FIPPS VS M'GEHEE, et al., 5 Port. 413

GOLDTHWAITE, J. On the trial of-this cause, the defendants in error, offered the following evidence of title to support their action: First, — A deed from Benjamin Marshall, James Islands, Oseolet Fixico and William M’Gilvery, dated, twenty-sixth of October, eighteen hundred and thirty-five, conveying to them, the land, the subject of controversy.

This deed recites, that by virtue of the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, twenty-nine sections of land, out of the country ceded, might be located, and patents for the same, should be issued to those persons, being Creeks, to whom the same should be assigned by the Creek tribe:.

That at a general council of the Creek nation, and of the chiefs and head-men of the nation, assembled at the house of Peter Dudley, on the second day of October, eighteen hundred and thirty-five, the said tribe, by virtue of the power in them vested by the treaty, relinquished, released, assigned over, and conveyed, to Benjamin Marshall, James Islands, William M’Gilvery and Oseolet Fixico, all their right, title, property and interest, in and to, twenty-dhree and a half sections, out of the twenty-nine, allowed and located, as aforesaid, designating tw'enty-three and a half sections by number, &c. among which is found the one the subject of this suit; after which follows the habendum to the defendants in error, and covenants of warranty of title, and that the grantors were authorised by the said assignment from the Creek tribe, to convey, &c.

The introduction of this deed was opposed by the plaintiffs in error, for several reasons: 1. Because it was not so authenticated, as to authorise it to be read in evidence without further proof. 2. Because there was no evidence to shew that the grantors had any title to convey. 3. Because there was no evidence aside from th: recitals of- the deed, to shew that the Creek tribe had mad.e to the grantors the assignment contemplated by the treaty of eighteen hundred and thirty-two.

The presiding Judge ruled, that the defendants in error, would not be restricted from commencing the proof of title, with the conveyance to them, but they would nevertheless be bound to trace their title to its source, — the deed not amounting to a complete title: — That this question only involved the course of proof, and so the defendants in error might commence at either end of their chain of title.

The deed was permitted to be read, alone as evidence of conveyance, from the grantors therein named, to the defendants in error, and not as evidence of any of its recitals; for proof of which, it was charged to be wholly insufficient. With these views, the deed was allowed to be read to the jury, notwithstanding the objection of the plaintiff in error. Second. — A patent from the United States to the grantors in the said deed, for the

section of land sued for, dated eighteenth of November, eighteen hundred and thirty-six-, which patent recites, that under the sixth

article of the treaty of eighteen hundred and thirty-two, it was provided that twenty-nine sections of land should be located, and patents for the same should be issued to those persons, being Creeks, to whom the same might be assigned by the Creek tribe. That the chiefs and head men of the said tribe, in council, on the seventh day of October, eighteen hundred and thirty-five, assigned to James Islands, William M’Gilvery, Benjamin Marshall and Oseolet Fixico, of the said tribe, tile

section of land in dispute, as one of the sections to which the said tribe was entitled, under the sixth

article of the treaty, and that the said assignment having been approved by the President of the United States, on the sixteenth of April, eighteen hundred and thirty-six, there was granted, &c. The introduction of this patent, was opposed for the reasons: 1. Because it bore date subsequent to the institution of this suit. 2. Because no evidence coupled the deed with the patent. These objections were overruled, and the patent read in evidence to the jury.

The Court charged, that the patent was sufficient evidence of the assignment to M’Gilvery, and the other grantors in the deed, given in evidence; that the patent and deed together formed a sufficient title, to enable the defendants in error to recover, if the other proof satisfied them, that the plaintiff in error, was in possession. The admission of this evidence, and the charge given, were excepted to by the plaintiff in error, and the questions ai'ising thereon, have now to be examined by this Court. They may be considered in. the following order. 1.

The coi’rectness of the charge of the Court on the title, exhibited by the deed and patent introduced. 2. The objection to the introduction of the patent. 3. The objection to the introduction of the deed. The title of the defendants in error, has its inception in the sixth

article of the treaty of eighteen hundred and thirty-two, with the Creek tribe of Indians, which

article is as follows: “Twenty-nine sections, in addition to the foregoing, may he located, and patents for the same, shall then issue, to those persons, being Creeks, to whom the same may be assigned by the Creek tribe. But whenever, the grantees of these tracts, possess improvements, such tracts shall be so located, as to include the improvements, as near as may be, in the centre.” If this

article was to be construed, without considering the previous provisions of the treaty, or without a particular examination of its phraseology, a serious doubt might be entertained, whether any legal estate was intended to be created, in those sections of land, before the issuing of a patent.

But there is an evident intention, pervading the whole treaty, that the Indian reservees, of whatever description, (and there are several,) were intended to be put in possession, before the granting of any evidence of title, by patent, or any written evidence, equivalent thereto; and that this possesssion was intended to be protected against all intrusion.

So, likewise, it is evidently contemplated, that after a reservation is designated by location, the individual Indian entitled to the same, might apply to the officers of the government, and be placed, by the strong arm of power, in the actual, possession of his lands. To deny to the peaceful action of Courts of law, a power which has been claimed to be exercised, on a

summary application* by an executive officer of the government, would present a solecism, which we are not disposed to admit. Thus, the fifth

article of the treaty provides, “that all intruders upon the country hereby ceded, shall be removed therefrom, in the same manner as intruders may be removed, by law, from other public lands, until the country is surveyed, and the selections made; excepting however from this provision, those white persons, who have made their own improvements, and not expelled the Creeks from theirs: such persons may remain until their crops are gathered: after the country is surveyed, and the selections made, this

article shall not operate upon that part not included in such selections.— But intruders, shall, in the manner before described, be removed from these selections, for the term of five years, from the ratification of this treaty, or until conveyed to white persons. The portions of this

article which are italicised, clearly show, that it was contemplated by the parties to the treaty, that there might be an immediate occupation of a reservation, although not before settled, and that it was the duty of the government to place the Indian entitled in possession, if required. This, in our opinion, created an inchoate legal title, capable of being enforced in a court of law— and this title attached immediately on location.

No mode, it is true, .is designated by the treaty, by which the locations are to be ascertained and allotted; but it follows, ex necessitate rei, that the power which is required by the terms of the treaty, to place the reservee in possession, must have the right to determine where the individual shall be allotted. The sixth

article of the treaty quoted above, is not worded with accuracy. It uses the term grantees in the same sense as assignees. “ Whenever, (is the expression,) the grantees of these tracts possess improvements, such tracts shall be so located, as to include the improvements', as near as may be, in the centre.” All grants must designate the land granted under our system of surveys, (which is recognised by the treaty,) and consequently no location could be made after a grant. The location should precede it.

So, it is conceived, the assignment to, or designation of the individual, who is to have one or more of the sections reserved by this article, should precede the location, and whenever these two acts, have taken place, to wit, the designation of the individual, by assignment from the tribe, and his location by the proper officer of the government, or a location first, and an assignment afterwards, — the legal inchoate title attaches, which is made complete by patent from the United States.

If the grantors in the deed, introduced by the defendants in error, had received an assignment from the Creek tribe, and had been located on the land in question; or if the land had been located and designated as reserved for this purpose, by the locating agent, and then assigned before the commencement of suit, to the said grantors, the right of the defendants in error, could not be gainsayed, but under the decision, made in the case of Jones & Parsons’ heirs vs Inge and Mardis’ heirs, (see ante this volume, page 327,) the patent having been' issued after the suit was instituted, could not by relation, extend back so as to support the action, and there •was, therefore, no title in evidence, to support the action. — Downey vs Gallagher, 2 Sergt. & R. 455.

If the authentication of the deed, was such as to authorise it to be read in evidence, it was properly enough admitted, as evidence of a conveyance to the defendants in error; and for the reasons stated by the Court, it was not its province to direct the particular manner in which the title should be introduced before the jury. But in deciding that the certificate endorsed on the deed, was sufficient to warrant its introduction, the Court fell into a manifest error.

The act of eighteen hundred and twelve, (Aikin’s Dig. 89.) which prescribes the mode in which the probate of deeds may be taken, sets out a form, of which the substance must be pursued. It requires the witness to swear to the subscription of all the parties setting out their names, — that the witnesses subscribed in the presence of the maker of the deed, and in presence of each other, — and on the day and year named in the deed. The last of these requisites is certainly, a most material one, as it presents the only check against an ante-dated deed, being admitted to probate, as genuine.

No suspicion attaches to the present case, but inasmuch as the certificate shewn, is fatally defective, in all these particulars, it should not have been admitted, without proof of its execution. It follows from these views, that the judgment rendered below, was erroneous, and must be reversed; and if desired, the cause will be remanded. HOPKINS, C. J. not sitting.