10 F. Cas. 520 | U.S. Circuit Court for the District of Indiana | 1841
OPINION OF
This is an action of ejectment, brought by the lessor of the plaintiff, to recover possession of a section of land on the St. Joseph river. To establish his title, the plaintiff introduced in evidence an Indian treaty, of a cession of land, held at Chicago, between Lewis Cass and Solomon Sibley, commissioners on the part of the United States, and the Ottawas, Chippewas and Pottawattamies, the 29th August, 1821. In this treaty, among other reservations of land, there was reserved to Pierre Moran, a Pottawattamie chief, one section of land. In the treaty it was provide ed, that the land therein stipulated to be granted, shall never be leased or conveyed by the grantees or their heirs, to any persons whatever, without the permission of the president of the United States. And such tracts shall be located after the said cession is surveyed, and in conformity with such surveys, as near as may be, and in such manner as the president may direct A petition of Pierre Moran to President Adams, for leave to sell the land, was offered. That this leave should be given, was recommended by Lewis Cass, governor of Michigan, &c., and Thomas L. McKinney, superintendent of Indian affairs. On the petition was indorsed, “the request of the petitioner, Pierre Moran, is granted.” Signed, John Q. Adams, and dated the 28th November, 1826. The copy of a deed was then offered, from Pierre Moran to Richard Godfrey, the lessor of the plaintiff, for the above section of land, dated the 2d February, 1S27. The deed was acknowledged and recorded, in Monroe county, Michigan, the same year. The consideration named was three hundred dollars. By consent, the signatures of the witnesses to this deed were proved by persons who were acquainted with their signatures, and who had seen and examined the original deed. The original, with the proceeding thereon, was filed in the land office, and copies, as above, were certified; and, it appeared, that this was the
To rebut the allegation of fraud set up by the defendant, several witnesses were examined, who stated, at the time the above purchase was made, the land was not considered worth more than one dollar per acre. One of the witnesses stated he considered the land, under the circumstances, worth less than the above sum. And here the plaintiff rested his case. The defendant then offered a deed for the same land to him, consideration named, fifteen hundred dollars, dated 21st April, 1831, and acknowledged on the same day. On this deed there were the following indorsements:
‘T certify that the sum of fifteen hundred dollars, for the land within mentioned, has been amply secured by a mortgage on said land. Five hundred dollars are to be paid when this deed is approved, and the balance, of one thousand dollars, to be paid in three equal annual payments; and I respectfully recommend the conveyance for approval. 16th May, 1831. Signed, John Tipton, Indian Agent, &c.
“Washington, 13th January, 1832. I hereby approve and sanction the within deed of conveyance, from Pierre Moran to H. Beardsley; and that, before the same shall be delivered to the purchaser, the Indian agent cause to be paid out of the purchase money, to Richard Godfrey, the sum of one hundred and twelve dollars, the amount, paid by him, and received by said Moran. And that the balance of'the purchase money the said agent cause to be secured, by a valid mortgage, on the property herein conveyed. Signed, Andrew Jackson.”
Several witnesses were examined by the defendant, some of whom stated, when he made the purchase, the land was worth fifteen hundred dollars; and Col. Edwards thinks it was worth three dollars per acre, in 1828. The plaintiff then proved, by several witnesses, and by the confession of the defendant, that, at the time the deed was executed to him, in the office of the Indian agent, and in his presence, Pierre Moran said that he had sold the land to Godfrey, but that he refused to pay him for it, and he would sell it again. The land, it seems, is very valuable, mills having been constructed on a part of it, and also a town.
The facts being before the court, the question was raised as to the validity of the plaintiff’s deed, which was argued at length. Three grounds were assumed: First That the legal title is still in the government, no patent having issued to Pierre Moran. Second. That the sanction given by Mr. Adams to the sale, was informal and invalid. Third. It was revoked and annulled by his successor, Gen. Jackson.
It is admitted that the legal title to their lands has never been considered, by any branch of the federal government, as vested in the Indians. And hence it has been held, that a state might grant the fee in lands, occupied by Indians, subject to their right. The Indian right is that of occupancy; and, until this right shall be extinguished by purchase, no possession adverse to it can be taken. It is also admitted, that a mere reservation of the Indian right to a certain part, within described boundaries, leaves the right reserved, as it stood before the cession. But, on looking into this treaty, there will be found, in the ease of Pierre Moran and many others, more than the mere reservation of the Indian right. The first article of the treaty sets out the boundaries of the cession. The second article provides, “there shall be reserved” certain tracts of six, four, and three miles square, for the use of the Indians. And, in the third article, it is declared, “there shall be granted by the United States, to each of the following persons, being all Indians by descent, and to their heirs, the following tracts of land.”
The second objection, that the sanction to-the sale, given by Mr. Adams, was informal and invalid, cannot be sustained. Neither the treaty, nor any law, prescribed the form in which this sanction should be given. The treaty imposed the duty upon the president, and he could execute it in such form and manner as his discretion should dictate. Now, where this power is so exercised, how can the form be objected to? Can the judiciary declare the act invalid, because the form in which it was done is not exactly in the manner they should have prescribed?The executive, as an. independent branch of the government, has the same right to adopt its own forms, in the performance of its own duties, as the judicial or legislative departments. The law-making power may prescribe the form in which judicial or executive duties shall be done; but where a duty is enjoined, and this is omitted, the discretion of the department, as to the mode, must be exercised. Except by the permission of the president, Pierre Moran could not convey this land. That permission was obtained before the deed was executed. Now, whether it would have been more judicious to have withheld the sanction until the execution of the deed, is a matter about which differences of opinion may exist But whether given before, or after the deed, it is equally within the power of the president It may be proper, however, to remark that, as the conveyance could not be made without the permission it would seem that the permission should precede the execution of the deed.
The last position, that the permission given by Mr. Adams was revoked and annulled by Gen. Jackson, is wholly untenable. Whatever acts may be done under the pretence of
(charging jury). First That fraud is never to be presumed, but may be proved by circumstances; that, to infer fraud from inadequacy of considera-ron, it must be so great as to strike any one at once; that, from some of the witnesses, it would seem, the consideration paid, and agreed to be paid by Godfrey to Moran, was the full value of the land, under the circumstances which then existed. Second. That, if the jury believe that Beardsley had notice of the existence of Godfrey’s claim, at the time he received his conveyance, or before he paid the consideration, the defendant, could not be protected as an innocent purchaser, for a valuable consideration, without notice. Third. That the evidence identifying the land was sufficient, if it showed the situation of the premises, so that they could be distinguished from other tracts of land. That this is a good description in a deed,, and, also, in an action of ejectment. Fourth. That, in the opinion of the court, there was no evidence that the one hundred and twelve-dollars had been paid to Godfrey, as required by the indorsement on the deed of Beardsley by Gen. Jackson.
The jury, having been out a part of two-days, returned into court, and, declaring that they could never agree, the court diseharged. them, and continued the cause.