By the ninth article of the Treaty of Prairie du Chien,
proclaimed Feb. 24, 1831, 7 Stat. 330, a certain tract of country
in the then Territory of Minnesota was reserved for Sioux
half-breeds, "they holding by the same title and in the same manner
that other Indian titles are held." By the Act of July 17, 184, 10
id. 304, the President, upon their relinquishment of all
their rights and interest in the tract so reserved, was authorized
to cause to be issued
"certificates or scrip for the same amount of land to which each
individual would be entitled in case of a division of the said
grant or reservation
pro rata among the claimants, which
said certificates or scrip may be located upon any of the lands
within said reservation not now occupied by actual and hones fide
settlers of the half-breeds or mixed bloods or such other persons
as have gone into said territory by authority of law or upon any
other unoccupied lands subject to preemption or private sale, or
upon any other unsurveyed lands not reserved by government, upon
which they have respectively made improvements,
provided
that no transfer or conveyance of any of said certificates or scrip
shall be valid."
A. made a contract whereby, for a valuable consideration, he
bound himself to secure, upon the location of certain of said
certificates, title to the land thereby located to be lawfully
vested in B.
Held:
1. That the contract is not in violation of said treaty or said
act.
2. That the certificates may be located lawfully not only on
unoccupied lands, but upon such as are occupied, provided that the
occupants thereof waive the provision for their benefit and consent
to such location.
3. That the words "upon which they have respectively made
improvements" have exclusive reference to "other unsurveyed lands,"
and do not qualify the provision touching "other unoccupied
lands."
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Lands in the Territory of Minnesota had been set apart for the
use and benefit of the Sioux half-breeds, and the President was
empowered to make a new arrangement with them, and for that purpose
was authorized to issue to such of them as would relinquish to the
United States their title to the reservation certificates or scrip
for an amount of land equal to what they would be entitled in case
the reservation should be divided among them, and the act provided
that the certificates or scrip might be located
"upon any of the lands within the reservation not occupied by
actual and
bona fide settlers of the
Page 99 U. S. 292
tribe, . . . or upon any other unoccupied lands subject to
preemption or private sale, or upon any other unsurveyed lands not
reserved by government upon which they have respectively made
improvements."
10 Stat. 304.
Certificates or scrip of the kind were held by the defendant as
attorney in fact of the half-breeds named in the petition, and it
appears that he placed the same with his powers of attorney in the
hands of the plaintiff, with the view to the location of the same
for the benefit of the beneficiaries. Contemporaneous with the
delivery of those papers, the plaintiff and defendant entered into
the written agreement set forth in the petition, in which the
defendant agreed that upon the location of the scrip he would
secure the title to the land located to be lawfully vested in the
plaintiff, in consideration of which the plaintiff agreed to pay
the defendant the sum of $2,800 in one year from the date of the
note, and to secure the payment of the same upon the land located
as soon as he, the plaintiff, shall acquire the title to the
same.
Difficulties attended the location which were overcome in the
manner set forth in the petition, and the plaintiff avers that he
made all the locations as stipulated in the written agreement, and
alleges that the defendant neglects and refuses to comply with his
part of the agreement; that instead of doing so, he has
fraudulently caused the lands located to be conveyed to his wife,
the other defendant in the case, and that she now holds the same,
or the principal part thereof, without consideration and in fraud
of the just rights of the plaintiff in this action. Many other
matters are alleged in the complaint which, being immaterial in
this investigation, are omitted.
What the plaintiff demands against the defendants is the
judgment and decree of the court for a specific performance of the
said written agreement, that the defendants convey to him
one-fourth part of the lands first described and the entire fee in
all the parcels last described, and that the decree of the court
shall stand and be effectual to convey the title to the
plaintiff.
Service was made, and the defendants appeared and filed an
answer setting up several defenses, no one of which involves any
federal question. They admit the execution of the written
Page 99 U. S. 293
agreement and that the certificates or scrip were located by the
plaintiff. Nothing of the kind is in controversy, but they deny
that the quantity of land located is correctly set forth or that
the fees and expenses paid by the plaintiff exceeded fifty dollars.
Sales and deeds of the lands located they admit were made by the
first-named defendant as alleged, but they aver in the answer that
they first and in repeated instances requested the plaintiff to pay
the note and take the title, and that he refused so to do, alleging
as a reason that he could not raise the money, and they deny that
the sales were made with intent to cheat or defraud the plaintiff.
Every such imputation is denied, and the defendants set up as a
defense that the arrangement contracted in the written agreement
was, by the mutual consent and understanding of the parties,
abandoned, and that the defendants have ever since and now hold the
note as cancelled, and are ready and willing to surrender the same
to the plaintiff.
Sundry explanations are also given in respect to the several
conveyances through which the title to the lands passed into the
hands of the wife of the principal defendant, from which it appears
that the deed to her was a voluntary conveyance; but the defendants
allege that she subsequently purchased the same of the
beneficiaries, for which deeds she paid a valuable consideration to
the respective grantors.
Proofs were taken, and the parties heard by the court without a
jury, and the record shows that the court made a special finding of
the facts and rendered judgment in favor of the plaintiff to the
effect that the defendants convey to the plaintiff, his heirs and
assigns forever the land and lots therein described, to which
description of the land and lots is appended the following:
"And that this decree shall stand in place of a conveyance of
said premises to said plaintiff by said defendants and be effectual
to convey the title to said land and lots to the plaintiff, his
heirs and assigns forever."
Due appeal was taken by the defendants to the supreme court of
the state, where the parties were again heard upon the finding of
facts certified from the subordinate court, and the state supreme
court affirmed the judgment of the state district court.
Proceedings in these courts being at an end,
Page 99 U. S. 294
the defendants sued out a writ of error and removed the cause
into this Court.
Appended to the writ of error is the assignment of errors filed
by the defendants, which is that the plaintiff has no ground of
action except upon the agreement set out in his complaint, which is
void under the Treaty of July 15, 1830, made at Prairie du Chien,
and the Act of Congress approved July 17, 1854. 7 Stat. 330; 10
id. 304.
Sufficient appears to show that the theory of defense presented
in the assignment of errors was not set up in the answer, nor does
the record furnish any support to the proposition that any such
question was raised or decided in the court of original
jurisdiction. Evidence to support the theory that the question
stated in the assignment of errors was discussed and decided in the
supreme court of the state is found in the opinion of that court as
published in the record, and inasmuch as that question is raised in
the assignment of errors exhibited in the brief, the Court is of
the opinion that the case to that extent is properly here for
reexamination.
Enough has already been remarked to show that the parties waived
a jury in the court where the action was commenced, and submitted
the evidence to the determination of the court invested with that
jurisdiction. Special findings were made by the court as the basis
of their conclusions of law, and on appeal, the supreme court of
the state adopted the findings of the subordinate court as the
basis of fact for their judgment. Viewed in the light of these
suggestions, it is quite clear that the findings of fact exhibited
in the record are not the proper subject of review in this Court,
nor will it be necessary to reproduce those findings, as they are
fully set forth in the record and in the official volume of the
state reports.
Thompson v. Myrick, 20 Minn. 207.
Reference either to the record or to that case will show that
the subordinate court found as a conclusion of law that the
plaintiff below was entitled to judgment directing and decreeing
that the defendants should convey to the plaintiff, his heirs and
assigns forever, the one undivided fourth part of the lands so
located by the plaintiff as aforesaid in the name of the said
beneficiaries, and the whole of the seventeen lots otherwise
Page 99 U. S. 295
described, and that in case the defendants should fail to convey
the lands as directed, the decree of the court shall stand in place
of such conveyance.
From the opinion of the supreme court, it also appears that the
defendants, through their counsel, made several points to show that
the judgment of the subordinate court was erroneous, the first of
which was that the agreement set out in the complaint is void under
the said act of Congress and the treaty made at Prairie du Chien.
By the ninth article of the treaty, a certain tract of land was set
apart for the half-breeds of the Sioux nation and the United States
agreed to suffer said half-breeds to occupy said tract of country,
they holding by the same title and in the same manner that other
Indian titles are held. 7 Stat. 330.
Certain rights of occupancy were doubtless guaranteed to the
half-breeds by that article of the treaty, but the record furnishes
no ground to suppose or even to suspect that the agreement in the
case did or could interfere with or impair any right which the
treaty conferred, which is all that need be said upon that subject.
Congress, by the act referred to, authorized the President to
"make an exchange with the half-breeds for their rights in that
reservation by issuing to them certificates or scrip for the amount
of land before described, which said certificates or scrip the act
provided might be located upon any of the lands within the
reservation, . . . or upon any other unoccupied lands subject to
preemption or private sale, or upon any other unsurveyed lands not
reserved by the government upon which they have respectively made
improvements."
Attempt, it seems, was made in the argument of the case in the
supreme court of the state to show that the terms of the agreement
were in conflict with the provisions of the act of Congress, but
the answer which that court made to the proposition, though brief,
is satisfactory and decisive. Outside of the pleadings, the
defendants, it seems, contended in the supreme court of the state
that by the terms of the agreement between the parties to it, the
scrip was to be located on land occupied by the plaintiff, and
consequently that the agreement was void as contravening the
regulations which the act of Congress
Page 99 U. S. 296
prescribed, to which the court responded that the provision
authorizing the scrip to be located upon "unoccupied lands" was
evidently framed for the benefit and protection of occupants of the
land, and that if the occupant saw fit, as the plaintiff did in
this case, to locate the scrip upon land occupied by himself, there
could be no objection to the location, as the occupant might waive
his right to object and abandon his occupancy, and that if he did,
the effect would be to restore the premises to the condition of
unoccupied land.
Plain as that proposition is, it is not deemed necessary to
pursue the argument, as the statement of it is sufficient to secure
for it universal assent.
Suppose that is so, still it is insisted by the defendant that
the agreement is repugnant to the provisions of the act of Congress
because it contemplates that the location of the scrip may be made
upon land other than that upon which the beneficiaries "have
respectively made improvements," to which the state supreme court
answered that the clause of the act referred to qualifies the
phrase "other unsurveyed lands," instead of the phrase "other
unoccupied lands," as is supposed by the defendants, which, in the
judgment of the Court, is the correct construction of the provision
in the act of Congress applicable to the subject.
Support to that view is also derived from the contemporaneous
construction given to it by the Commissioner of the General Land
Office, as appears from the circulars issued by him for the guide
and direction of all engaged in making such locations under the act
of Congress authorizing the President to issue such certificate or
scrip to the half-breeds therein mentioned. 1 Lester, Land Laws,
628; 2
id. 369.
Holders of such certificates or scrip were forbidden to transfer
the same, and the defendants contended that the real object of the
agreement was to effect a transfer of the same; but the state
supreme court overruled the defense and referred to one of their
former decisions, assigning the reasons for their conclusion that
the defense was not well founded.
Gilbert v. Thompson, 14
Minn. 544.
Since the cause was submitted, the opinion of the court in that
case has been carefully examined, and the Court here
Page 99 U. S. 297
concurs with the state court that the case is applicable to the
present case and that the reasons given for the conclusion are
satisfactory and conclusive. For these reasons, the Court is of the
opinion that the federal questions involved in the record as set
forth in the assignment of errors were decided correctly by the
state supreme court.
Six other defenses were set up by the defendants, as appears by
the opinion of the state supreme court, no one of which involves
any federal question. They are as follows:
1. That the agreement is void on common law grounds on account
of the relation which the principal defendant bore to the grantees
of the scrip.
2. That by the terms of the agreement, the payment of the note
by the plaintiff is a condition precedent to the right to specific
performance.
3. That the contract is not one which a court of equity will
enforce, because it is not a contract for a conveyance, but for
services to be rendered by the plaintiff to procure a conveyance
from the said beneficiaries.
4. That the findings of the court show that the agreement was
abandoned by mutual consent.
5. That the circumstances disclosed show that it would be
inequitable to enforce the agreement.
6. That the action is barred by the statute of limitations.
Remarks are not necessary to show that none of these several
defenses presents any federal question for reexamination, and
having already decided that the federal questions involved in the
case were correctly decided by the state supreme court, the settled
rule of this Court is that the judgment must be affirmed without
determining the other questions not of a federal character.
Murdock v. City of
Memphis, 20 Wall. 590.
Judgment affirmed.