J'EDEnAL · '
,
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,vol. 4.3. i.
:.;.:
(Orcuit court, D. , , '
July 14,
d!!!lddescribed the llill,d conveY"!d as bes-inning ata certain rock, Bnd running ",' thence 'one mile east, on!! 'mile north, one mile west, and one mile south, to place of :': beginning;' and alsO' stated that it was 'the land set off toa certain IndiBn under a: ;t,reaty"with,the government. The Indian had previously selected his land as "a rlloC, ,tQn,,e mile sq,uare,' t,h,e exact bound,',ariell of which may be defined when the sur" " 6yllare Jl1ade.» After the deed was given, the Indian's land was located and pat)" so as to include 640 acres not in 'the fOrm of a square, no part of which lay within the boundaries named in said deed. Held, that the deed. being for a specifio tract of land, qQuld not be construed to convey the grantor's interest in the land actUally paten\eato the Indian.
't'
·'.cAt l,aw., . This, action having been brought to, trial, before the conrt without a jOly, which WAS waived by the parties by a stipulation in writing duly filed with the 'clerk, the following: fact&:are found by the court: , (1) That the treaty made and concluded on the 30th day of SeptemA."D. 1854, between the United States and the Chippewa Indians, of Lake:Superior and the Mississippi, whereby said Indians ceded to the 'United: Sta-tes certain ·tetrltory lying adjacent to the' headwaters of Lake Superlor,conta.ined the fullowing provisions, v-iz.: "And being desirous toprovidefor.somt' of his cOnnections, who have ren· dered, his peopleimp'ortantservices, it Is agreed that Uhief Buffido mllY select of laDQlat. sucbplace in as he may l!lee fit, which shall j>e that purpose, and conveyed by tbe United States such person or persons as he mill direct. " . (2) That.snid treaty wasratified,:pursuantto a:r:esolution of the United Sta.tessenatepassed on the .lOth day Of January, :1855, by the, president of the UnitedStatesj on the 29th day of January, 1855. (3) That. said ChieLBuffalo, pursuant to ,said provision of said ,and,on the day of Ithedatethereof,. to-wit, September 30, 1854, Qy an instrument of wriJiing'executedbyhim and filed in the office of the ;Un:itedlSta.tes: of Indian affairs at Washington, C., se:lected be conveyed thereunder by the 'United States, and ,the; persons ,to whom it was to be conveyed, as follows, viz., ai'terreciting the foregoing provisioIl' oHhe treaty: a t.ractof.land one. mile square, the,exact boundary of whicb mN', b,e: Wl'\en,the,lll1rveys are made, lying on the wtllltshore of I;t. :,' ,r '. ':. .', .'.'.;!
be the same according to thl! aboveto or Benjamin G., AJ'lDlltrong, my adtlptedson: toJ.Mlltthew May..\:.1 way-gwon/my nephew ;to Joseph May-u waygwon and: Ain'lluine l!Ions,-otie'quarter section to each." Josepp"an4 .pnder ,of Sepexecut¢qand deliver,ed to said an instrument assigning to him their 'tlght,title, and interest under sald appointment and selection of Chief Buffalo.
L?,uls
polnt,;li'tidi di.re<it
PRENTICE t7; NORTHEiaN'
'pic. R. co.
Benjamin G. Armstrong and wife, on Septeuiher '1856, 'mllue,executed, and delivered to the plaintiff herein a deed of " .(G)!'Thl1t said deed from Armstrong to plaintiff was duly recorded in the county of St. Louis, territory of Mirmesota, on the 4th day of No: veniber,A. D. 1856. (7), That the pieces or parcels of l,and, the title to which is involved in thisiaetiori" are situated in said county of St. Louis, territory (now state) of Minnesota; J
tract; ofland which Chief Buffalo had aS,his ;selection pll .the d,ay,of the, treaty did not correspond with theseQtion the land, came, to' be surveyed into j;lections; and, furthermore, . part ofit.wl\S found .tQbe occupiedandc)fIiiuled by certain Indian traders a lengthy correspondence ,and investigati()n in the department of the interior, the of Buffalo entitled, rlanp,resEl;I;ved for them (}opcededthe :validity of the claim of Indian in lieuofthe lallds thus held by trlj.!lers received lands selected l;lyBuffalo to up thequantily of 6,4.0 (lares, the form of a parallelogram, t,l;u;lUghmaint!l,ining aCQn;tinuQ'ls ' ' , ::' ,:c' ('U} That United States government surveys of the lands 'ceded by said treaty of September 30, 1854,'00 the United States had not been 'rtlade aBhe date of the said deed from Armstrong to plaintiff,and ,WElte not made until the year following the date thereof. " and wift', by warraiity duly (1'2) That said -and recorded, dated October 22, 1859; coriveyedail undividedchalf of the rlnnds conveyed to him,'and the other appointees of ChiefBuffaIo'll,foreUnited States, by said patent of October 23, 1858, to Danliel James H. K;elly. ' . ,' . . : ' . ; ," L That after said patents were issued to !'laid' appointees', fiS(l.:foresaid, the said; Matthew, J,osepb, and Antoine, op March 13, 1859; cuted deeds ofoohveyance of the land which bad been r{jspectively said Armstrong, which deeds were duly reCOrded ;in said 1St. Louis county,' May 17, 1859; and the said Armstrong ,andwifej 01'1' the 31st day of August, 1864, for a valuable consideraij,()ti,. ,executed and delivered their deed of conveyance of an undivided of . th&laftars'O patented to hini and the said Ml,tttheW',: Joseph, and Antoine \WJbhtl'M. Gilman, which conveyance was duly recorded in sa,idSt. Louis county, September 12" 1864.., That-said Gilman 'took'sili<r cbnany actual notice ofsil.id' deed' from Said Armstrong to pla4htiff'of September n, 1856', or that plaintiff clainie4 aj,lirit¢rest , " :', r -bHhe'landJBo 'conveyed to him, said Gilman; ,; , That:the ·c!aim. to the pieceS or ' 'land;llloontr-0Versy as grttntees efe sRldGllman:,and underand.rthrougp. said deed to said Gilman of August 31, 1864. ,lU::)"
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FEDERAL REPORTER,
!ol. 43.
(16) The court furtherflnds that the large stone or rock at the head of St. Louis river bay, nearly adjoining Minnesota point, described in the de,ed from Armstrong to Prentice in the fifth finding of fact, the begi,Bning of the boundary of the tract conveyed. is well identified, and was general1;y known to the few people familiar with the place, and is reoognjzable now. And a mile square measured from that point, as called for in the deed, would whqlly depart from the shore of St. Louis bay, and "'ould \Jover about one-half or three-fifths land, and the remainder the of Lake Superior. (11) That the land selected by Buffalo Chief lay upon the .shore of St.Louis bay, immediately adjoining Minnesota point; and this selecas near as it could be by the patents of the United tion Statel:i; issued to satisfy. that reservation, considering the elimination from 'the mile square of the lands held by the traders, and the vagueness'of; Buffalo's description, and the necessity of conforming the final . grant to the surveys of the United States. .(18)Tf the lines of the course cilJledfor as east and west, in the deed of Armstrong to Prentice, under which the plaintiff asserts his title, wereeiltctly reversed, the description in that deed wonldinc1ude a large part'otLtheland actually selected by Buffalo Chief, and also included in the patents from the United States; but it would not include the land sued fur in this complaint. '{19} That the said instrument executed by the Chief Buffalo dated 8epten:i,her 30th; 1854', was the only selection or appointment ever made by Buffalo Chief undf'f the sixth clause of the second, llrtic1e of the said treaty. (21) That at the date of said deed, September 11, 1850, from Armstrong to Prentice, said Armstrong did not have any interest in land in said Lo\lis county, Minnesota Territory, except what he was entitled to under the Buffalo selection and appointment referred to in the third paragraph hereof, and under the assignment from the other appointees of Buffalo. And the court, found the following conclusions of law thereupon: '(1) That the appointment of persons to whom the United States were section of land reserved by the said provision of said to conveY , treaty, made by the said Chief Buffalo on the 30th day of September, 1854" Wl\S;a valid and sufficient appointment under said provision, and, upon th13ratification of said treaty, vested in the said Benjamin G. Armstrong, ,the other appointees named, an interest B,S the treaty gave to reserved. (2)?-,J;1at of the. United States to Armstrong, and his acceptance of it, isa v.alid of the treaty on that subject. . (3)' That the deed from said Armstrong to plaintiff of data of SepI,.. 1856, is in its ,and recording a ,valId, sufficient deed, and its record is constructive notice of its contents.
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RENTICE fl. NORTHERN PAC. B. CO.
273
(4) That the description in the deed of said Armstrong to plaintiff of September 11, 1856, is insufficient to convey his interest in or title to any other or different tract of land to which he might have beenentitled under said treaty than the tract described therein, and that said deed is ineffectual as a conveyance to plaintiff of any interest or tiUe, except l'!uch as said Armstrong had in or to the land therein described, and that plaintiff thereunder took no title to the land for the possession of which this action is brought. (5) That the quitclaim deed from said Armstrong to said John M. Gilman of August 31, 1864, conveyed to the said Gilman such interest, and no more, as said Armstrong had in the land therein described at the date of said deed. (8) That the plaintiff is not entitled to recover in this action, and Judgment is ordered for the defendants for their costs and disbursements. Root & Clarke, Dillon & Swayne, and Kitchel, Cohen & Shaw, for plaintiff. Williams, John (J. BUlliU, Jr., Prank B. Kellogg, and Wm. Ii. defendants. MILLER, Justice. Although this action of ejectment brought by Frederick prentice is other defendants, and his claim is for a different piece onand, the title under which he and the defendants claim was the subject of consideration in a former suit in this court, which was reported as Prentice v. Stearns; 20 Fed. Rep. 819. That case went to the supreme court of the United States, where the judgment of this court was affirmed, and is reported in 113 U. S. 435, 5 Sup. Ct. Rep. 547. There was in that case a very elaborate finding of facts by this court, which is .found at length in the report of the case in 113 U. S. and 5 Sup. Ct. Rep. As the suit before us is not between the same parties as thefor!ller suit, what was decided in that case in the supreme court is only binding in the consideration of the present case, as far as it establishes the law applicable to such case. As the case is submitted to us without the intervention of a jury, we have made a new finding of fact, in some respects differing from that which we made in the former case. These differences may become material in the formation of the judgment on the title. . The principal question before us in the former ca,se, which was decided against the plaintiff, is reargued before us at this time with much earnestness and fullness. We held at that time that the deed from Armstrong to Prentice, under which alone plaintiff cap. assert a title to the land' in controversy, was an instrument designed to convey a defined tract or parcel of land, and was not, as contended for by counsel for plaintiff, intended to convey any interest which existed in Armstrong under the treaty with the Chippewas, referred to in the findings of fact, and under the selection of Buffalo Chief, according to the provision of that treaty, and the appointment by Buffalo Chief that the lands selected by him should by the United States be conveyed to strong and three other parties, relatives of Buffalo. That principle, as this court decided it, was afUrmed by the supreme court of the United
dnEitli idcPORTER; vol. -States;'. ,of in. 'new facta as the,cdtmsel for. thepIaintiff supposed the'y)lBveproduced on,the presertt:heating, ,we remainbfithe opinion we were on the former triaL The first descriptive claus,e of the deed from Ar.mstrong to Prenof a mile squllte, beginning at a. large stone or rock', Whidl,'asa tnlttterof fact, We' fiUd in the present case is now identified, arid Was welfknown atthe''time the deed was made. The proceeds with the points, of the compass one' mile east, one ·iitile D9rth, tnilesouth, t() the place of beginning. It w6\ild,'J.)e difficult; ,the' begitmingl.p'qint being well ascertained, toim'agiil'e tha:t, Armstrong' intended to: cbIivey llny other land, Or any other interest land,th.an deserIlielt',And,lf thatdescnptlODls tostalld !lEI apa.rt of the deed no, doubt where was; no occ!lsi?ri to tq,,,,ny that ,he meant any other that: It is now'fuund as'a'fll:ct 'thl1t this boundarY would include a surfnce from one-half to three-fourths of which is land an<i,the, is water of Supedor.¥pr that reason, and for may" tOtally,' tWis part' df tlla' :4escriptfoti'qfltpe land fo"nd injh?conveyance, the, says: " ' " ",,', , set;o:t't Indiau, Sh\et, at of X'. D. 1854. and 'wa,s afterwards dIsposed 'otbySlud 13uffalo to and is l)o\\, lrecordM ,With, the documents. I',
is; nat 'suffihientlicerlliin ',to 6on:w1'any:definife' tmcfof i/1lld' Qne'mITe square;odlearly Buffalo., and all thai was known abOutthat selectloD that was to be, found ih" ',of tlpon, ',that ,could 'tQ'survey an;iile' 'square,' Or:tt acres in a ,square fdrm,'sdaEi'to coinpIJ with Hi.e teI'rllsMthe' deed. · it, is liliI:qeqrtij.e evident, 'both, lS'y,the firSt' c!IaUse.'of the description, and by the 'rafetehbe 'to the i sele'6UonmadebfBtiff'alo; and to the re99rdeq. doc-the government, thaLthegrantor in that deed supposed 'orIand, ati<!- that both the de'scriptiHn 'by metes and bounds and the ptionwith reference to the BUfiaIb,seJecfion were 'tHe same,snd: were :identical.' If th,is deed is void :because'1ihat desctip;tion 'Ui 'as is alleged in the :cla\}se;or'is'so rtncertain"as regards the 'second clause" that it be 'ideiitifle<J:'ol'tbund ou(orsurvered,'then the deed is,simply ayoi!linstrtim$ot: ;To avoid iliis'diffictdty, ,'cduu$'el inSiststl:lat the objll9iof the grantor and the gl'l1ntee lllthfs deed,w!Is 4n6ther a04, object and of and They BtlY that to the laoo; ChIef Bu£ralo ,lit ap.y 'whIch mlghtcometoButraIo ortohls appOIntees, of whom is one, by the future of the l>f. .', , ., States .,. '.'
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PREN-TICE ". NORTHEBNPAO. B.;CO.
275,
in t1J.at casejand that, no matter where such land was found,. provided It was within the limits of the land granted by the Chippewa treaty, then the <;leed from Armstrong to Prentice was intended to convey such afteracquired interellts when it was patented to the pllrties by the United States. We do not see anything in the whole deed or transaction between Armstrong and Prentice that points to or indicates any such construction of it. Both clauses oJ the description are definite as to the land conveyed, and treat it as a piece of land well described, well known, and well defined. Of course, any man endeavoring to ascertain what land was conveyed under that grant would suppose that, when he found the stone or rock, which we now as a matter of' fact find to have an existence, and can be well identified, he had bought a mile square according to the points of the compass, the south-west corner of which commenced on that rock. He would not suppose that he had bought someihingthat might be substituted in lieu of that mile square by future proceedings of the government of the United States. And so, with regard to the other description, Buffalo had made his selection, h;1d deec..ibed the land which he designed to go by that treaty, not to him, but tt' his relative!:!, whose na.mes are given, and it was an undivided half of thIS land thlls selected by the Buffalo. Chief, and not other land or dif. ferent land which might come .to Armstrong, that he and intended to convey to Prentice. Much stress is laid upon cases found in the supreme court of the United states, referred to in the case of Prentice v. Stearns, already decided. the cases of Doe v. Wilson and Crews v. Burcham and this a brood difference exists. The lands reserved by treaty in those cases to the parties who conveyed their interests to others never had been described, never had been selected, and it was only known that they would be entitled to. certain amount of land·afterwards to be selected1;ly the president under that treaty. In the case of Doev. Wil.son, How. 457, the language of the is that the reservation created equjta.bleinterest in the land to be selected under the treaty; thatit was the of sale and conveyance; that Pet-chi-co was competent to convey it; and that his deed, upon the selection of the land, and the !issue of the patent, operated to vest the title in his grantee. In that case Pet-chi-co could not have conveyed anything more specific than his general right to such congressional subdivision of land as the president might afterwards allot to him. In conveying his interest he conveyed the equitable itHerest which he had in such allotment when it should be made. Such was also the case of Orews v. Burcham, 1 Black, 352. The deed there ,recites areservati.on to the grantors of a half section under the treaty, which is to be located by the president after the land was surveyeq., and then for a valuable consideration the grantor conveys an his right. .In that case no description of land could be given, because supposed to exist; the president had yet to select and it. Brit- iIi the case before us, not only had Buffalo made his selection, and designated the partles to whom the land should go, but the selection had definiteness about it to a certain extent; it was a thing
a
F1iJDERAL REPORTER,
vol. 43.
specifically, and which Armstrong undertook to convey specifically. It is not necessary that we resort to the supposition that Armstrong was talking about some vague and uncertain right,-uncertain, at least, as to locality, and as to its relation to the surveys of the United States ,-which he was· intending to convey to Prentice, instead of the definite land which he described or attempted to describe. If such were his purpose in this conveyance, it is remarkable that he did not say so in the very few words necessary to express that idea, instead of resorting to two distinct descriptive clauses, neither of which had that idea in it, one of which is rejected absolutely by pJai'ntiff's counsel as wholly a mistake, and the other is too vague in its language to convey even what plaintiff claimed for it. We are not able, therefore, to hold with coullsel for plaintiff that,if this conveyance does not carry the title to any lands which can be'RScertained by that description in the deed, resort can be had to the alternative, that the deed was intended to convey' any land that might ultirriately come to Armstrong under the treaty, and under the selection, and under the assignment to Buffalo. There is a view of this sUbject which has given us cqnsiderable embarrassmept. If the east arid west courses of the first clause of the desC'ription in the Armstrong deed to Prentice were exactly reversed, the land described in it would be found on St.Louis bay, somewhere along the shores of that bay, adjacent to and above Minnesota point, and would include :much of the land which was patented by the United States to Armstrong and his associates insatisfactiol1of the treaty grant to Buffalo; and we should find ourselves called upon to decide whether, under all the circumstances,we would not be compelled to regard these two east and west lines as mistakes, and reverse them iil seeking for the land, because in that case we should certainly fall upon some of the land which Buffalo intended' to select, an<;l which the government of the United States has patented in satisfaction of that selection. But we are not called upon in this case to decide upon that subject, because all the'land sued for in this case lies"south of the southern section line of such a survey ,and is excluded fro:m it. Judgment for defendants.
be
HOWARD (O£rCI1lU CmOUIT
v.
:BATES COUNTY.
Court, W.-D. Mi8sou1i, W. D. September I, 1890.)
In an on,oounty bonds and coupons thereto attaohed, the coupons constitute "Interest" Within ActCong. March 8,1887, as amended .August 18, 11:!88, that the United States circuit courts shall have jurisdiction Incertain cases where the in dispute exceeds $2,000 exclusive of " interea'" and COsW. .
\t
LaW.
Demurrer to petition.
