Brown v. Inhabitants of Wenham
51 Mass. 495
Mass.
1845
Check Treatment
Shaw, C. J.

The provincial St. 13 Wm. 3, (1701,) entitled “ an act to prevent and make void clandestine and illegal purchases of lands from the Indians,” rendered void, as the foundation of title, all deeds made by Indians, without the licenr.e or approbation of the legislature, after the year 1633. The preamble of that statute recited, that although the government of the late colonies of Massachusetts and Plymouth, by a law passed in said colonies, respectively, many years before, did inhibit and forbid all persons purchasing any lands of the Indians, without the license and approbation of the general court, yet that sundry persons had presumed to violate that law, to the injury of the natives, and to the great disquiet and disturbance of many inhabitants of the province in the peaceable possession of their lands and inheritances lawfully acquired. “ Therefore, for the vacating of such illegal purchases, and preventing the like for the future,” it was enacted as follows : “That all deeds of bargain, sale,, lease, release or quitclaim, titles and conveyances *499whatsoever, of any 1 u-ds, tenements or hereditaments within this province, as well for term of years as forever, had, made, gotten, procured or obtained, from any Indian or Indians, by any person or persons whatsoever, at any time or times since the yéar of our Lord one thousand six hundred and thirty three, without the license or approbation of the respective general courts of the said late colonies, in which such lands, tenements or hereditaments lay; and all deeds of bargain and sale, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, that, since the establishment of the present government, have been, or shall hereafter be had, made, obtained, gotten or procured, from any Indian or Indians, by any person or persons whomsoever, without the license, approbation and allowance of the great and general court or assembly of this province, for the same, shall be deemed and adjudged in the law to be null, void, and of none effect. Provided, nevertheless, and it is notwithstanding hereby enacted and declared, that all such purchases, releases and titles, heretofore had or obtained from any Indian or Indians, by any town or person whatsoever, of any lands or hereditaments which such town or person also hold or enjoy by virtue of any grant or title made or derived by or from the general court of either of the colonies aforesaid, and all releases, purchases, conveyances and titles, which. any town or person shall hereafter make, procure or obtain of any Indian or Indians, for any lands, tenements or hereditaments granted, or that shall be granted, by the general court, to such town or person, before such purchase or title made or obtained from any Indian or Indians, shall be, and hereby are, excepted out of this act, and be held for good and valid in the law ; any thing herein contained notwithstanding.”

But, independently of this statute, the whole court are of opinion that, by the true construction of the deed which the tenants offered in evidence, it was a mere release of any supposed right, equitable claim or interest of the aboriginals in the land within the limits of the town of Wenham ; that it *500presupposed that those lands had been granted by the government to persons who were then seized under those grants; that it enured, by way of release, to the town or to individuals, respectively, according to their respective grants under the government ; and that it was not competent evidence to prove the seizin of the town in its corporate capacity, and to maintain the issue, on their part, in this action.

Judgment on the verdict.