Gaines v. Nicholson

THIS was an appeal from the Circuit Court of the United States for the Southern District of Mississippi.

It was an appeal from a decree by the equity side of the court, granting a perpetual injunction upon the appellants, who were plaintiffs in an ejectment suit then pending on the law side of the court.

In the second article of the supplement of Dancing Rabbit Creek treaty (7 Stat. at Large, 340), made on the 27th of September, 1830, there is this reservation:-'Also, one section is allowed to the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, &c., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land.'

On the 27th of August, 1832, D. W. Wall, one of the reservees, assigned all his right and title under the treaty to George S. Gaines and Allen Glover, who procured a patent for the sixteenth section to be issued to them, in pursuance of this claim under the treaty, by the President, on the 7th of December, 1838.

In the year 1841, George S. Gaines, Francis S. Lyon, and the heirs at law of Allen Glover, instituted an ejectment against John Hilman, who was the tenant in possession under the trustees of the school lands.

In 1842 these trustees filed a bill on the equity side of the court, from which the following are extracts:--

'Humbly complaining, your orators would respectfully show unto your Honors, that your orators, Isaac W. Nicholson, Powhatan B. Thermond, Lewis B. Barnes, John T. Moseley, and S. M. Goode, are the trustees of the schools and school lands reserved by the acts of Congress for the use of schools in township twelve, range eighteen east, situated in the County of Kemper, in the State of Mississippi. They would further show unto your Honors, that section sixteen, in said township twelve, range eighteen east, was reserved, by the acts of Congress, for the use of schools in said township, and, being so reserved, your orators took possession of the same, and leased it to your orator, John Hilman, who went into possession of said tract of land prior to the 27th day of March, 1841, and has continued in possession ever since until this time.

'Your orators would further show unto your Honors, that on the 27th day of March, in the year 1841, an action of ejectment was instituted, on the law side of this honorable court, by John Doe, lessee of George S. Gaines and Francis S. Lyon, and of the heirs at law of Allen Glover, deceased, against your orator, John Hilman, for the recovery of said section sixteen, and to dispossess and eject your orators therefrom, which suit is still pending undetermined in said court.

'Your orators would further show unto your Honors, that by virtue of the second article of the supplement of Dancing Rabbit Creek, treaty, entered into on the 27th day of September, 1830, between the United States and the Choctaw tribe of Indians, certain portions of land, situated within the Territory ceded by the said Indians to the United States, were reserved to divers members of said tribe of Indians, and, amongst others, a section of land was reserved to David W. Wall, in the following words, to wit:-'Also, one section is allowed to the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, &c., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land.'

'Your orators would further show unto your Honors, that on the 27th day of August, in the year 1832, the said David W. Wall, by deed of that date, bargained, sold, and conveyed, to George S. Gaines and Allen Glover, all the right, title, interest, and claim of him, the said David W. Wall, in and to a certain reservation of one section or six hundred and fifty acres of land, made and granted to him, the said David W. Wall, under and by virtue of the provisions of a treaty made and concluded between the United States of America and the Choctaw tribe of Indians, at a place called Dancing Rabbit Creek, in said nation, in the month of September, 1830.

'Your orators would further show unto your Honors, that the said George S. Gaines and Allen Glover, deceased, falsely and fraudulently pretending and representing to the President of the United States that the said David W. Wall, at the date of said treaty, resided upon said section sixteen, in the township and range aforesaid, and had his improvement thereupon, and that they had located the reservation of said Wall upon the same on the 7th day of December, in the year 1838, procured a patent to be issued to them, conveying to them the said section sixteen, in township twelve, range eighteen east.

'Your orators would further show unto your Honors, that at the date of said treaty the said David W. Wall did not reside, nor had he any improvement, upon said section sixteen, as aforesaid, but resided at a long distance from the same, and had no right or title, claim or interest whatever, in said section of land, which had been reserved, as your orators distinctly and positively aver, for the use of schools in the State of Mississippi, by the laws of the United States.

'Your orators would further show to your Honors, that the said Gaines and Glover were so well aware that they had no right to the said section of land, by virtue of their purchase from the said Wall, that they located the claim of said Wall at one time, as your orators have been informed and believe, upon another section of land near Mayhew, in Oaktibbeha County, but finding that their claim to said last-named section would be disputed, they, in the technical language of land-mongers and speculators, lifted the same, and laid it upon said section sixteen. Your orators would further show unto your Honors, that, by virtue of the patent thus falsely and fraudulently obtained, they have been advised that the said Gaines and Allen Glover, deceased, obtained the highest and best legal title to said section sixteen, when, in equity and justice, they have no title thereto, but the same belongs to your orators, as trustees and tenant of the schools and school lands, as aforesaid.'

The bill then proceeded with the usual interrogatories, prayed for a temporary injunction, and afterwards a perpetual one.

A temporary injunction was granted.

The respondents, in their answer, set forth the circumstances of the treaty, averred that the United States were incapable of making any grant of land which was reserved by the treaty, and denied the alleged fraud in the following manner:--

'These respondents, further answering, say that the said George S. Gaines and Allen Glover, deceased, never did, jointly, nor did either of them severally or separately, falsely pretend and represent to the President of the United States that the said David W. Wall, at the date of the treaty, resided upon section sixteen, in the township and range aforesaid, and had his improvement thereupon; no such pretence was ever set up or representation made to the President of the United States, or any one else, by the said George S. Gaines, or Allen Glover, in his lifetime, or either of them. A reference to the record of the executive department of the government, or even to the published documents relating to the public lands, would have relieved the complainants from an allegation so utterly false and unfounded.'

To this answer there was a general replication.

Some testimony was taken bearing upon the points of Wall's residence, age, & c., but none touching the fraudulent representations alleged to have been made in the procurement of the patent.

On the 18th of November, 1845, the Circuit Court passed the following decree.

'Be it remembered, that this cause came on to be heard at the present term, before the Honorable Samuel J. Gholson, judge, &c., presiding, upon the bill, answers, exhibits, agreements, and proof in the cause, and upon argument on both sides; and now, at this day, the court being sufficiently advised, and because it appears to the satisfaction of the court that the complainants are entitled to the relief prayed for by them, it is therefore ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the judgment at law in the pleadings mentioned, and all attempts to enforce the same, be, and the same is hereby, perpetually enjoined; and, also, that the said defendants be, and they are hereby, perpetually enjoined from ejecting and turning out, or from commencing any other or further suit to eject and turn the said complainants, or their successors in office, out of the possession of the section of land in the pleadings mentioned, to wit, section sixteen, in township twelve, range eighteen east, in Kemper County. It is further ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the defendants, shall, within sixty days from the date of this decree, by deed, in fee simple, without warranty, convey, quitclaim, and relinquish to the complainants and their successors in office, as trustees of schools and school lands, all the right, title, claim, and interest which they, the said defendants, or any of them, have in and to said section of land; and in default of such conveyance being made by said defendants in the time aforesaid, then the clerk of this court be, and he is hereby, appointed a commissioner to carry into effect that portion of this decree directing said conveyance. It is further ordered, adjudged, and decreed, that the defendants shall pay all the costs of this suit. This ordered, adjudged, and decreed, this 18th of November, 1845.'

From which decree the defendants pray an appeal to the Supreme Court of the United States, which is granted.

The cause was argued by Mr. Lawrence and Mr. Badger, with whom was Mr. Inge, for the appellants, no counsel appearing for the appellees.

The counsel for the appellants made the following points:--

1. That by the treaty the whole cession passed to the United States, subject to the reservations mentioned in the treaty, which were in the nature of exceptions out of the grant, and, when actually located according to the treaty, took effect by relation from its date, so as not to be liable to any disposition by the United States; and consequently, if the sixteenth section was rightfully selected as the location of Wall's reservation, the same could not, by any law of the United States, be set apart or appropriated to any other purpose; and if such appropriation in fact was made or attempted, which is not admitted, it was void as against Wall's claim.

2. That, according to the true interpretation of the treaty, each of the persons named in the above-quoted clause of the supplement was entitled to a section, whether he had a residence or not. The fact of a residence was immaterial to the right,-which was absolute, independently of residence,-and only served to determine the location where the party had a residence; those without residences, and the two persons specially excepted out of the restriction imposed by the residence, having necessarily a right to make locations on any unimproved and unoccupied land. Otherwise, the main purpose of the clause would be disappointed, contrary to its true intent upon sound rules of construction. But if this were doubtful upon the clause itself, our interpretation must still prevail; because by the eighteenth article of the treaty (7 Stat. at Large, 336) it is expressly declared and agreed, that even well-founded doubts shall be resolved in its interpretation in favor of the Indians. And therefore, it not appearing that Wall had any residence of his own, but it being, on the contrary, proved that at the date of the treaty he was an unmarried man, without any family, and residing in the family of another person, the location of his reservation upon the sixteenth section was well and rightfully made, and the patent properly issued.

3. If Wall's reservation was not rightfully located upon the said sixteenth section, yet the appellees were not entitled to relief. Their case is, in substance, that Gaines and Glover, by representing to the President of the United States that Wall had a residence in that section, fraudulently procured the grant to issue, &c. But all such representations are denied by the appellants, and no proof is offered to sustain the charge. The appellants aver, and the fact is, that the location was made and the grant issued upon a representation of the truth as they understood it, and with full knowledge of the facts by the officers of the government. So that, if Wall was not entitled so to locate, the case was one of mere error on the part of the government in the interpretation of the treaty, and not a fraudulent contrivance of the party to prejudge or mislead those officers. And therefore the case, as it appears, would give no ground of relief if truly stated in the bill; and if it would, yet that case does not sustain the bill as framed.

And upon the whole, it will be insisted that the decree is erroneous, and ought to be reversed and the bill dismissed.

The following authorities will be relied on.

On the first point, Doe v. Beardsley, 2 McLean, 412; Stockton v. Williams, 1 Douglass, (Mich.) 547; Act of April 21, 1806 (2 Stat. at Large, 401, sec. 6); act of March 3, 1803 (2 Stat. at Large, 233, sec. 12); Opinion of Attorney-General (Ex. Doc. 2 Sess. 26th Congress), 1419.

On the second point, Euchela v. Welsh, 3 Hawks, (N. C.) 155. In connection with the provisions of the treaty, Opinion of Attorney-General, 2 Land Laws, 188, 205.

On the third point, Opinion of Attorney-General, 2 Land Laws, 206.

Mr. Justice NELSON delivered the opinion of the court.