US SUPREME COURT DECISIONS

Where a judgment was rendered by the Supreme Court for Iowa Territory and the record certified to this Court by the Supreme Court of the State of Iowa, after her admission into the Union, and the subject matter is within the jurisdiction of this Court, it will take jurisdiction over the case.

Where the Legislature of the Territory of Iowa directed that suits might be instituted against "the Owners of the Half-breed Lands lying in Lee County," notice thereof being given through the newspapers, and judgments were recovered in suits so instituted, these judgments were nullities.

There was no personal notice to individuals, nor an attachment or other proceeding against the land, until after the judgments.

The law, moreover, directed that the court should decide without the intervention of a jury to determine matters of fact. This was inconsistent with the Constitution of the United States.

The court below erred in not permitting evidence to be offered to show that the judgments were fraudulent. It erred also in not allowing the defendant to give his title in evidence.

The defendant ought also to have been allowed to give evidence that the judgments had not been obtained in conformity with the law which required certain preliminary steps to be taken.

This case was brought up by a writ of error allowed by John F. Kinney, Judge of the Supreme Court of Iowa, on 10 November, 1847. The writ was issued, as usual, in the name of the President of the United States, and was addressed, "To the Honorable the Judges of the Supreme Court of the Territory, now State, of Iowa."

It was what was called an action of right brought by Reid against Webster, to recover the possession of 160 acres of land in Lee County, then in the Territory of Iowa. The suit was brought on 1 October, 1844.

The facts were these.

On 4 August, 1824, the United States made a treaty with the Sac and Fox Indians by which a tract of country between the Des Moines and Mississippi Rivers was reserved for the use of the half-breeds belonging to the Sac and Fox Indians. This treaty was ratified on 18 January, 1825.

On 30 June, 1834, Congress passed the following Act, 4 Stat. 740:

"Be it enacted &c., that all the right, title, and interest, which might accrue or revert to the United States to the reservation of land lying between the Rivers Des Moines and Mississippi which was reserved for the use of the half-breeds belonging to the Sac and Fox nations, now used by them, or some of them, under a treaty made and concluded between the United States and the Sac and Fox tribes or nations of Indians at Washington, on 4 August, 1824, be, and the same are hereby, relinquished and vested in the said half-breeds

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of the Sac and Fox tribes or nations of Indians who, at the passage of this act, are, under the reservation in the said treaty, entitled, by the Indian title to the same, with full power and authority to transfer their portions thereof by sale, devise, or descent according to the laws of the State of Missouri."

On 16 January, 1838, the Territorial Legislature of Wisconsin passed an act for the partition of the half-breed lands and for other purposes. The preamble to the act was as follows:

"Whereas it is expedient in order to the settlement of that tract of land lying between the Mississippi and Des Moines Rivers, commonly called the 'half-breed lands,' which was reserved for the half-breeds of the Sac and Fox tribes of Indians, by treaty made at Washington City between the United States and those tribes on 4 August, 1824, which was released to said half-breeds, with power to convey their rights &c., by act of Congress, approved 30 June, 1834, that the validity of the titles of the claimants should be determined, and partition of said lands among those having claims should be made or a sale thereof for the benefit of such valid claimants, now therefore be it enacted"

&c.

The act directed that all persons claiming any interest in said lands should file, within one year, with the clerk of the District Court of Lee County, a written notice of their respective claims &c. Edward Johnston, Thomas S. Wilson, and David Brigham were appointed commissioners to receive testimony concerning the validity of claims, who should be entitled to $6 per diem. The act consisted of twenty-four sections, and pointed out the manner in which the commissioners should discharge their duties. Certain persons were also appointed to sell portions of the land in order to pay all necessary expenses.

On 22 June, 1838, a supplement was passed, making certain changes, which need not be particularly noticed.

On 25 January, 1839, the Council and House of Representatives of the Territory of Iowa passed an act repealing the two preceding acts, and proceeding as follows:

"SEC. 2. That the several commissioners appointed by and under that act to sit and take testimony, may immediately or as soon as convenient, commence actions before the District Court of Lee County for their several accounts against the owners of the said 'half-breed lands,' and give eight weeks' notice in the Iowa Territorial Gazette to said owners of such suits, and the judge of said district court, upon the trial of said suits before it at its next term, shall, if said accounts are deemed correct, order judgment for the amount and costs to be

Page 52 U. S. 439

entered up against said owners, and said judgment shall be a lien on said lands, and a right of redemption thereto; said judgment, when entered, shall draw interest at the rate of twelve percent per annum."

"SEC. 3. The words 'Owners of the half-breed Lands lying in Lee County' shall be a sufficient designation and specification of the defendants in said suits."

"SEC. 4. All the expenses necessarily incurred by said commissioners in the discharge of their duties under the above-named acts shall be included in their accounts."

"SEC. 5. The trial of said suit or suits shall be before the court, and not a jury, and this act shall receive a liberal construction such as will carry out the spirit and intention thereof."

"Approved, January 25, 1839."

At the August term, 1839, of the District Court for Lee County, Edward Johnston and David Brigham, two of the commissioners, recovered judgments against the owners of the half-breed lands, as follows:

"EDWARD JOHNSTON v. OWNERS OF THE HALF-BREED LANDS lying in Lee County, I.T. In Debt."

"Now comes the auditor, appointed by the court to examine, adjust, and allow the account of the plaintiff in the above-entitled cause, to-wit, H. T. Reid, Esq., and makes report that he finds the sum of $1,290 to be due from said defendants to said plaintiff, which report is accepted by the court. Whereupon, it is ordered by the court that the plaintiff recover of the defendants the sum of $1,290, together with his costs of suit in this behalf expended."

"DAVID BRIGHAM v. THE OWNERS OF THE HALF-BREED LANDS lying in the County of Lee. In Debt."

"Now comes the auditor appointed by the court to examine, adjust, and allow the account of the plaintiff in the above-entitled cause, to-wit, Oliver Weld, Esq., and makes report that he finds the sum of $818 to be due from the said defendants to said plaintiff; which report is accepted by the court. Whereupon, it is ordered by the court that the plaintiff recover of the said defendants the sum of $818, the amount stated in the auditor's report, and costs in his behalf expended."

On 26 November, 1841, executions were issued upon the above two judgments.

On 1 December, 1841, the sheriff levied the executions

"on the half-breed tract of land, situated between the Mississippi and Des Moines Rivers, granted by treaty to the

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half-breeds of the Sac and Fox tribes of Indians,"

and advertised the same for sale on 1 January, 1842.

On 1 January, 1842, the sheriff sold the land, containing 119,000 acres, more or less, to Hugh T. Reid, for the sum of $2,884.66.

On 2 January, 1843, William Stotts, Sheriff of Lee County and successor of the sheriff who had made the sale, executed a deed to Reid for the following tract, viz.:

"All that tract of land lying between the Mississippi and Des Moines Rivers and south of a line drawn from a point on the Des Moines River opposite the point where the northern boundary of the State of Missouri strikes the same to the Mississippi, commonly known as the half-breed lands lying in Lee County, and containing 119,000 acres, more or less; the said tract of land lying being and situate in the County of Lee and Territory of Iowa aforesaid, with all the right, interest, claim, and demand of the said owners of the half-breed lands lying in Lee County in, over, and to the same, and every part and parcel thereof, to have and to hold all the above-granted premises and appurtenances thereto belonging, or in any wise appertaining, to the said Hugh T. Reid, his heirs and assigns forever."

On 1 October, 1844, Reid brought a suit against Webster, and filed the following declaration:

"Territory of Iowa, Lee County, ss."

"HUGH T. REID v. JOSEPH WEBSTER."

"Hugh T. Reid claims against Joseph Webster a tract of land, with the appurtenances, lying in the county aforesaid and described as follows, to-wit, the northeast quarter of section 12, in township 67 north, and range 5 west, containing 160 acres, more or less; and thereupon the said Hugh T. Reid says that he has right to the immediate possession of said property, and to the ownership thereof in fee simple, and also to damages for its detention, and offers to prove that such is his right."

"H. T. REID, Attorney for himself"

The defendant put in the following plea:

"Territory of Iowa, Lee County, sct."

"District Court of said County, October Term 1841"

"Joseph Webster denies the right of Hugh T. Reid to the tract of land, with the appurtenances, and damages for the detention thereof, as set forth in his declaration, or to any part thereof, and hereupon he prays a jury to determine the truth of this plea."

"MILLER, MILLS & COCHRAN, for Defendant."

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On 12 May, 1845, the cause came on for trial, when the verdict of the jury was for the plaintiff.

There were eight bills of exceptions taken in the progress of the trial, which occupied twenty-six pages of the printed record. Into them were incorporated long legislative acts and deeds, of which a summary is given above.

Instead of transcribing these long exceptions, it will be sufficient to state the points involved.

"First Exception"

"The plaintiff offered in evidence the two judgments given in favor of Johnston and Brigham."

"This was the first evidence offered by the plaintiff to the jury. The defendant objected to the admissibility of the judgments as being rendered without jurisdiction, but the court overruled the objections and admitted the records, to which the defendant excepts and prays the court to sign and seal this his first bill of exceptions, which is done at the time the same was taken on the trial."

"CHARLES MASON, Judge"

"Second Exception"

"The plaintiff offered in evidence the above judgments, the executions issued thereon, the sheriff's return and deed to Reid, then a witness to prove that Webster was in possession of the land mentioned in the declaration, and had been so since the year 1839 or 1840, and that the land was within the half-breed reservation, and then the various legislative acts."

"The defendant then moved the court to enter a nonsuit against the plaintiff, which motion was overruled by the court, to which ruling and decision the defendant excepts and prays &c."

"CHARLES MASON, Judge"

"Third Exception"

"Be it known that on the trial of this cause, after the plaintiff had closed his evidence and defendant had moved the court for a nonsuit, as stated in a bill of exceptions numbered two in this cause, the defendant offered to prove to the jury that the judgments, executions, sheriff's sale, and sheriff's deed, constituting the evidence introduced by plaintiff, was all procured by fraud by said plaintiff and others, and that the whole title of plaintiff is based upon fraud and fiction, to the introduction of which evidence the plaintiff objected, and the court sustained the exception, and ruled that such evidence should not be admitted, to which defendant excepts, and prays the court to sign and seal this bill of exceptions."

"CHARLES MASON, Judge"

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Page 52 U. S. 442

"Fourth Exception"

"The defendant then offered evidence to show the condition of the half-breeds, and then the following deeds:"

"1837, March 3. Na-ma-tau-pas, a half-breed, to John Bond."

"1837, March 20. John Bond to Theophilus Bullard."

"1838, April 7. Bullard to Webster, the defendant."

"The plaintiff objected to the introduction of any of the said deeds, and the court sustained the objection, and ruled that they should be excluded from the jury, to which opinion the defendant excepts, and prays the court to sign and seal this bill of exceptions."

"CHARLES MASON, Judge"

"Fifth Exception"

"Be it known that on the trial of this cause the defendant proved that he acquired the possession of the premises described in plaintiff's declaration by a purchase, as set forth in deeds included in defendant's fourth bill of exceptions, in the year 1838; that at the time he purchased, there were improvements on said tract, and that he took possession, and has been in possession ever since. The defendant then produced evidence and offered to prove by parol testimony that no service had ever been made upon any person in the suits in which the judgments were rendered upon which the sale was made to plaintiff, as set forth in defendant's second bill of exceptions, which bill is referred to here and made a part of this; that no notice was given by publication of the pendency of said suit; that the plaintiff was the counsel that procured said judgments; that said judgments were rendered upon a fictitious demand, and never proven before the auditor; that Webster and the owners of the half-breed tract of land, or some of them, were prevented from appearing and defending by the fraudulent representations of said plaintiff; that the sale was in fact never made by the sheriff, Taylor; that the whole return of the sheriff, Taylor, was a fraudulent and false return. The plaintiff objected to the introduction of every part of said testimony, and the court ruled and decided that no part of said evidence was admissible, and ruled that the defendant should not introduce evidence to prove any of the facts above stated, to which ruling and decision the defendant excepts."

"CHARLES MASON, Judge"

"Sixth Exception"

"Be it known that on the trial of this cause, the defendant filed an affidavit, as follows, to-wit:"

" Joseph Webster makes oath and says that a certain deed, executed by Hawkins Taylor,

Page 52 U. S. 443

Sheriff and Collector of Lee County, to R. F. Barrett, dated 27 September, 1841, and recorded in Lee County, is not in his power to produce on this trial, and is material evidence in his behalf, to be read in the said trial of H. T. Reid v. said Webster, as he is advised by his counsel."

" JOSEPH WEBSTER"

" Sworn and subscribed to before me, this 15 May, 1845."

"J. C. WALKER, Clerk"

"By J. G. WALKER, Deputy"

"After which, offered the recorder's record of Lee County as evidence of the deed mentioned in the affidavit. The plaintiff objected, the court sustained the objection, and ruled that the record of the deed should not be introduced as evidence, to which the defendant excepts and prays &c."

"CHARLES MASON, Judge"

"Seventh Exception"

"The plaintiff offered in evidence the judgments, the execution, and the deed of the sheriff to Reid, the same as mentioned heretofore. The defendant excepted, but the court overruled the objection and admitted the deed, to which ruling the defendant excepts and prays &c."

"CHARLES MASON, Judge"

"Eighth Exception"

"Be it remembered that on the trial of this cause, the plaintiff proved nothing in addition to the evidence introduced as set forth in bill of exceptions number two; all the evidence given to the jury by the plaintiff, on examination in chief, or in rebutting evidence, is the evidence contained in defendant's bill of exceptions on the motion to nonsuit plaintiff, and it is here referred to and fully admitted."

"Upon this state of facts the defendant prays the court to instruct the jury as follows, to-wit:"

"1st. That, unless it was proved to the satisfaction of the jury that there was some person or persons within the Territory of Iowa, at the time of the issuing of the process, or appeared at the trial, or at some stage of the proceedings, that were within the jurisdiction of the district court of Lee County, during the pendency of the suits of Johnston and Brigham, upon which this title accrued, that owned or had an interest in those lands, they must find for the defendant."

"2d. That unless they find from the evidence that there were owners, and persons or corporations, other than the government, who were owners, or had an interest in said land, at

Page 52 U. S. 444

the commencement of these suits by Johnston and Brigham, they must find for the defendant."

"3d. That unless the jury find that someone or more of the owners of the half-breed tract of land were citizens of the Territory of Iowa at the time of the passage of the Act of Iowa legislature passed January 25, 1839, or between that time and the time of the execution of the deed by the sheriff to the plaintiff, they must find for the defendant."

"4th. That unless it has been proved to the jury that the defendants sued by Johnston and Brigham, and upon whose judgments the plaintiff claims his title, were a corporation by virtue of law, and acting as such, are liable as such, or a partnership firm by that name, or some kind of an association who had assumed the name of owners of the half-breed Lands in Lee County, the plaintiff cannot recover."

"5th. That if it is not proved to the jury that the judgments of Johnston and Brigham were rendered against some person or persons, body corporate or association of individuals, whose existence has been proved to exist at the commencement of the suit, or at the rendition of the judgments, they must find for the defendant."

"6th. That a judgment against a dead person or a person who has no existence whatever is no judgment at all in contemplation of law, and a sale under such a judgment is void."

"Which said instructions so prayed for by the defendant as above stated to be given severally as stated above to the jury the court refused to give, and the court refused each and every instruction severally above prayed for, as mentioned from one to six, to which refusal and ruling and decision of the court the defendant excepts and prays the court to sign and seal this bill of exceptions."

"CHARLES MASON, Judge"

It has already been stated, that the jury found a verdict for the plaintiff. Webster, the defendant, sued out a writ of error, and carried the case to the supreme court.

In January, 1846, the Supreme Court of the Territory of Iowa affirmed the judgment of the court below, when Webster brought the case up to this Court. chanrobles.com-red

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