Herring v. M'Elderry , 5 Port. 161 ( 1837 )

HOPKINS, C. J.

The bill in this case, was filed for the purpose of obtaining a decree to divest the defendants of title to a tract of land, and to vest it in the plaintiff upon.a contract, which is set out in the bill. The plaintiff alledged in his bill, that the land was selected by Holeyar, a Creek Indian, under the treaty made between the United States, and the tribe of Creek Indians, on the twenty-fourth of March, eighteen hundred and thirty-two : That before the selection was made, the plaintiff was in possession of the land, and afterward continued to reside on it, with the consent of the Indian : That in eighteen hundred and thirty-four, the Indian made his deed for the land, to two of the defendants, which deed was certified by the proper agent.

There is no allegation in the bill, that the deed had been approved by the President of the United States. It does not, therefore, appear that either of the defendants has any interest in the land. -

The second article of the treaty, requires such a selection of land, to be reserved from sale, for the use of the Indian entitled to it, for the term of five years, unless sooner disposed of by the Indian; and the third article, which authorises an Indian to convey his land, provides that his contract for the purpose, although certified by the proper agent, shall not be valid till the President approves the same. Whether the purchasers have an interest in the land, depends upon an act of the President, which the plaintiff does not allege, has been done. Should the President disapprove of the contract, the Indian would have the same right to the land, as if no such deed had been made by him, and no such certificate given by the .agent. No contract with an Indian, for such land, entered into within five years after the treaty was made, is valid, unless approved by the President; and the contract with the Indian, which is set out in the bill, is alleged to have been made within less than three years after the treaty was made.

If the contract, which is alleged in the bill, between the plaintiff and the defendant, Brasher, were such an one as a Court of. Equity would execute against persons, who, had an interest in the land, it could not be executed against the defendants, neither of whom has, according to any allegation in the bill, a valid agreement with the Indian, for the land.

If the plaintiff has expended money for the defendants, or either of them, upon their request, or under any circumstances, which make them responsible for it to him, he has a right to an action at law, to recover the money. But this Court can neither decree him the .money, nor decide that he ,is entitled to recover it.

We are of opinion there is no equity in the bill, and that the decree of the'Circuit Court, which .dismissed it, is correct.

The decree is affirmed.