Rains v. Ware

10 Ala. 623 | Ala. | 1846

COLLIER, C. J.

The first entry of a judgment found in the transcript is certainly erroneous, in not setting out such verdict as warranted the action of the court. The second is an entry of a subsequent term, and technically speaking is a judgment nunc pro tunc. We have not been able to discover any objection to it in substance, and none has been pointed out at the bar. The verdict which it recites, though not special, employs much more circumlocution than is necessary to make it legal, yet this verbosity cannot prejudice.

The second entry, though made nunc fro tunc, cannot be regarded as irregular under the circumstances. We need not inquire whether the affirmation in the judgment that the record discovered sufficient matter to authorize the amendment, would in all cases be conclusive, as it must in that now before us be so held. If the defendant appears upon a motion to perfect the judgment, and does not show by a bill of exceptions, or in some other appropriate manner, that the facts recited in the entry are untrue, he must be concluded on error.

The facts recited in the bill of exceptions, fall short of showing that Freeny had not such an interest in the premises in question as were the subject of levy and sale under execution. By the treaty of Washington, made with the Creek tribe of Indians, in 1832, the United States engage to allow every head of a Creek family to select one half section each, which shall be reserved from sale for their use for the term of five years, unless sooner disposed of by them. Further, at the end of five years, those entitled to these sections, who are desirous of remaining, shall receive patents, &c.

It is shown that there had been a location under the treaty, of the premises in question. The failure to issue a patent, after the expiration of the five years, does not of itself divest the title which the treaty, location, and continued occupation impart; although a patent may be necessary to consummate the title, or to furnish complete evidence of it.

For any thing appearing to the contrary, the reservee may have been desirous of remaining in the country, and may bo at this time residing on his reservation — Freeny may hold the portion for which the verdict was recovered, as his lessee for a term unexpired at the trial. If this be true, Freeny certainly had a right that could be levied on, and sold. See Doe ex dem. Davis v. McKinney and McKinney, 5 Ala. R. 719, and cases there cited. The possossion of the land, and the leasing it to others, warrant the inference that he had a legal interest, resting upon a title inchoate or perfect. Such an interest may be sold under execution. [Doe ex dem Heydenfeldt v. Mitchell, 6 Ala. 71; Land v. Hopkins, 7 Id. 115; Badger v. Lyon, Id. 564.]

The judgment of the circuit court must be affirmed.