154 Mass. 181 | Mass. | 1891
The fundamental question in this case is whether, under the St. of 1869, c. 463, the members of the tribe of Herring Pond Indians acquired rights in the lands held in common belonging to that tribe, which they could transfer by deed. On January 20, 1870, Anthony T. Johnson executed a mortgage of real estate to Seth Briggs, and the defendant Eliza
In determining whether he had an interest which he could convey, we must consider the language and the purpose of the statute above referred to. Section 1 of the act made all Indians in the Commonwealth citizens of the Commonwealth, “entitled to all the rights, privileges and immunities, and subject to all the duties and liabilities to which citizens of this Commonwealth are entitled or subject.” Section 2 declared that all Indian lands, “ rightfully held by any Indian in severalty, and all such lands which have been or may be set off to any Indian, shall be and become the property of such person and his heirs in fee simple,” with a proviso exempting them from attachment or seizure on execution for a debt or liability existing before the passage of the act. Having all the rights of a citizen, an Indian under this statute could sell or control in any way all his interests in property, whether legal or equitable, as freely as any one else. It remains to inquire whether the statute gave him any rights which were transferable in the common lands.
Previously, all the common lands had been held and controlled by the Commonwealth for the benefit of the Indians, who were treated as wards of the State. The State recognized only certain equitable rights of ownership in the Indians, and it kept their property, and exercised a guardianship over them to protect them from the consequences of their own improvidence. Brown v. Wenham, 10 Met. 495. Mayhew v. Gay Head, 13 Allen, 129. Danzell v. Webquish, 108 Mass. 133. Lynn v. Nahant, 113 Mass. 433, 449. Coombs, petitioner, 127 Mass. 278. Pells v. Webquish, 129 Mass. 469. The statute above referred to put them, for the most part, on the basis of ordinary citizenship. It
Since he had a title to an undivided interest when he made the mortgage to Briggs, his interest passed to Briggs under the mortgage, and when, by the proceedings for partition, the shares of all the others were set out in other parts of the land, and his was set out in the premises described in the declaration, the right of the mortgagee attached to these premises. By our general laws in regard to partition, it is expressly provided that a person having a mortgage, attachment, or other lien on the share of the part owner shall be concluded by the judgment, so far as it respects the partition and the assignment of the shares, but his lien shall remain in force upon the part assigned to or left for the part owner. Pub. Sts. c. 178, § 44. If there were no such statute, he would doubtless have a right to avail himself of his lien upon the part of the land which passed to the person from whom he takes title. Bradley v. Fuller, 23 Pick. 1. Brown v. Bailey, 1 Met. 254. Torrey v. Cook, 116 Mass. 163, 164.
In the present case, if that makes any difference, the mortgagee has ratified and confirmed the partition by entering upon the land and holding possession of it. We are of opinion that the defendant Carroll, who has the mortgage title, is lawfully in possession under her mortgage, and it follows that there must be, Judgment for the defendant.