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Crommelin v. Minter, et al.

It appears that the executrix is herself consenting to this procedure, and that she has produced the will which has been recorded in the Orphans' Court of Benton, and that before the production of the will, administration had been granted upon the slaves, to the defendant in error, by her consent. The consent of the executrix could not confer jurisdiction on the court, nor can the illegal appointment of Rainey sanction the present application. It is to be observed that this application is not made on behalf of creditors, nor if it was would the case be varied, though the executrix having brought the property, or permitted it to be brought here, might be subject to an action at the suit of the creditors of the deceased as executor de son tort. [Densley v. Edwards,5 Ala. 31.]

The conclusion we have arrived at, dispenses with the necessity of an examination of the petition to the judge of the Circuit Court for a mandamus. Conceding it to be regular, it was properly refused. Judgment affirmed.

9 594 128 423

CROMMELIN v. MINTER, ET AL.

1. The first article of the treaty of 1814, with the Creek Indians confers upon the chiefs and warriors provided for, a qualified inheritable estate, which is determined by the sale of the reservee, the cesser of occupation, and his removal from the State. and immediately upon such abandonment of possession, the reservation becomes a part of the public domain, without any positive assertion of right on the part of the United States.

2. Though the title to a reservation under the first article of the treaty of 1814, with the Creek Indians be vested in the United States by the voluntary abandonment of the reservee, it is not subject to entry under the preemption laws of Congress.

3. A patent fraudulently obtained, or which has issued in violation of law, is void, and does not authorize a recovery against a party in possession un der color of title. But a mere intruder cannot insist upon the invalidity of

Crommelin v. Minter, et al.

the patent; and where the defendant offers no evidence to justify his possession, the fair inference is, that he is an intruder.

4. Quere? May not the plaintiff in ejectment recover against a trespasser, upon proof of previous possession, without any documentary evidence of title.

5. The jury returned a verdict in favor of plaintiffs for "fifty acres of the south-east fractional quarter of fractional section 24, in township 18, of range 18, in the district," &c,; the judgment substantially conformed to the verdict-Held, that the verdict did not sufficiently identify the land, to entitle the plaintiff to a judgment, under which the sheriff could deliver the possession of any specific part of the land.

Writ of Error to the Circuit Court of Coosa.

ACTION of trespass to try title. The land described in the declaration, is the south-east fractional quarter of fractional section 24, of township 18, of range 18. The verdict is, that the jury find for the plaintiffs, and "that the right and title to the said land, in the said plaintiffs' declaration mentioned, to wit: fifty acres of the south-east fractional quarter of fractional section 24, of township 18, of range 18, to be in the said plaintiffs," and damages are assessed at $140 62. The judgment is, that the plaintiffs recover of the defendant "the land in the said plaintiffs' declaration mentioned, to wit: the lands aforesaid," &c.

At the trial, the plaintiff's gave in evidence a patent, under the seal of the general land office, in these terms:

The United States of America.

PRE-EMPTION CERTIFICATE-No. 35,014.

To all to whom these presents shall come, greeting:

Whereas, William T. Minter, Hiram F. Saltmarsh, and Ashley Parker, assignees of Isham Bilberry, and Samuel Lee, have deposited in the general land office of the United States a certificate of the register of the land office at Cahawba, whereby it appears that full payment has been made by the said Isham Bilberry and Samuel Lee, according to the provisions of the act of Congress of the 22d April, 1820, entitled an act making further provision for the sale of the public

Crommelin v. Minter, et al.

lands, for the south-east fractional quarter of section 24, of township 18, of range 18, in the district of land subject to sale at Cahawba, Alabama, containing 150 66-100 acres, according to the official plat of the survey of said lands, returned to the general land office by the surveyor general; which said tract has been purchased by the said John Bilberry and Samuel Lee.

Now, know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress, in such case made and provided, have given and granted, and by these presents do give and grant, unto the said William T. Minter, Hiram F. Saltmarsh, and Ashley Parker, and to their heirs, the said tract above described, to have and to hold, &c. &c. This was issued the 10th day of October, 1840.

The defendant gave in evidence, a certificate in these terms:

No. 28.

General Land Office, 12 April, 1820.

I certify, that in pursuance of an act of Congress passed on the 3d of March, 1817, entitled "an act making provision for the location of the lands reserved by the 1st article of the treaty of the 9th of August, 1814, between the United States and the Creek Nation to certain chiefs and warriors of that nation, and for other purposes." The Secretary of the Treasury has confirmed the claim of Talasse Fixico, (being No. 28,) and that the said Tallasse Fixico, is entitled to occupy the following lands, agreeably to the provisions of the said act, viz: a fraction in section 24, of township 18, of range 18, on the east side of the Coosa river. Also, the north-west quarter of section 30, township 18, of range 19, &c. &c.

This was issued under the seal of the general land office, of the date of the caption, and is signed by the commissioner of that bureau.

The defendant also proved, that the lands embraced in this certificate, were the lands in controversy.

It was also proved, that Tallasse Fixico sold his reserve in 1828 or 9, and afterwards left the State, and emigrated with his tribe, west of the Mississippi, in 1832 or 3,

Crommelin v. Minter, et al.

There was no evidence that the United States had taken any steps to ascertain whether the lands reserved had been abandoned by Tallasse Fixico, within the meaning of the treaty, prior to the issuance of the patent to the plaintiffs.

The defendants proved that the plaintiffs obtained their patent for the land in controversy, under the pre-emption act of 1833.

The defendant asked the following instructions to the jury:

1. The certificate of possession was evidence that Tallasse Fixico was entitled to a possessory right in the land sued for, under the treaty of Fort Jackson.

2. That before the United States would be authorized to take possession of said land, and grant the same to the plaintiffs, so as to invest them with the fee, it was necessary to determine the fact of a voluntary abandonment by Fixico, by a proceeding in the nature of an inquision, or office found; and that unless such abandonment had been ascertained, that the patent to the plaintiffs was issued improperly.

3. That before the plaintiffs could recover in this action, they must show that some steps were taken by the government, to ascertain the fact of abandonment, if there was any, by the reservee, and that he was notified of the intended issuance of the grant to the plaintiffs, based upon such supposed abandonment under the treaty.

4. That the land in controversy was excepted from the operation of the pre-emption laws of the United States, and that the patent vested no title in the plaintiffs.

The first of these charges was given, but with the further charge, that a removal from, or sale of the land, by the reservee, would be a voluntary abandonment under the treaty, and would authorize the government to grant it: and that no inquest, of office, or similar proceeding was necessary, to ascertain the fact of abandonment, previous to the issuance of a patent.

The other charges were refused. The defendant excepted to the refusal to charge, and to the charge given. These matters are now assigned as error; and it is also urged that the judgment does not follow the verdict.

Armsted v. Thomas.

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.

ARMSTEAD v. THOMAS.

1. When the holder of a note enters into an agreement with the principal debtor, that he will not sue a surety until after a certain time, if the principal will engage to pay all costs and lawyer's fees, this will not discharge the surety.

2. When the defence interposed will not warrant a charge in favor of a defendant, a judgment will not be reversed, although the cause is submitted to the jury on a charge which, under other circumstances, might be erro

neous.

3. When a witness for the defence states that a note was left with an individual, as a friend, to receive payment, it is not erroneous to permit the plaintiff to prove by that person, that it was left with him as an attorney, and his instructions in relation to it.

Error to the County Court of Lauderdale.

ASSUMPSIT by Thomas against Armstead, as one of the makers of a joint and several promissory note, dated 1st May, 1839, payable 17 months after date, signed by one Lanier, as principal, and by Armstead and one McKenzie, as sureties, negotiable and payable at the Mississippi Union Bank, at Jackson.

At the trial, on the general issue and other pleas, it was in evidence, that after the maturity of the note, the plaintiff, Thomas, to whom, or order, the note is payable, had indors

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