Verden v. Coleman , 17 L. Ed. 161 ( 1862 )

66 U.S. 472 (____) 1 Black 472

VERDEN
vs.
COLEMAN.

Supreme Court of United States.

Mr. Gillet, of Washington city, and Mr. Mace, of Indiana, for plaintiff in error.

Mr. Baird, of Indiana, for defendant in error.

Mr. Justice GRIER.

Does this case come within the 25th section of the judiciary act?

The bill filed in the State court is for the foreclosure of a mortgage. The defence set up by the mortgagor was, that the consideration of the note which the mortgage secured was the purchase money of the land mortgaged; that the title to one of the tracts was through a patent of the United States to Hannamah Hewett; that this patent did not convey a good title, because in 1832 the United States concluded a treaty of purchase of a large tract of country with the Pottawatomie Indians; that by the terms of this treaty a section was reserved for an Indian named To-pen-na-be, to be located under direction of the President; that before the date of the patent to Hewett for this quarter section the whole section, including it, had been assigned to To-pen-na-be.

The patent was, nevertheless, granted to Hewett because of a prior equity by settlement.

The Supreme Court of Indiana decided that the patent to Hewett was a valid grant of the land. This decision will not bring the case within the 25th section. Nor can we claim it because of the title set up under the treaty with the Indians, because neither To-pen-na-be nor any one claiming under him is party to the suit.

This court has decided in the cases of Owings vs. Norwood, (5 Cranch, 344,) and of Henderson vs. Tennessee, (10 How., 311,) that "in order to give jurisdiction to this court the party must claim the title under the treaty for himself, and not for a third person, in whose title he has no interest."

This case is, therefore, dismissed for want of jurisdiction.