Turner v. Fish

28 Miss. 306 | Miss. | 1854

Mr. Justice Fishes,

delivered the opinion of the court.

This is an appeal from a final decree of the vice-chancery court at Carrollton, dismissing the complainants’ bill.

The complainants claim the land in controversy, as heirs at law of Freeman J. Smith, and Eliza Smith, his wife; both of whom are alleged to be dead, — the latter having died in 1836, and the former in 1842.

It is alleged that some time previous to the year 1830, Smith, who was a white man, intermarried with the said Eliza, who was an Indian woman of the Choctaw nation. That the parties, after the marriage, continued to reside in said nation, on the land named in the bill. That they cultivated the number of acres of said land required by the 19th article of the treaty of Dancing Rabbit Creek, concluded in 1830, entitling them to a reservation under the article of said treaty. That Smith located the land in the name of himself and wife. This allegation is, however, denied by the answer, and is not sustained by any proof introduced on behalf of the complainants. But on the contrary, it is alleged, that the location was made by the husband.

It is further shown that Smith, some time about 1835, sold the land to S. C. and A. C. Hall, from whom the defendant Fish derives his title. The bill further alleges that the sale by Smith to the Halls was not approved by the president, as required by the provisions of the treaty. This allegation is denied, and the president’s approval of the sale, shown by the recitals of the patent, which was issued by the government, in 1849, to the Halls, conveying to them the title to the land.

The 19th article of the treaty referred to, provides that each head of a family, who had cultivated thirty acres of land during the year 1830, should have three quarter sections of land, to include his improvements, &c. It is insisted that this provision has reference to members of the Choctaw nation, who may be heads of families, and that Smith, being a white man, the location, whether made in the name of the wife or not, was in fact made for her benefit, as she was regarded by the treaty as the head of the family. It is, therefore, argued that the sale of the land by Smith, the husband, was void, and that the complainants are entitled to recover as the heirs of the wife. - The controversy, it will be seen, from this statement, and the positions assumed by counsel, is narrowed down to the single question, •whether the husband or the wife must be regarded as the head of the family, and entitled to the land located under the provisions of the treaty.

The argument of counsel, that in the construction of the treaty, the court must endeavor to ascertain the intention of the parties thereto, may be admitted to the fullest extent. But it is not seen how it can apply to the present case, as there is not the least intimation in any part of the treaty, who shall be considered the head of a family, or what acts shall be regarded as evidence of his occupying that relation. It is unquestionably true, that the treaty has reference to the head of a family living under the dominion of the Choctaw nation; but the treaty does not say, that a white man may not, according to the usages and customs of that nation, be the head of a family. When a white man married a woman who was a member of the Indian nation, and adopted her domicil, whether he became the head of the family or not, must depend upon the law or custom regulating the marital rights of the parties in such a case. And this is what we presume the treaty means, when it. speaks of “ the head of a family; ” one who is so in the Choctaw sense of the term, or according to the usages and customs of that nation. These usages and customs, so far as the courts of the State are concerned, nmst be regarded as facts, and must be averred and proved like any other material fact's connected with the subject of litigation. The court can only take judicial notice of the law, or the acts of certain officers of the government. It can take no judicial notice of local customs. The record is silent on this subject, and we must, therefore, in the absence of a showing to the contrary, presume in favor of the validity of the action of the government, whose province it was to carry out the stipulations of the treaty. It has already been stated that the government had recognized the location made by Smith, and his sale to the Halls.

Decree affirmed.