*1 al. v. et Tennessee. suffers,- of an effect which he and which merely accomplishment him a he is unable to is forced re- upon by power wholly influence, that it sist paradoxical declare, equally élect and seek a sacrifice or a from that we which we are peril eases nisi prius most anxiously fleeing. federal courts of the courts, and States referred leave to, this much in if matter indeed do not pretty equipoise, incline they side of the here to the- maintained. We have Story and Washington to Kent and Tilghman opposed Gibson this and of the with consideration Kennedy; attending decisions. of made Court Supreme Pennsylvania, are the they most and have been recent, an examination and review the oases which have overruled. they the assur- Repeating entire ance of deference for the entertained opinions my brethrén, of the sincerest diffidence of the conclusions of mind, unable to own concur in my yet being those I opinions, have no claim to share in their merits if are they if right, incorrect, are position my respect them should be understood. equally Order. This cause came on to be heard on the of the rec- transcript ord ern consideration the Circuit Court of the from District of United States for the South- York, New and was argued counsel. On whereof, it is now here ordered^and adjudged by court, that

this of the said Circuit Court in this be, cause and the same is affirmed,, hereby, with costs and at the rate six centum damages per per annum. Calloway, Thomas Henderson error, Thomas Plaintiffs v. The State of Tennessee. right defendant suit If claims a of land derived a springs from a between reservation the United against and an States Indian and a decides State court of such tribe, validity jurisdiction, this court title, section Judiciary Act, . o review that decision. But if such defendant .outstanding sets title of the as an reservee merely title, and thus showing in himself prevents without connec- plaintiff, recovery by tion with the title against reservee, of. the and then a State court the de- decides ejectment, fendant in the this court has no to review that decision. In give jurisdiction order to must claim court, for himself, party and not for a third in whose title has no interest. person, In error of Tennessee. Court Supreme action of An ejectment Court brought Circuit SUPREME COURT. al. Monroe the lessee of the State Tennessee, County by Fen,for atract ofland at Toqua, Richard with notice to R. Stapp, Brown, Aikin, W.'F. John and Solomon Beatty, tenants in indorsed, Den, State, Lessee' of the Fen, &c., *2 Henderson and' issued 27th 1841.” The Calloway, January, and declaration on notice returned the sheriff being by served as the tenants Brown,' in possession, Stapp, Beatty, Aikin, and on of Thomas they appeared; application were, and Thomas H. leave of the court, Calloway, they admitted defend the room and stead of the tenants sued,” entered into the common rule, and pleaded guilty. are, The material facts of the case that the land in contro- a school and section, was School versy had taken Commissioners and. held it until .a law was possession passed by of Tennessee the school lands legislature. to be directing Sold.- About that time one John Lowry, professedly attor- "Will, and obtained Toqua ney and sioners agent possession land, 1836, retained it until about when School Commis- and retained the same regained until or’1838. Then Henderson, 1837 in Thomas one of the plaintiffs error, of the tract for the possession heirs of one got Andrew held, Miller, has sincé under which title it Andrew at the date of Cherokee of 1817, treaty the head of an Indian and resided in the family, Cherokee nation, east of the about the March, 1818, 1st of Mississippi; and made on settled the land improvements and on dispute; his the 24th name in the office*of the May, registered for a wife, Cherokee reservation in his agent desig- nated, on the!books of said this land as the location agent, him selected for reservation. From that time until he was he,-with his killed resided wife and of his (August, 1818), part family, land, on the a-reservation, on which he claiming said he intended to live and die. A few after his death, days Black, sent his widow possession John him to take her requested for of the land and hold it for her children. claim, offered her for her 1,000 Black which was refused. $ Black was fall of 1818 Mrs. Mil- placed ler and Hicks and James Chisolen,.two Cherokees who George had taken estate. Miller’s Two of Miller’s children charge lived with Black, school, were sent expense paid out of the the land. held Black profits possession-for children of Miller,- who remained with him till off put School Afterwards, in-the Commissioners of 1822.- spring Thomas for the children of Andrew got possession Miller. The land was cession made included United States the Cherokee of 1819. treaty DECEMBER,

Henderson, et al. v. Tennessee. court instructed the jury, “although ancestor, his name for registered place dispute, and took thereof in the spring and died of that place July August year, before the no title vested in him, and none consequently could vest descend heirs.” for Verdict On plaintiffs. appeal the Supreme Court of Tennessee, of the Circuit Court of Monroe was affirmed. the case is Thereupon before this court brought error, writ of under the section of the act of Sep- tember 24,1789. The cause was Eaton, Mr. Bibb Mr. argued by whom Mr. Green, .error,-and plaintiffs Mr. An- Stanton, drew Mr. for the defendants in Erving error. As the case was dismissed for want of jurisdiction, only much of the cable to the of counsel will be arguments as is appli- inserted the case point turned. Bibb, Mr. for the in error. plaintiffs *3 That of the to the is to de- part charge relied on judge’s jury “ the feat wherein he that it said, jurisdiction, admitted that the defendants had not title re- any themselves, in on an lied the heirs of in solely Miller.” This to is part to, the jury judge’s charge excepted and is as erroneous as the other member -his in ex- charge the is no such position treaties. There admission in the such in record; evidence; admission was it is an un- given isit what had warrantable been done repelled assumption; record, court, the and the and is to parties, contrary the testimony. and were not tenants on whom the Calloway served, declaration was court to but were and the- received admitted by and stead of the defend room tenants sued.” to the action of govern eject- According principles and should' ment, it was that Henderson necessary and show that between them the tenants there was a privity was a -coincidence that there connection possession, between the possession held tenants so stead, interests of those in their that there should admitted in- be no collusive pr possession shifting change be to an eject- of a third who jury put party, might thereby ment to dered tenants surren- recover the which his possession between- is a difference there “because improperly; great dem. Fairclaim on being defendant plaintiff ejectment.” von. x. 27 COURT. SUPREME al. v. Shamtitle, 1290, 1294, 1295, 1300, 1301, 3 Burr. v. Fowler 1302. shall not be admitted. A mere stranger- possession Jackson 128; v. Estill, Bibb, McEvoy, Troublesome v. 69. Johns. Caines, 151; Stiles, 10 Jackson v. include one from Under the the courts landlord, every term an sustain in- who derived, might is whom possession to defend. Crockett eviction; be admitted will jury by they Lashbrook, 5 539. Monroe, unless be No admitted to defend person or receives the rent; tenant, because it is, been, or has for any person interpose an act champerty and to title; and cover the- per- with possession make defendant, son a who was not concerned tenement, law. on Runnington was a mischief at common 70. Ejectment, p. defend eject at But, common a landlord law, admit an lose his pos ment is matter of he might otherwise right, and the tenant session combination between Gravenor, 70; in v. Mod. Underhill possession. Fenwick v. Durham, 1 on dem. Fowler Salk. 256; Fairclaim 229, 230. Shamtitle, 3 Burr. 1301; Ejectment, Adams title is in- if defend, whose should person be admitted lessor consistent with the tenant, chambers, court, or to plaintiff may apply judge costs, Eject- and have the'rule Adams on with discharged, ment, p. Henderson and should when objection have been made . if had no defend, to be Calloway applied they admitted to title in themselves court admitted nying the possession. were strangers-to from de- far them; the the plaintiff, lessor of made defend, acquiesced, to be admitted to land an admit should agreement them they in Monroe section school described was declaration ”; and should admit- also County agreement the tenants ted under court, order room made *4 and abide judgment, to the security giving all costs that should

pay be awarded. and The declaration to was. indorsed for notice action, the Calloway, they at the that, institution showing to the were known the lessor the plaintiff the attorney landlords. The_ said Calloway of the the charge after to the jury, judge so defend, 'and Henderson had and to dealt so admitted with, defendants, an the illegal to erroneous, surprise an by injustice remedy left wrong a time which et al. v. Tennessee. the to the exception charge was' given jury, remedy pursued. , that, in 1837 proved, or Thomas Henderson the heirs of got Andrew r it has Miller, unde which title since been held.” The of the to the was in the jury contradiction to charge act of judge the court Henderson and to' de admitting Calloway fend, instead of the tenants possession; plaintiff, the court acts, record, were own estopped by evidence, from assuming position Henderson had no themselves, title in but. relied. solely title in the heirs Miller. If such had been their could not, without violating predicament, éstablished to actions of law principles relating ejectment, room, have been admitted court as defendants in the ánd stead tenants in possession. ipse This dixit of the in his ex- so judge charge jury, unwarranted, to, and cannot be cepted taken veritable, to defeat a revision final legal so.as of the Court under the judgment Supreme section twenty-fifth of the Act of the United States. Judiciary ;A to the evidence, cannot make judge, charge jury, cannot create an for a admission so as to bind him con party, facts, record, trary contrary contrary law.. Williams Norris, Wheat. 119. When such a charge is to, is a for revision reversal, excepted subject proper other error or mistake of fact or com equally any law mitted by the'.judge. this unwarranted dictum of the Putting out of judge the. we come question way, jurisdiction of this court to reexamine the final decision of Ten- Supreme Court nessee in this action of ejectment. section of the act of Congress approved —- 1789' Stat. at 24th September, (1 Large, 85), provides, decree in That.a final or highest court lawof decision, or State in which the suit could be equity is had,. drawn in where a statute question validity of, State, under, or an exercised on the authority any ground Constitution, of their treaties, being or laws repugnant States, of the United and the decision is in favor of such their or where drawn the construction validity; clause of or statute Constitution, of, of a or com under, States, mission held United decision the title, right,- either exemption privilege, specially clause of or claimed under such Con said party treaty, statute, reexamined, stitution, or commission, may— *5 SUPREME COURT. et al. Tennessee. affirmed, and reversed or the Court of Supreme United States, error,” a writ of &c. But error shall upon other or as a of reversal, such assigned regarded ground any aforesaid, the than such as face of the rec appears and ord, of the before-mentioned immediately respects questions or Constitution, treaties, construction of the said validity statutes, commissions, or authorities dispute.” claimed, this the under a law In of the that as of the State, the land was do- public surveyed lawfully of the State, and that main it was lawfully appropriated the section, school of of the surveyor the according plan for the State the defendants claimed under district; Highwassee treaties the

(cid:127)the of the United of 1817 and States Cherokee reservations nation of Indians, authorizing to become acres the heads of elected Indian families who citizens a reservation States, of the. United under duly and taken ance with Andrew accord- himself and his family, said treaties. the. the face of that “the Upon the record in this case appears, raised from the above facts principal question was, whether Miller’s children had land as a interest in said reservation virtue of the father at and residence registration the it farther that the Toqua, place ”; and dispute appears ancestor, court instructed jury, although his and Miller,-registered name for took the place dispute, (cid:127) thereof in the and died spring upon of the before same and Juiy August place year, 1819, no title of quently vested in him, Andrew and conse- none could heirs.” . vest descend case, used in actions of fictions stripped eject- ment, is between commissioners substantially Tennessee, fund of the State of of the school a law under claiming State, of that defendants, admitted Henderson, and and claiming of the- land holding possession the treaties of the United and court States; gave title, construction of and of State treaties adverserto the right, privilege, claimed under those It is a treaties. conflict law State claimed authority with treaties of so authority States, the United appears palpably face the record. plainly But to evade the jurisdiction reexamine reverse and of or affirm the Court final decision of the Supreme Tennessee, and exigencies within reason plainly Act, in a case so twenty-fifth section of the Judiciary pal- pably requiring Supreme exercise Court true States, United construction give et al. v. treaties of maintain suprem- these States, the United it is the laws of here acy argued, *6 are in a not to predicament prose- cute of error. this writ a held Do not the treaties protect possessory right fee ? Is a simple equally the'rights them defendant to show that he is tenant in fee ? a action bound possessory action, a defendant in a whom the Shall against possessory of erroneous barred a obtained an judgment, plaintiff writ of to error, on the trial he did not deduce himself because a title in fee? dictum, the assumption, That erroneous unfounded in his to the is dixit, of the ipse charge judge, jury, gratuitous or bar, law, cannot alter the fact need not be farther argued. action, is a invented The action of ejectment possessory by titles, the ties attendant to unembarrassed the difficul- courts try possessory fiction, actions. declaration is a real The upon fictitious, the defendant’s name is name is ficti- plaintiff’s is tious, a the casual name fictitious fiction, ejector’s ; the lease is and moulded all these courts regulated fictions have yet and estab- known into a by legislation system, governed of to substantial lished well adapted purposes principles, action a real founded a The distinction between upon justice. action founded a a upon of right right property, possessory established, and is ejectment confined of is well possession, ahas the claimant right to possession. cases which of a or a of property, has only right right When the claimant the land him, his would be action to entry remaining not sufficient to enable him lease, to make a real valid illegal, for remain, not maintain ejectment, principles and he could are changed. the forms of proceeding although 30, ch. 195 to Commentaries Blackstone, in his pp. (book to form a com- requisite tells us four several of degrees 199), lowest and The most lands'; title to imperfect degree plete —1st. naked of the estate, the mere possession title consists in of without of to continue or shadow right, right, any apparent evidence of however, prima a is, that possession; facie and it time length title may, by (and legal possessor, into in- hath the a right), ripen perfect him who negligence to a mere step perfect title. '2d. next good defeasible 3d. The property, jus is the right possession. right even the pos- either proprietatis, right without possession “ is divested session, put estate of owner where the title,' duplicaium,” or droit “jus 4th. a A right.” complete droit,” there et seisince conjunctio.” where is juris n 27* COURT. SUPREME

318 et al. v. action, is a founded the action ejectment possessory As and can be maintained a a on right possession, right a term of it.ean be defended years, even possession tenant, A under an un- the actual one possession. having landlord, defend an lease frdm may successfully expired his landlord. him against action the action' of ejectment, right In and the mere plain- the ultimate tried, tiffs must property; right 1 Burr. Hord, Taylor Show a entry. right Estill, Adams on Bibb, ;. 128 Ejectm. Troublesome 119; 10, 33, 21, 42. on ; Ejectm. 247 Runnington The., be the owner until is presumed in possession party of the defendant gives proved.’ the contrary vyho cannot show good person every Mm right — change possession. good right possession, ; Burr. Black. dem. Haldane v. ch. Harvey, Roe Comm. p. tenants The lessor of the tenants posses- admitted to defénd place parties, persons sion, lin v. *7 to an As- the ejectment.” “are parties,-and 667, 668. Parkin, 2 Burr. of the sued, and the possession of the tenants The possession in Henderson, admitted and place and defendants, Calloway to, knit the title of with, and tenants, is connected of the stead of the United out of the treaties children, Miller’s growing Indians;; of the plaintiff Cherokee nation the States with ’ states, record his own witnesses. The himself proved “ whether, from the above was, raised question the principal land, as a had interest in said reser- children- Miller’s facts, residence of their father the and vation, virtue of registration instruction in ”; gave the at Toqua, dispute place of the adverse to a construction treaties containing to the jury children, of and of interest Miller’s the de- title, and the right, under the in the title out of growing treaty. fendants of court, the the in Henderson and To opinion admitting “ roorq stead tenants as defendants in of Calloway- -in the room of the tenants -possession,” defend sued,” to ; no bill of and as- acquiesced took exception the plaintiff record. It cannot be evidence of now alleged sented and Henderson, of their landlords being adduced by Calloway to admit them to tenants in was insufficient to the stead of the whom defend room tenants upon declaration was served.. It is not That cannot now raised in this-court. question de- are the now Henderson and open question. 'Calloway fendants, taken his judgment whom tffe TERM, 1850. 319 al. v. Tennessee. of suit. costs They for- to the Court of Supreme and did Ten- to appeal, appeal, under section have the ; right, nessee of the treaties, construction have the Act, to the Judiciary and as affirmed Monroe County, the Circuit Court given Tennessee, reexamined reversed Court the Supreme of the United States. Court Supreme affirmed by Tennessee, in affirming Court of The Supreme affirmed the Monroe construc- County, Circuit Court of forth in the bill exceptions. treaties as set of the tion of this eases, jurisdiction decided upon The following Act, will section court, suffice to sustain ¡Judiciary under the twenty-fifth this case. v. The Craig jurisdiction Worcester v. State Peters, 229; Missouri, State Randell, 583, 597 Crowell Peters, 582, Georgia, 399. Peters, 391 to decisions Randell, fourteen previous this case of Crowell v. In reviewed, section are this twenty-fifth of this court upon is not that the' ques- that it reaffirmed, necessary the doctrine tion should raised, and to have been the record appear ‘ terms, verbis,’ ipsissimis direct made, decision positive clear,and intend- necessary it is sufficient if it appears raised, and must been have- have must ment, that induced judgment.” to have decided, in order Lessee, Cranch, 344, has case of' Norwood’s Owings of this court, been relied on as the adverse being claimed lessee Norwood’s consideration. June, 1800, dated found- from the State Maryland, grant Adventure; called Brown’s the land ed a confiscation upon actipn lessee, of Norwood’s attempted to defeat Ov/ngs, title, 1695, to patent year as an outstanding up, John who Gadsby, conveyed Brown, Thomas who conveyed in fee to Rawlins, mortgaged to Aaron who Jonathan to be void Searth, deed of with a proviso payment 13th of interest, May, on the This 800, with £ mortgage a title to show Searth, Set outstanding against Owings *8 that the Searth was lessee, mortgage contending Norwood’s United the States and of between the treaty protected by for still the confiscation,-and was Britain, security from' Great to be Searth, of who were proved the money representatives of the Court of But Appeals Maryland still living;in England. that, payment at the of the time limited decided, expiration estate vested in the Searth, mort- the deed to complete legal and was confiscation; confiscated Searth, liable by. gagee, ch; .session, 1780, -October of-the act of of virtue Maryland the British did and vested in the that State; the title. affect plaintiff’s SUPREME COURT. al. ot of of Court the writ error United Supreme Upon that the case Scarth’s the court decided States, representa- and that the set tives the treaty, was not protected by right up out of the error did not And grow treaty. that so set more up by Owings, originated certainly right, most than fourscore before treaty. Surely years of Chief no similitude to this. shall Justice Mar- The explanation Cranch, maintains this court jurisdiction (5 348) A in fee in the case now under consideration. simple, whole, all out of and in its treaty, protected growing parts interests, are holden or subordinate possessed, fee; to the estate in the Act in aid of will.come Judiciary be when lowest of such interest shall grade protection, ‘‘ courts, in the State either inci- directly drawn in question Such is decision in the true effect Owings dentally.” true Lessee; such is the construction of the. Con- Norwood’s section of the stitution Act. Judiciary contra. Mr. Ewing, mere This court cannot obtain consent jurisdiction by to this court It was the to commit law parties. policy the case courts. follows. If certain cases the. State ai’ising specified not, no If Act, within the jurisdiction Judiciary or what have they may matter what parties may agreed, have court below from or what the may be'estopped permitted, denying, it this court or what be from denying, may' estopped true, then, be has has of the matter. It as.it jurisdiction no might after had that, we admitted plaintiffs been urged, below, error court be from to defend we might estopped themselves, and did not rely denying Miller; title in the of Andrew on an heirs outstanding solely would confer the admission nor the estoppel neither yet take of its on this This court will notice court. jurisdiction And matter at what own ceedings stage pro- jurisdiction. or in what manner a want jurisdiction may appear, it, act court will notwithstanding any may appear, to the record. oí the parties technical or other admissions Tennessee, cannot concluded children the statute By here are before the court. Now would unless they brought you do the facts the children not show conclude though between in error and heirs of Mil- plaintiffs any privity title in ler. thus to the heirs attempt give treaty, the case, if entertain court. And this heirs of Miller treaty, it determines rights if the And are the court. not before although they *9 1850. et a1. of Miller be the heirs should ever hereafter before this brought that, court for it be would held de- adjudication, present cision, Cranch, their are determined. Stanton, Mr. on the same side. Is there such between the the any proper proof privity in error and the enable plaintiffs Miller, heirs would former to -set own, title of Miller’s heirs as their up thus it within the ? The bill of bring treaty exceptions upon s its face shows that consent, wa and was un put drawn doubtedly as is the up by attorney, signed judge, in Tennessee. The practice facts were not set down in order as were precisely proven. they The on the other side lead would us the conclu- argument sion that it is the ampliare duty jurisdictionem.” We maintain and in this reverse; precisely especial- that the mere fact of the defendants below

ly, setting up title, out themselves, without a claim in them- outstanding selves under the cannot confer urisdiction. The true treaty, j construction of the statute is, that the intended persons benefited must have under the a direct interest statute treaty, that interest in the State court. specially Otherwise, the true h&ve holders of the title would their rights when to the adjudicated, were not suit. 5 Cranch, they parties 344; Wheat. 117. Inasmuch as the in error are entitled come plaintiffs only into this court, Act, under the of the out- virtue Tudiciary in the heirs of Andrew are Miller, standing title entirely forum from the for want of those precluded heirs. privity Eaton, Mr. and conclusion. reply Under Act, section Judiciary is, not one of question struction meum and the. con twwm,but whether of a or law of the treaty United is involved. States article of the of 1817 a life estate to eighth treaty gave widow, head of a and remainder in fee dower family, children. Miller the. head of an Indian Andrew was family, true, was within that ceded as such. claimed, land it is registered t, tha of but 1819. But we claim that true construction of those trea is, that the latter ties continuation' former. it is this construction those And treaties' which aus gives It is mere this court. not a title which standing we set The bill of up. states, exceptions!'expressly Thomas Henderson of the-plaintiffs (one got posses error) sion for heirs it has which title COURT. SUPREME et al. v. Tennessee. title, hold under that then. And it since been our title under the We held.” heirs Andrew 1819, which is fact one and the same the treaties of 1817 *10 n The children of Miller were o title, that is involved. actually until off the School land the rents Com put enjoying State of Tennessee missioners. The statutes override treaties of States. the United delivered the of the Mr. Chief Justice TANEY court. opinion ' is, in this case The first to be decided whether the question court has jurisdiction. us before writ of error to the case is Su- The brought of Tennessee. It of the Court State appears by preme the title of turned Andrew record, decision Miller of 1817 under the treaties and 1819, to the lands in question, Miller the head Andrew was of an Cherokee nation. made, first and it was was in- Indian when family the title to this land was his heirs, sisted at the trial that contained these treaties. The virtue of the reservations de- title, of this is, cision was validity in error claimed under it. If did not, whether the this court they plaintiffs of the to revise the State power has no court. It The was an action of error were ejectment. plaintiffs the court defendants. were permitted not appear They when the suit was the tenants in brought. possession other named in the was served on persons process proceedings, character, and the record does not show what upon what error were and de- ground, plaintiffs permitted appear the suit. fend the land in 1818, and Miller died in dispute 1822, when the State took until his children possession held for of The widow of Miller it, title. removed to the the claiming nation,' in new settlement on the west of their Cherokee death, the children followed soon after his her Mississippi, ; of the land and have they took all

when State possession' to this since. there ever right property remained to have been appears . The since the treaties dispute above continually after the removal of Miller’s children mentioned, hands several before this times suit was possession changed brought. states, Henderson, one bill of exceptions for the Andrew Miller error, hens possession plaintiffs in 1837 or got held down to which title it was stated that he But it is not this suit. commencement-of heirs of had from the Andrew Miller. any authority et al. v. isit stated that no theOn contrary, expressly, they up title for their defence themselves, but relied on an in title outstanding Miller. in the heirs Andrew law, Now, title language a title in a third under which the means tenant in right person, pos- does And no one has a session not claim. to enter the tenant but the the the land and eject person title upon legal holding title, if the can show that in a tenant third action, it defeats tenant sets person title in himself. This was although the defence in the case before the undér the been in heirs of court. If they then the as tenants under their title of the holding authority, tenants, been the heirs would have could title in have derived from the and is showing defended themselves possession, by heirs. For the landlord although may appear interest, his on account of own yet defend appearance his of the tenant. The for the tenant protection not necessary landlord, own right show the title derived may from they in error had made this him. if the defence, And plaintiffs have claimed would evidently *11 States; the decision under a of the United was treaty have jurisdiction, this court would and-might right, it erroneous. if deemed But they reverse the judgment under this title. set They claimed no right not to a a third show in them- as a title in person, right it up none, selves, the lessor there- but that them. have been They might to enter upon fore had no right mere trespassers intruders, any without from authority- or been a would have defence owner, one, this good and yet legal to that was produced title superior by if lessor of the -plaintiff. is derived from the defence trea to this make The .right under the general, gov exercised nor from ties, authority State, the laws which provide It is ernment. given set in titlé a up in may defendant stranger that the true, set in this case the titlé was is up the action. It in bar of to this court, to jurisdiction But give under a claimed treaty. himself, a and not for third must claim the right the party The in 5 Cranch, interest. case has no title he in whose person Lessee, in same And point. v. Norwood’s 344, Owings Hernandez, 12 in v. Montgomery reaffirmed doctrine was Peters, 149; McAffee, and Udell ; Fulton Wheat. 129 Howard, Davidson, suit, this have interest to appear The heirs of Miller- the decision. judgment be-affected nor can in an- of their title the assertion is no obstacle case SUPREME COURT. aI. v. Tennessee. suit, other themselves or brought by any person a claiming under them. And in title such a legal have suit this court would writ, of error, upon jurisdiction whether the judgment ain Circuit Court of the was United States or in a State court. But this writ error- be must dismissed for want juris- of- diction. Mr. Justice WOODBURY dissented from deliv- opinion ered court. view is, that this tribunal My present juris- also, over it, and, diction that the below ought reversed. In order enable us to exercise in this class of causes, it need that in the State court some appear, or title set under a with the United States up treaty drawn in overruled. below up the defendants seems one have been of this very clearly character. The states that record .“it was proved by sundry witnesses that Miller was the Andrew head Of an Indian fam- ; resided in the Cherokee nation east of the ily .Mississippi the date between the United States and treaty of^the the Cherokee nation till his ; that from death spring he the land in of the same resided on July August year, reservation, the same as where said he dispute, claiming die; intended live and and that the land was not dispute ceded such facts it is but was that of 1819.” Now, treaty averred admitted instructed Andrew ancestor, jury, registered although for the his name and took thereof place 1818, dispute, and died or Au- spring place July the same and before the no title year, gust treaty vested in him, none consequently could vest descend to his heirs.” is difficult to It conceive how it that a title say, possible not thus set or drawn in question, and *12 not overruled court, was the State as to to this court give to revise committed. Such a title seems error any to have been the one only a there and recovery, interposed against was the one decided on below, and was only explicitly overruled. The sole here this conclusion to obviate argument offered does not or on. It appear to have there relied presented is, overruled, that, it Miller’s title was set and there though up tenants, was not set title under up or as the existing which they entered or claimed. TERM,'1850. al. v. Tennessee. Act, in order to to this court give the Judiciary jurisdie- But section, does the not terms under require tion have been vested in the title should entirely such tenants. that if it drawn in question, sufficient was or was set up, It seems be defence, set and overruled. could up, and legally (1 Large, Stat. 85.) at question in is on drawn the'facts What depends to that case. Here the particular and the-law of title was applicable shown, the I have treaty, heirs already Miller’s and question, drawn overruled certainly certainly the judge. is the defendant must have had a But argued, right to make defence, United States the or under the we have no That, however, is the on question jurisdiction. begging It seems sufficient to have him set quite a merits. right such up to it overruled. have court below too, concede, seemed Here, Hender a Miller’s but heirs; such right decided son possessed that the him, on Miller ground himself was right against defective . not but the guide, ques- Again, claim, claim overruled. Nor need the being tion claim or In estate interest. such an' be to the whole action as- have, themselves, in possession no title this, in tenancy may the persons for life, nor even It sufficient if a mere- fee, years. nor for behalf of those for will, a possessing larger estate, is claimed. if naked estate be is- legal it may So than the other persons plaintiff, latter not shown disturb the tenant, unless authorized being 2484; Wheaton, Burr. 515; estate. 4 Green legal Peters, Birth, leaf’s Lessee however, the defendants have further,, Here, appear gone heirs, a claim in set privity have made and to up not to the treaty, though whole in under Miller right terest. therefore, record, seem view aIn just is now within what required, themselves have brought even Because, though court. original-defend the opinion unless themselves, it was a title in tenancy claimed ants at will hence, .and Calloway, probably under- defend, did defend, it clear yet requested latter .were that the record, up latter ly appears heirs, title of in defence on the those relied Miller, heirs such mode overrule the propriety court did Miller’s heirs set under the title itself defence, treaties. Cherokee

VOL. X. *13 COURT. SUPREME Henderson, al. v. Tennessee. et ' nor thus? set The title under the treaty only Henderson and overruled, but it was up by Calloway, under the it in of Miller. heirs privity claiming rights 1818, as as to have proved put The widow early land, “to hold it for her and in actual Black possession he, children, And with two of the heirs of Andrew Miller.” the land till 1822. No remained in and cultivated possession here, he the defendant exist, that, if can Black title. But it like under the Miller could himself protect rightfully never, him, were put is said that into them with Henderson heirs, never held it for widow or the possession by differ- or otherwise. We think lease any privity after of the record Black Another says expressly, ently. portion others, been plaintiffs expelled by plaintiffs, or between 1822 and 1837 Thomas got which title it heirs of Andrew for the possession has been since held.” before this ac ensued the three or four During years not that the instituted, therefore only tion was present “ it would appear, others, or person defendants were possession, used as to heirs,” for the which is the Black’s expression very case, no mean in one less than would possession, naturally heirs, or as other, with the request privity this in doubt as to respect to remove for them. But .all agents Miller, the for the heirs of record Henderson, entered who since been held.” adds, Miller that under the record, to all words in the a fair construction and this Giving .. stated, is difficult to misunderstand to all the other facts .it the, reservation and heirs as The widow regarded language. valuable. She refused fered 1,000 in it of sell $ not abandoned atten unworthy Black. It was by but Black was into with first ; privity put possession tion to them. And after he was Hender or tenant expelled, agent son, as another seems to have agent, regained since, their title heirs, for the but to have held it like The' tenant, with privity. as their agent probably the defence Henderson, likewise, on himself to take notice to defend, confirm this case, and his admission this view.' title or third with entirely disconnected person, A. 10 Johns. Would not be admitted. usually ; 1301. Caines, Shamtitle, Fairclaim 3 Burr. 151; He was his connection admitted, then, from doubtless “No Miller’s title. person Lord Holt 209), says (Comb. Í3 tenant, and admitted defend in unless hath ment, rent.” Bac. Abr. Eject or receives the 201, 209. 192, 199, B. 2. Runnington Ejectment, v. Tennessee. further in It is that Miller’s heirs urged objection, are not Neither is owner the fee a here.. parties party in eject- *14 inment case where a lessee or any him agent malíes a sub-lease and is admitted to defend for his sub-lessee. record, to the then,.these whole Looking considerations seem question in favor dispose jurisdiction of the origi nal defendants. But the below on some' plaintiffs detached rely in the expressions from which to infer a record different result. ” Such as the of an title judge speaking outstanding Mil ler’s heirs. as from the Probably, already explained whole case, meant, the words judge by title,” one outstanding did which not exist and one plaintiffs, which, though had not been represented to, the by, conveyed defendants by formal deed. Under- that any all is natural, and aspect, our un jurisdiction Such a case would unimpaired. entirely like that of if he meant Lessee, v. Norwood’s 5 Cranch, 344. Owings But one title which existed by outstanding elsewhere, but which the defendants did not set nor mean to up, avail themselves of aas defence their connection it, with he de by in all parts essentials from the rest record, and all the it, that proof enteréd for the heirs of held it two or three under their title, and set it years up as his defence. dissent rests on this view of the case, it My though by certain, that, means if a naked title were shown to defeat the merely not held under nor plaintiff', relied on in defence, and through it was examined any privity below, when set to defeat the action, we should not ex- ercise decision, revise the jurisdiction if a connected treaty ; title is there with that overruled because the is a treaty part there, as much as in other cases. It is defence relied on- for much as in other action as cases. exemption The title under is called in 'and decided treaty against as inas other cases. fully from' such a defence dangers overruled a State court are as serious as being cases. in other So a here a State court is reversable at all only when in collision with defences offered under from authority the United States. And here the State court not over- ruled so set favor did it in own authority up, .of State and of their citizens,- the valid own e- a ty claim in behalf o.f an Indian widow and Indian On orphans. therefore, entire for general principles, with respect of Tennessee, that, courts should be it if would seem proper, tribunal, to be open revision another ought one of this character.

SUPREME COURT. al. v. Tennessee. be of no use to sustain here, As it would unless I overruled, in few words as be against would add a validity favor merits with the Miller title. being It must conceded, that the title to be of Miller’s heirs ought upheld if it became ; before his plaintiffs, death perfected if it was afterwards perfected relate back operate a time before his death. below on the rested his judge position ruling entirely before the after 1819, dying treaty though no title to the had land claimed. But he had acquired fulfilled all the varied requisites afterwards treaty that of He entered 1819.. on the .lands under which extended afterwards, as treaty territory well them then, ceded. He under it. He improved head of an Indian He them under it. See family. registered Treaty, art. And Stat. He them resided on Large, under'it. (7 159). requisite, census, only remaining the first provided treaty, dispensed *15 of 1819 death, then, Stat. had (7 Large, 195)'. Though intervened, his commenced become that of perfected ceding All, then, census. territory should dispensing relate of his period back entry registration. It is law to have back to proceedings operate familiar very commencement, the their yond and references need be' not extended be cases writs, common of amendments in records, and well, returns, as titles land confirmed or ratified where be Com. fore Vin. partly completed. Dig. Confirmation; Abr. Relation; ; 4 Kent’s note Com. Clary’s Marshall’s Heirs Heirs, 5 Monroe, 266; Brant, post, 348; B. Johns. Landes 141; Cowen, 75; Missouri, court, As delivered, this just -opinion gone ponsideration into the of the of Miller’s validity heirs, I forbear further remarks it until before brought us in some other form, action and more acceptable to. majority members this tribunal. McLEAN, WAYNE, Justices and McKINLEY concurred with Mr. Justice WOODBURY.

Order. This cause came on be heard on the rec- transcript State, ord from the of the' Tennessee, Court Supreme consideration, whereof, counsel. it argued by was. On how court, be, here-ordered and this cause adjudged by same hereby, .for want jurisdiction. .thé dismissed