Saltmarsh v. Crommelin , 24 Ala. 347 ( 1854 )

GIBBONS, J.

When this case was before this court on a former occasion, the opinion then pronounced, if we rightly comprehend it, disposes of nearly every question presented by the present record, except one, and that is, whether the defendant is to be considered as holding under color of title, or is he amere trespasser. —Vide Crommelin v. Minter, 9 Ala. 594. In this case, it is decided, 1st, that when an Indian reservation, under the treaty-of 1814 with the Creek Nation, is sold by the Indian, it at once becomes a part of the public domain of the United States, without any act whatever on the part of the United States being necessary to be done, or any assertion of right on the part of the government; 2nd, that, though the title in such reserves bo vested in the United States by the voluntary abandonment of the reservee, still, it is not subject to entry under the pre-emption laws of Congress ; and, 3rd, that a patent fraudulently obtained, or one which has issued in violation of law-, is void, and does not authorize a recovery against a party in possession under color of title. But a mere intruder cannot insist upon the invalidity of the patent; and if the defendant offers no evidence to justify his possession, the fair inference is, that he is an intruder. In that case, the defendant offered no evidence whatever as to how he derived his title ; and the court determined, under such circumstances, that they were bound to consider him as an intruder. In the present record, the defendant has connected himself directly with the Indian reservee, Tallassee Fixico ; and the question now arises, whether, under the principles already settled in the cause, the defendant is to be considered as holding under color of' title or not.

Without undertaking, at the present time, to give an accurate definition of the term “ color of title,” we deem it sufficient for the present case to say, that it is that apparent right in the tenant, which he has derived by his paper title, which distinguishes him from the naked trespasser or intruder. He who holds under a paper title, therefore, which apparently gives him a right to the land, which would lead an honest mind to the conclusion that the right to the land passed by the deed, and more especially when the delivery of the deed is accompanied by livery of seizin, or possession of the premises purporting to be conveyed, must be considered as holding under color of title.

The right to occupy and hold the premises in question, is conceded by both parties to have been in the Indian reservee, Tallassee Fixico. This right he derived from the government itself. The proof shows, that one Taylor purchased this right of Tallassee Fixico, doubtless both parties to the transaction supposing that his rights were alienable, and conveyed by deed made by himself and others the same premises to the defendant. The purchase both from the reservee and from Taylor is accompanied by a change of possession of the land, thus evincing the bona fides of the parties to the transaction. The defendant’s possession, held as it is under the deeds in evidence, and being traced back to the reservee, must be considered, in our opinion, a possession under color of title. It may be conceded, that the defendant has no title to the premises, as against the government of the United States; yet it by no means follows, that his possession is not under color of right. We consider every one as holding under color of title, who enters bona fide, under and by virtue of a paper title; in other words, every one who is not a mere naked trespasser, and who is claiming in his own right under a paper title, is i« under color of title. The defendant, therefore, holding under color of title, under the previous decision of this court in this caso, is in a position to call in question the validity of the plaintiff’s patent; or, ho may show an outstanding title in a third person, and thereby protect his own possession. There was, therefore, no error in the first charge of the court.

The second charge given to the jury, was simply an enunciation of one of the propositions argued by the court and decided in the decision above referred to. It must, therefore, be considered as free from error.

The third charge is simply a statement of fact from the evidence, and a conclusion of law arising upon it. It asserts, that the patent issued under the pre-emption laws of 1834; and inasmuch as it comprehends lands previously appropriated by the government to Tallasseo Fixieo, as an Indian reservation, therefore the patent is void. The fact that the patent was issued under the pre-emption laws, we think apparent from an inspection of the patent, and of the certificate upon which it issued. The court, therefore, committed no error in announcing this fact, apparent as it is upon the face of the papers themselves. And the conclusion of law is one based directly upon the decision of this court above referred to. There was, therefore, no error in this charge.

Exception was also taken to the admission of the copy certificates and deeds offered by the defendant in evidence. In the admission of this evidence we see no error. The proof of the loss of the original certificate was duly made, and also of its contents : and this, in our opinion, paved the way for the introduction of a copy. The deeds were also proper evidence, as conducing to show that the defendant held under color of title.

It is insisted, in argument, that the grant to Tallassee Fixieo is void for uncertainty. We are of an opposite opinion; but the fact whether that grant is void or not, we do not consider as affecting the present case. The plaintiffs are confessedly suing for what was claimed and taken possession of under that grant, and that possession is traced down to the defendant, who derives his possession from a paper title in good faith; and that, as has been already stated, constitutes him a holder under color of title. In this character, he has the right to impeach the plaintiff’s patent; and even conceding that the grant to Tallasseo Fixico was void for uncertainty, by the strict rules of law, yet the same results would follow, so far as regards the question as to the character of the defendant’s tenure.

We find no error in the record, and the judgment of the court below is affirmed.