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Ladiga v. Roland. 2 H.

in * some of their circumstances, were reasoned out and [ * 581 ] supported upon the broad and general principle that the assets of the testator were in no case bound for the debts contracted after his death by the persons whom he had authorized to continue his trade, but the rights of such new creditors were exclusively confined to the funds embarked in the trade and to the personal responsibility of the party who continued it, whether as trustee, or as executor, or as partner; unless, indeed, the testator had otherwise positively and expressly bound his general assets. The case of Pitkin v. Pitkin, 7 Conn. 307, is however, (as has been already suggested,) directly in point. There, the testator, by his will, directed " that all his interest and concern in the hat manufacturing business, &c., as then conducted under said firm, should be continued to operate in the same connection for the term of four years after his decease, &c.” The court there held, after referring to the cases in 10 Ves. 110, and 3 Madd. Rep. 138, that the general assets of the testator were not liable to the claims of any creditors of the firm who became such after the testator's death; and that such creditors had no lien on the estate in the hands of the devisees under the will, although they might eventually participate in the profits of the trade. There was another point decided in that case, upon which we wish to be understood as expressing no opinion.

Upon the whole, our opinion is, that the decree of the circuit court, dismissing the bill, ought to be affirmed with costs.

Sally LADIGA, Plaintiff in Error, v. RICARD DE MARCUS ROLAND, and

PETER HIEFNER, Defendants.

2 H. 581.

2h 8f

Under the treaty between the United States and the Creek tribe of Indians of March 24,

1832, (7 Stats. at Large, 366,) it was Held: 1. That the twenty sections of land to be selected by the President for the orphan children of the tribe, were not to be taken from the lands reserved for the tribe by the preceding stipulations of the treaty. 2. That a grandmother, with whom some of her grandchildren resided, was the head of a family, and entitled to a half section of land, as such.

Error to the supreme court of the State of Alabama, in an action of trespass quare clausum. Both parties claimed title under the provisions of the treaty of Washington, of March 24, 1832, between the United States and the Creek tribe of Indians; the plaintiff in error, under the second article of the treaty, as the head of a family, and the defendants as purchasers under a sale of selections of lands made by the President for the orphan children of the Creeks, pursuant to another clause of the same article.

Ladiga v. Roland. 2 H.

The material articles of the treaty are as follows: [ 582 ] “ Art. I. The Creek tribe of Indians cede to the United

States all their lands east of the Mississippi River. “ Art. II. The United States engage to survey the said land as soon as the same can be conveniently done, after the ratification of this treaty, and when the same is surveyed to allow ninety principal chiefs of the Creek tribe to select one section each, and every other head of a Creek family to select one half section each, which tracts shall be reserved from sale for their use for the term of five

years, unless sooner disposed of by them. A census of these

A census of these persons shall be taken under the direction of the President, and the selections shall be made so as to include the improvements of each person within his selection, if the same can be so made, and if not, then all the persons belonging to the same town, entitled to selections, and who cannot make the same, so as to include their improvements, shall take them in one body in a proper form. And twenty selections shall be selected, under the direction of the President for the orphan children of the Creeks, and divided and retained or sold for their benefit as the President may direct. Provided, however, that no selection or locations under this treaty shall be so made as to include the agency


“ Art. III. These tracts may be conveyed by the persons selecting the same, to any other persons for a fair consideration, in such manner as the President may direct. The contract shall be certified by some

person appointed for that purpose by the President, but shall [ * 583 ) not be * valid till the President approves the same. A title

shall be given by the United States on the completion of the payment.

“ Art. IV. At the end of five years all the Creeks entitled to these selections, and desirous of remaining, shall receive patents therefor in fee-simple from the United States.

“ Art. V. All intruders upon the country hereby ceded, shall be removed therefrom in the same manner as intruders may be removed by law from other public land until the country is surveyed, and the selections made; excepting, however, from this provision, those white persons who have made their own improvements, and not expelled the Creeks from theirs. Such persons may remain till their crops are gathered. After the country is surveyed and the selections made, this article shall not operate upon that part of it not included in such selections. But intruders shall, in the manner before described, be removed from the selections for the term of five years from the ratification of this treaty, or until the same are conveyed to white persons.

“ Art. VI. Twenty-nine sections, in addition to the foregoing, may

Ladiga v. Roland. 2 H.

be located, and patents for the same shall then issue to those persons, being Creeks, to whom the same may be assigned by the Creek tribe.

“ Art. XV. This treaty shall be obligatory to the contracting parties, as soon as the same shall be ratified by the United States.”

The material facts and the instructions and refusals of the court were stated in substance as follows in the bill of exceptions.

* It was proved that said plaintiff, at the date of treaty [ * 584 ] aforesaid, to wit, on the 24th of March, 1832, and long anterior to that period, and from thence to the present time, was and is the head of the Creek Indian family residing in and having an improvement upon the E half of section 2, township 14, range 8 E, &c., in the district of land subject to sale at Mardisville, in the State of Alabama, which land is situate in Benton county, and is the same sued for in this action.

It was further proved that at no time was there any other Indian improvement on the said land, and that the improvement and residence of the plaintiff alone was embraced in said half section by the legal lines of survey, and that plaintiff had lived there for many years, and raised a numerous family of children.

It was further proved, by the production of the census roll taken by order of the government of the United States, of the heads of families of the Creek tribe, in conformity with the second article of the treaty aforesaid, that the plaintiff was duly enrolled by the agent of the United States charged with this duty, as one of the heads of families belonging to the said Creek tribe, and as entitled to land under said treaty, her identity being shown by the witnesses.

That in 1834, the government, by agents charged with this duty, located the Indians. That the formula of location, as practised by said agent, consisted in calling the Indians belonging to the respective Indian towns together, and, in the presence of the chiefs and head men in the town, the agent would call over the names registered by the enrolling agent as being the heads of families in that town. That the persons whose names were so registered would appear and answer to their names, and their identity and residence, and also their improvements, would be proved, &c., pointed out by the chiefs and head men so assembled; and the agent would then designate by figures and letters, the land opposite the name of each reservee *on said census roll

, to which he supposed them [ * 585 ) entitled under the treaty.

That, upon the agent coming into the Tallasahatchee town of Indians, for the purpose of making the locations aforesaid, the plaintiff appeared before him, and being identified as the same whose name was enrolled on the census list of said town, claimed the land

Ladiga v. Roland. 2 H.

in dispute, on which her improvement, at the date of the treaty aforesaid was situated, and which she then informed him she had selected as her reservation, there being no other improvement, location, or conflicting claim thereto at that time. That the deputy locating agent, who located the town to which she belonged, not regarding her the head of a family, by reason of her children having married and left her, and none but orphan grandchildren residing with her, refused to recognize her rights under the treaty, or set apart the land so by her selected opposite her name on the roll, as in other cases. That from the date of the treaty aforesaid, until the year 1837, she made continual and repeated applications to the government officers to assert her rights to said land, and through them to the government itself; until, in 1837, she was forced to leave the country and emigrate to Arkansas, by the armed troops in the employ and under the directions of the government. That she never had abandoned her claim, but insisted on her right under the treaty, to enforce which this action was brought. M. M. Houston, who was the locating agent, testified as to the reasons which induced him to refuse a recognition of plaintiff's right.

The defendant then introduced a patent or grant from the United States, signed by the President, Martin Van Buren, dated the 21st day of December, 1837, which, after reciting that by virtue of the treaty aforesaid of the 24th March, 1832, between the United States and Creek tribe of Indians, the United States agreed that twenty sections of land should be selected, under the direction of the President, for the orphan children of said tribe, and divided and retained or sold for their benefit, as the President might direct; and that the President, in making such selection, had included section 2, township 14, range 8 east, and divided the same into quarter sections; and said tract having been sold pursuant to instructions, Canton, Smith, and Heifner had become the purchasers of the southeast quarter of said section, which purchase had been sanctioned and approved by the President on the 3d November, 1836 — gave and

granted to said Canton, Smith, and Heifner, the said south[ * 586 ) east quarter, to them their * heirs, &c., forever, as tenants in

common, and not as joint-tenants; which grant being properly attested, was read to the jury. Another patent or grant from the government of the United States, similar in all its form to that above named, and containing like recitals, bearing the same date and properly authenticated, conveying the northeast quarter of said section to Richard de Marcus Roland, was offered and read to the jury. And this being all the testimony, the plaintiff's counsel asked the court to charge the jury as follows:

Ladiga v. Roland. 2 H.

1. That if they believed from the evidence that the defendants were in possession of the land sued for at the institution of this suit, and continued to hold the same adversely, receiving the rents and profits thereof; and that if from the evidence the jury were further satisfied that the plaintiff, at the date of the treaty made and concluded at the city of Washington between the United States of America and the Creek tribe of Indians east of the Mississippi River, to wit, on the 24th day of March, 1832, was the head of a Creek Indian family, and that the United States enrolled her name under the provisions of the treaty aforesaid, requiring a census to be taken, &c., as the head of a Creek family, and that said plaintiff, before and at the time of the ratification of said treaty, and from thence until she was forced to leave the country by the United States, possessed said lands sued for, having an improvement and residence upon the same; and if the jury believe from the testimony that said plaintiff did select the said half section, including her improvement, and that such selection was so made without conflicting with the rights of any other Indian, or the rights or duties of the government reserved, secured, or prescribed by the treaty aforesaid, and if the proper officers of the government were duly notified of such selection by the said plaintiff, and that she had never forfeited her rights by a voluntary abandonment of the lands sued for, but had been compelled by force or coercion on the part of the United States, to emigrate from the country and leave the land, then the plaintiff is entitled to recover in this action.

2. The plaintiff asked the further charge — that under the second article of the said Creek treaty of the 24th March, 1832, each head of a Creek Indian family, after the land ceded by said treaty had been surveyed, was entitled to select a half section of land so as to include their improvement, if the same could be made; and if the jury believed from the proof that the plaintiff was the head of a Creek family, and entitled to a selection under the treaty, and that

after such survey she could select, and did select, the half [ * 587 ] section in dispute, and in a reasonable time notified the government of such selection, and had never voluntarily abandoned said land; then plaintiff in such case acquired a vested right to said land inchoate, but sufficient under the laws of this State, coupled with possession, to maintain this action, and that such right could not be defeated by the subsequent disposition of the same by the United States to the defendants.

3. The plaintiff asked the court further to charge the jury: that if the plaintiff was entitled to select a half section of land, under the treaty aforesaid, as the head of a Creek family, duly enrolled as such,

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