3 Ga. 176 | Ga. | 1847
By the Court.
delivering the opinion.
The complainant in this bill alleges, that Hudson and Fountain, who were partners in buying and selling lands, had, in accordance with the requirements of the treaty made by the Federal Government with the Creek Indians, at "Washington, in 1832, purchased the reservation upon which an Indian by the name of Stincharnaliha had been located; that the reservee, Stincharnaliha, was brought before the certifying agent for the purpose of having the contract certified, and that Hudson and Fountain paid to the Indian, for the land, the sum of two hundred dollars; that, upon examination, it was found that the same land had been bought by the agents of the Columbus Land Company, a partnership entered into also for the purpose of buying and selling lands, and had been certified to that company, and the contract forwarded to Washington for the approval of the President, in accordance with the treaty ; that the contract, thus certified, appeared to have been made between the Columbus Land Company and the Indian, Stincharnaliha; and that the ágents of the Columbus Land Company, appearing before the agent of the government, and in the presence of Hudson and Fountain, and of the Indian, Stincharnaliha, confessed that, by mistake, they had bought the land, not of Stincharnaliha, the true owner, but of an Indian called Istencharna, who represented himself to be Stincharnaliha, the true owner and reservee; and that thus the contract had been certified in his name to them — they having paid Istencharna-on® hundred dollars for it. The agent being about to write to the government at Washington, to denounce the contract of the Columbus Land Company as fraudulent, and tq prevent its approval by the President, it was then and there agreed, (the agent of the government approving and consenting thereto,) that, in order to prevent injury
The demurrer was sustained, and the complainant excepted. The decision we make, on the ground of demurrer above stated, controls this case-; we shall therefore express no opinion upon any other.
By the third article it is provided that, “ these tracts may be conveyed'by the persons selecting the same, to any other person for a fair consideration, 'in such manner as the President may direct. The contract shall be certifiedhy some person appointed for that purpose by the President, but shall not be valid until the President approves the same.” '{For the treaty see 5 Porter Ala. R. 414.) This treaty is the supreme law of the land, by the Constitution of the Union, and obligatory upon all the departments of the government, State and Federal. This principle has been settled by the Supreme Court, and will be found applicable to this case : to wit, “ Where a treaty is the law of the land, and, as such, affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to -be regarded by the Court as an act of Congress.” United States vs. The Schooner Peggy, 1 Cranch, 103; 1 Cond. R. 256.
The rights of the parties litigating before this Court are affected, as-we shall see, by the Creek treaty. We hold that 'it must be regarded by us with the same solemnity, and to the same intents, as if it was an act of Congress.
In reviewing the transactions detailed in this bill, several preliminary remarks become proper. And first, it is certainly true, that the contract between Hudson and Fountain and Stincharnalika was a fair and legal contract. We do not see -that it, in any respect, contravenes thé treaty. It was founded on a valuable consideration, which was paid; the Indian -was brought before the certifying agent, and declared himself satisfied with it; and they were entitled to have it certified and sent on to the President for his approval. Under this treaty, no contract for the sale of the Indian reservations operated as a-valid conveyance,’'until cer.tified by the agent, and approved 'by the President. By the third article, the reservee is authorized -to sell, in such manner as the President may direct. The manner of selling, directed by the President, was for the Indian owner and the purchaser to appear before the agent, and, if the Indian-then assented to the contract, the purchase money was paid to him in the presence of the agent. This was intended, no doubt, to protect the ignorant and improvident savage from fraud and imposition. In this the government
Further — The treaty itself declares, in the article last referred to, that these contracts shall he certified by some person appointed for that purpose by the President; hut shall not he valid unless the President shall approve them. In Clartilko vs. Elliott these positions have been settled by the Supreme Court of Alabama. 5 Porter, 403.
The second remark preliminary is this — There can be no question at all, but that the contract made by the agents of the Columbus Land Company with Istencharna, who represented himself to be, and closed the contract in the name of Stincharnalilca, was illegal and void, both before and after its approval by the President. Whether the impersonation of the true owner was made with or without the knowledge and approbation of the Columbus Land Company or their agents, or not; whether the contract was entered into by them with Istencharna as Stincharnalika, by mistake, as the bill avers, or fraudulently and corruptly, is quite immaterial. It was a contract in violation of the treaty, and therefore illegal and void ; it was a fraud upon the rights of Stincharnalika ; it was a contravention of public policy; the policy, to wit, of humanity and justice to the Indians; a policy whieh our government has avowed from the beginning ; and therefore void. It was a void contract at common law. If void from the beginning, the certificate of the agent and the approval of the President gave no validity to it. Its apju'oval, under the circumstances detailed in this bill, was a fraud upon the President, and gave to it a deeper and more deadly infusion of invalidity. We are not called upon to adjudge directly the validity of the one, or the invalidity of the other of these contracts'; but we are called upon, in order to determine the character of the contract between Hudson and Fountain, and the Columbus Land Company, which it is the object of this bill to enforce, to fix the character of the contract between that Company and the Indian Istencharna, acting as Stincharnalika; and having fixed it, without reference to a single authority, deeming the question too plain to require such reference, I proceed.
The contract between Hudson and Fountain, and the Columbus Land Company, grew out of the contract of that Company with,
The distinction relied upon in this case by the counsel for the complainant is this, to wit: admitting the proposition as above stated, that no action can be maintained upon an illegal or immoral contract, yet where the contract was disconnected with the original unlawful act, and was founded on a now and distinct con
S The ground upon which we put our decision in this case, is-
And in support of that principle we refer to the following authorities: Collins vs. Blantern, 2 Wils. R. 347; Holman vs. Johnson, Cowp. R. 341; Biggs vs. Lawrence, 3 Term R. 454; Clugas vs. Panaluna, 4 id 466; Steers vs. Lashley, 6 id. 61; Booth vs. Hodgson, 6 id. 405; Waymell vs. Reed, 5 id. 599; Ex parte Mather, 3 Vesey Jr. 373; Ribbans vs. Cricket, 1 Bos. & Pul. 264; Lightfoot vs. Tenant, 1 id. 551; Albert vs. Maze, 2 id. 371; Shirley vs. Shan
This principle may be said to be a rule of universal law, which has been incorporated into the civil code of every nation. Pothier des Obligations No. 43, 45; Des Assurances No. 58.
I shall Conclude this opinion by an extract from the opinion of Mr. Justice Baldwin, delivered in Bartle vs. Coleman, 4 Peters 184, which seems to me to be strikingly applicable to this case:
“ Public morals, public justice, and the well-established principles of all judicial tribunals, alike forbid the interposition of courts of justice to lend their aid to purposes like this. To enforce a contract which began with the corruption of a public officer, and progressed in the practice of known and wilful deception in its execution, can never be consummated or sanctioned by any court. The law leaves the parties to such a contract where it found them. If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for premeditated and deeply-practiced fraud; which, when detected, deprives him of anticipated profits, or subjects him to unexpected losses. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers, by shifting the loss from one to the other, or to equalize the benefits or burthens which may have resulted by the violation of every principle of morals and of laws.”
Let the judgment of the court below be affirmed.