Joseph Webster, Plaintiff in Error, v. Hugh T. Reid, 11 How. 437

Mr. Justice McLEAN delivered the opinion of the court. This case is brought here by- a writ of error to the Supreme Court of Iowa. A judgment was,obtained by the defendant, Reid, against the plaintiff in error, Webster, at May term, 1845, in- the District Court of Lee Cdunty, Iowa- Territory, for the recovery of a quarter-section of land; which judgment was removed by writ of error to the Supreme Court of the Territory; and after-wards, at January term, 1846, the judgment of the District Court was affirmed. On the 3d of March, 1845,

an act was passed by Congress, to admit the State of Iowa into the Union. By the fifth

section of that act, it was made a fundamental condition to the ■admission of the State, that certain provisions of the act should be “assented to by a majority of the qualified electors at their township elections,” on which the President was required, by proclamation, to announce the admission of the State into the Union. The judgment in this case was rendered by the territorial-court, before the State of Iowa had been admitted.

The writ of error from that court was directed to the Supreme Court of the Territory, and the record has been certified in obedience to it by the Supreme Court of the State, where, it seems, the records of the territorial Supreme Court are deposited. As this proceeding was commenced and consummated in the territorial courts, over which this court can properly exercise a revisory jurisdiction, the District Court of the United States would have been a more appropriate deposit for the record.

But, under the circumstances, this is not considered material to a revision of the proceedings, no mandate being required to give effect to the judgment of this court. The subject-matter being clearly within our jurisdiction, and having possession of the record, we see no objection to an examination of the case. This court held in Gelston v. Hoyt, 3 Wheat. 246, under the twenty-fifth

section of the Judiciary Act of 1789, giving appellate jurisdiction to this court from the final judgment of the highest State court, “the writ of error may be directed to any court in which the record and judgment on which it is to act may be found, and if the record has been remitted by the highest court and to another court of the State, it may be brought by the writ of error from that court.” In principle, that case is analogous to the one under consideration.

If the record contain the judgment duly certified, over which we can exercise jurisdiction, it is not essential that it should be certified by the court rendering the judgment. The questions in the case arise on exceptions taken to the rulings of. the court at the trial. To sustain the plaintiff’s title, two judgments and executions thereon, with the sheriff’s return, were offered in evidence.

The first, in behalf of Edward Johnston v. “The Owners of Halfbreed Lands lying in Lee County,” Iowa Territory, for twelve hundred and ninety dollars, at August term, 1839; the other in behalf of David Brigham v. the same defendants, for the sum of eight hundred and eighteen dollars, at the same term.

Executions having been issued on these judgments, the sheriff returned On both of. them that he had levied “ on the Half-breed Sac and Fox reservation in Lee County, Iowa Territory, commonly called the Half-breed tract”; and had advertised and sold the same for the sum of twenty-eight hundred and eighty-four dollars, sixty-six cents. In pursuance of this sale, the sheriff made to Hugh T. Reid, the purchaser, a deed for the lands levied on, containing one hundred and nineteen thousand acres, more or less.

The above proceeding took place under a law of the territorial legislature of Iowa, passed the 25th of January, 1839. By the first

section of that law, “

An Act for the partition of the Half-breed lands, and for other- purposes,” and

an act supplementary thereto, were repealed. The

preamble to the repealed act expresses its object, — " Whereas it is expedient, in order to the settlement of that tract of land lying between the Mississippi and Des Moines Rivers, commonly called the Half-breed lands, which was reserved for the Half-breeds of the Sac and Fox tribes of Indians, by treaty made at'Washington city,, between the United States and those tribes, on the 4th of August, 1824, which was released to said Half-breeds, with power to convey their rights, &c., by act of Congress, approved the -30th of June,1834, that the validity of the titles., of the complainants should be determined, and partition of said lands among those having claims should be made, or a sale thereof for the benefit, of such valid claimants.” The second

section of the repealing act provided, that the several commissioners by and under the act repealed, who were authorized to sit and take testimony, &c. under said act, “ may immediately, or as soon as convenient, commence actions before the District Court of Lee County, for their several accounts against the owners of the said ‘ Half-breed lands’; and give eight weeks’ notice in the Iowa Territorial Gazette to said owners of such lands; and the judge of said District Court, upon the trial of said suits before it at its next term,, shall, if said accounts are deemed correct, order judgment for the amount and costs to be entered up against said owners, and said judgment shall be a lien on said lands,” &c.

The third

section declares, “ The words ‘Owners of the Halfbreéd Lands lying in Lee County,’ shall be a sufficient designation and specification of the defendants in said suits.” By the fifth

section it was provided, that “ the trial of said suits shall be before the court, and not a jury; and this act shall- receive a liberal construction, such as will carry out the spirit and intention thereof.” The deed from the sheriff to Reid, and also the judgment and executions on which it was founded, having been given in evidence, though objected to by-Webster, he offered to prove to the. jury that the judgments, executions, sheriff’s sale, and sheriff’s deed were all procured by fraud of the plaintiff, and others, and that the whole title of the plaintiff' was founded upon fraud and fiction; to which the plaintiff objected, and the court refused to admit the evidence.

The defendant then offered evidence conducing to prove, that Na-ma-tau-pas, under whom be claimed the land,.was a Halfbreed of the Sac Indian?, accompanied by a deed from him for the premise? in controversy, to John Bond,.dated'the 3d of Marph, 1837 ; and also a deed from Bond to Theophilus Builard for the same land, dated the 20th of March in the same year; and also a deed from Bullard to Webster for the same land, dated the 7th of April, 1838; all of which deeds were duly acknowledged; but the plaintiff objected to' said deeds being admitted as evidence, and the cpurt sustained the objection.

The defendant then offered to prove that he entered into the possession of the premises, which were improved, and that he had occupied them up to the time of the trial.

And he then offered to prove by parol testimony, that no service had e.ver been made upon'any person in the suits in which the judgments were rendered, under which the sale was made; that no notice was given by publication of the institution of said suits; that the plaintiff was the counsel, that procured said judgments ; that said judgments were rendered upon a fictitious demand, never proved before the auditor; that Webster and the owners of the Half-breed tract of land, or some of them, were prevented from appearing and defending by the fraudulent, representations of said plaintiff; that the sale was in fact never made by the sheriff, Taylor; that his returns were fraudulent and false ; which evidence, being objected to, was overruled by the court.

Other exceptions were taken, but it is deemed unnecessary to refer to them. This was an extraordinary procedure from its commencement. With the view.to produce a settlement of the large tract of land owned by the Half-breed Indians in the county of Lee, to settle the nlaims to those lands, partition them among the claimants, or make a sale thereof for the benefit of such claimants, the act of the 16th of January, 1838, containing twenty-four sections, was passed. Thomas S.

Wilson, David Brigham, and Edward Johnston were appointed commissioners, who were vested with certain powers to carry out the objects of the act, and who were to receive each six dollars per day for their services. The judgments on which the land was sold were obtained by two of. the commissioners, for services rendered under the above act. To satisfy these two claims, the entire tract of tne.Iíalf-bréeds was sold, containing 119,000 acres.

By the act under which the suits were instituted, no other designation of the defendants was required than “ Owners of the Half-breed Lands lying in Lee County.” These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the Territory or not does not appear, nor is it a matter of any importance.- No person is required to answer in a suit on whom process has not been served, or whose property has not been' attached.

In this case there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, aré nullities, and did not authorize the executions on which the land was sold. By the seventh

article of the amendments of the Constitution it is declared, “ In suits at common law, where, the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” The organic law of the Territory of Iowa, by express provision and by reference, extended the laws of the United States,"including the Ordinance of 1787, over the Territory, so far as they are applicable. • The. act under which the above proceeding was had prohibited the trial by jury in matters of fact on which the’suits were founded. In this respect the act was void.

The District Court erred in overruling the evidence offered by the defendant, to prove fraud in the judgments, executions, sheriff’s sale, and sheriff’s deed. When a judgment is brought collaterally before the court as evidence, it may.be shown to be void upon its face by a want of notice to the person against whom judgment was entered, or for fraud. The District Court also erred in overruling thb evidence of title offered by the defendant. The deeds upon their face appeared to have been duly executed; and there was no suggestion that they did not relate to the land in controversy.

If no partition had been made, so that Na-ma-tau-pas could not give an exclusive title to the land, yet; being proved to be a Halfbreed, he had the power to convey at least his interest in the land, which gave a right of possession to some extent'to Webster. The deeds showed that he was not a trespasser, and had a right "to defend his possession. The extent of his right of possession under his deed it is not necessary now to determine. There was also error in the District Court, in overruling the evidence offered by the defendant to show that no notice was given by publication, as the act requires.

If jurisdiction could be exercised under-the act, .it was essential to show that all its requisites had been substantially observed. It was necessary for the plaintiff to prove notice, and negative proof that the notice was not given, under such circumstarices, could not be rejected. For the above reasons, the judgment of the Supreme .Court of the Territory, affirming the judgment of the District Court, is reversed. Order. This cause came on to be heard on- the transcript of the record from the Supreme Court of the Territory, now State, of Iowa, and was argued by counsel.

On consideration whereof, it is now here ordered- and' adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that a statement of this decision be certified to the Supreme Court of Iowa.