Johnson v. McGehee

GOLDTHWAITE, J. J. — The several questions of law, which arise out of the bill of exceptions taken at the trial of this case, will be most conveniently answered by considering them in the order in which they were presented before the circuit court : 1. The objections taken against the deed, so far as they relate to its appearance at the time when offered, cannot be noticed ; as the record transmitted to this court, shows neither erasure, interlineation, or blank space. IE the deed was subject to exception for any cause of this description, the precise point ought to have been shown, and the objection presented in a distinct manner ; as it is otherwise, this exception cannot be reviewed. 2. The probate of the deed made before the notary public, is in strict conformity to the provisions of the several statutes directing the mode of proof. The second section of the act of 1831, [Aikin’s Dig. 91] gives authority to any notary public of this State, to take and certify the acknowledgment and proof of deeds, or relinquishment of dower, in any county for which the notary is commissioned, in like manner and form, as was then required by law, when the same was taken before judges of the circuit or county courts, clerks of the county courts, or two justices of the peace. The restriction, to any county for which the notary is commissioned, does not apply to the situs of the lands conveyed by the deed, but applies alone to the place m which he may properly authenticate the proof, or acknowledgment. If it was otherwise, no officer of this description could lawfully authenticate a deed conveying lands in two or more counties. The form of this certificate is copied from the first section of the act of 1812, [Aikin’s Dig. 90,] and differs from that prescribed, only in the phraseology of the attesting clause, in a manner no ways material. 3. No act of the legislature limits a period, within which an acknowledgment or the proof must be made ; álthough, the deed may be of no effect against a subsequent bona fide purchaser or mortgagor for a valuable consideration without notice, if it be not acknowledged or proved, and certified and lodged for record with the clerk of the county court, in the county where the lands are situated, within six calender months [Aikink? Digest 90.] [192] Here the controversy is not with one claiming, as a subsequent purchaser or mortgagee, and therefore, the statute last cited has no application to this case. 4. The objection to the admissibility of the instrument, offered to prove the assignment of the land in controversy, to the grantors of the plaintiffs, by the Creek tribe of Indians, by virtue of the sixth article of the treaty, is two fold ; — 1. because it is a copy , and 2. if a copy is admissible, this is not certified in the manner required by law. The sixth article of the treaty [5 Porter, 416] directs “ that twenty more sections of land may be located, and patents for the same, may then issue, to those persons, being Creeks, to whom the same may be assigned by the Creek tribe.” The assignment, under which the plaintiffs attempted to make out an inchoate title to the land in controversy, is the only means, by which the United States can ascertain to whom the patents are to be issued, incompliance with this article of the treaty ; therefore, it is, necessarily, a public document, the custody of which, must be committed to some one of the executive officers of the government of the United States, and remain with the other public archives. 5. All the official intercourse of the government, with the several Indian tribes, is carried on by the War department ; and the documents connected with such intercourse are deposited in the office of the commissioner of Indian affairs. This officer is, therefore, the proper custodian of the original assignment ; and his certificate, accompanied as it is, by the certificate of the Secretary of War, under the seal of that department, properly authenticates the copy offered in evidence. 6. The admission of the patent, under the circumstances of this case, was irregular. In the case of Jones and Parsons' heirs v. Inge and Mardis' heirs [5 Porter, 327j we considered very fully, the effect of the recitals in a patent issued after the commencement of a suit; and determined, that such recitals could not operate, so as to support an action commenced anterior to the date of the patent. In the subsequent case of Bullock v. Wilson [5 Porter, 338,] we decided that the introduction of a patent, [193] in that case, was not in error, inasmuch as a legal,- inchoate title was previously shown in evidence. We say, in reference to the state of facts, then shown by the record, “ there can, certainly, be no objection to showing the state of such title, when the suit was commenced, and the proving that it has been consummated by an act of confirmation subsequently done. Such is the case at bar. And where the inchoate title is attacked by proof, it may be important to show, that it has been perfected ; and this* though ¡n the particular action, the proof of the [subsequent} perfect title would not warrant a verdict.” Inthepresent case, however, as will be subsequently shown, no inchoate title was made out, therefore, the effect of the patent was not to repel an attack on the previous inchoate title, and it could only have the effect to mislead the jurjq by connecting the recitals with other evidence imperfect and insufficient by itself to establish a legal title, by which this action might have been maintained. As the patent given in evidence, was issued subsequent to the commencement of this action, and was not called in aid of the defense of a sufficient title to maintain the action, previously shown in evidence, we consider its admission was irregular ; because the recitals contained in it, were well calculated to mislead the jury, and induce the conclusion that the title was in the plaintiffs when this action was commenced. 7. The only documentary evidence of title, before the jurj7., was the assignment of the Creek tribe of Indians, of the land in controversy, to the grantors of the plaintiffs ; the deed to the plaintiffs, and the patent issued to the plaintiff’s grantors, after the commencement of this action. On this state of evidence, the defendants requested the circuit court to charge the jury, that, a recovery ought not to be had, unless, the grantors of the plaintiffs had been located on the land in question, or it had been allotted to them. This was decided in the case of Fipps v. McGehee, et al. (5 Porter, 413) in which we held, that proof of Ihe location was essential, to make out an inchoate legal title to any of the sections held under the sixth article of the treaty, if title was asserted previous to the issuance of a patent : It was urged that much difficulty may exist, in ascertaining the fact of location, [194] However this may be, it is certain, that no title could arise’, un til this location was made. S. No difficulty, in point of fact, can exist, either as to the existence, or as to the proof of this fact ; it is not an act in pais, like livery of seizin ; it is the mode, by which the proper executive officer determines that the claim made by the Indians, is approved by the executive, and that the lands selected by them are not subject to other claims. Wherever this was done, the land was allotted, located, and set apart from the public domain, in compliance with the stipulations of the treaty. The patent offered in this case, recites, that the assignment was approved by the president, on the 16th of April, 1836. This recital, if true, and if admissible in evidence, would establish the location, as it was then, if not previously made. It is presumed that the means by which the officers of the land office acquired this information, are, or may be, open to the plaintiffs, 9. It was unnecessary for the plaintiffs to establish1, by proof, that the persons whose names appear to the assignment, were authorized to act in the name of the Creek tribe of Indians. The assignment, as before mentioned, is the act, by which the Creek tribe conveys the requisite information, to the United' States ; that the latter are to convey the lands assigned, to the individuals named?and is of no validity until reeognizcd and acted on by the United .States; but when so acted on, it becomes potential’ to create an inchoate legal title in the assignees, for the reasons stated in the case of Fipps v. McGehee, et al. No principle is more clear, than the one, which requires the courts of a country to follow the acts of the government, in its recognition of foreign powerst.and the same-principle applies with equal force, to our relations with the Indian, tribes. Whatever persons are recognized, by the government, as the head then and chiefs of the Creek tribes, must be considered as such, by this court. From what has already been said, it is sufficiently clear, that the charges requested by the defendants, that the documentary evidence, was not sufficient to authorize a recovery, ought to have been given. [195] 'The other charges given, and refused by the circuit court, are not necessary to be examined, as they relate, merely, to the ascertainment of damages, and their consideration is not pressed in this court. It remains only to announce the result of our opinion ; which is, that the judgment of the circuit court be reversed, and the ease remanded for further trial.