1. Where a treaty with an Indian tribe reserves a certain
quantity of land, to be afterwards selected by the President and
patented to an individual of the tribe, such reservation creates an
equitable estate in the reservee to the land reserved, which he may
sell, and upon the selection and patenting of the land, the title
will vest in his grantee.
2. This is held to be the rule in a case where the reservee
conveyed his interest under the treaty, and died before the issuing
of the patent.
3. In a contest between the grantee of the reservee himself
under a conveyance before the patent, and the grantee of his heir
under a deed made after the land was selected and patented, the
title of the former party must prevail.
4. It is no objection to the right of the first grantee that the
land finally patented did not lie within the district ceded by the
treaty which made the reservation, because the recitals in the
patent are conclusive and, at any rate, third parties have no right
to impugn the patent for such a reason.
5. Where land has been laid out in town lots or otherwise
divided among many occupants who are threatened with numerous
suits, a bill in equity will lie to quiet the title, although the
complainants have a legal title and therefore an adequate remedy in
a court of law in each several case.
6. It cannot be said of a party that he is an innocent purchaser
without notice if, before he purchased, the adverse title was duly
recorded and persons claiming under that title were in actual
possession.
By the treaty of 1832, the Pottawatomie Indians ceded to the
United States all their lands in Illinois, Indiana, and Michigan
south of the Grand River, and by the same treaty the United States
agreed to grant certain quantities of land to certain members of
the tribe -- among others, to Francis Besion a half section, to be
selected for him by the President after survey. The half section
was surveyed, selected, and a patent for it was duly issued in the
name of Besion in 1845. Besion
Page 66 U. S. 353
died in 1843. Previous to his death and of course before the
patent, he conveyed his interest in the half section of land to
which he was entitled under the treaty to William Armstrong, with
covenants of warranty and further assurance. After Besion's death
and after the patent issued, his sister and sole heir conveyed the
half section to Crews and Sherman. The plaintiffs below claim under
the deed from Besion to Armstrong, and the defendants hold the
title which was conveyed by Besion's heir after his death. The
latter parties commenced actions at law against persons claiming
through the former, and this bill was brought to quiet the
title.
The main question was whether Besion, before the date of the
patent, had, by virtue of the treaty, such a title as he could
convey by deed, or whether the deed to Armstrong was void for want
of an assignable interest in the grantor. The defendants insisted
that the deed to Armstrong passed no title; that in fact no title
to this particular land existed out of the United States until the
patent; that the patent vested the title in Besion's heirs, and
that the deed from Besion's sister gave the whole estate to her
grantees.
The circuit court held that the grantee of Besion, in his
lifetime, took under his deed all the estate which Besion had in
the half section, that the patent, when it issued, inured to the
use of Armstrong and the parties claiming under him, and that
consequently the sister and heir of Besion had no estate which
could pass to Crews and Sherman by her deed to them.
The incidental points which were taken on the hearing are
sufficiently stated in the opinion of MR. JUSTICE NELSON.
The circuit court enjoined the defendants against prosecuting
the action already commenced, against bringing any fresh actions,
and against every other interference with the plaintiffs' rights.
And thereupon the defendants appealed to this Court.
Page 66 U. S. 355
MR. JUSTICE NELSON.
This bill was filed by the appellees, the complainants below,
against the defendants to enjoin a suit at law to recover a part of
fractional section 24, in township 31, Illinois. By a treaty with
the Pottawatomie tribe of Indians of October 27, 1832, the nation
ceded to the United States all their lands in Illinois and other
states, subject to certain reservations, for which patents were to
be issued. Provision was made in the treaty that the reservations
should be selected under the direction of the President of the
United States after the land was surveyed, and the boundaries
should correspond with the public survey. Francis Besion, a member
of the tribe, was a reservee of one half section of land under this
treaty. As we have said, the treaty bears date 27 October, 1832. On
the fourth of February following, Besion conveyed, for a valuable
consideration, all his right and interest in the half section to
William Armstrong, under whom the complainants below derive their
title. The selection of the half section was made by the President
in pursuance of the treaty, and a patent was issued on the 17th
February, 1845, for the same, to Besion and his heirs, with an
habendum clause, "to have and to hold the said tract, with the
appurtenances, unto the said Francis Besion, his heirs and
assigns." Besion died in 1843, before the issuing of the patent.
The defendants set up a title to the tract under conveyances from
the heirs of the reservee, claiming that the deed from him to
Armstrong carried with it no right or title to the half section,
which was subsequently
Page 66 U. S. 356
selected and patented. The decree of the court below was in
favor of the complainants, enjoining the suit at law and
restraining the institution of others for the purpose of quieting
the title.
The main and controlling questions involved in this case were
before this Court in the case of
Doe v.
Wilson, reported in 23 How. 457, which arose under
a reservation in this treaty in behalf of the chief,
Pet-chi-co.
It was there held that the reservation created an equitable
interest to the land to be selected under the treaty; that it was
the subject 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.
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; but the
obligation to make the selection as soon as the lands were surveyed
and to issue the patent is absolute and imperative, and founded
upon a valuable and meritorious consideration. The lands reserved
constituted a part of the compensation received by the
Pottawatomies for the relinquishment of their right of occupancy to
the government. The agreement was one which, if entered into by an
individual, a court of chancery would have enforced by compelling
the selection of the lands and the conveyance in favor of the
reservee, or, in case he had parted with his interest, in favor of
his grantees. And the obligation is not the less imperative and
binding because entered into by the government. The equitable
right, therefore, to the lands in the grantee of Besion, when
selected, was perfect, and the only objection of any plausibility
is the technical one as to the vesting of the legal title.
The Act of Congress, May 20, 1836, 5 Stat. 31, provides
"That in all cases where patents for public lands have been or
may hereafter be issued in pursuance of any law of the United
States to a person who had died, or who shall hereafter die, before
the date of such patent, the title to the land
Page 66 U. S. 357
designated therein shall inure to, and become vested in, the
heirs, devisees, or
assigns of such deceased patentee,
as if the patent had issued to the deceased person during
life."
We think it quite clear if this patent had issued to Besion in
his lifetime, the title would have inured to his grantee. The deed
to Armstrong recites the reservation to the grantee of the half
section under the treaty, and that it was to be located by the
President after the lands were surveyed, and then, for a valuable
consideration, the grantee conveys all his right and title to the
same with a full covenant of warranty. The land is sufficiently
identified to which Besion had the equitable title, which was the
subject of the grant, to give operation and effect to this covenant
on the issuing of the patent within the meaning of this act of
Congress. The act declares the land shall inure to, and become
vested in, the assignee, the same as if the patent had issued to
the deceased in his lifetime.
The warranty estops the grantee and all persons in privity with
him from denying that he was seized. The estoppel works upon the
estate, and binds the after-acquired title as between parties and
privies.
52 U. S. 11
How. 325;
62 U. S. 21 How.
228.
Some expressions in the opinion delivered in the case of
Doe
v. Wilson, the first case that came before us arising out of
this treaty, were the subject of observation by the learned counsel
for the appellant in the argument, but which were founded on a
misapprehension of their scope and purport. It was supposed that
the court had held that the reservee was a tenant in common with
the United States after the treaty of cession, and until the
surveys and patent. It will be seen, however, that the tenancy in
common there mentioned referred to the right to occupy, use, and
enjoy the lands in common with the government, and had no relation
to the legal title.
An objection was taken that a portion of the half section
embraced in the patent to Besion did not lie within the district of
country ceded by the treaty. The same objection was taken in the
case of
Doe v. Wilson, and the answer given was the
recitals in the patent that the sections were those selected by the
President, and to which the reservee was entitled under the treaty,
were conclusive on the point and we may add, that
Page 66 U. S. 358
certainly no third party has any right to complain if the fact
were as alleged.
An objection was also taken that if the complainants held the
legal title to the premises in question, their remedy was at law,
and not in equity. But the answer is that the bill was filed by the
complainants, among other things, to relieve their title from the
embarrassment of the adverse claims set up under the deeds from the
heirs of Besion, and also to restrain a multiplicity of suits. It
appears that a portion of the land has been laid out in town lots,
which are held under the complainants' title.
A further objection was taken that the defendants are
bona
fide purchasers for a valuable consideration. But the answer
is that the deed from Besion to Armstrong, which referred specially
to this reserved right to the half section, was duly recorded
before the purchase of the defendants, and besides those deriving
title under this deed to Armstrong were in possession of the tract,
claiming title to the whole at the time, which operated as notice
to the subsequent purchasers.
The decree of the court below affirmed.
