UNITED STATES SUPREME COURT DECISIONS ON-LINE

Whilst an ejectment suit was pending to try the legal title to a tract of land in Mississippi, the defendants filed a bill on the equity side of the court praying for a perpetual injunction upon the ground that the plaintiffs had obtained a patent from the United States by fraud and misrepresentation.

But the fraud is not established by the evidence, and therefore the bill must be dismissed and the parties remitted to the trial at law.

Where there are reservations, in Indian treaties, of specific tracts of land which are afterwards found to be the sections set apart for school purposes under a general law, the reservees have the better title. They hold under the original Indian title which the United States confirmed in the treaty.

But where the reservee claimed under a float, no specific tract of land being designated for him in the treaty, this Court abstains from expressing an opinion, that being the legal question pending in the court below.

This was an appeal from a decree by the equity side of the court, granting a perpetual injunction upon the appellants, who were plaintiffs in an ejectment suit then pending on the law side of the court.

In the second article of the supplement of Dancing Rabbit Creek Treaty, 7 Stat. 340, made on 27 September, 1830, there is this reservation:

"Also, one section is allowed to the following persons, to-wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster D. W. Wall &c., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land."

On 27 August, 1832, D. W. Wall, one of the reservees, assigned all his right and title under the treaty to George S. Gaines and Allen Glover, who procured a patent for the sixteenth section to be issued to them, in pursuance of this claim under the treaty, by the President, on 7 December, 1838.

In the year 1841, George S. Gaines, Francis S. Lyon, and the heirs at law of Allen Glover instituted an ejectment against John Hilman, who was the tenant in possession under the trustees of the school lands. clubjuris

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In 1842 these trustees filed a bill on the equity side of the court, from which the following are extracts:

"Humbly complaining, your orators would respectfully show unto your Honors that your orators, Isaac W. Nicholson, Powhatan B. Thermond, Lewis B. Barnes, John T. Moseley, and S. M. Goode, are the trustees of the schools and school lands reserved by the acts of Congress for the use of schools in township twelve, range eighteen east, situated in the County of Kemper in the State of Mississippi. They would further show unto your Honors that section sixteen in said township twelve, range eighteen east was reserved, by the acts of Congress for the use of schools in said township, and being so reserved, your orators took possession of the same and leased it to your orator, John Hilman, who went into possession of said tract of land prior to 27 March, 1841, and has continued in possession ever since until this time."

"Your orators would further show unto your Honors, that on 27 March in the year 1841, an action of ejectment was instituted on the law side of this Honorable Court by John Doe, lessee of George S. Gaines and Francis S. Lyon, and of the heirs at law of Allen Glover, deceased, against your orator, John Hilman, for the recovery of said section sixteen, and to dispossess and eject your orators therefrom, which suit is still pending undetermined in said court."

"Your orators would further show unto your Honors that by virtue of the second article of the supplement of Dancing Rabbit Creek Treaty, entered into on 27 September, 1830, between the United States and the Choctaw tribe of Indians, certain portions of land, situated within the territory ceded by the said Indians to the United States, were reserved to divers members of said tribe of Indians, and, amongst others, a section of land was reserved to David W. Wall, in the following words, to-wit:"

"Also one section is allowed to the following persons, to-wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall &c., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land."

"Your orators would further show unto your Honors that on 27 August in the year 1832, the said David W. Wall, by deed of that date, bargained, sold, and conveyed, to George S. Gaines and Allen Glover, all the right, title, interest, and claim of him, the said David W. Wall, in and to a certain reservation of one section or six hundred and fifty acres

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of land made and granted to him, the said David W. Wall, under and by virtue of the provisions of a treaty made and concluded between the United States of America and the Choctaw tribe of Indians at a place called Dancing Rabbit Creek in said nation in the month of September, 1830."

"Your orators would further show unto your Honors, that the said George S. Gaines and Allen Glover, deceased, falsely and fraudulently pretending and representing to the President of the United States that the said David W. Wall, at the date of said treaty, resided upon said section sixteen, in the township and range aforesaid, and had his improvement thereupon, and that they had located the reservation of said Wall upon the same on 7 December in the year 1838 procured a patent to be issued to them, conveying to them the said section sixteen, in township twelve, range eighteen east."

"Your orators would further show unto your Honors, that at the date of said treaty the said David W. Wall did not reside, nor had he any improvement, upon said section sixteen, as aforesaid, but resided at a long distance from the same, and had no right or title, claim or interest whatever, in said section of land, which had been reserved, as your orators distinctly and positively aver, for the use of schools in the State of Mississippi, by the laws of the United States."

"Your orators would further show to your Honors, that the said Gaines and Glover were so well aware that they had no right to the said section of land, by virtue of their purchase from the said Wall, that they located the claim of said Wall at one time, as your orators have been informed and believe, upon another section of land near Mayhew, in Oaktibbeha County, but finding that their claim to said last-named section would be disputed, they, in the technical language of land mongers and speculators, lifted the same, and laid it upon said section sixteen. Your orators would further show unto your Honors, that, by virtue of the patent thus falsely and fraudulently obtained, they have been advised that the said Gaines and Allen Glover, deceased, obtained the highest and best legal title to said section sixteen, when, in equity and justice, they have no title thereto, but the same belongs to your orators, as trustees and tenant of the schools and school lands, as aforesaid."

The bill then proceeded with the usual interrogatories, prayed for a temporary injunction, and afterwards a perpetual one.

A temporary injunction was granted.

The respondents, in their answer, set forth the circumstances of the treaty, averred that the United States were incapable of clubjuris

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making any grant of land which was reserved by the treaty, and denied the alleged fraud in the following manner:

"These respondents, further answering, say that the said George S. Gaines and Allen Glover, deceased, never did, jointly, nor did either of them severally or separately, falsely pretend and represent to the President of the United States that the said David W. Wall, at the date of the treaty, resided upon section sixteen, in the township and range aforesaid, and had his improvement thereupon; no such pretense was ever set up or representation made to the President of the United States or anyone else by the said George S. Gaines, or Allen Glover, in his lifetime, or either of them. A reference to the record of the Executive Department of the government, or even to the published documents relating to the public lands, would have relieved the complainants from an allegation so utterly false and unfounded."

To this answer there was a general replication.

Some testimony was taken bearing upon the points of Wall's residence, age &c., but none touching the fraudulent representations alleged to have been made in the procurement of the patent.

On 18 November, 1845, the circuit court passed the following decree.

"Be it remembered, that this cause came on to be heard at the present term, before the Honorable Samuel J. Gholson, judge &c., presiding, upon the bill, answers, exhibits, agreements, and proof in the cause, and upon argument on both sides; and now, at this day, the court being sufficiently advised, and because it appears to the satisfaction of the court that the complainants are entitled to the relief prayed for by them, it is therefore ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the judgment at law in the pleadings mentioned, and all attempts to enforce the same be and the same is hereby perpetually enjoined, and also that the said defendants be and they are hereby perpetually enjoined from ejecting and turning out, or from commencing any other or further suit to eject and turn the said complainants, or their successors in office, out of the possession of the section of land in the pleadings mentioned, to-wit, section sixteen, in township twelve, range eighteen east, in Kemper County. It is further ordered, adjudged, and decreed, and the court doth hereby order, adjudge, and decree, that the defendants shall, within sixty days from the date of this decree, by deed in fee simple, without warranty, convey, quitclaim, and relinquish to the complainants and their successors

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in office, as trustees of schools and school lands, all the right, title, claim, and interest which they, the said defendants, or any of them, have in and to said section of land, and in default of such conveyance's being made by said defendants in the time aforesaid, then the clerk of this Court be and he is hereby appointed a commissioner to carry into effect that portion of this decree directing said conveyance. It is further ordered, adjudged, and decreed that the defendants shall pay all the costs of this suit. This ordered, adjudged, and decreed, this 18 November, 1845."

"From which decree the defendants pray an appeal to the Supreme Court of the United States, which is granted. "

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