Quinney v. Denney

18 Wis. 485 | Wis. | 1864

By the Court,

Cole, J.

Tbe principal and controlling question in tbe case is, whether tbe respondent, as allottee under tbe act of congress of March 3d, 1843 (see 5 U. S. Stat. at Large, p. 645), took such an estate in tbe premises allotted to him as be could convey by deed, or whether bis conveyance to James Joshua in 1845 was void for want of an assignable interest in tbe grantor. On the part of the respondent it is contended, that the deed to Joshua passed no title, and that in fact the allottee under the act took no assignable interest in the land until the patent issued to him in 1860. We deem this an erroneous view of the effect of the act of congress.

By the first section of this act, a quantity of land was reserved for the use of the Stockbridge tribe of Indians, and it was expressly declared that the same “ may be partitioned and divided among the different individuals composing the said tribe of Stockbridge Indians, and may be held by- them separately and severally in fee simple, after such division shall have been made in the manner hereinafter mentioned.” The second section provides a board of commissioners, whose duty it was to make a just and fair partition and division! of said lands among such members of said tribe as, by the laws, customs and regulations of the tribe, might be entitled to them.

The third section provides the manner of electing the commissioners. The fourth section prescribes how the division shall be made by the commissioners. The fifth section required the commissioners to make a report of their proceedings, with a map showing the divisions and partitions made by them. The sixth section required the commissioners to make three copies of their report and of the map accompanying the same, one copy of which was to be filed in the office of the secretary of the territory of Wisconsin; one in the office of the clerk of the county within which the lands were situated; and, in the language of the act, “ the other shall be transmitted to the President of the United States, who shall thereupon cause patents to be issued to the several individuals named in said report, for the lands so apportioned to them respectively, by which the said persons shall be authorized to hold the said land in fee simple to themselves and their heirs and assigns.” By the seventh and last section of the act, the disposition of the report and map was to be made before the 1st of January, 1844. It appears that all the requirements of this law were complied with, up to the issuing of tbe patent for the lands by the President.

Now we are of the opinion that this act created or gave to the allottee an equitable estate or title in the land allotted to him, which could be sold and transferred by deed, and that when the patent subsequently issued to him, it enured to the benefit of his grantee. We think that this position is abundantly sustained by the following authorities cited on the brief of the counsel for the appellant: Strother v. Lucas, 12 Peters, 410; Stoddard v. Chambers, 2 How. (U. S.), 284; Grignon v. Astor, id., 319; Les Bois v. Bramell, 4 id., 439; Marsh v. Brooks, 8 id., 223; Landes v. Brant, 10 id., 348; The United States v. Brooks, id., 442; French v. Spencer, 21 id., 228; Berthold v. McDonald, 22 id., 334; Doe v. Wilson, 23 id., 458; Crews v. Burcham, 1 Black, 352; Challefoux v. Ducharme, 4 Wis., 554.

Doe v. Wilson, and Crews v. Burcham, involved questions of law and fact quite analogous to those arising upon this record ; and when the provisions of the treaty are considered (see Treaty with the Pottawottamies, Oct. 27, 1832, 7 U S. Stat. at Large, Indian Treaties, p. 399), under which those cases arose, they will be found to be very strong authorities in support of the conclusion already announced. And the position that the allottee took under the act of March 3d, 1843, an equitable title to the land allotted to him, is likewise strongly fortified by the preamble to the treaty made with the Stockbridge tribe, of Indians Nov. 24th, 1848 (9 U. S. Stat. at Large, p. 955), and by the 14th article of the subsequent treaty with the same tribe February 5th, 1856 (11 U. S. Stat. at Large, p. 663-666.)

The circuit court found in this case, among other things, that, sometime in the year 1845, the respondent exchanged his right in and to the land allotted him with one James Joshua (through whom the appellant derives title), for other lands in the reservation, and gave Joshua a writing therefor in the form of a quit-claim deed, but which was not acknowledged. The bill of exceptions does not profess to contain all the evidence, and we therefore must assume that this finding was fully supported by tbe proof on the trial. It is objected that tbe respondent’s interest in tbe land would not pass under tbis quit-claim deed, because it was not witnessed and acknowledged. Tbis objection is overruled by Myrick v. McMillan, 18 Wis., 188, where a similar question was presented.

It follows from these views that tbe judgment of tbe circuit court must be reversed, and a new trial ordered.