'7'40
FEDERALBEPORTEB.
constitutional distinction between the county court and comt of claims, would decide that county court, in this charter, meant a court held by the county judge alone, except for the fourth section of this charter. This section enacts«That the person acting as sheriff at the several precincts shall return to the clerk of the county court, within three (3) days after the day of such tM' poll-books of their respective precincts. and on the next day thereafter the countyjudge and county clerk shall count the vote; and if it shall appear that the majority of those votin.iis infa,vor of the subscription of stock, as prO:' posed, the county jqdge shall order the vote to be entered on the record, and the subscription to be made by the clerk on behalf of the cotmty.on the terms specified in the order SUbmitting the question to a vote."
The courity judge is required to "order the vote to be entered on the 'record, and thesuhscription to be made," etc. This could' be done only in thereccirds of the county court, and the use of the w.ords "county jlidge," in this connection, is inconsistent with the construction that "connty court," as uaediri this charter,means merely the w countyconrt.. . .. " county judp acting Construmg the entIre wct, and gathermg from Its prOVISIOns· tha legisla.tive meaning· in th euse of the term "county court," I hava that it means a court composed' of the county,judge a.nd the justices of the peace,and that,und.er this chwrter,the county judge alone c'aunot levy a tax: to pay this , The demurrer will be: sustained. t'
PXA-O-WAH-ASH-KUM
v.
SORIN
and others. 1881.)
(Circuit Court, No D. 1.
INDIANS-THEIR STATUS AS REGARDS OWNERSffiP OF REAL PROPERTY.
A woman of the Potta;watomie trihe of Indians, whose hushand has acqUired title to lands hy a patent from the government, is thereafter suhject to the same laws, and, where the rights of third parties are concerned, is liable for the consequences of her acts and non-action, as any other person.
2.
SAME-DoWER-LACHES
By the treaty made on the Tippecanoe river, in 1832, the section of land in controversy was granted to an Indian chief of the Pottawatomie tribe, to whom, two years after, the plaintiff was married. In the following'year, by a deed in which the woman did not join, the land was deeded away. In 1846 the husband died. The patent from the government was not issued until 18(l4. Thirteen years after, the widow filed this hill for the assignment of dower in the land. Held, that. as against those in possession under the deed of the husband, the bill must be dismissed.
PKA-O-WAH-ASH-KUMV. SORIN.
74:1
Bill for Dower. ' Walter B. ScateB, forpUtil1tiff. Hoyne, Horton (f.Hojpw, F. W. YOlll1f!, Lea.fnillff Th01npson, and Hitchcock, Dupee:<1: JU4ah, for defendarnts. ' DRUMMOND, C. J. This was: a bill filed 'On the seventh day of. April, 1877, for the assignment of dower'lin fractional section1,'tow:i1ship 37 N., range 15 E., 'in Cook cdu:nty, illinois. The plaihtiff is an Indian woman of the Pottawatomi;e tribe; at' present a resident Of Kans8;s, and claims dower as the wife of Ash-kum, an Indian chief, to whom two sections of land were granted by a treaty made on the Tippecanoe'!river1 OIi! the ofOotober, 1839; one of which was thesectiClfi already referred to: By tIle third article of :the grant to 'each of treaty, "the United States agreed persons the quantity land annexed 'to 'their names, 'shall be conveyed to them by 'patooV'::Arrlong' the names mentioned is that of.Ash-kum; andthe.q:uantity 'annexed to his name is two S6C.tionS. After describing the list of persons, arid the quantityof'ln.nd ::agreedto be gronted"by the:'f3nitedJ States, the artiCle closes wlitlHbe be Jselected under following words : YT'b:e foregoing 'aft'er the <lands ,the dfrection of the 'president of the United shall hava been :sur-veyed, and the <, :bOundaries' to 'C'9rl:esporid, With the public survey." ,]he land was'sele'cted' undsi' ttiis tteaty,"a#k tlie Sell:letlonapproved: by the presid(lritin 1837. .A 'patent was not iS8.ued' until-Nov'ember 3, 1864, and (theri. it issued. to Ash-lium and bis'heirs. Atthetiine it issued but been an act of congresB,ilong iIi force, which < a pa:tent issued to a dead person' shall takE/effect as .thotigh .\iere ,living; < · oltha Urii'ted There have been two decisions of.1!h'e·.!lupreme States, oM of which eases went up from this 'coUrt under this tretity, which have declared what was the nature of the estate taken by Ashlmni under this treaty. 'Doe v. Wil80n, 23 How. 457; and Crelbs v. Bwrsham., 1 Black, 352. Thosi:l 'cases decided that there was 'an estate conveyed, to the reservee, capable of being transferred by deed, even before the land was selected or surveyed; that when selected and surveyed, and toe patent issued, the patent operated so as to transfer by its terms a title to anyone to whom the title had been legally conveyed by the original reservee. In Doe v. TVilsontbe reservee died before any patent was issued; and, long before the patent had issued, the reservee, during his life, had made a conveyance by general warranty deed of the lands granted to him by the treatYiand'the court decided that the person holding the grant
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742
FEDERAlJ,REPORTER.
under the reservee acquired a title by the issuing of the patent as against his heirs; and, of course, that the heirs of the reservee, as . against tbe.gra»toCtbeir anceator,.a.bquired 'notitle whatever,' notwithstanding the issuing of. ,the IpatenttQ him and his heirs, Substantially the same faetsexiatedin the, case of Crews v. Burclwm, whe.re the court madf'lthe same:ruli,ng. Ash-kum, on .t,he fourt11 qf October, 1835, made a c()nveyance of the section in con.tl'Ov'ersy in this case to Louis de Beille by a warranty deed, a copy of which, from the.,rec(}l'der's offiaeof Cook county, haa been introduc@d in evidence,it not being. ib.·' the power olthe parties toprodllce. the original deed. Two objections introdw#()n of this that it was have been made to, properl] aclo;lOiw:legged; and., secondly,· that there was no. oertificate of magistracy. According to t1;1e cqpythe .deed wa,8 acknowledged in Berrieu.county"Michigan, pefore a justice of the. peace. the jUAAice of the, peace is shown by acertifiThe official of the secretal"y;pf state of Michigan, under. the seal of. the state, ,attached to the copy,and the clerk of a· :court of record, also attached.,ehowing thapthe acknowledgment was made in the time the acknowled{;ment conformity with the law w.as taken; and, I suppose· jt'would be the duty of thit:loourt to determine whether or not it was se executed and I think the copy is propedy admissible of the statute relating to conveyances, under the twentieth and therefore that the evidence is that Ash-kum made a conveyance of his right andJitle to this section of land in 1835, and consequently that when the patent was issued him and his heirs it conveyed to hrs grantee and his assigns,t,lnder the deed of 1835, all; his title to the section, and· that his heirs .cannot set up aJ:l.Y claim to the land as against the deea of their ancestor. There have been several deeds introduced on the part of the defence to show that the plaintiff has conveyed hel' in the land to different persons who were claiming the lana and in possession unaer the title obtained from Ash-kuill, and therefore she canllot 1l0W set 'up any claim for dower. One of these deeds is dated :February 19, 1877, by which she conveys, in consideration of the Rum of $2,000, with covenants of warranty, to S. Sooy, Stutely D, Plljlmer, James W. Mnrphy, and D. O. Elwood, the tract of land in contro, versy, together with the other section. r.eserved to Ash-kum. by the treaty; and there is a deedof July 5,1877, in which the plaintiff all her interest in this purports to conveJ', for a consideration of
PKA-O·WAH-'ASIt-XUM: V.'SORIN.
743
land to Sorin, one of the defendants, making express 'reference to the bill filed in this case, and authorizing and directing the ·-grantee to causlf this bill to be dismissed; 'These con:veyanMs thus made by plaintiff areattaeked as not hltving been mad'lfby'her with full knowledge of thefaictS'l and 'it is:c1aimed that8:liewas notttwareof' signhig,: ahd therefore that' the cOllveyanceS are inopthat she Was not able to write nor to speak: eratiy.e.. ,The proof English; that aU comrouni<l.ahons.toher in Engl,ishJhadto be maue thr-ough an interpretel\: The; proof iaiofsuch'a ohftiti1<lterthat if the' case had to rest upon'thevaiidity<lf these deods ·tllerewould be soille.. difficttlty insu3taining tbJm, 'becauseWdbesnotJ appear very clearly, is a:gdOdi ev1dlince;tEmditig to that conclusion, tha;t'shedid fully understand, the purport andeffeht 'of the papere that she signed. T:do' not,tberefol'e, 'think it ne'Cessary to place the dMision of the court in tuis case "poll'these. but rather lipon Glthergrounds. .. e, .' ;. The proof:seelnS to showithat;she 'wlts·1mltrried to 'Ash-ktini by a Catholic priest as 'eaTly as 1834.IIrhere: is· al8<) proof showtng that she 'and Ash·kum lived together' asfm;an and WHlf their removal to Kansas, wherlf he died in 1846:: Under the la'\" of this state, at the d'eath of her husb'and she' etldowa'Ole of'his interest in this aectionoflandjshe!not having been a party to the deed which herhus-, blina made in 1835. : The agrijentent to grant had beeu Illadeby the the boundUnited States; the land had· been located artes had been established, at the time of the death of her husband. It is true, the patent had not issued; but still her husband, if he had never made any grant of the land,would havebeeri clothed with every right/except what might be c'()nveyed by the issue of the patent to him, alid 8be,was also inchoate right of dower, which became perfect on his death. There has been possesliion admitted ,and of the 'defendants,under the grant from paJment, of taxes by Ash-kum;,and a generalapp'ropriation of the land for Illore than seven years prior to the filing of this bill. But: it is claimed by the of· the plaintiff, although he has put in prooF to show that thep1ai;ntiff was nafuralized Rsa citizen by the 'district court of the United8tates, in Kansas, on the thirteenth ofOetoher, 1869, that she, being:an Indian womaill, is hot subjec.t tOlthe .general rules Il.p. plicitble'to ordinary citizens; that she is clothed-with specialinimu. nitias in .consequence of her tribal· relations; she' Btill being a: 'mem,; ber·-ofthe Pottawatomie tribe of Indians; 'and consequently all those i
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744
FEDERAL
laws which are applicable to the .cases of possession of land do not reach her case. There is one expression used in the opinion of the supreme court in Orews v. Burch,am, already.referred to, which might, perhaps, tb.row some doubt upon the question made by the plaintiff in this case. That language is: "It is true that no title to the particular lands in·· question could vest in the reservee or in his grantee until the location by the president, and perhaps the issuing of the patent." It seems to me the doubt implied by the use of this language can hardly be considered as entitled to much consideration in such a case as this, wheJ:'e the defendants claim, not through another and independent title, but through the title granted by the treaty and through the reservee named in the treaty, so that there was nothing to make the title complete in the reserV'ee or his assignee except the mere issuing of the pa.tent. Under our law, for the purpose of asserting a right to the land, an action of ejectment. or of trespass or any other actiQnto enforce a right which existed, was maintainable;, and the isstle of the patent was the metecoJ;isummation of a techical right, and nothing more. It was analogous to the common case under our law of a tract of land' purchased of the United States and the money paid, and possession taken by the purchaser, under a receipt of the receiver of the land-Office or a certificate of the register, and after this has taken place a patent issues to him. In such case the purchaser has always been sidered, eV13n before the issue of the patent, as clothed with all the material rights of ownership to the land. And in the case supposed, where the patent issued to. him, no one else can question his,prior right. It is only where there is a title independent of his, in which a patent may issue to some third party for the same land, that any question can arise. Some stress has been laid upon the fact that the plaintiff was ignorant of the tracts of land which had been selected for her husband, and of her husband's rights to this particular property, as well as of the issuing of the patent, until years after his death. I do not think this argument can be considered conclusive as against those who were in· the actual possession of the land, holding under a title from her husband himself. It cannot be maintained that after a perfect title to lands exists within this state, by flo grant to an Indian, he is exempt, or the land is exempt, from all the ordinary burdens and incidents which the law of the state imposes upon the owne1;S of
PKA-O-WAH-A.SH-KUM
V. SORIN.
lands. He must assert his rights against a trespasser, or a person same as any other person, in possession under the color of 'rhe oases which have been cited, by the counsel {or tqe plaintiff, where land belonging to the Indian tribes has been held not to be taxable under the law of the states, have no application to this case. Here the land was severed from the mass of public lands; 'by the grant, the selection of the preside.n.t, an.d the issuing of and the United States could make no claim that the land, belonged to an Indian tribe, or to a memb,er bfan Indian tribe, as su\th;iahd I i thinJdhe plaintiff has 10Elt,as'totlle lan.d' thus in possessi6Jfdt the all right to the maintwariceof this bID the delay, in the application. ,More than thirty years!el8lpsed ,between of her'4usbandand the 'of this bill. elltPsed between the issuing ,of the pate,nt and the filing. of' tp.ebill. During all this time, or the greaterpart'Qf it, some of this pl.-operty has been held adversely under a grant from her husband. Th.at 'in it case of an application for dower, on the, part of the wid'ow,'ill lands the law of the state.,qn limitaheld by her husband tionsl applies, is settled by several cases. Owen v. Peacock, 38 Ill. 83; Steele' v. Gellatly, 41 m. 39; Whiting v. Nichol, 46 Ill. 230; Gilbertv. Reynolds, 51 Ill. 5 1 3 . ' The only question, therefore, is whether, because she is a Pottawaklmie woman, she is exempt from the operation of the general rules applicable in such cases ; and whether any special disability attached to her social and political status? I think not" and therefore Isha11 dismiss the bill as to those defendants thus in ,posSeSl:llon. In giving this opinion I do not wish to ,be understood aE\ deciding that some of the other defences made in this case may but I prefer to place the 'decisio:t(on .the ground of the'laches the plaintiff. It is difficult" for instance, to believe, in view of her husband's connection with the treaty of Tippecanoe, he lrlmself 'bg{ng one of the signers of that treaty, and the fact that he 'made a cob:veyance of this tract of land long before he left Indiana ana went 'to 'Kansas, this claim was entirely unknown to his wife; but, that may be, it to me that When the title was conveyed by governInent she must' be placed' ih the same condition ,as any other person, and for the consequences of, her acts and her non-ac#on, where the rights of third parties are concerned, she immunity. '.,
146
ir
and (Cir9/fii Court, E. D.
others. and others. 1, , "I
VON' UUBSY r 'and othersv. GXllVIN
L FltAUD,-JOINT JUDlfMENT-S,u:O'UET l'REFEfiENCE OF ONE OF THE. PI"UNTIFFS,' A nllmber of creditors made a loan to an insolvent firm to enable it to carry (ill its business, taki'ng as securit.v a!jointjudgme'nt, with an 'understanding titat t'he debtors should give no other judgnlHlll.s.· ,. Two of these creditors secretl,t took ,8 judgment note from tpe firrq for'the amount of t4eir originalclaimBl nQt incl'3ding of the loan.; ppon credItors, of certali1 prOl'lllses made wIth theIr knowledge by the debtors anll a.fter·inducing delsy in therissuing of execution' on the original lung. ,ment, judgment, note, issued execution, and. "wept tlje entire personal of the debtors. ,Held, that this.ws" fraud. JlJ;lon tl1-e other parties to ,the original judgment, and thatin thedlstrtllutllm9ffih'e proceeds of the debtor's property the execumon thusobta.iJied' shouldbeip{l$tponed to the execution upon that judgment" ,. ;, ;,
8,
BANKRUPTCY-PllOCURATION-:-WHA'I.' DOEBNOT AMouNT TO.
r
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Debtors agreed to give a creditOr notice 'Wliendangcr threatened, f!Idrder that he might obtain the fil'st'execution. Afterwards they ittdulied him, by misrepresentation, to delliy" alfd Pl;ocured ,an ,to. be issued by anothllT.Creditor more than sufficient to ex!la'.lsttheirpJ,'operty. They then gave notice of this exec\ltion 'to the first CI'(!ditol', who thereupon also· issued' executi'on, Held, th"t this notice by ,the debtors' was not a procuration of the second execution.
Exceptions Masfer.,. .' " : ,',! , This was ,a bill in. equity by assignees inbankrtiptcy to set' aside', on the ground.of procuration, two on tOe or's property prior to the filing in "A Wits filed, P.Y in thE!'second execution, to set aside the fust execution olltside of the' bankrupt The case to it mast,ef" (EdWin T. Chase,) whqreporledsu?stantialtX, tne foFowingfacts; . ' firm were lumber III Phlladelphl;l. In June,' H176, they financIaHy embarrassed. . In ardel' to 'c\irry on ,their bu'siness, they !ha:de applio:ition to some :of their: largest, lcred.ftors. for)a::loan l'l:lprel:lllJlting that tl:iey were not able to meet their obligations, but that if they could obtain' a loan they" could bridge over their embarrassments." Honorable 'Charles P.
.o!