Wilson v. Wall , 34 Ala. 288 ( 1859 )

R. W. WALKER, J.

This case involves the construction of the 14th article of the treaty between the United States and the Choctaw Indians, concluded at Dancing Rabbit creek, 15th September, 1830. That article is in the following Vords:

“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 agent within six months from the ratification of this treaty; and he or she shall thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by sectional lines of survey; 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. If they reside upon said lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case, a grant in fee simple shall issue. Said reservation shall include the pyesent improvement of the head of the family, or a portion of it. Persons who claim under this article Shall not lose the privilege of a Choctaw citizen; but, if they ever remove, are not to be entitled to any portion of the Choctaw annuity.” — U. S. Statutes at large, 7th vol., p. 333.

WiHiam Hall was the “ Choctaw head of a family,” and, at the date of the treaty, had living with him seven chil-, dren, of whom three were over, and four under, the age of ten years. In pursuance of the article above quoted, he claimed as his x-eservation three 'and a half sections of land, including the section on which he lived; and in making his claim, he repoi’ted to the agent of the United States (according to what is shown to have been the general practice in executing this article of the treaty) the number and ages, but not the names of his children. By virtue of the claim thus made, he secured a reservation of three and a half sections. No question arises in this case as to the title to the section on which Hall was living when the treaty was concluded. But in reference to the remaining two and a half sections embraced by the reservation, the question is, wliethei’, under the treaty, Hall took them absolutely for himself, or whether his children living with him took legal or equitable estates therein which he could not convey.

If, under the treaty, an interest vested in the children, it is not necessary for us to decide whether the grant was meant to be directly to them, or to the parent in t'rust for them. In either event, the result, so far as the decision of this case is concerned, is the same.

It must be admitted, that the language of the treaty, and especially of this particular article, is clumsy and inartificial. We do not, howevei’, concur with Mi'. Attorney-Genei’al Legare, in the remark made by him in the opinion which is embodied in the transci’ipt, that “ the words are so extremely doubtful, as to be susceptible of either of the conflicting constructions insisted on.” — Attorney-G-enerals’ Opinions, yol. 4, p. 107. The doubt we entertain is rather as to the nature, than the existence, of the right of the children. The article first provides, that the head of the family, who signifies his intention of becoming a citizen, “ shall thereupon be entitled to a reservation of one section.” It then proceeds — “ In like manner shall be entitled to one-half that quantity, for each unmarried child living with him over ten.” The word for, as hére employed, if there were nothing in other parts of the article or treaty to explain it, would certainly be somewhat equivocal. Ordinarily, a grant to one, for another, creates a trust. But this particular grant follows, in immediate succession, agranito the head of the family, which, it is admitted, is for himself absolutely; and the words here employed might, if unexplained, seem to indicate a mere enlargement, or extension, of the interest already granted. “ In like manner, shall be entitled,” &c. If these terms stood alone, or in connection only with the preceding part of the article, there might be some force in the argument, that for, as here used, means simply by reason, or on account of, and was intended to designate the child as the cause of an additional reservation to the parent, and not as the recipient of a distinct reservation for himself. But the words which immediately follow, shed light upon this obscure expression, and sufficiently indicate the sense in which it was employed. “Anda quarter-section to such child as may be under ten.” Here are words which admit of but one construction; and that is, that the child is the person entitled to the benefit of the reservation. This is made still more plain by the words which designate the locality of the reservations granted to or for the children. They are to “adjoin the location of the parent.” What-is the location of the parent? Obviously, we'think, the section on which his ‘improvement’ is situated, and which is reserved for him in absolute right. The reservations of the children were to adjoin the location of the parent; and it is certainly a fair argument, that lands which were to adjoin the parent’s can hardly be deemed lands of the parent.

This construction of the 14th article derives powerful support from the 6th clause of the 19th article, which provides, that “ children of the Choctaw nation residing in the nation, who have neither father nor mother, * * * * shall be entitled to a quarter-section of land, to be located under the direction of the president; and with his consent, the same may be sold, and the proceeds applied to some beneficial purpose for the benefit of said orphans.” Thus it will be seen, that adopting the construction of the 14th article which we have indicated, the treaty secures reservations to all the children of the tribe; and the result is that equal distribution of favors which seems to have been one of the main purposes of the treaty. Upon the opposite construction, the treaty has designated a favored class of children, and confined the direct benefits which it bestows, to them exclusively.

The design of the treaty was to make permanent citizens of those of the tribe who should remain in the States; and for this purpose, a bonus, in the shape of a reservation of land, is provided for all who continue to reside in the ceded territory with that intention. The contentment and comfort of the families remaining would obviously be promoted, if the possessions of the parent and his children should be near each other. The provision that the reservations should adjoin is altogether consistent with the idea, that a part of the reservations were to belong to the children; for the proximity of the lands to those of the father, would tend to keep them contented, and increase the probability of their becoming permanent citizens. Upon the supposition that the additional reservations were for the children, we can perceive a substantial reason for the provision, that they should adjoin the location of the parent. On the other hand, if all the reservation’s were for the parent exclusively, the benefit conferred would have been enhanced by allowing him a lai’ger choice of location.

Other articles of the treaty confirm the idea, that the advantages secured by it to the Indians were not intended exclusively for adults, but that the interests of the children of the tribe were especially contemplated. Notice particularly the stipulations contained in the 20th article, for the education by the United States of Choctaw youths, for the erection of school-houses, and for the annual payment of a sum for the support of teachers.

[2.] We do not perceive the force of the argument attempted to be founded on the construction which seems to have been given to this article of the treaty by the secretary of war, and the form of the patents which were issued by the government in carying it into effect, until a different form was prescribed by the act of 23d August, 1842. — 5 U S. Statutes at large, 513. Treaties are themselves the supreme law, and neither the legislative nor the executive department can settle legal rights arising under them. No proposition can be plainer, than that rights which are defined by, and have vested under a treaty, can neither be defeated nor impaired by an act of congress; much less by any practice adopted by the officers of government in executing the treaty. The government, and the agents of the government, are alike powerless to affect rights which have been granted by treaty. When, therefore, a case arises between individuals, involving rights growing out of a treaty, those rights are to be determined upon a judicial construction of the treaty; and this is to be settled by reference to its words and expressions. The practice of the war department, and the form in which the patents were issued, cannot change the meaning of the words, or control us in interpreting them. — Pickens v. Harper, 1 Sm. & Mar. Ch. 540 ; Attorney-Generals’ Opinions, vol. 4, 107.

Our conclusion is, that it was the purpose of the treaty to make substantive and distinct provisions for the children; and that a single section of land (the one on which his improvement, or a part of it was situated) was the extent of the reservation to which the father was entitled for himself. We are supported in this construction by the opinion of the court in Pickens v. Harper, 1 Sm. & M. Ch. 539; see, also, Newman v. Harris & Plumer, 5 How. Miss. 564.

[3.] But, though the treaty is the paramount evidence of the rights secured by it, uncontrollable by any subsequent act or practice of the government or its officers; still, it gives a mere inchoate title to land not severed from the public domain, or so designated as to be susceptible of identification. ,More than one head of a family might reside on the same section. The child’s land is to adjoin the location of the parent, but on which side the treaty does not determine. The treaty, therefore, only establishes the existence and extent of the right, but does not designate the particular land. This designation of the particular land was to be by subsequent proceeding, and the title thereto conveyed by grant in fee simple. While, then, the treaty gives the right, it is the patent which conveys the title. — See West v. Cochran, 17 How. U. S. 403; Opinions of Attorney-Generals, vol. 3, p. 49.

[4.] In this case, the patent being “ to William Hall and his heirs,” conveys to him a legal estate in fee simple. But, inasmuch as the form of the.patent cannot destroy the rights which vested under the treaty, the legal title which it conveys will be decreed by a court of equity to be held subject to these rights, and in trust for the persons to whom the land was intended to be secured by the treaty. The legal title being thus in the patentee, and not in the reservees, (the children,) the latter could not maintain ejectment for the recovery of the land, and their only remedy is in a court of equity. — See opinion of Attorney-General Legare, (Opinions of Attorney-Generals, vol. 4, p. 107;) West v. Cochran, supra; Cousin v. Blanc, 19 How. 202; Ballance v. Forsyth, 13 How. 18.

[5.] It is alleged in defense, that the defendant is a purchaser for valuable consideration without notice. The answer of the defendant shows, that when he made the purchase from Hall, he knew that Hall was the “ Choctaw head of a family,” and that his right to the land was claimed as having arisen under the treaty. It is well settled, that if the purchaser be put in possession of such facts concerning the title which the vendor oflers to sell, as would cause a prudent man to inquire further before he would proceed with the purchase, he cannot claim the protection which is accorded to an innocent purchaser without notice. — Center v. P. & M. Bank, 22 Ala. 755; McGehee v. Gindrat, 20 Ala. 101. Information which makes it the duty of a party to make inquiry, and shows where it may be effectually .made, is notice of all facts to which such inquiry, if conducted with ordinary diligence and prudence, would have led. — Carr v. Hilton, 1 Curtis, C. C. R. 390; Ringgold v. Bryan, 3 Md. Ch. 488; Wilson v. McCullough, 11 Harris, 440; 1 Smith, N. Y. 354; Kennedy v. Green, 3 My. & K. 699. A purchaser has notice of what appears upon the face of every title-deed which constitutes a necessary link in his chain of title, and will not be allowed to deny notice by asserting that he had not read the deed. — Johnson v. Thweatt, 18 Ala. 747; Wailes v. Cooper, 24 Miss. 208; Tiernan v. Thurman, 14 B. Monr. 277. In the language of Lord Mansfield, “ whoever wants to be secure when he makes a purchase, should inquire after and examine the title-deeds.” — Kuck v. Hall, Dougl. 22. The defendant knew that the source of his vendor’s title was the treaty. This treaty was the public law, with the provisions of which every citizen is presumed to be acquainted. Even if such were not the presumption, the defendant being informed that his vendor’s title was derived from the treaty, it was his duty to examine it. Such an examination would have informed him. 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. If, then, the defendant was not in fact cognizant of the rights of the complainants, his want of knowledge was the result of his failure to make an inquiry which it was his duty to make, and a court of equity will treat him as if he actually had notice. — McGehee v. Gindrat, 20 Ala. 100; Herbert v. Hanrick, 16 Ala. 597.

The decree is affirmed.