Hockett v. Alston

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. This was an action in the nature of ejectment to recover possession of improvements upon land of the Cherokee Nation in the Indian Territory which had been made by, and were in the possession of, the defendants. The trial court held that the certificate of a sheriff of the Cherokee Nation that he had sold these improvements to the plaintiff, without proof of any law or of any order or decree of the court empowering him to do so, established his grantee’s right to the possession and to a recovery of this property from the defendants, and this ruling was affirmed by the court of appeals of the Indian Territory. A -brief reference to a few axiomatic principles of the law demonstrates the fatal error into which these courts have fallen. Possession of real estate and of the improvements thereon is prima facie evidence of the right of possession, and the defendants had been in possession of this land and of the improvements which they had made upon it for more than nine years before this action of the plaifttiff was commenced. This title by possession must prevail until the plaintiff establishes by competent evidence a superior right to the possession of these improvements. Ricard v. Williams, 7 Wheat. 59, 105, 5 L. Ed. 398; Keane v. Cannovan, 21 Cal. 291, 305, 82 Am. Rep. 738; Foster v. Evans, 51 Mo. 39, 40; Wilson v. Fine (D. C.) 38 Fed. 789, 793. This plaintiff claimed title under an act of the national council of the Cherokee Nation approved September 30, 1895, but she did not prove or produce any evidence of the character, contents, or provisions of that law, and this court is ignorant of its terms and of its [912] effect. The courts do not take judicial notice of the laws of the Indian nations in the Indian Territory, but they must be pleaded and proved before effect can be given to their provisions in judicial proceedings. Wilson, v. Owens, 86 Fed. 571, 573, 30 C. C. A. 257, 259, 57 U. S. App. 500, 503. No judgment, order, or execution from any court authorizing the sale of this property by the sheriff of the Coo-weescoowee district was pleaded or proved. There was therefore no evidence that this sheriff had any more power than any other stranger to sell and convey the property here in controversy. A sheriff is nothing but the agent of the government to do the acts which the laws authorize him to perform, and his acts, without proof of his lawful authority to perform them, are as ineffective in judicial proceedings as the acts of a private agent without proof of authority from his principal. There was no provision of the law, as in Jordan v. Bradshaw, 17 Ark. 106, 109, 65 Am. Dec. 419; that the certificate of- this -sheriff should recite the authority under which it was issued, and that this recital should be evidence of the fact so stated. There was no proof of any law which authorized the sheriff to make the sale, or the certificate thereof. There was no evidence of any execution, process, order, or judgment of any court which directed him to sell or convey this property. The record is entirely barren of any evidence of any authority on his part to make either the sale or certificate thereof, and that instrument constitutes no evidence of any title or right to the possession of the improvements in controversy. A sheriff’s deed, unwarranted by any law or order or process of a court, is not evidence of any title or right of possession in its grantee in the property which it describes. Counsel for the plaintiff below devote much time and space to an endeavor to support the contention that the defendants are unlawfully in the possession of these improvements; that they are trespassers and intruders upon this land in violation of the laws of the United-States and of the Cherokee Nation. It is unnecessary to the decision of this case to consider or decide whether they are trespassers or not-. If they are, there is no evidence here that the plaintiff'has any right to disturb them. Under the record before us, she also' seeks to intrude upon this property without right, under a sheriff’s certificate of sale issued without warrant of law or order of court. The possession of a trespasser or of an intruder is superior to and must prevail over the claims of all who have no superior legal rights to the'title or. the possession. , The judgments of the court of appeals in the Indian Territory and of the United States court for the Northern judicial district of the Indian Territory are reversed, and the case is remanded, with directions to grant a new trial.