James v. Scott , 9 Ala. 579 ( 1846 )

COLLIER, C. J.

By the 1st section of the treaty negotiated with the Creek Nation of Indians, at Fort Jackson, in 1814, provision is made in favor of friendly chiefs and warriors, stipulating that each one embraced by it, “ shall be entitled to a reservation of land within the said territory, of one mile square, to include his improvements as near the centre thereof as may be, which shall inure to the said chief or warrior, and his descendants, so long as he or they shall continue to occupy the same, who shall be protected by, and subject to, the laws of the United States ; but upon the voluntary abandonment thereof by such possessor, or his descendants, the right of occupancy or possession of said lands shall devolve to the United States, and be identified with the right of property ceded hereby.” A law was enacted by Congress, in 1817, making provision for the location of the lands reserved by the first article of the treaty, and for other purposes. The second section of that act, after prescribing the manner of the location, has the following proviso, viz “ That the lands so selected shall inure to such chief or warrior, so long only as he shall continue to occupy and cultivate the same ; and in case he shall not have abandoned, the possession shall on his decease, descend to, and vest in his heirs, in fee simple, reserving to the widow of such chief, or warrior, the use and occupation of one third part of said lands during her natural life.”

The second section provides, that where a chief or warrior entitled to a reservation, shall have died since the treaty was signed, leaving a widow and a child or children, who have continued to occupy and cultivate the land, they shall have the right of selection as the original claimant had ; and the title of the child or children to the lands thus selected, shall be in fee simple, reserving to the widow, if any, the use of one-third thereof, during her life : “ Provided however, that the said child or children shall not have the power to alienate the said lands, except by devise, until each and every one of them shall have arrived at the age of twenty-five years.”

By the third section of the act, it is enacted, “ that the' descendant of any native Creek Indian, male or female, who at the commencement of the late war with the hostile Creeks occupied and cultivated a farm or plantation, who continued friendly to the United States during that war, and who after tbte termination of hostilities, returned to, and has continued to occupy and cultivate the said farm or plantation, shall be entitled to a reservation of two quarter sections of land, to be selected in the manner stated in the first section of this act ; which lands shall enure to them so long as they shall continue to occupy and cultivate the same ; and on their death shall descend in fee to the children ; and on failure of children, shall revert to the United States ; reserving, however, to the husband or widow, as the case may be, the right to occupy and cultivate one-third part of the lands during their natural lives.”

The fourth section provides, that the child or children of any chief or warrior who resided in the limits of the ceded territory at the commencement of the then late Creek war, and who was killed or died during the same in the service of the United States, or who has since died of wounds then received, shall be entitled, without payment, to a reservation of so much land as such chief or warrior would have been entitled to, had he been living at the time the treaty was signed ; which land' shall be located in the manner prescribed by the first section of the act.

This statute not only provides for giving effect to the first arricié, but gives reservations to several classes who do not come within the terms of the treaty. Perhaps as the contract recites that Stiggins’ claim is founded upon the treaty, he must, in the condition of the record, be considered as one of the chiefs or warriors for whom it provides. Be this as it may, he must be taken to come within a category which inhibits him from making a conveyance of his reservation. Each reservee thus situated, whether under the treaty or the act of Congress, have nothing more than a life estate, depending upon his continued occupancy, &c.

Do the facts stated in the bill of exceptions show an abandonment of the possession by Stiggins ? Is not his removal to Macon county, previous to entering into the agreement with the plaintiff, entirely consistent with the idea of his continued occupancy ? There certainly could have been no abandonment, if he retained the control over it, and continued to cultivate it as a plantation with his own laborers. We all know that it is quite common for one man to be the proprietor of several farms, or to live at one place, and cultivate a plantation, sometimes hundreds of miles from his residence. Who can undertake to say, from the facts before us, that such was not the situation of Stiggins when he made the contract with the defendant ?

But assuming the facts to be otherwise, and will the plaintiff be placed in a more favorable condition ? His contract shows that he was aware of the nature of Stiggins’ tenure, was willing to part with the possession of the slaves to him, upon the latter undertaking to make a lease for his life of the premises — stipulating that a complete title should be made to the slaves to Stiggins’s children, should they, upon attaining their majority, make a fee simple to the land. It must be intended that Stiggins yielded up the possession to the plaintiff, in consideration that the slaves mentioned in the contract, were delivered to him, and thus abandoned, and as a legal consequence, forfeited to the United States his right to the reservation. Here was certainly a loss to Stiggins, and a benefit to the plaintiff. Although the latter may have received nothing more than the possession, determinable at the will of the Federal Government; yet this gave him the right to occupy and cultivate it against all' the rest of the world. These rights we all know have been matured and made perfect by the bounty of Congress. There is nothing to show that the plaintiff has been molested in the enjoyment of the premises, or to warrant the conclusion that he will not, in virtue of his possession, obtain a fee simple title as a mere gratuity, or upon the payment of a sum which bears no proportion to its real value.

The possession of land, without a title, is regarded as a thing of value, and it seems, that if it was allowable for the defendant to rescind the contract, he should have placed Stiggins in statuo quo, or at least offered to do so before he commenced his action. The view we have already taken, shows that the agreement, on either side, is sustained by a valuable consideration. Whether, what Stiggins parted with, was equivalent to what the plaintiff gave him in return, is wholly im- ' material, even if we had the proper data before us to enable us to determine. It is then clear from the facts, that the plaintiff is not entitled to recover. If he has not parted with the title, and the slaves are in danger of being removed, and perhaps upon other grounds, a Court of Chancery could afford him ample protection.

We have but to add, that the judgment of the Circuit Court is affirmed.