Jenkins v. Banning.

CHARLES E. JENKINS and others, Plaintiffs in Error, v. WILLIAM S. BANNING.

23 H. 455.

PRACTICE IN SUPREME COURT-DAMAGES FOR DELAY.

Where there is and no bill of exceptions, no merits of any kind shown in the defense below, the judgment here will be affirmed with ten per cent. damages per annum, counting from the date of the judgment below.

WRIT of error to the circuit court for the district of Missouri. The case is stated in the opinion.

No counsel appearing for appellant, Mr. Gillet, for appellee, argued the case, and asked for an affirmation with damages.

* Mr. Justice CLIFFORD delivered the opinion of the court. [* 456] This case comes before the court upon a writ of error to the district court of the United States for the district of Wisconsin. It was an action of debt upon a judgment recovered by the present defendant against the plaintiffs in error, in the district court of the United States for the second judicial district of the territory of Minnesota. As originally framed, the declaration did not contain any caption specifying the term of the court when it was filed, or the return day of the process on which it was founded. In point of fact, it was filed on the thirtieth day of December, 1857, and the process was regularly returnable to the succeeding January term of the district court, to which this writ of error issued. Service of the summons upon the defendants was duly made on the following day, and the record shows that they subsequently appeared and demurred to the declaration, showing for cause the formal defects before mentioned. On the eighteenth day of January, 1858, the plaintiff, by leave of the court, amended his declaration, obviating the defects shown by the demurrer.

No exceptions were taken to the order of the court granting leave to amend, and, for aught that appears to the contrary, the amendment was made without objection.

After the amendment was allowed, the court overruled the demurrer, and the defendants refusing or neglecting to plead to the merits of the case, they were defaulted. Whereupon the plaintiff moved for judgment, and filed a duly-certified copy of the former judgment on which the suit was founded. Reference was then made of the cause to the clerk to compute the interest,

and on his report being made in writing, *judgment was [457] given in favor of the plaintiff for the amount of the former judgment, together with interest on the same.

Doe v. Wilson.

On this state of the record, the defendants sued out a writ of error, and removed the cause into this court, but have failed to appear and prosecute their writ of error. They did not except to the ruling of the district court, and have not assigned error in this court, and it is obvious, from an inspection of the transcript, that there is no error in the proceeding. Motions to amend mere formal defects in the pleadings are always addressed to the discretion of the court, and are usually granted as a matter of course, and their allowance is never the subject of error. That point has been so frequently decided, that we do not think it necessary to cite authorities in its support.

Under these circumstances, the counsel for the defendant in error moves that the judgment be affirmed with ten per cent. damages. By the twenty-third rule of this court, it is provided that in all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out for delay, damages shall be awarded at the rate of ten per centum per annum on the amount of the judgment, and the said damages shall be calculated from the date of the judgment in the court below, until the money is paid.

That rule is applicable to this case, and the judgment is accordingly affirmed, with costs and ten per cent. damages.

JOHN DOE, ex dem. MANN and HANNAH, Plaintiffs in Error, v. WILLIAM WILSON.

23 II 457.

SPECIAL RESERVE TO INDIANS IN A TREATY-DEED OF RESERVED RIGHT VALID. 1. When, by the treaty of October 27, 1832, with the Pottawatomie Indians, the tribe surrendered all their rights to the lands then ceded, and the United States agreed that certain quantities should be reserved to particular Indians, these latter became tenants in common with the government of the title in fee, until the President, after surveys were made, should locate these reservations.

2. In the absence of anything in the treaty or any act of congress to prevent it, the individual Indian could sell and convey this title as fully as any other person.

3. Such a conveyance, made before the survey and the selection by the President and the issue of the patent, would attach to the land when patented; and the recital in the patent that it was for the land reserved for that individual Indian would be conclusive in favor of the purchaser as to its identity.

WRIT of error to the circuit court for the district of Indiana.
The case is well stated in the opinion.

Mr. Baxter, for plaintiff in error.

Mr. Niles, for defendant.

Doe v. Wilson.

Mr. Justice CATRON delivered the opinion of the court. [* 461] By the treaty of October 27, 1832, made by the United States, through commissioners, with the Pottawatomie tribe of Indians of the State of Indiana and Michigan territory, said nation ceded to the United States their title and interest in and to their lands in the States of Indiana and Illinois, and the Michigan territory, south of Grand river.

Many reservations were made in favor of Indian villagers jointly, and to individual Pottawatomies. The reservations are by sections, amounting probably to a hundred, lying in various

parts of the ceded country. As to these, the Indian * title [* 462 ] remained as it stood before the treaty was made; and to complete the title to the reserved lands, the United States agreed that they would issue patents to the respective owners. One of these reservees was the chief, Pet-chi-co, to whom was reserved two sections. The treaty also provides, that "the foregoing reservations shall be selected under the direction of the President of the United States, after the land shall have been surveyed, and the boundaries shall correspond with the public surveys."

In February, 1833, by a deed in fee simple, Pet-chi-co conveyed to Alexis Coquillard and David H. Colerick, of the State of Indiana, "all those two sections of land lying in the State aforesaid, in the region of country or territory ceded by the treaty of 27th October, 1832." The grantor covenants that he is lawful owner of the lands; hath good right and lawful authority to sell aud convey the same. And he furthermore warrants the title against himself and his heirs. Under this deed, the defendant holds possession.

The lessors of the plaintiff took a deed from Pet-chi-co's heirs, dated in 1855, on the assumption that their ancestor's deed was void; he having died in 1833, before the lands were surveyed, or the reserved sections selected. And on the trial below, the court was asked to instruct the jury, "that Pet-chi-co held no interest under the treaty in the lands in question, up to the time of his death, that was assignable; he having died before the location of the land, and before the patents issued."

This instruction the court refused to give; but, on the contrary, charged the jury, that "The description of the land in the deeds from Pet-chi-co to Coquillard and Colerick, from Colerick to Coquillard, and from Coquillard to Wilson, are sufficient to identify the land thereby intended to be conveyed as the same two sections of land which are in controversy in this suit, and which are described in the patents which have been read in evidence."

It is assumed that the lands embraced by the patents to Pet

Doe v. Wilson.

chi-co, made in 1837, do not lie within the section of country ceded by the treaty of 27th October, 1832; and therefore the [* 463] *court was asked to instruct the jury that the defendants cannot claim nor hold the land as assignees of Pet-chi-co, by virtue of the treaty. The demand for such instruction was also refused.

There is no evidence in the record showing where the land granted by the patents lies, except that which is furnished by the patents themselves. They recite the stipulation in the treaty in Pet-chi-co's behalf; that the selections for him, of sections nine. and ten, had been made, "as being the sections to which the said Pet-chi-co is entitled," under the treaty. The recitals in the patents conclude all controversy on this point.

The only question presented by the record that we feel ourselves. called on to decide is, whether Pet-chi-co's deed of February, 1833, vested his title in Coquillard and Colerick.

The Pottawatomie nation was the owner of the possessory right of the country ceded, and all the subjects of the nation were joint owners of it. The reservees took by the treaty, directly from the nation, the Indian title; and this was the right to occupy, use, and enjoy the lands, in common with the United States, until partition was made, in the manner prescribed. The treaty itself converted the reserved sections into individual property. The Indians as a nation reserved no interest in the territory ceded; but as a part of the consideration for the cession, certain individuals of the nation had conferred on them portions of the land, to which the United States title was either added or promised to be added; and it matters not which, for the purposes of this controversy for possession.

The United States held the ultimate title, charged with the right of undisturbed occupancy and perpetual possession, in the Indian nation, with the exclusive power in the government of acquiring the right. Johnson v. McIntosh, 8 Whea. 603; Comet v. Winton, 2 Yerger's R. 147.

Although the government alone can purchase lands from an Indian nation, it does not follow that when the rights of the nation are extinguished, an individual of the nation who takes as pri

vate owner cannot sell his interest. The Indian title is [* 464] property, and alienable, unless the treaty had *prohibited its sale. Comet v. Winton, 2 Yerger's R. 148; Blair and Johnson v. Pathkiller's Lessee, 2 Yerger, 414. So far from this being the case in the instance before us, it is manifest that sales of the reserved sections were contemplated, as the lands ceded were

The United States v. Castillero.

forthwith to be surveyed, sold, and inhabited by a white population, among whom the Indians could not remain.

We hold that Pet-chi-co was a tenant in common with the United States, and could sell his reserved interest; and that when the United States selected the lands reserved to him, and made partition, (of which the patent is conclusive evidence,) his grantees took the interest he would have taken if living. We order the judgment to be affirmed.

THE UNITED STATES, Appellants, v. ANDRES CASTILLERO.

23 H. 464.

CALIFORNIA LAND GRANTS.

An order of the central Mexican government to the governor of California authorized him to grant the lands of the islands adjacent to the department in conjunction with the assembly. A dispatch of the same date required him to reserve such islands as Castillero might select, and grant the same to him. Held, that a grant of the island of Santa Cruz under this order to Castillero did not require the confirmation of the assembly, and, being regular in all other respects, must be confirmed.

APPEAL from the district court for the southern district of California. The case is well stated in the opinion.

Mr. Stanton, for the United States.

No appearance for appellee.

*Mr. Justice CLIFFORD delivered the opinion of the court. [* 465] This is an appeal from a decree of the district court of

the United States for the southern district of California, affirming a decree of the commissioners appointed under the act of the third of March, 1851, to ascertain and settle private land claims.

Pursuant to the eighth section of that act, the appellee in this case presented his petition to the commissioners, claiming title to the island of Santa Cruz, situated in the county of Santa Barbara, in the State of California, by virtue of an original grant from Governor Alvarado. All of the documentary evidences of title produced in the case are duly-certified copies of originals found in the Mexican archives, as appears by the certificate of the surveyor general, which makes a part of the record. They consist of a special dispatch from the minister of the interior of the republic of Mexico, addressed to Governor Alvarado; the petition of the claimant to the same, and the original grant to the petitioner, which purports to be signed by the governor, and to be duly counter

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