1.
Semble that under the treaty of the United States
with the Choctaws, in 1830, by which the United States agreed that
each Choctaw head of a family desirous to remain and become a
citizen &c., should be entitled to one section of land,
"and in like manner shall be entitled to one-half that quantity
for each unmarried child which is living with him over ten
years of age, and a quarter section
to such child as may
be under ten years of age,
to adjoin the location of the
parent,"
no trust was meant to be created in favor of the children. They
were named only as measuring the quantity of land that should be
assigned to the head of the family.
2. However this may be, if under the assumption that no trust
was meant to be created, the United States have issued under the
treaty a patent to a Choctaw head of a family, individually and in
fee simple for all the sections, a purchaser from him
bona
fide and for value will not be affected with the trust, even
though he knew that his vendor was a Choctaw head of a family, and
in a general way that he had the land in virtue of the treaty.
3. Where it is sought to affect a
bona fide purchaser
for value with constructive notice, the question is not whether he
had the means of obtaining and might by prudent caution have
obtained the knowledge in question, but whether his not obtaining
it was an act o� gross or culpable negligence.
By the fourteenth article of a treaty made in 1830 between the
Choctaw Indians and the United States, by which the
Page 73 U. S. 84
Choctaws ceded their territories to the United States, it was
thus stipulated:
"Each Choctaw head of a family being desirous to remain and
become a citizen of the states shall be permitted to do so by
signifying his intention to the agents &c., and thereupon be
entitled to a reservation of one section of six hundred and forty
acres of land, to be bounded by sectional lines, and in like manner
shall be entitled to one-half that quantity
for each
unmarried child which is living with him over ten years of age, and
a quarter section
to such child as may be under ten years
of age,
to adjoin the location of the parent."
Hall was such a head of a family, and at the date of the treaty
had living with him seven children, of whom three were over and
four under ten years of age. This gave one section as respected
himself and two and a half sections as respected his children.
Having reported to the agent of the United States in making his
claim, the number and ages of his children, but not their names, he
secured a reservation of three and a half sections, including the
section on which he lived. In 1841, a patent issued to him directly
for the whole three and a half sections, the instrument reciting
that these had been "located in favor of the said William Hall as
his reserve." The words of grant in the patent "were to
him and
to his heirs," with a
habendum, "to his or
their heirs and assigns forever."
In 1836, anticipating the issue of the patent, he sold the whole
three and a half sections for $750, which was paid him, to one
Wilson, who took possession and made valuable improvements on the
land.
In April, 1849, Hall himself being dead, his children, now grown
up, filed a bill in the Chancery Court of Alabama against Wilson to
recover the two and a half sections which were granted as respected
them. Wilson admitted in his answer knowledge that Hall was a
Choctaw head of a family entitled to a reservation, but denied
knowledge of what article of the treaty he claimed under.
It was conceded that in ascertaining to whom the patents
Page 73 U. S. 85
should issue for the lands under the treaty in question, it was
not customary to take down or return to the government the names of
children of heads of families, but that in executing the treaty,
the agent returned the names of heads of families, with the number
and ages of their children, and that in issuing the grants in fee
simple, it had been customary to issue them in the form of the
patent to Hall, until the year 1842. In that year, an act was
passed by Congress [
Footnote 1]
directing that as to lands located for Choctaw children, the patent
should issue to such "Indian child if living," and if not living,
to his heirs and representatives. A statute had previously passed
[
Footnote 2] referring to
article fourteenth of the treaty and appointing commissioners with
full power to examine and ascertain the names of persons who had
fulfilled the conditions of settlement so as to entitle them to
patents, and to ascertain the quantity for each child
"according to the limitations contained in said
article."
It also seemed that from the date of the treaty down to the act
of 1842, the construction of the Executive Department had been that
no provision was made for children as independent beneficiaries,
but that they were named as measuring the quantity of land that
should be assigned to the head of the family. At least, referring
to these provisions, the Commissioner of Indian Affairs had said to
the Attorney General in 1842:
"These words were construed by Mr. Secretary Cass to give to the
parent the title to the halves and quarters of a section stipulated
for, in right of the children. This construction has been the
uniform one of the department in executing the treaty, and patents
have issued accordingly, of the correctness of which no doubt has
been entertained heretofore. The register of those that applied to
the agent under the article contained the names of the heads of
families only, which would seem to show that the children were not
entitled in the opinion of the Indians themselves who furnished the
materials for the register. "
Page 73 U. S. 86
On this case the questions were,
1. Whether, on a true construction of this fourteenth article of
the treaty, Hall himself had held the two and a half sections
adjoining the one on which he lived in trust for his children?
2. Whether, if he had himself held the sections in trust,
Wilson, a
bona fide purchaser for value, was affected with
notice of that trust, the same not having been set forth on the
face of the patent to Hall?
The Supreme Court of Alabama, where the suit finally went in
that state, was of the affirmative opinion on both points.
[
Footnote 3]
On the first question, that court's view was -- although a grant
to one person
for another, ordinarily created a trust --
that here the expression "
for each unmarried child" might
be admitted, if by itself, to be equivocal. But the words
immediately following -- "and a quarter section to such child as
may be under ten" -- the court thought shed light on the previous
obscure expression and sufficiently indicated the sense in which it
was used. This was made more plain, the court considered, by the
direction that the lands given in respect of the children should
"adjoin the location of the parent." What was meant by the location
of the parent? Obviously the section on which the parent's
"improvement" was situated, where he lived, and which was reserved
to him in absolute right. Lands which
adjoined a parent's
could hardly be deemed lands of the parent himself. The
construction given to the article by the Executive Department of
the government, and the form in which the patents were issued could
not, the court conceived, change the meaning of the words of the
treaty nor control any court in interpreting them. There was
therefore a trust for the children.
On the second question, the Supreme Court of Alabama
thought that as Wilson knew when he made his purchase that Hall was
"the Choctaw head of a family" and that
Page 73 U. S. 87
his right arose under the treaty, he ought, as a prudent man, to
have inquired further. Lord Mansfield's language in
Keech v.
Hall [
Footnote 4] was that
"whoever wants to be secure should inquire after and examine the
title deeds." Had Wilson made an examination of the treaty, it
would have informed him -- so the court considered -- that the
right of Hall was confined to the single section on which his
improvement was situated, and that all the rest of the land was for
his children. He had failed to make an inquiry which it was his
duty to make, and a court of equity would accordingly treat him as
if he had actual notice.
MR. JUSTICE GRIER delivered the opinion of the Court.
When the United States acquired and took possession of the
Floridas under the Louisiana treaty, the treaties which had been
made with the Indian tribes remained in force over all the ceded
territories as the laws which regulate the relations with all the
Indians who were parties to them. They were binding on the United
States as the fundamental laws of Indian right, acknowledged by
royal orders and municipal regulations. By these, the Indian right
was not merely of possession, but that of alienation.
The parties to this contract may justly be presumed to have had
in view the previous custom and usages with regard to grants to
persons "desirous to become citizens." The treaty suggests that
they are "a people in a state of rapid advancement in education and
refinement." But it does not follow that they were acquainted with
the doctrine of trusts. With them, lands were either held in common
by the whole nation or tribe, and the families were its fractions
or portions. The head of the family could dispose of the property
of the
Page 73 U. S. 88
family as the heads of the tribe or nation could that of the
nation.
Under the Spanish and French dominions, grants of land were
always made to individuals in proportion to the number of persons
composing the family. Thus, in
Frique v. Hopkins,
[
Footnote 5] the court said as
follows:
"By the regulations of the Spanish government, if the individual
who applied for land was unmarried, a certain quantity was given to
him; if he had a wife, this quantity was increased, and if he had
children an additional number of acres were conceded. Now if the
circumstance of his being married made the thing given become the
property of both husband and wife, we must, on the same principle,
hold that where children were the moving cause, they too should be
considered as owners in common of the land conceded.
That such
was the effect of the donee's having a family was never even
suspected. It certainly is unsupported by law. Many donations
are made in which the donee's having a wife and being burdened with
a large family is a great consideration for the beneficence of the
donor, but this motive in him does not prevent the person to whom
the gift is made from being considered its owner, nor prevent the
thing from descending to his heirs."
We can hardly expect the Indians to be very profound on the
subject of adverbs or prepositions, and the agents of the
government do not seem to have exhibited much greater knowledge of
the proprieties of grammar, or they would not have left this
section of the treaty capable of misconstruction or doubt when it
was so easy to avoid it. The words of this 14th section of the
treaty were construed by Mr. Secretary Cass to give to the parent
the title to the whole. This construction had been the uniform one
of the department in executing the treaty, and patents were issued
accordingly, of the correctness of which no doubt was entertained.
The register of those that applied to the agent under the article,
contained the names of the heads of families
Page 73 U. S. 89
only, which would seem to show the Indian construction of the
contract or treaty. Accordingly, on the 29th of June, 1841, a
patent was granted to William Hall, not for himself and his
children, but to him and his heirs. At this time the Secretary had
no means of ascertaining the names of the children so that separate
patents might be given them in case of a different construction
given to the treaty. In all others of the numerous treaties made
with the Indians (more of them made by Governor Cass than by any
other person) where lands were reserved or agreed to be granted to
any Indian, the name of the grantee and quantity to be given were
carefully stated in the treaty.
As this section of the treaty was capable of a different
construction, Congress, on the 23d of August, 1842, in order to
save something for the children from the folly or incapacity of the
parent, appointed commissioners with full power to examine and
ascertain the names of the parties who had fulfilled the conditions
of settlement to entitle them to patents for their land, and
ascertain the quantity for each child
"according to the
limitations contained in said article."
Now while it is freely conceded that this construction given to
the treaty should form a rule for the subsequent conduct of the
department, it cannot affect titles before given by the government,
nor does it pretend to do so. Congress has no constitutional power
to settle the rights under treaties except in cases purely
political. The construction of them is the peculiar province of the
judiciary when a case shall arise between individuals. The
legislature may prescribe to the executive how any mere
administrative act shall be performed, and such was the only aim
and purpose of this act.
In the Cherokee treaty, where a grant of 640 acres was given to
persons "willing to become citizens," a life estate only was given
to the settler, with
reversion to his children. This
treaty makes no such provision for children. The construction given
by the representatives of both parties to the treaty, and the
grants issued under it, were not revoked, nor could they be, by
mere legislative act, founded on a different
Page 73 U. S. 90
construction of a doubtful article of the treaty. The treaty
only describes the person who is contingently entitled to the
reservation. He must be a Choctaw and a head of a family, and
desirous not only to remain, but must signify to the agent
his
intention to do so. These are conditions precedent, on
the performance of which he shall
"
thereupon be entitled to a reservation of 640 acres,
and
in like manner shall be entitled to half that quantity
for each unmarried child which is living with him over ten
years, and a quarter section to such child as may be under ten
years,"
and if they reside upon the land, intending to become citizens
for five years &c., "a grant in fee simple shall
issue"
&c. The father alone could fulfill the
conditions; he would not be entitled to the additional land unless
for a child that "
was living with him." The treaty did not
operate as a grant, and a patent was necessary to the person who
alone could perform the conditions.
We do not consider it necessary to vindicate the conclusion to
which we have arrived in this case by further argument on the
grammatical construction of this section of the treaty. Assume that
the construction put on the treaty by the court below may possibly
be correct. What then are the facts of the case? The complainants
below have applied to a court of chancery, which should be a court
of conscience, to vacate the title of a
bona fide
purchaser, who purchased and paid his money and expended a life's
labor on land granted by patent from the United States, conveying a
fee simple estate, which was issued by the officers of the
government without intention of imposing any trust on the grantee
or limiting it on the face of the deed.
It is contended that the purchaser is affected with notice of
the terms of the treaty referred to in his patent.
If there be any trust for children it must be a constructive
trust, which is negatived by the express terms of the grant. How
can a chancellor build up by the words
for and
to
-- words of equivocal import and doubtful construction -- an
equitable title in the children? The fact is clear that such was
not the construction under which the grantor gave the deed or the
grantee accepted it. A chancellor will not
Page 73 U. S. 91
be astute to charge a constructive trust upon one who has acted
honestly and paid a full and fair consideration without notice or
knowledge. On this point we need only to refer to Sugden on
Vendors, [
Footnote 6] where he
says:
"In
Ware v. Lord Egmont, the Lord Chancellor Cranworth
expressed his entire concurrence in what, on many occasions of late
years, had fallen from judges of great eminence on the subject of
constructive notice, namely that it was highly inexpedient for
courts of equity to extend the doctrine. When a person has not
actual notice, he ought not to be treated as if he had notice
unless the circumstances are such as enable the court to say not
only that he
might have acquired, but also that he ought
to have acquired it but for his gross negligence in the conduct of
the business in question. The question, then, when it is sought to
affect a purchaser with constructive notice, is not whether he had
the means of obtaining and might by prudent caution have obtained
the knowledge in question, but whether not obtaining was an act of
gross or culpable negligence."
The application of these principles of equity to the present
case is too apparent to need further remark.
Judgment reversed.
[
Footnote 1]
5 Stat. at Large 515.
[
Footnote 2]
id. 180.
[
Footnote 3]
See 34 Ala. 288.
[
Footnote 4]
Douglas 22.
[
Footnote 5]
4 Martin 212.
[
Footnote 6]
Page 622.
