Crews v. Burcham

Appeal from the Circuit Court of the United States for the northern district of Illinois.

By the treaty of 1832, the Pottawatomie Indians ceded to the United States all their lands in Illinois, Indiana, and Michigan, south of the Grand river; and by the same treaty the United States agreed to grant certain quantities of land to certain members of the tribe-among others, to Francis Besion a half section, to be selected for him by the President after survey. The half section was surveyed, selected, and a patent for it was duly issued in the name of Besion, in 1845. Besion died in 1843. Previous to his death, (and of course before the patent,) he conveyed his interest in the half section of land, to which he was entitled under the treaty, to William Armstrong, with covenants of warranty and further assurance. After Besion's death, and after the patent issued, his sister and sole heir conveyed the half section to Crews and Sherman. The plaintiffs below claim under the deed from Besion to Armstrong, and the defendants hold the title which was conveyed by Besion's heir after his death. The latter parties commenced actions at law against persons claiming through the former, and this bill was brought to quiet the title.

The main question was, whether Besion before the date of the patent had, by virtue of the treaty, such a title as he could convey by deed, or whether the deed to Armstrong was void for want of an assignable interest in the grantor. The defendants insisted that the deed to Armstrong passed no title; that, in fact, no title to this particular land existed out of the United States until the patent; that the patent vested the title in Besion's heirs, and that the deed from Besion's sister gave the whole estate to her grantees.

The Circuit Court held that the grantee of Besion, in his lifetime, took under his deed all the estate which Besion had in the half section; that the patent, when it issued, inured to the use of Armstrong and the parties claiming under him; and that, consequently, the sister and heir of Besion had no estate which could pass to Crews and Sherman by her deed to them.

The incidental points, which were taken on the hearing, are sufficiently stated in the opinion of Mr. Justice Nelson.