Iverson v. Dubose, 27 Ala. 418

Iverson v. Dubose

27 Ala. 418 | Ala. | 1855

CHILTON, O. J.

The Indian reservee had a legal right to occupy the land in controversy under the treaty of 24th March, 1832, and to maintain an action at law for its recovery, if improperly kept out of possession. — Ladiga v. Rowland, 2 How. (U. S.) Rep. 581. The treaty also conferred power upon the reservee to convey his reservation, for a fair consideration, to any other person, in such manner as the President of the United States should direct. The conveyance, however, was required to be certified by some person appointed by the President, and was not to be valid until the President approved the same. A patent was to be issued to the purchaser upon the completion of the payment. If the reservee made an appointment by deed of the person to take the title from the Government, and this was approved by the President, this vested an inchoate title in the purchaser, which would maintain an action at law, and which was subject to be sold under execution against such purchaser. See Rosser v. Bradford, 9 Port. R. 354. Nevertheless, the ultimate fee could only pass out of the government of the United States by some of the modes pointed out by law; and in this case, by the issue of a patent to the purchaser, or his alienee. The title remaining in the Government, there could be no adverse possession which could avoid the patent, as there can be no adverse possession against the Government. When a patent issues to the Indian’s appointee, it operates as a grant from the Government directly to such appointee ; and the intermediate conveyances, or transfers, are only essential as showing the authority of the Government to issue it to the particular person to whom it is awarded.

If a party is in possession adverse to him who applies for a patent, he may file his caveat in the proper department of the Government, and show that the applicant is not entitled, but that he himself is ; and this question the Government, by its accredited officers, will settle, or can, as is sometimes done, refer the conflicting claimants to the courts of the country to *423settle tlieir right, and issue the patent to the party who shall appear to' be entitled. But wc have seen no decision, and we apprehend none can be found, where a patent has been held void, when issued in accordance with the laws of congress, merely because some other person was in possession of the land granted claiming adversely to the grantee. "We concede, that the grantee would be chargeable with notice of all the right and title which the party in possession may have to the land; and we may further concede, that if he relied upon a conveyance from the reservee, or an intermediate purchaser, made pending such adverse possession, his conveyance would be unavailing to maintain his action by reason of such adverse possession. But when he sets up a title or patent directly from the Government, as against which there can be no adverse possession, issued in accordance with the laws of congress, it cannot be thus avoided. The intermediate conveyances are then placed out of the way, as the useless scaffolding when the building is completed, and the party may rely upon the patent without producing them.

The decision of the circuit judge being opposed to the conclusion we have attained, the judgment must be reversed, and the cause remanded.