3 Port. 362 | Ala. | 1836
This was an application of the plaintiff in error for dower, as the widow of Chinnubbee, who was a chief of the Creek tribe of Indians.— That she was his wife, at the time of his death, was admitted by the defendants, in the suggestion of her want of the right she claimed, which they filed in the Circuit Court, to which she made her application, and has not been questioned in this Court, by their counsel. The land in which dower in this case is demanded, is a selection that was made by Chin-nubbee, in his life-time, under the treaty between the United States and the Creek tribe of Indians, dated the 24th March, 1832. On the 10th September, 1834, he conveyed by his deed, all his right and interest in the land, to the defendants, and the proper agent, on the same day, made his certificate, upon the deed, that the ‘price paid by them, was the full value of the land. •
On the 15th October, 1834, Chinnubbee died, and on the 1st November, in the same year, the Pie-sident of the United States approved of the contract.
Several questions, arising from the treaty, were argued, which ought not to be determined, till a case shall be made, with parties to it, interested in them. But so mu.ch of the treaty as need be considered, to-ascertain the quantity of interest, which the husband had in the land, must be construed. Her counsel contended that he acquired a fee simple in it, as soon as the selection was made.
Before the treaty was made, the fee simple, in all
The fifth article provided, that all the Creeks, at the end of five years, entitled to selections, and desirous of remaining, should receive patents therefor, in fee simple, from the United States.
If it were intended, that he should acquire .a fee simple, by selecting the land, why did the United States agree to give, and he to accept.,' another grant of title, at a subsequent time, to the same land ? If he could, in this mode, be vested with an estate in fee, how could the United States discharge the obligation, they have contracted, in the most solemn form, to grant the same estate to an approved purchaser from him? The engagement of the United States was either to grant the fee simple to him, or to an approved purchaser from him, should he sell
The approval of the contract, by the President, .after the death of Chinnubbee, could be properly given. He did, in his life time, all that was required of him. When he delivered it, nothing was necessary to complete it as a contract. The approval, when given, was no part of the contract, but the opinion of the President, that the contract of Chinnubbee, was'valid: This opinion of the President, like the proof and registry of deeds, in States where these are necessary, in addition to a deed, to convey a title, has the same effect, when pronounced after, as before the death of the vendor. Had the contract been disallowed, the alternative would have been again in Chinnubbee, and the title in the United
The defendants do not, therefore, in opposing the application for dower, deny the title of their grantor. Were we mistaken in the view we have taken, there is anothor, which will show that the husband of the plaintiff had no such estate as she is dowable of.— The selection and reservation of it, for his use/from sale, for the term of five years, accompanied by power to him to sell, can not give him any other than a defeasible fee — a qualified one, which must yield to the estate, which he was authorised to create, by the execution of the power given to him, to sell.
It is-well settled, upon,authority, that if there be a grant to one and his heirs, to such uses as he should appoint by deed or will; and for want, or in default of, and in the mean time, and until appointment., to the use of himself, his heirs and assigns, forever; and he make an appointment in fee, his wife has no right of dower. Before such an appointment, he would have a vested fee, and be seized in fee, until appointment. Should he die before such an appointment, his wife would be dnwable. . But. her right would be destroyed by an appointment: when made, the appointee'would take the title, as if,the original
The contract of Chinnubbee, without the proper certificate of the agent, and the approval of the President, could have no effect. The certificate and approval were required by the treaty, to prevent a sale, upon an inaedquate consideration; and they show that the contract was made in execution of his power.
T , , , . Let the judgment be affirmed. °
Sug.on P. 148-9. 151, 335, 337-8-9; 10 Ves. 263; 6 East 288