Prentice v. Northern Pac. R.

Miluer, Justice. Although this action of ejectment brought by Frederick Prentice is against other defendants, and his claim is for a different piece of land, the title under which he and the defendants claim was the subject of consideration in a former suit in this court, which was reported as Prentice v. Stearns, 20 Fed. Rep. 819. That case went to the supreme court of the United States, where the judgment of this court was affirmed, and is reported in 113 U. S. 435, 5 Sup. Ct. Rep. 547. There was in that case a very elaborate finding of facts by this court, which is found at length in the report of the case in 113, U. S. and 5 Sup. Ct. Rep. As the suit before us is not between the same parties as the former suit, what was decided in that case in the supreme court is only binding in the consideration of the present case, as far as it establishes the law applicable to such case. As the case is submitted to us without the intervention of a jury, we have made a new finding of fact, in some respects differing from that which we made in the former ease. These differences may become material in the formation of the judgment oil the title. The principal question before us in the former ease, which was decided against the plaintiff, is reargued before us at this time with much earnestness and fullness. We held at that time that the deed from Armstrong to Prentice, under which alone plaintiff can assert a title to the land in controversy, was an instrument designed to convey a defined tract or parcel of land, and was not, as contended for by counsel for plaintiff', intended to convey any possible interest which existed in Armstrong under the treaty with the Chippewas, referred to in the findings of fact, and under the selection of Buffalo Chief, according to the provision of that treaty, and the appointment by Buffalo Chief that the lands selected by him should by the United States be conveyed to Armstrong and three other parties, relatives of Buffalo. That principle, as this court decided it, was affirmed by the supreme court of the United [274] States. After a full reconsideration of the subject, in the light of such new facts as the counsel for the plaintiff supposed they have produced on the present hearing, we remain of the opinion we were on the former trial. The first descriptive clause of the deed from Armstrong to Prentice is of a tract of land a mile square, beginning at a large stone or rock, which, as a matter of fact, we find in the. present case is now identified, and was well known at the time the deed was made. The description proceeds with the points of the compass one mile east, one mile north, one mile west, one mile south, to the place of beginning. It would be difficult, the beginning point being well ascertained, to imagine that Armstrong intended to convey any other land, or any other interest in land, or interest in any other land, than that so clearly described. And, if that description is to stand as a part of the deed made by Armstrong to Prentice, it leaves no doubt where the land was; and there is no occasion to resort to any inference that he meant any other land than that. It is now found as a fact that this boundary would include a surface from one-half to three-fourths of which is land and the remainder is water of Lake Superior. For that reason, and for others which may be hereafter considered, counsel for plaintiff reject totally this part of the description of the land found in the conveyance, and proceed to consider the remaining part, which says: • “Being the land set off to the Indian Chief Buffalo at the Indian treaty of September 30, A. D. 1854, and liras afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government documents.” If we could reject the first description as incorrect and erroneous, and come to the latter part of it, we are constrained to hold that this alone is not sufficiently certain to convey any definite tract of land one mile square, or nearly so. No person taking the treaty and the selection of Buffalo, and all that was known about that selection that was to be found in the records of the government documents upon that subject, could proceed to survey a mile square, or a section of 640 acres in a square form, so as to comply with the terms of the deed. Nevertheless it is made quite evident, both by the first clause of the description, and by the reference to the selection made by Buffalo, and to the recorded documents with the government, that the grantor in that deed supposed that he was describing a specific piece of land, and that both the description by metes and bounds and the description with reference to the Buffalo selection were the same, and were identical. If this deed is void because that description is either erroneous, as is alleged in the first clause, or is so uncertain, as regards the second clause, that it cannot be identified or found out or surveyed, then the deed is simply a void instrument. To avoid this difficulty, counsel insists that the object of the grantor and the grantee in this deed was another and a different object than the sale and conveyance of a specific and definite piece of land. They say that the reference to the land set off to the Indian Chief Buffalo at the treaty of 1854 meant, not any definite piece of land, but any land which might come to Buffalo or to his appointees, of whom Armstrong is one, by the future proceedings of the government of the United States [275] in that caso; and that, no matter where such land was found, provided it was within the limits of the land granted by the Chippewa treaty, then the deed from Armstrong to Prentice was intended to convey such after-acquired interests when it was patented to the parties by the United States. We do not see anything in the whole deed or transaction between Armstrong and Prentice that points to or indicates any such construction of it. Both clauses of the description are definita as to the land conveyed, and treat it as a piece of land well described, well known, and well defined. Of course, any man endeavoring to ascertain what land was conveyed under that, grant would suppose that, when he found the stone or rock, which we now as a matter of fact find to have an existence, and can be well identified, he had bought a mile square according to the points of the compass, the south-west corner of which commenced on that rode. Ho would not suppose that he had bought something that might be substituted in lieu of that mile square by future proceedings of the government of the United States. And so, with regal'd to the other description, Buffalo had made his selection, had described the land which he designed to go by that treaty, not to him, but to his relatives, whoso names arc; given, and it was an undivided half of this land thus selected by the Buffalo Chief, and not other land or different land which might come to Armstrong, that he conveyed and intended to convoy to Prentice. Much stress is laid upon cases found in the supremo court of the United States, referred to in the case of Prentice v. Stearns, already decided. Between the cases of Doe v. Wilson and Crews v. Burcham and this a broad difference exists. The lands reserved by treaty in those oases to the parties who conveyed their interests to others never had been described, never had been selected, and it was only known that they would bo entitled to a certain amount of land afterwards to be selected by the president under that treaty, in the case of Doe v. Wilson, 23 How. 457, the language of the court is that the reservation created an equitable interest in the land to be selected under the treaty; that it was the subject of sale and conveyance; that Pot-ehi-co was competent to convey it; and that his deed, upou the selection of the land, and the issue of the patent, operated to vest the title in his grantee. In that case Pet-chi-co could not have conveyed anything more specific than his general right to such congressional subdivision of land as the president might afterwards allot to him. In conveying his interest he conveyed the equitable interest winch ho had in such allotment when it should be made. Such was also the case of Crews v. Burcham, 1 Black, 352. The deed there recites a reservation to the grantors of a half section under the treaty, which is to be located by the president after the land was surveyed, and then for a valuable consideration the grantor conveys all his right. In that case no description of land could be given, because none was supposed to exist; the president had yet to select and identify it. But in the case before us, not only had Buffalo made his selection, and designated the parties to whom the land should go, but the selection had definiteness about it to a certain extent; it was a thing which could [276] be conveyed specifically, and which Armstrong undertook to convey specifically. It is not necessary that we resort to the supposition that Armstrong was talking about some vague and uncertain right, — uncertain, at least, as to locality, and as to its relation to the surveys of the United States, — which he was intending to convey to Prentice, instead of the definite land which he described or attempted to describe. If such were6his purpose in this conveyance, it is remarkable that he did not say so in the very few words necessary to express that idea, instead ■of resorting to two distinct descriptive clauses, neither of which had that idea in it, one of which is rejected absolutely by plaintiff’s counsel as wholly a mistake, and the other is too vague in its language to convey even what plaintiff claimed for it. We are not able, therefore, to hold with counsel for plaintiff that, if this conveyance does not carry the title to any lands which can be ascertained by that description in the deed, resort can be had to the alternative, that the deed was intended to ■convey any land that might ultimately come to Armstrong under the treaty, and under the selection, and under the assignment to Buffalo. There is a view of this subject which has given us considerable embarrassment. -If the east and west courses of the first clause of the description in the Armstrong deed to Prentice were exactly reversed, the land described in it would be found on St. Louis bay, somewhere along the shores of that bay, adjacent to and above Minnesota point, and would include much of the land which was patented by the United States to Armstrong and his associates in satisfaction of the treaty grant to Buffalo; and we should find ourselves called upon to decide whether, under .all the circumstances, we would not be compelled to regard these two ■east and west lines as mistakes, and reverse them in seeking for the land, because in that case we should certainly fall upon some of the land which Buffalo intended to select, and which the government of the United States has patented in satisfaction of that selection. But we are not called upon in this case to decide upon that subject, because all the land sued for in this case lies south of the southern section line of such a survey, and is excluded from it. Judgment for defendants.