Harris v. McKissack

| Miss. | Oct 15, 1857

Smith, C. J.,

delivered the opinion of the court.

This was an action of ejectment to recover the possession of certain land, brought by the appellee against the appellant.

On the trial below, the plaintiff proved the possession of the defendant at the time of the commencement of the suit. He then offered in evidence a patent from the United States to Yuck-ah-she-ko for the land in contest, dated March 17th, 1855. He next offered a certified copy of the recommendation of a majority of the chiefs designated in the fourth article of the Treaty of 1834 with tbe Chickasaws, advising an immediate sale of the lands reserved under the eighth article of said treaty; and also extracts from a letter addressed by the Commissioner of Indian Affairs to the Commissioner of the General Land Office, in which it was stated that a copy of a list of locations of reservations under the eighth article, approved by the-President, was therewith transmitted. And that a majority of the persons mentioned in the fourth article of the treaty, having recommended an immediate sale of those reservations, the President had directed that they should be brought without delay into market, on the following terms: “The Register and Receiver of Chickasaw lands will advertise in three or four newspapers of the neighborhood, that these lands will be sold at Pontatoe, at public auction, in quarter sections, for gold dr silver, sixty or ninety days’ notice of the time and place of sale, and the terms, to be given,” &c. And that “itis the opinion of the President that they ought to bring five dollars per acre, and the Register and Receiver will fix this as a minimum, below which they must not be sold.” The plaintiff further offered to read the original and a certified copy of the same, of a sale to him, made by the Register and Receiver at Pontotoc, of the land. reserved to Yuek-ah-she-ko, at three dollars per acre. The certificate bears date the 1st of March, 1854.

The appellant objected to the reading of these several documents, but his objections were overruled, and they were read to the, jury. Whereupon he excepted.

With the exception of the testimony in relation to the possession, these documents were the only evidence adduced by either party. And the jury having returned a verdict for the appellee, a motion for a new trial was made, which was overruled.

Without noticing the exceptions taken to the admission of improper evidence, we shall direct our attention to the main question; that is, whether the evidence established title in the appellee.

A patent is evidence of the existence and due performance of all the conditions upon which its issuance depended. Hence, the patent of the 17th of March, 1855, raised the presumption that the patentee was entitled to a reservation under the terms of the eighth article of the treaty, and that the land patented was regularly located and surveyed. It imported a perfect legal title in Yuck-ah-she-ko; and as it issued subsequent to tbe institution of the action, it was no evidence whatever that the appellee then held the legal title; and, of itself, was no proof that the title was in him when the cause was tried.

The rights of that class of persons to which the patentee belonged, depended exclusively on the stipulations of the treaty. The title, at least the beneficial ownership to the lands, reserved by the eighth article of the treaty, never attached in the United States. They were reserved and appropriated by the treaty itself. But conceding that it was a right, and the consequent duty of the Government to issue patents to the individuals entitled to reservations, and that the patents would be evidence of title, if it were admitted that the sale of the land made by the register and receiver to the appellee, was valid and effectual to pass the title of Yuck-ah-she-ko, the patent which subsequently issued to him would be simply void. This is clear; for supposing that the patent bore date prior to the sale by the register and receiver, and assuming that that sale was valid, no doubt can be entertained that the purchaser acquired a title which would prevail against the patent. In other words, the purchaser got the title of the patentee. We may, therefore, leave out of view the patent, as it constituted no impediment to a recovery.

The question must turn exclusively on the sale by the register and receiver. And in reference to this subject, two grounds are taken by the appellant’s counsel.

1. It is said that the right on the part of the President to order a sale of the reservations, provided for in the eighth article of the treaty, existed only during the minority of the parties entitled to reservations. And that it is fairly to be inferred that the reservee in this instance, was of the age of majority when the sale was made. Hence the sale was void.

2. That the sale was made in violation of the express directions given by the President to the register and receiver; and hence, was without authority, and void.

1. There is no ground upon which any conclusion can be based in regard to the age of the reservee, at the date of the sale of his land, except the necessarily presumed fact, that he was in existence when the treaty was made; that is, on the 24th of May, 1834. He was then living, and if not more than fourteen months old, had not attained his age of majority when the land was sold. If in fact' he was then of full age, it was incumbent upon the appellant, who contested the validity of the sale, to prove it. In the absence of any proof on the subject, upon a principle invariably applied in such cases, we are bound to presume that he was a minor, and consequently, in this respect, to uphold the regularity of the sale. It is true, as contended by counsel, that the approval of the President was essential to the validity of the sale. Put it is also true that the approval would relate back to the date of the sale, which, if then regular and valid, would not be rendered void by the non-approval of the President, before the party attained his age of majority.

Although we agree with counsel, that the treaty contemplated the speedy sale of the lands reserved and located under the eighth article, if the parties designated should deem a sale advisable; and that the power of the President over the subject of such sale, terminated with the minority of the persons entitled to the reservations, for the reasons above assigned, we think this objection is untenable.

2. The treaty, in express terms, vested the authority in the President, upon a recommendation to that effect of a majority of the persons designated in the fourth article, to order a sale of the lands reserved under the eighth article. He had full power to designate the time and place, the mode and manner, and to prescribe the terms of the sale. In the letter of instructions transmitted to the register and receiver at Pontatoe, minute and specific directions were given- on all these points. Those directions were the law to which they were bound to conform, and the sole foundation of their authority in regard to the sale. ' The Government had no beneficial interest in the lands. The President possessed a naked power, necessarily limited by the objects of the trust. And the subordinate officers of the Government, whose agency was required in carrying into effect those objects, were bound to a rigid compliance with the instructions from which they derived their authority to act.

The record contains no evidence that the land in question was ever advertised for sale, or that the sale was made at public auction, as required by the instructions. This, however, was unimportant, as these facts would be presumed. But it appears affirmatively, from the record, that the instructions were violated in two important and material respects. 1. The land was not sold by quarter sections, but in solido. 2. The land was sold at three dollars per acre; whereas, the minimum price was, peremptorily, fixed at five dollars per acre.

The appellee cannot claim to stand in the attitude of a bond fide purchaser without notice. He knew that the land in question was a reservation under the eighth article of the Chickasaw Treaty; and was presumed to know the authority under which the register and receiver claimed to act. It is scarcely necessary to say that, under these circumstances, as the sale was illegal and void, the appellee did not acquire even an equity, in virtue of the sale. And it only remains to be seen whether the subsequent approval by the President, gave to it validity and efficacy.

It is clear, from the express terms of the treaty, that, if deemed advisable by the chiefs and the President, an immediate sale of this class of reservations was contemplated. In selling those lands, the' interests of the reservees was the subject, exclusively, to be attended to. The President thought that an immediate sale was expedient, and ordered them to be brought into market without delay. Near twenty years had elapsed from the date of the order to the time when the sale took place. Of necessity, very few of those living who were entitled to lands under the eighth article of the treaty were minors in 1854. Their condition must have changed. What was highly beneficial for them in 1834, might have been extremely prejudicial in 1854. The propriety and legality of the sale in question was, therefore, at the best, questionable. But, disregarding this consideration, we think that the approval did not confer validity upon the sale.

The chiefs advised an immediate disposition of the reservations, and the President concurring with them, gave directions accordingly to the register and receiver, and laid down the terms upon which they were to be sold. His act, thus far, was an execution of the power vested in him by the treaty. And without asserting, that having ordered the reservations to be sold, and prescribed the terms, his authority was at an end, it may be safely assumed that the terms prescribed, until modified by him, were as much the law for his government as that of his subordinates. Neither the Government nor tbe President was the legal or beneficial owner of these lands. The President’s authority was a mere naked power to dispose of the title of others for their benefit. His approval, therefore, of the sale cannot operate by way of estoppel upon the rights of the appellant. And, holding as we do, that the sale was illegal and void, the maxim applies, fully, that an act which is void in itself cannot be made valid by matter subsequent.

Judgment reversed, and cause remanded.