the four tracts except the Tonawanda (in which are the premises in question). They awarded that $75,000 was the proportion which the value of the two tracts conveyed, bore to the whole four tracts, and $58,768.96 was the proportion which the value of the improvements on those two tracts bore to the improvements on all the tracts. But they were unable to award as to the amount to be paid to each individual for his improvements on the Tonawanda tract, for the reason that that portion of the nation which was in possession of that tract refused to let them perform their duty in this respect, and removed them by force from the tract when they went there, as they did twice, for the purpose of making their examinations and award.

Such award has never yet been made, but at the end of the two years, after filing the report in the war office and upon the payment to the president of the United States of the aggregate sum awarded by the arbitrators, Fellows as the survivor of his joint tenant Ogden, entered by force and ejected the plaintiff from the improvements possessed by him. Those improvements which consisted of a dam and sawmill had been made by the plaintiff and seven other native Indians twenty years before, and were in the actual occupation of him at the time the defendants entered into and took possession of the close and turned the plaintiff out.

Upon this state of facts the jury under the charge of the court found a verdict for the plaintiff.

On the trial below the court ruled that the defendants had failed to make out any title or right of possession and refused to charge that Fellows had made out a title to the close in question: that Fellows at the end of the two years was entitled to the possession notwithstanding the omission of the arbitrators to award as to the amount to be paid to the plaintiff as the value of his improvements: that such failure of the arbitrators could not prejudice Fellows unless it had been caused by him; and that the plaintiff as an individual Indian could not maintain the action.

The supreme court at general term denied the motion for a new trial on the ground that the award of the arbitrators in full, as required by the indenture of conveyance and the treaty, was a condition precedent to the grantee's right of possession.

The first point taken on the argument was that the plaintiff could not maintain an action individually for trespass on lands belonging to the whole nation.

This might be true if the action was founded only upon title. So it might be true if it was founded upon the occupancy in common which we know is usual with the Indian tribes. But this action is not founded upon either basis, but upon the separate possession of the plaintiff. The bill of exceptions shows that he was alone and separately from all others, in possession of thelocus in quo when the trespass was committed, and that was enough to enable him to maintain an action for a wrong done to that possession.

The chief question, however, is whether Fellows had a right to the possession before the arbitrators awarded in full. His claim to the possession rests upon the conveyance which was inpresenti, and absolutely of the fee in the premises. That of itself might confer upon him the right of possession, if there was nothing else in the case. But the conveyance under which he claims, so far from carrying with it this as a necessary incident of the title, expressly reserves the possession from him until the happening of a certain event, namely, the filing in the war office of the award which the conveyance required.

It is very clear that he was not entitled to possession by virtue merely of the conveyance in presenti of the absolute title, but only upon the happening of a contingency, and it was necessary for him in making out his defense to show that the contingency had happened. He accordingly attempted to do so and proved that an award had been filed as required. But was that all that was necessary? Was it not also necessary for him to show that it was such an award as the conveyance and treaty required?

Instead, however, of showing that it was such an award, his evidence showed that it was not; he then proved an excuse why it was not and sought to give to that excuse for nonperformance the same force and effect that properly belonged to performance. Whether he could do that is the question now before us.

There is no particular form of words necessary to constitute a condition precedent. The true test is the intention of the parties. And it is very evident to me that it was the intention of the parties that the occupiers of the land should not be compelled to give up the possession of them until two conditions had been complied with; one that such an award should be obtained and filed in the war office; and the other that the value of the improvements should be paid to the president, and the consideration for the conveyance be paid or secured to the satisfaction of the secretary of war. The language in which that particular stipulation is clothed, conveys that impression to my mind, and there is another provision that carries the same idea. I mean the provision that "any Indian having improvements may surrender them prior to the expiration of the two years upon the amount awarded to him for such improvements being paid to the president or any agent designated by him for that purpose."

I regard the parties to the conveyance then as having stipulated that the occupiers of the land shall not be compelled to surrender their possessions until there shall have been obtained and filed in the war office an award which shall determine the amount to be paid to each individual Indian for his improvements.

The parties had a perfect right to make such a stipulation. There is nothing unreasonable or unconscionable in it; nothing indeed to make it void; though as it stipulates as to the action of third persons, there may be something to make it difficult to perform. That difficulty, however great it may be, is not enough to make the stipulation nugatory or authorize its being dispensed with. It is like the familiar case of insurance where the conditions provide, that before the insurers shall be compelled to pay the loss, the insured shall procure a certificate from a neighboring magistrate, minister or churchwarden, and where it is well settled that however unreasonable the refusal to give such certificate may be, the insured can not recover without it. In that case the court have said, "If there be a condition precedent to do an impossible thing, the obligation becomes single, but however improbable the thing may be it must be complied with or the right which was to attach on its being performed does not vest If the condition be that A shall enfeoff B and A do all in his power to perform the condition and B will not receive livery of seisin, yet from the time of Lord Coke to the present moment it has not been doubted but that the right which was to depend on the performance of that condition did not arise" (Worsley v. Wood, 6 T.R. 710).

I know of but one mode of avoiding the compliance with the condition in such a case, and that is where the party exacting the condition prevents its performance. In that event his act of prevention is tantamount to a performance. But to produce that effect such prevention must come from the party exacting the condition and not from him in whose behalf or to whom it is to be performed. As in the case put in 6 T.R. if C exacted as a condition that A should enfeoff B, B's preventing the enfeoffment by refusing to receive livery of seisin, would not be tantamount to a performance; though if C prevented it, it would. For C had in fact stipulated for the acts of both A B, as the acts of both were necessary to the feoffment created. Thus in a covenant in a charter party to pay the value of reshipping in case of capture, c., provided it should appear to a court martial that the captain had made the best defense, the holding of a court martial was held to be indispensable as a condition precedent (Davison v. More, 3 Doug. 28). So in case of an agreement to pay for repairs on an architect's certifying they are done,c., such certificate is essential (Morgan v. Birnie, 3 M. S. 76; S.C. 9 Bing. 672). So if a party stipulate that a horse shall trot eighteen miles within an hour to the satisfaction of N, N's satisfaction must be obtained before there can be a recovery (Brogden v. Marriott, 2 Bing. N.C. 473). So if a man covenant that his son shall marry the covenantee's daughter, her refusal will not discharge the covenanter. And so where goods were bought subject to the valuation of A and B, and A refuse to value (Chitty on Cont. 572, 3; Cook v. Jennings,M'Neil v. Reid, 9 7 T.R. 384; Bing. 68).

In all these cases which were stipulations for the acts of other parties, the language of the courts has always been, in answer to complaints about the difficulty of performance, "You have so agreed and you must so perform. You ought to have protected yourself in your agreement against the consequences. Having omitted to do so, the court can not do it for you."

These principles seem to me to be directly applicable to and decisive of the case before us.

Ogden and Fellows saw fit to stipulate that they should have no right to the possession of the lands conveyed to them, and that the individual Indians in possession should not be disturbed until a particular award determining certain specified matters should first be obtained and filed in the war office. To effect that purpose, the acts of several persons, strangers to the contract, were necessary; those, namely, of the secretary of war, of the arbitrators and their surveyors, agents and witnesses. They chose so to agree, and it is not in the power of any one, except the chiefs and headmen with whom they contracted, to release them from the stipulation. Those chiefs and headmen have not released them, nor have they done any thing to prevent or waive a strict performance. The plaintiff and those who were associated with him in preventing the arbitrators from going on to the premises were not parties to the contract; they were not of those chiefs or headmen. And their acts can no more be regarded as waiving performance than that of the secretary of war if he had refused to appoint an arbitrator, or if no person could be procured to act as arbitrator, or than the refusal of the churchwardens in the case of the insurance.

And besides it does not any where appear that the arbitrators could not have made the individual valuation required. They were, it is true, prevented by the plaintiff and others from going on to the premises, but did it necessarily follow that therefore they could not make such valuation: that they could not take testimony off the tract and from that testimony perform their duty as well as from a personal examination? There does not seem to have been any such absolute necessity for their making a personal examination as they seem to have supposed; for they seem to have readily arrived at the aggregate of such valuation without such view, and it is not easy for us to conceive why the parts which went to make up that aggregate could not have been stated.

In this view of the case, it becomes unnecessary to examine another point agitated on the argument, whether the conveyance to Ogden and Fellows vested a good title in them. Because even if it did, they were not by the express language of the conveyance entitled to the possession until the performance of a condition which has been neither performed nor waived.

And I put my opinion solely upon the ground that the condition precedent to the right of possession has not been performed. Fellows was therefore a trespasser, and the judgment of the supreme court ought to be affirmed.

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Dissenting Opinion

The first point made on behalf of the appellants, is that the plaintiff in the court below could not maintain an action individually for trespass on land belonging to the Seneca nation of Indians: the bill of exceptions shows that the plaintiff is a native Indian belonging to the Tonawanda band of the Seneca nation: that the close mentioned in the second count of the declaration is situated in the town of Pembroke in the county of Genesee, upon the tract of 12,800 acres, commonly known and designated by the name of the Tonawanda reservation: that the close in question is and was at the time of the entry complained of, and at the time of the commencement of the suit, an Indian improvement upon said Tonawanda reservation: that the said improvement was made about twenty years before the trial by the plaintiff and seven other Tonawanda Indians: that the plaintiff has resided on the Tonawanda reservation with the same band from his birth: that he was in the actual possession of said improvement at the time of the entry complained of: that on the 13th day of July 1846 the defendants entered into and took possession of the said close and turned the plaintiff out, and in doing this committed an assault upon him.

I am not aware of any legal impediment in the way of the plaintiff's sustaining the action under such a state of facts. He was in possession of the close, and for the purposes of this question his possession is to be deemed rightful, and the defendants had no right to disturb him. The fact that he was an Indian, it seems to me, should not disqualify him from seeking redress in our courts in the ordinary way for such an injury. We are not informed by the case what were the particular relations of the individuals of his tribe or nation with each other respecting the rights of property, in regard either to real or personal estate; whether they held all things in common or whether the title or right of property in respect to each other was in the individuals or the nation, or in the particular tribes or bands. It seems to me it would not do to hold an individual of the nation incapable of sustaining an action for an injury to his person or his personal property, committed by a citizen of our government; and it will be difficult upon principle, I apprehend, to distinguish between such a case and that of an intrusion without right upon his possession of land.

The general rule is that the person in possession must bring the action for trespass on land; and it appearing that the plaintiff was in the actual possession of the close in question at the time of the injury complained of, it seems to me it was competent for him to commence and sustain the action.

Provision is made in section eight of the act entitled "An act in relation to certain tribes of Indians," passed May 25th, 1841 (ch. 234 of Sess. L. of that year), by which actions for trespasses on Indian lands may be brought in the name of the people of this state, or by any three chiefs of the tribe. But this does not, as I think, deprive an individual Indian of his common law right to sustain an action for a like injury. The act, I suppose, was designed to furnish additional facilities for preventing such trespasses, and additional protection to the Indians.

The foregoing remarks are designed of course to apply to the case as the facts appeared at the trial when the plaintiff rested, and before the evidence of the title of the defendant Fellows had been introduced.

But it is further contended on behalf of the defendants, that the defendant Fellows had the legal title in fee in the premises, and therefore had the right to enter upon and take possession of them and to oust the plaintiff therefrom.

The second plea of the defendants sets up this defense on the part of the defendant Fellows, and that the defendant Kendle, at the time, when, c., acted as the servant of Fellows and by his command, c.

The replication simply takes issue upon the title of Fellows. If that issue was maintained by the proof, the justice before whom the action was tried, erred in ruling the contrary, and the judgment in the court below should be reversed.

At the close of the evidence the plaintiff's counsel objected to the proof of title in Fellows, claiming that such proof was defective in twelve particulars, which were specified. The circuit court decided and ruled generally without passing upon the objections separately, that the defendants had failed to establish any right or title to the close in question in the defendant Fellows.

The defendant Fellows claimed title to the premises by purchase from the Seneca nation of Indians; to sustain which he gave in evidence, among other things, an indenture purporting to have been made and concluded between Thomas Ludlow Ogden and Joseph Fellows, of the one part, and the chiefs and headmen of the Seneca nation of Indians, of the other part, at a council duly assembled and held at Buffalo creek in the state of New York, on the twentieth day of May 1842, by which the said chiefs and headmen did, among other things, grant, release and confirm unto the said Ogden and Fellows, their heirs and assigns, in joint tenancy, the two tracts of land severally called the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation. For which Ogden and Fellows were to pay to the nation a just consideration to be estimated and ascertained as follows: Assuming the value of the said two reservations, together with the Cattaraugus and Allegany reservations (for the purchase of all four of which tracts or reservations by Ogden and Fellows from the nation a previous agreement had been made), to be deemed and taken to be $202,000, of which sum $100,000 should be deemed to be the value of such title in and to all the lands within the four tracts, exclusive of improvements thereon, and 102,000 to be the value of the improvements within the said four tracts; and of the said sum of $100,000-Ogden and Fellows were to pay to the Seneca nation such proportion as the value of all the lands within the Buffalo Creek and Tonawanda reservations should bear to the value of all the lands within the four tracts; and of the $102,000 they should pay such proportion as the value of the improvements on the two tracts should bear to the value of the improvements on all the four tracts. Such consideration to be determined by the judgment and award of arbitrators, one to be named by the secretary of war and one by Ogden and Fellows, which arbitrators might employ suitable surveyors to explore, examine and report on the lands and improvements, and to ascertain the contents of each of the said tracts. The indenture also provided that the same arbitrators should also award and determine the amount to be paid to each individual Indian out of the sum, which on the principles above stated they should ascertain and award to be the proportionate value of the improvements on the Buffalo Creek and Tonawanda reservations, with provision for chosing an umpire in case of disagreement between the arbitrators. The arbitrators were to make a report in writing of their proceedings in duplicate, one to be filed in the office of the secretary of war and the other to be delivered to Ogden and Fellows. The fifth article of this indenture is in the words following: "Article fifth. It is agreed that the possession of the two tracts hereby confirmed to the said Ogden and Fellows shall be surrendered and delivered up to them as follows, viz: The forest or unimproved lands on the said tracts within one month after the report of the said arbitrators shall be filed in the office of the department of war, and the improved lands within two years after the said report shall have been so filed, provided always, that the said amount to be so ascertained and awarded, as the proportionate value of the said improvements, shall on the surrender thereof be paid to the president of the United States to be distributed among the owners of the said improvements according to the determination and award of the said arbitrators in this behalf; and provided further, that the consideration for the release and conveyance of the said lands shall, at the time of the surrender thereof, be paid or secured to the satisfaction of the said secretary of the war department, the income of which is to be paid to the said Seneca nation of Indians annually. But any Indian having improvements may surrender the same, and the land occupied by him and his family, at any time prior to the expiration of the said two years upon the amount awarded to him for such improvement being paid to the president of the United States, or any agent designated by him for that purpose, by the said Ogden and Fellows, which amount shall be paid over to the Indian entitled to the same, under the direction of the war department."

The indenture contained various other articles and provisions, none of which are necessary to be stated in the present connection.

On the same day on which the indenture was made and bears date, and at the same place, a treaty was made and concluded between the United States by Ambrose Spencer their commissioner thereto duly authorized, on the one part, and the chiefs, headmen and warriors of the Seneca nation of Indians, duly assembled in council, on the other part; reciting among other things the said indenture verbatim and consenting to the several articles and stipulations contained therein between the said nation and the said Ogden and Fellows, and providing that the United States would receive and pay the sum stipulated to be paid as the consideration money of the improvements specified in the indenture, and would receive, hold and apply the sum to be paid or the securities to be given for the lands therein mentioned as provided for in such indenture.

In pursuance of this treaty and of the indenture incorporated therein, Thomas C. Love was appointed by the secretary of war and Ira Cook by Ogden and Fellows arbitrators to discharge the duties in the indenture specified. On the first of April 1844, their report and award in the premises, bearing date March 26, 1844, was received and filed in the office of the war department, by which report and award it appears that they had agreed upon all the matters in and by the said indenture submitted to them. That they had determined, adjudged and awarded that Ogden and Fellows should pay to the Seneca nation the sum of $75,000 for the Indian title to all the lands in the Buffalo Creek and Tonawanda reservations, and that they should pay the said nation $58,708.96, as the value of the improvements on the two last mentioned reservations. They also determined the amount to be paid to each individual Indian on the Buffalo Creek reservation for his improvement. The report of the arbitrators as well as the oral evidence given on the trial shows that they the said arbitrators attempted to go upon the Tonawanda reservation with surveyors and other assistants for the purpose of making the necessary surveys and examinations in order to determine the amount to be paid to each individual Indian in pursuance of said treaty and indenture, and that they actually went upon the said reservation for that purpose, and were about commencing their work when a large number and nearly all of the adult Indians residing thereon being assembled, and among them the plaintiff, the arbitrators were forbidden by the plaintiff and others, and prevented from proceeding in such work, and were ordered to leave the reservation, and the arbitrators were each taken by the arm by the plaintiff and led off beyond the line of the reservation and that such acts of the plaintiff and others of such Indians in preventing the arbitrators from the performance of their duties in this respect were in pursuance of a unanimous resolve of all the Indians so assembled.

The case shows that Ogden and Fellows have duly paid the whole of all the moneys awarded by the arbitrators to be paid by them for the title and improvements of both the Buffalo Creek and Tonawanda reservations.

It was admitted on the trial that Thomas L. Ogden died in December 1844, which was previous to the alleged trespass. As the grant in the indenture was to Ogden and Fellows as joint tenants, whatever title they derived thereby, upon the death of Ogden, survived to Fellows.

The supreme court at general term refused a new trial, holding that the determination and award of the arbitrators of the amount due to each individual Indian, in pursuance of the provisions of the indenture, was a condition precedent to the vesting of the title in Ogden and Fellows, who accepted the grant subject to that condition, and undertook the risk of its performance; and that inasmuch as it had never been performed their title had not vested.

I am inclined to the opinion that the provision in the indenture for the appraisement of the value of the improvements of each individual Indian, is not to be regarded as a condition of the grant. By the second article of the indenture the chiefs and headmen of the nation, "Do grant, release and confirm unto the said Thomas Ludlow Ogden and Joseph Fellows and to their heirs and assigns in joint tenancy the whole of the said two tracts of land, severally called the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation." The words "release, grant andconfirm," are effective to pass the title, and sufficient for that purpose. They amount to a conveyance in presenti. The consideration for the grant is stated to be certain facts recited therein, the agreement of Ogden and Fellows mentioned in the first article and the agreement next therein after contained which is for the payment by Ogden and Fellows of the purchase money, the amount to be determined by the arbitrators as before stated. The payment of the purchase money in an instrument containing terms equivalent to a grant of the lands, in order to amount to a condition of the grant must be so provided, showing that to have been the intention of the contracting parties. In the present case it is provided in the fifth article of the indenture, and as I think as a condition of the grant, that the gross amount to be ascertained and awarded as the proportionate value of the improvements, should on the surrender of the lands be paid by Ogden and Fellows to the president of the United States, who was to distribute the same among the individuals entitled thereto, according to the determination of the arbitrators; and also that the consideration for the release and conveyance of the lands should at the same time be paid or secured to be paid to the satisfaction of the secretary of war, the income of which was to be paid to the said nation annually. These conditions have been complied with by the purchasers. Ogden and Fellows had no interest whatever in the proportion of the improvement money to which any individual Indian should be entitled. The arbitrators were to determine the gross amount of the improvement money, and that was all which Ogden and Fellows were interested in knowing. This the arbitrators did, and upon the payment of the amount, together with the other part of the purchase money by Ogden and Fellows, their title and their right to possession of the forest or unimproved lands became complete in one month after the filing of the report of the arbitrators, and to the improved lands in two years. The question of the distribution of the money among the individual Indians, was between them and the United States government, in which, as before remarked, Ogden and Fellows had no interest, and in reference to which they had no duty to perform except the payment of the money to the president of the United States. That could be done when the gross amount of the value of all the improvements was ascertained and not before. The ascertainment by the arbitrators of the amount to be paid for the title and improvements naturally, if not necessarily, preceded the division among the individuals of the tribes, of the improvement money, which Ogden and Fellows could neither hasten or retard; and they were not bound to wait for it to be done before paying their money and perfecting their title. For aught that appears the division may yet be made by the same arbitrators, and there is no reason for doubting their readiness to perform that part of the duty referred to them, whenever those most interested in having it done will consent. If the plaintiff and his brethren of the Tonawanda band have not received the pay for their improvements, it is most probably attributable to their own The plaintiff appears to have been among the foremost in preventing the arbitrators from completing their work, and from doing that part of it which he now complains has not been done. Beyond a doubt he should be held estopped from alleging, as a defect in his adversary's title, an omission which he has deliberately contributed in procuring.

Other objections are now made to the title of Ogden and Fellows.

It is contended that there was no evidence upon the trial to show that the individuals assuming to act as chiefs and headmen of the Seneca nation were in fact authorized by the individuals of the nation to execute the indenture. It is sufficient to say that the indenture was incorporated into and formed a part of the treaty of 1842. It was made at the same council of chiefs and headmen at which the treaty was made. It was in fact the basis of the treaty. The individuals representing the nation at that treaty were then and have been since repeatedly accredited and recognized by the United States government, as the ambassadors and agents of the nation for all the purposes of the treaty. When the treaty-making power of one government has accredited the enjoy of another, and treated with him as such, it is a fundamental principle that the courts of the former can not inquire into the authority of the envoy. The treaty is conclusive as to the authority of the persons assuming to represent the nation. The question of authority is one for the political department of the government to decide, and being so decided the judicial department can not review the decision.

The Indian tribes and nations within the bounds of the different states and territories of the United States have been regarded and treated by the general government as distinct nations, and treaties have in numerous instances been held with them as such, and treaties thus made have always been considered as solemn and binding upon the government and its citizens as treaties with other governments, or as acts of congress. A number of treaties have been made by the United States with this same Seneca nation, at all of which they have been regarded as a government of chiefs and headmen, and have been invariably represented in such treaties by such chiefs and headmen, or by chiefs, headmen and warriors, or by chiefs and warriors.

I forbear any further notice of the objections raised upon the argument against the validity of the title of Ogden and Fellows, as it seems to me they are all sufficiently answered in the several views already presented. I have regarded the one discussed by the supreme court, and upon which they held that title defective, to be the most important, and have confined myself mainly to its examination.

I think for the reasons mentioned that the decision of the supreme court was erroneous, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

After the reading of the foregoing opinions, on motion of GARDINER, J., the following resolutions were adopted: RUGGLES, Ch. J., GARDINER, JEWETT, JOHNSON, EDMONDS and WATSON, JJ., voting in the affirmative, and WELLES, J., in the negative. GRIDLEY, J., was absent.

Resolved, 1. That the plaintiff, as an individual, had the right of possession and was in the lawful occupancy of the locusin quo, at the time of the alleged trespass. That this right of occupancy was recognized by the fourth, fifth and seventh articles of the treaty of the 20th May 1842, mentioned in the bill of exceptions in this cause, and under which the defendants claim title.

2. That by the true construction of that treaty, the plaintiff could not be lawfully ejected from or deprived of the possession of the lands occupied by him, for the time and in the manner stated in the bill of exceptions by the defendants, until the amount he was entitled to receive for his improvements "as an individual Indian," should be determined by "the judgment and award of arbitrators, one of whom should be named by the secretary of the war department of the United States, and one by Ogden and the defendant Fellows," in pursuance of the fourth article of said treaty.

3. That consequently the making of such determination and award, and the filing of the same in the department of the secretary of war, in the manner prescribed by the fourth article of the treaty was a condition precedent to a right of entry upon the part of the defendant Fellows, as survivor of T.L. Ogden, upon the locus in quo in the possession of the plaintiff.

4. That the acts of the plaintiff and others of the Tonawanda band of Indians, in resisting the entry of the arbitrators upon their reservation for the purpose of appraising the value of their improvements in their possession respectively, did not excuse Ogden and Fellows from a compliance with the condition precedent aforesaid: 1st, because said Indians, as individuals, were not parties to the compact and treaty aforesaid; and, 2d, because it was not shown by the evidence in the case that an appraisal and award could not have been made by the arbitrators without such entry.

Judgment affirmed.