Whilst an ejectment suit was pending to try the legal title to a
tract of land in Mississippi, the defendants filed a bill on the
equity side of the court praying for a perpetual injunction upon
the ground that the plaintiffs had obtained a patent from the
United States by fraud and misrepresentation.
But the fraud is not established by the evidence, and therefore
the bill must be dismissed and the parties remitted to the trial at
law.
Where there are reservations, in Indian treaties, of specific
tracts of land which are afterwards found to be the sections set
apart for school purposes under a general law, the reservees have
the better title. They hold under the original Indian title which
the United States confirmed in the treaty.
But where the reservee claimed under a float, no specific tract
of land being designated for him in the treaty, this Court abstains
from expressing an opinion, that being the legal question pending
in the court below.
This was an appeal from a decree by the equity side of the
court, granting a perpetual injunction upon the appellants, who
were plaintiffs in an ejectment suit then pending on the law side
of the court.
In the second article of the supplement of Dancing Rabbit Creek
Treaty, 7 Stat. 340, made on 27 September, 1830, there is this
reservation:
"Also, one section is allowed to the following persons, to-wit,
Middleton Mackey, Wesley Train, Choclehomo, Moses Foster D. W. Wall
&c., to be located in entire sections, to include their present
residence and improvement, with the exception of Molly Nail and
Susan Colbert, who are authorized to locate theirs on any
unimproved unoccupied land."
On 27 August, 1832, D. W. Wall, one of the reservees, assigned
all his right and title under the treaty to George S. Gaines and
Allen Glover, who procured a patent for the sixteenth section to be
issued to them, in pursuance of this claim under the treaty, by the
President, on 7 December, 1838.
In the year 1841, George S. Gaines, Francis S. Lyon, and the
heirs at law of Allen Glover instituted an ejectment against John
Hilman, who was the tenant in possession under the trustees of the
school lands.
Page 50 U. S. 357
In 1842 these trustees filed a bill on the equity side of the
court, from which the following are extracts:
"Humbly complaining, your orators would respectfully show unto
your Honors that your orators, Isaac W. Nicholson, Powhatan B.
Thermond, Lewis B. Barnes, John T. Moseley, and S. M. Goode, are
the trustees of the schools and school lands reserved by the acts
of Congress for the use of schools in township twelve, range
eighteen east, situated in the County of Kemper in the State of
Mississippi. They would further show unto your Honors that section
sixteen in said township twelve, range eighteen east was reserved,
by the acts of Congress for the use of schools in said township,
and being so reserved, your orators took possession of the same and
leased it to your orator, John Hilman, who went into possession of
said tract of land prior to 27 March, 1841, and has continued in
possession ever since until this time."
"Your orators would further show unto your Honors, that on 27
March in the year 1841, an action of ejectment was instituted on
the law side of this Honorable Court by John Doe, lessee of George
S. Gaines and Francis S. Lyon, and of the heirs at law of Allen
Glover, deceased, against your orator, John Hilman, for the
recovery of said section sixteen, and to dispossess and eject your
orators therefrom, which suit is still pending undetermined in said
court."
"Your orators would further show unto your Honors that by virtue
of the second article of the supplement of Dancing Rabbit Creek
Treaty, entered into on 27 September, 1830, between the United
States and the Choctaw tribe of Indians, certain portions of land,
situated within the territory ceded by the said Indians to the
United States, were reserved to divers members of said tribe of
Indians, and, amongst others, a section of land was reserved to
David W. Wall, in the following words, to-wit:"
"Also one section is allowed to the following persons, to-wit,
Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W.
Wall &c., to be located in entire sections, to include their
present residence and improvement, with the exception of Molly Nail
and Susan Colbert, who are authorized to locate theirs on any
unimproved unoccupied land."
"Your orators would further show unto your Honors that on 27
August in the year 1832, the said David W. Wall, by deed of that
date, bargained, sold, and conveyed, to George S. Gaines and Allen
Glover, all the right, title, interest, and claim of him, the said
David W. Wall, in and to a certain reservation of one section or
six hundred and fifty acres
Page 50 U. S. 358
of land made and granted to him, the said David W. Wall, under
and by virtue of the provisions of a treaty made and concluded
between the United States of America and the Choctaw tribe of
Indians at a place called Dancing Rabbit Creek in said nation in
the month of September, 1830."
"Your orators would further show unto your Honors, that the said
George S. Gaines and Allen Glover, deceased, falsely and
fraudulently pretending and representing to the President of the
United States that the said David W. Wall, at the date of said
treaty, resided upon said section sixteen, in the township and
range aforesaid, and had his improvement thereupon, and that they
had located the reservation of said Wall upon the same on 7
December in the year 1838 procured a patent to be issued to them,
conveying to them the said section sixteen, in township twelve,
range eighteen east."
"Your orators would further show unto your Honors, that at the
date of said treaty the said David W. Wall did not reside, nor had
he any improvement, upon said section sixteen, as aforesaid, but
resided at a long distance from the same, and had no right or
title, claim or interest whatever, in said section of land, which
had been reserved, as your orators distinctly and positively aver,
for the use of schools in the State of Mississippi, by the laws of
the United States."
"Your orators would further show to your Honors, that the said
Gaines and Glover were so well aware that they had no right to the
said section of land, by virtue of their purchase from the said
Wall, that they located the claim of said Wall at one time, as your
orators have been informed and believe, upon another section of
land near Mayhew, in Oaktibbeha County, but finding that their
claim to said last-named section would be disputed, they, in the
technical language of land mongers and speculators, lifted the
same, and laid it upon said section sixteen. Your orators would
further show unto your Honors, that, by virtue of the patent thus
falsely and fraudulently obtained, they have been advised that the
said Gaines and Allen Glover, deceased, obtained the highest and
best legal title to said section sixteen, when, in equity and
justice, they have no title thereto, but the same belongs to your
orators, as trustees and tenant of the schools and school lands, as
aforesaid."
The bill then proceeded with the usual interrogatories, prayed
for a temporary injunction, and afterwards a perpetual one.
A temporary injunction was granted.
The respondents, in their answer, set forth the circumstances of
the treaty, averred that the United States were incapable of
Page 50 U. S. 359
making any grant of land which was reserved by the treaty, and
denied the alleged fraud in the following manner:
"These respondents, further answering, say that the said George
S. Gaines and Allen Glover, deceased, never did, jointly, nor did
either of them severally or separately, falsely pretend and
represent to the President of the United States that the said David
W. Wall, at the date of the treaty, resided upon section sixteen,
in the township and range aforesaid, and had his improvement
thereupon; no such pretense was ever set up or representation made
to the President of the United States or anyone else by the said
George S. Gaines, or Allen Glover, in his lifetime, or either of
them. A reference to the record of the Executive Department of the
government, or even to the published documents relating to the
public lands, would have relieved the complainants from an
allegation so utterly false and unfounded."
To this answer there was a general replication.
Some testimony was taken bearing upon the points of Wall's
residence, age &c., but none touching the fraudulent
representations alleged to have been made in the procurement of the
patent.
On 18 November, 1845, the circuit court passed the following
decree.
"Be it remembered, that this cause came on to be heard at the
present term, before the Honorable Samuel J. Gholson, judge
&c., presiding, upon the bill, answers, exhibits, agreements,
and proof in the cause, and upon argument on both sides; and now,
at this day, the court being sufficiently advised, and because it
appears to the satisfaction of the court that the complainants are
entitled to the relief prayed for by them, it is therefore ordered,
adjudged, and decreed, and the court doth hereby order, adjudge,
and decree, that the judgment at law in the pleadings mentioned,
and all attempts to enforce the same be and the same is hereby
perpetually enjoined, and also that the said defendants be and they
are hereby perpetually enjoined from ejecting and turning out, or
from commencing any other or further suit to eject and turn the
said complainants, or their successors in office, out of the
possession of the section of land in the pleadings mentioned,
to-wit, section sixteen, in township twelve, range eighteen east,
in Kemper County. It is further ordered, adjudged, and decreed, and
the court doth hereby order, adjudge, and decree, that the
defendants shall, within sixty days from the date of this decree,
by deed in fee simple, without warranty, convey, quitclaim, and
relinquish to the complainants and their successors
Page 50 U. S. 360
in office, as trustees of schools and school lands, all the
right, title, claim, and interest which they, the said defendants,
or any of them, have in and to said section of land, and in default
of such conveyance's being made by said defendants in the time
aforesaid, then the clerk of this Court be and he is hereby
appointed a commissioner to carry into effect that portion of this
decree directing said conveyance. It is further ordered, adjudged,
and decreed that the defendants shall pay all the costs of this
suit. This ordered, adjudged, and decreed, this 18 November,
1845."
"From which decree the defendants pray an appeal to the Supreme
Court of the United States, which is granted. "
Page 50 U. S. 361
MR. JUSTICE NELSON delivered the opinion of the Court.
The bill was filed by the appellees in the court below against
the defendants, to enjoin proceedings in an action of ejectment
brought to recover possession of the sixteenth section of
Page 50 U. S. 362
township twelve, range eighteen east, County of Kemper, State of
Mississippi.
By the twelfth section of an Act of Congress passed March 3,
1803, entitled "An act regulating the grants of land, and providing
for the disposal of the lands of the United States south of the
State of Tennessee," 2 Stat. 229, the sixteenth section in each
township was reserved, and appropriated to the support of schools
within the same. And by the sixth section of an Act of Congress,
passed April 21, 1806, entitled an act in addition to the act
aforesaid, 2 Stat. 401, it was provided that whenever the sixteenth
section should fall upon land already granted by Congress, or
claimed by virtue of a British grant, the Secretary of the Treasury
should locate another section in lieu thereof for the use of
schools within the township. And by an Act of Congress passed
January 9, 1815, entitled "An act to provide for leasing certain
lands reserved for the support of schools in the Mississippi
territory," 3 Stat. 163, it was provided that the county court of
each county in the territory should appoint agents, who were
empowered to lease these reserved sections for the purpose of
improving the same, or for an annual rent, as they might think
best, and to apply the proceeds to purposes of education within the
township.
The act also provided for laying out the sections into
convenient farms, of not less than one hundred and sixty, nor more
than three hundred and twenty acres each, for the removal of
intruders and trespassers, and also for the punishment of all
persons cutting timber or committing other waste upon the
tract.
The last section provided, that the leases granted by virtue of
the act should be limited to the period of the termination of the
territorial government, and should cease after 1 January next
succeeding the establishment of the state government.
It is admitted that the appellees are the trustees of schools
and school lands in township No. 12, duly elected and qualified
under the laws of the State of Mississippi, and that they are
charged with the care and management of the same (How. & Hutch.
Dig. 125,
et seq.), and also that John Hilman, the
defendant in the ejectment suit, was in possession under a lease
from the said trustees.
They had taken possession of the section as early as 1834. The
suit in ejectment was brought in 1841.
The premises lie within the territory formerly belonging to the
Choctaw nation of Indians, and which was ceded to the
Page 50 U. S. 363
United States, by Treaty at Dancing Rabbit Creek, 27 September,
1830, 7 Stat. 333.
By the supplementary articles of that treaty (p. 340), certain
reservations were made to Indians by name, and among others the
following:
"Also, one section is allowed to the following persons, to-wit,
Middleton Mackey, Wesley Train, Choclehomo, Moses Foster D. W. Wall
&c., to be located in entire sections, to include their present
residence and improvement, with the exception of Molley Nail and
Susan Colbert, who are authorized to locate theirs on any
unimproved unoccupied land."
D. W. Wall, one of the reservees, on 27 August, 1832, assigned
all his right and title under the treaty to George S. Gaines and
Allen Glover, who procured a patent for the sixteenth section to be
issued to them, in pursuance of this claim under the treaty, by the
President, on 7 December, 1838.
The former, and the heirs of the latter, compose the plaintiffs
in the ejectment suit in the court below, claiming under the
patent, and the defendants in the bill filed to enjoin that suit by
the school trustees, claiming under the acts of Congress above
referred to.
The court below granted a preliminary injunction on the filing
of the bill, staying the proceedings at law, and on the final
hearing decreed a perpetual injunction, and also, that the
defendants relinquish all their right and interest in the section
to the school trustees and their successors in office.
The clause in the treaty reserving to Wall, among others, a
section of the land ceded, upon a strict construction of its terms,
would seem to confine the reservation to a tract, not exceeding a
section, on which he resided and had made improvements at the date
of the treaty; but a more liberal construction has been properly
given to the clause by the officers of the government, and which
was inculcated by the eighteenth article of the treaty itself, by
which the reservee is allowed a section, although not a resident at
the time, and without having made any improvements upon the
particular tract. In cases of residence and improvements, the
location must be such as shall include them.
Wall, it seems, was a minor, and resided with his father at the
date of the treaty, and therefore was not within its terms, so that
locality could be given to any particular section by a reference to
residence or improvements. But under the liberal construction
mentioned, the right to a section, notwithstanding, existed -- a
right, however, to no particular tract or section,
Page 50 U. S. 364
but at large, to be located upon some portion of the ceded
territory -- what, in common parlance, is denominated a float.
The deed to Gaines and Glover does not profess to convey any
particular section, but only his right generally to that amount of
land reserved to him under the treaty. A location, therefore,
became necessary before the issuing of the patent by the
President.
The bill charges that the grantees, Gaines and Glover, in order
to induce the President to issue the patent to them for the
sixteenth section of township No. 12, which it is claimed, had been
appropriated by the acts of Congress already referred to, for the
use of schools, falsely and fraudulently represented that Wall
resided upon the same at the date of the treaty, and had made
improvements thereon, thus bringing the application for the
particular parcel of land within the strict terms of the treaty,
and presenting a case upon which the right to it was, confessedly,
paramount to any that could be pretended in the state or township,
as a school reservation.
This is the ground set forth by the complainants upon which to
invoke the equitable interposition of the court to set aside and
annul the patent, and remove the encumbrance from their title, and
to stay the proceedings at law. And undoubtedly, if the facts thus
charged have been established by the pleadings and proofs, a right
to such equitable interposition for the relief sought has been made
out, and the decree of the court below should be upheld.
But, on looking into the answer and proofs in the record, there
does not appear to be any evidence of the fraud or imposition
alleged, nor anything to rebut the presumption, which we must
assume till the contrary is shown, that the patent was issued with
a full knowledge of all the circumstances upon which the
complainants rely to invalidate it. Fraud is not to be presumed,
and the burden, therefore, lay upon the complainants to establish
it, and having failed, all ground for the equitable relief failed
also, and the court below should have dismissed the bill, leaving
the parties to the settlement of their rights in the action at law.
In the absence of fraud or imposition in the issuing of the patent,
the question was one of conflicting title under the treaty on one
side, and the acts of Congress, appropriating every sixteenth
section in the townships for the benefit of schools, on the other
-- a question purely of law.
The State of Mississippi acquired a right to every sixteenth
section, by virtue of these acts, on the extinguishment of the
Indian right of occupancy, the title to which, in respect to
the
Page 50 U. S. 365
particular sections, became vested, if vested at all, as soon as
the surveys were made and the sections designated. No patent was
necessary, or is ever issued, for these school sections. And the
question presented is whether the general right reversed to Wall
under the treaty, to select a section of land in the ceded
territory, operated to suspend the vesting of the title in the
state, till a selection could be made and patent issued, under the
direction of the President; or whether the selection in respect to
these general floating rights, that bound no particular parcel or
section, must be made in subordination to the right acquired by the
state.
The question, as before said, is one of law, and should have
been left to the trial at law in the action of ejectment pending
between the parties.
There is no doubt but that all persons in whose behalf
reservations were made under the treaty, and who were residents
upon any particular tract, and had made improvements thereon at its
date, were entitled to the section, including their improvements,
in preference to any other right that could have been previously
acquired under the government; because the land embraced within the
section was so much excepted from the cession. No previous grant of
Congress could be paramount, according to the right of occupancy
which this government has always conceded to the Indian tribes
within her jurisdiction.
It was so much carved out of the territory ceded, and remained
to the Indian occupant, as he had never parted with it. He holds,
strictly speaking, not under the treaty of cession, but under his
original title, confirmed by the government in the act of agreeing
to the reservation.
But the question here is whether the reservation of a right, not
to any particular parcel or section of the territory ceded, but a
right, generally, to have that quantity of land out of it, and to
be located under the direction of the President, stands upon the
same footing, and has the effect to cut off the right claimed by
the state to have attached under the acts of Congress to the school
section previous to the location made by the President.
We forbear expressing any opinion upon it, as the question is
not now properly before us, and as it belongs to the action at law,
the trial of which should not be anticipated or the case
prejudged.
We shall therefore
Reverse the decree, and remit the proceedings to the court
below, with directions to dissolve the injunction and dismiss the
bill of the complainants.
Page 50 U. S. 366
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered and decreed by this
Court, that the decree of the said circuit court in this cause be,
and the same is hereby, reversed, with costs, and that this cause
be, and the same is hereby, remanded to the said circuit court, for
further proceedings to be had therein, in conformity to the opinion
of this Court.
