McCullagh v. Allen

The opinion of the court was delivered by Kingman, C. J.:

This is an action on covenants for title. The breach alleged is a paramount outstanding title, asserted by the holder thereof, yielded to and bought in by the plaintiff. The answer is a general denial. The trial was by the court. Special findings of fact and separate conclusions of law were made by the Court, which were entered upon the journal, but not signed by the judge, nor made a part of the record by bill of exceptions. The counsel for defendant in error insists that they cannot be reviewed, as they are no ■ part of the record. This conclusion is supported by the decision in The Peoria M. and F. Ins. Co. v. Watson, 22 Ind., 77 , cited by counsel. But we are not convinced of the soundness of this doctrine. It appears to us that they are a part of the record, and must be so treated both in this court and elsewhere. No part of the evidence appears in the record. Even the title papers are not before us. No exception appears to the findings. The plaintiff, who is also plaintiff in error, made a motion for a new trial, and the refusal to grant that motion was excepted to, and that exception presents the only question for *154 •our consideration. This motion the counsel for defendant in error insists is not before this court, as it is not made a part of the record by bill of exceptions. Nor was it necessary. The motion was by law in writing. It must be filed, and it became as much a part of the l’ecord as the pleadings; and the refusal to grant the motion could be excepted to on the record, as required by our code.

The overruling of the motion for a new trial is then before us. Whatever error was committed by the court in its action on that motion we can review, and correct. The motion was based on two grounds, ■viz., “ 1st, That the verdict is not sustained by sufficient evidence; 2d, That the verdict is contrary to law.” The first part may be laid out of the case without comment. . In the entire absence of the evidence this court cannot say whether the facts found are sustained by the testimony or not. The second cause for a new trial presents more difficulty. The word “verdict,” as it is used in law, is not applicable to the findings of fact by the court. The code does not use the word in that sense; but uses it to ■express the report of the jury on the evidence submitted to them, while it uses an entirely different phraseology to express the report of the court on the evidence. But while the word is inaptly chosen for the purpose, it sufficiently indicates the object of the motion to be understood, and will be so treated. We shall consider it as a motion to grant a new trial because the court erred in the conclusions of law ■drawn from the facts found, as this is the question argued here, and the only one probably presented to the court below. The facts necessary to an understanding of the case are substantially as follows: In the year 1862 Shosli-qua-je-wan, an Indian woman, a member of the Ottawa tribe of Blanchard’s Fork and Roche-de-Boeuf,_ intermarried with Alfred McKoonse, also an Indian, of the united bands of Chippewa .and Muncie, or Christian Indians. The marriage was solemnized on the reserve of said bands, in Franklin county, by a Moravian missionary. The couple lived together thereafter two or three weeks, and then separated forever. Shortly *155 after their separation the land in question, which is in the Ottawa reserve, in Franklin county, was allotted to Shoshqua-je-wan under and by virtue of art. 3 of the treaty of 1862 between the Ottawas and the U. S., (12 Stat. at Large, 1238.) There was no issue of the marriage. And in 1863 Shosh-qua-je-wan died, leaving surviving her Alfred, her husband, and as her next of kin, Ko-to-qua, a sister, and David McNab, a brother. Soon afterwards Ko-to-qua likewise died, leaving David the sole remaining blood relative of Shosh-qua-je-wan. David, (who has himself since died, leaving neither wife nor issue, nor any other “kin or kith” so far as known,) conveyed the land in June 1867 to one Eandall, who in June 1868 sold and delivered possession of it to the defendant Allen, who in March 1870 deeded it to the plaintiff, and put him in possession. Alfred, the husband, ■“quit-claimed” the same premises to W. H. Sears on September 5th 1870, to whose title plaintiff yielded, bought it in on December 31st, 1870, and then brought this action on the covenants set forth in his petition.

Now upon these facts, which is the paramount title? Or, in other words, who was the heir-at-law of Shosh-qua-je-wan, Alfred, the husband, or David, ¡her brother? The solution-of this new problem depends of course upon the answer to the further question: What was the law of descent, or rule of inheritance, in force in the Ottawa reserve, when the descent from Shosh-qua-je-wan was cast, in 1863? By art. 9, of the treaty of 1831 between the U. S. and the Ottawas, the United States guarantee that the reserve of the Ottawas shall never be within the bounds of any state or territory, nor subject to the laws thereof. 7 Stat. at Large, 361. See also act of admission, § 1, Gen. Stat., 67. In this status the land remained till the treaty of July 16th, 1862, (12 Stat. .at Large, 1237.) In this treaty there is no express repeal of the agreement that the lands should not become a part of the state, but the whole tenor of the treaty is to that effect. The object of the treaty seems to be to make a final disposition of the lands of the tribe, and dissolve the tribal relation. *156 The treaty stipulates that at the expiration of five years, the members of the tribe shall become citizens of the United States, and their tribal relations cease. Meantime their lands-are to be disposed of by special allotments and sale’s in various ways.- Some of the stipulations of the treaty are absolutely inconsistent with the idea that the reservation is without the limits of the state, while others seem clearly to recognize the laws of Kansas as in force from that time forward. As examples we may cite the following: Certain lands shall not be taxable until they are sold; (art 6.) Certain lands are to beset apart for the benefit of the Ottawa Baptist Church, the title to be vested in a board of trustees, to be appointed by said church, in accordance with the laws of Kansas; (art. 7.) Members of the tribe not under legal disabilities by the local laws may sell to each other certain lands under certain circumstances; (art. 7.) The money of minors may be paid to guardians appointed by the local laws; (art. 8.) After location made the sales of the residue of land is to be made to actual settlers only; (art. 9.) These instances might be multiplied; but enough are suggested to show the intention of the parties to the treaty to. abrogate that provision of the treaty of 1831 which stipulates that the reservation of the Ottawas shall not be a part of any state or territory. The land is all covered by white settlers having the benefit of our laws, and bearing the burdens of the government; and yet there is no express change in the stipulation of the treaty of 1831. It is undoubtedly abrogated, and we think it may fairly and justly be considered as abrogated by the terms of the treaty of 1862, and that from that date the jurisdiction of the state of Kansas extended over the reservation. If not, what code of laws governed the white settlers expressly provided for by art. 7? , Were they also a nation to themselves? The terms ought to be susceptible of no other construction before a court could be driven to such a conclusion.

If the reserve did not by virtue of the provisions of the treaty of 1862 become a part of this state, it is not now a part of it.. The making of the tribe citizens after five years *157 ■did not necessarily in terms make the reserve a part of the state, though it must be admitted as one of many stipulations in the treaty abrogating the excluding-clause of the treaty of 1831. -But it cannot be strained into a stipulation that after five years the excluding-clause of the treaty shall be abrogated. Take the whole treaty together, and we are satisfied that so many of its provisions recognize the land as a part of the state, that it must be held that the parties thereto intended to remove the excluding-clause of the treaty of 1831. .This being so, the laws of Kansas formed the law of descent at the death of the patentee in 1863, and that law must govern the decision of this case. The court below came to a different ■conclusion as to the law of descent, holding that the same was according to the common law. For this error of the district •court the judgment, is reversed and a new trial'awarded.

All the Justices concurring.