10 Kan. 150 | Kan. | 1872
The opinion of the court was delivered by
This is an action on covenants for title. The breach alleged is a paramount outstanding title, asserted by the holder thereof, yielded to and bought in by the plaintiff. The answer is a general denial. The trial was by the court. Special findings of fact and separate conclusions of law were made by the Court, which were entered upon the journal, but not signed by the judge, nor made a part of the record by bill of exceptions. The counsel for defendant in error insists that they cannot be reviewed, as they are no ■ part of the record. This conclusion is supported by the decision in The Peoria M. and F. Ins. Co. v. Watson, 22 Ind., 77, cited by counsel. But we are not convinced of the soundness of this doctrine. It appears to us that they are a part of the record, and must be so treated both in this court and elsewhere. No part of the evidence appears in the record. Even the title papers are not before us. No exception appears to the findings. The plaintiff, who is also plaintiff in error, made a motion for a new trial, and the refusal to grant that motion was excepted to, and that exception presents the only question for
The overruling of the motion for a new trial is then before us. Whatever error was committed by the court in its action on that motion we can review, and correct. The motion was based on two grounds, ■viz., “ 1st, That the verdict is not sustained by sufficient evidence; 2d, That the verdict is contrary to law.” The first part may be laid out of the case without comment. . In the entire absence of the evidence this court cannot say whether the facts found are sustained by the testimony or not. The second cause for a new trial presents more difficulty. The word “verdict,” as it is used in law, is not applicable to the findings of fact by the court. The code does not use the word in that sense; but uses it to ■express the report of the jury on the evidence submitted to them, while it uses an entirely different phraseology to express the report of the court on the evidence. But while the word is inaptly chosen for the purpose, it sufficiently indicates the object of the motion to be understood, and will be so treated. We shall consider it as a motion to grant a new trial because the court erred in the conclusions of law ■drawn from the facts found, as this is the question argued here, and the only one probably presented to the court below. The facts necessary to an understanding of the case are substantially as follows: In the year 1862 Shosli-qua-je-wan, an Indian woman, a member of the Ottawa tribe of Blanchard’s Fork and Roche-de-Boeuf,_ intermarried with Alfred McKoonse, also an Indian, of the united bands of Chippewa .and Muncie, or Christian Indians. The marriage was solemnized on the reserve of said bands, in Franklin county, by a Moravian missionary. The couple lived together thereafter two or three weeks, and then separated forever. Shortly
Now upon these facts, which is the paramount title? Or, in other words, who was the heir-at-law of Shosh-qua-je-wan, Alfred, the husband, or David, ¡her brother? The solution-of this new problem depends of course upon the answer to the further question: What was the law of descent, or rule of inheritance, in force in the Ottawa reserve, when the descent from Shosh-qua-je-wan was cast, in 1863? By art. 9, of the treaty of 1831 between the U. S. and the Ottawas, the United States guarantee that the reserve of the Ottawas shall never be within the bounds of any state or territory, nor subject to the laws thereof. 7 Stat. at Large, 361. See also act of admission, § 1, Gen. Stat., 67. In this status the land remained till the treaty of July 16th, 1862, (12 Stat. .at Large, 1237.) In this treaty there is no express repeal of the agreement that the lands should not become a part of the state, but the whole tenor of the treaty is to that effect. The object of the treaty seems to be to make a final disposition of the lands of the tribe, and dissolve the tribal relation.
If the reserve did not by virtue of the provisions of the treaty of 1862 become a part of this state, it is not now a part of it.. The making of the tribe citizens after five years