CLARLITKO VS ELLIOTT, 5 Port. 403

COLLIER, J. The plaintiff in error, by bis attorney in fact, made complaint in writing, to a justice of the peace, of Talladega county, on the ninth of February last, stating that in eighteen hundred and thirty-four, he was seized and possessed of the south half of

section eighteen, in township eighteen, in range six east, in the Coosa land district,lying, being and situate in that county: — and that afterwards, within three years, he rented the same, with its mes-suages and appurtenances to the defendant,, for a consideration which had been paid him, which term had expired for six months previous to the exhibition of his complaint. The complaint then alleges a demand of the possession of the premises, of the defendant, and a refusal to deliver, — charges an unlawful detainer, and prays process as the law directs, which was issued and returned.

On the trial before the justice, the defendant pleaded,— First, — not guilty. Secondly, — Three years peaceable and quiet possession, immediately preceding complainant’s complaint.

And issue being taken, the plaintiff proved, that on the sixteenth day of April, one thousand eight hundred and thirty-four, (after his location,) he rented the premises in dispute, to the defendant, for one year, and that the same expired on the sixteenth day of April, eighteen hundred and thirty-^ five: that he received the rent agreed upon, which renting and reception of rent, was under the superintendence of a deputy marshal, of the United States for this State.

The defendant, after having duly proved the same, offered to read to the jury, a writing -under seal, entered into between, the plaintiff and defendant, on the twenty-sixth of October, eighteen hundred and thirty-five, which recites, that the plaim. tiff is entitled to a half

section of land, by the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, between the United States, and the Creek tribe of Indians, particularly described in the locating agent’s books, (to which reference is made,) and on which defendant then lived; which said land, the plaintiff agreed to sell and convey to the defendant, for one thousand dollars. The plaintiff further bound himself, to perfect the title to the land, unto the defendant, his heirs, &c. as soon as the President of the United States directed the manner in which the conveyance should be made.

If the President should not direct the manner in which the conveyance should be made, before the expiration of five years from the date of the treaty, the plaintiff obliged himself to procure a patent under the treaty, and forthwith to execute good and legal titles. The plaintiff also bound himself, to keep and maintain the possession and enjoyment of the defandant in and to the land, until he should perfect his title to the same., The defendant obliged himself to pay to the plaintiff, the purchase money, so soon as the title undertaken to be made, should be consummated.

The parties bind themselves, each to the other, in the sum of two thousand dollars, for the performance of their respective undertakings. It is lastly agreed, that the contract of the parties, shall only take effect, in the event of a contract previously made between the plaintiff and Brasher & M’Elderry, for the sale of the same land, being declared void. To the reading of this agreement to the jury, the plaintiff objected, but his objection was overruled, and the correctness of this decision is the only question presented for revision.

The relation of landlord and tenant, being shewn by the plaintiff’s testimony, the admission of the subsequent contract, raises the question as to its validity, either as an agreement to sell, or a license to occupy. By the second

article of the treaty of eighteen hundred and thirty two, one

section of land is to be allotted to “ninety principal chiefs of the Creek tribe,” and to every other head of a Creek family, one half

section each. By the third article, it is stipulated, that “these tracts may be conveyed by the persons selecting the same, to any other person, for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appointed for that purpose, by the President, but shall not be valid, until the President approves the same. A title shall be given by the United States, on the completion of the payment.” The last recited

article of the treaty, imposes checks upon the contracts of the Indian reservees, in regard to their lands, in requiring, — ■ First — That the President may direct the manner in which they shall be conveyed. ■ Second — In requiring the contract to be certified by some person, appointed for that purpose by the President; and, Lastly — -In declaring that a contract, “shall not be valid, until the President approves the same.” Waiving the consideration of the question, whether any contract of sale be good, unless the form be prescribed, — we think it indispensable to the validity of every such contract, that it should be certified by the agent provided for, and receive the approval of the President.

And this conclusion is attained, not by the application of any rule of construction, but by the express terms of the treaty itself; which declares, that it “shall not be valid, until the President approves the same.” The agreement in question, was not only, not certified and approved, nor ever contemplated a certification or approval; but it provides, expressly, that a'conveyance of title, afterwards to be made, shall be perfected.

The contract then, never having become valid, as a conveyance, operating in prcesenti, or as a stipulation for one to be executed in futuro, — for the want of these essentials, it did not unsettle the relation of landlord and tenant, — but the defendant still continued a tenant at sufferance to the plaintiff. The tinder taking to protect the defendant in the possession and enjoyment of the plaintiff’s land, was hot a distinct and substantive agreement, but dependent upon the principal contract for the sale and conveyance.

And this, as has been shewn., never having acquired validity, all dependent stipulations must be in the same predicament. This view being decisive of the case, we are relieved from considering the other points discussed at the bar. The judgment is reversed, and the cause remanded to the Circuit Court, that the proper direction may thence issue, to thejusticé of the peace who tried the cause, (or his successor,) requiring the issuance of a venire facias, de novo. HOPKINS, C. J. not sitting.