154 U.S. 163
NORTHERN PAC. R. CO. et al.
May 26, 1894. [154 U.S. 163, 164] This was an action of ejectment by Frederick Prentice against the Northern Pacific Railroad Company, the St. Paul & Duluth Railroad Company, and Owen Fargusson. On trial without a jury the circuit court rendered judgment for defendants. Plaintiff brought error.
This action of ejectment was brought, September 7, 1883, to recover an undivided half of certain lands in the city of Duluth, county of St. Louis, Minn. Pursuant to a written stipulation of the parties, the case was tried without a jury, and upon the question of title alone, and resulted-Mr. Justice Miller and Judge Nelson concurring-in a judgment for the defendants. 43 Fed. 270.
The case made by the special finding of facts is substantially as follows:
The sixth section of article 2 of the treaty of the 30th day of September, A. D. 1854, between the United States and the Chippewa Indians of Lake Superior and the Mississippi, ratified (pursuant to a resolution of the United States senate passed on the 10th day of January, 1855) by the president on the 29th day of January, 1855, whereby those Indians ceded to the United States certain territory lying adjacent to the headwaters of Lake Superior, contained the following provision, viz.: 'And being desirous to provide for some of his connections who have rendered his people important services it is agreed that Chief Buffalo may select one section of land at such place in the ceded territory as he may see fit, which shall be reserved for that purpose and conveyed by the United States to such person or persons as he may direct.' 10 Stat. 1110
Under the provision of the treaty, and on the day of its date, Chief Buffalo, by an instrument of writing executed by him, and filed in the office of the United States commissioner of Indian affairs at Washington, selected the land to be conveyed by the United States, and appointed the persons to whom it was to be conveyed, indicating the selection and appointment as follows: 'I hereby select a tract of land one mile square, the exact boundary of which may be defined when the surveys are made, lying on the west shore of St. [154 U.S. 163, 165] Louis bay, Minnesota Territory, immediately above and adjoining Minnesota point; and I direct that patents be issued for the same, according to the above-recited provision, to Shaw-bwaw-skung, or Benjamin G. Armstrong, my adopted son; to Matthew May-dway-gwon, my nephew; to Joseph May-dway-gwon and Antoine May-dway-gwon, his sons,-one quarter section to each.'
Matthew, Joseph, and Antoine, under date of September 17, 1855, executed and delivered to Armstrong an instrument assigning to him their right, title, and interest under the appointment and selection of Chief Buffalo. That assignment, after referring to the treaty, and the above instrument of selection and appointment, provided:
This instrument of assignment was executed by Matthew, Joseph, and Antoine in the presence of, and before, the United States agent and the United States interpreter.
Armstrong and wife, September 11, 1856, made, executed, and delivered to the plaintiff herein a deed of conveyance, the recited consideration being $8,000. The land so conveyed is thus described in the deed: 'One undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota, and known and described as follows, to wit: Beginning at a large stone or rock at the head of St. Louis River bay, nearly adjoining Minnesota point, commencing at said rock, and running east one mile, north one mile, west one mile, south one mile, to the place of beginning, and being the [154 U.S. 163, 166] land set off to the Indian chief Buffalo at the Indian treaty of September 30th, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government documents, together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging or in any wise sppertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof,' etc. This deed, sealed and delivered in the presence of a justice of the peace of Wisconsin, was acknowledged by the grantors on the day of its execution before that officer, whose official character was certified by the clerk of the circuit court of the county where the acknowledgment was made. It was not certified to have been acknowledged in accordance with the laws of Wisconsin. The deed was duly recorded in the county of St. Louis, territory of Minnesota, on the 4th day of November, A. D. 1856.
Armstrong and wife, on the 27th day of August, 1872, executed and delivered to the plaintiff a confirmatory deed, which was duly recorded in the county of St. Louis, state of Minnesota, September 2, 1872. That deed was in these words:
The tract of land which Chief Buffalo had designated as his selection on the day of the treaty did not correspond with the section lines when the land came to be surveyed into sections, and part of it was found to be occupied and claimed by certain Indian traders under the treaty. After a lengthy correpondence and investigation in the department of the interior, the relatives of Buffalo, entitled to the land reserved for them, conceded the validity of the claims of these Indian traders, and, in lieu of the lands thus held by them, received other lands adjacent to that selected by Buffalo to make up the quantity of 640 acres, but not in the form of a parallelogram, though maintaining a continuous connection.
A report of the secretary of the interior to the president, [154 U.S. 163, 169] under date of September 21, 1858, and made part of the findings, contained, among other things, the following:
The patent to Armstrong, issued October 23, 1858, contained the following recitals and description of the land embraced by it:
The parties, at the trial, entered into the following stipulation:
The United States government surveys of the lands ceded by the treaty of September 30, 1854, to the United States, had not been made at the date of the deed from Armstrong to plaintiff, and were not made until the year following that date.
Gilman took the above conveyance without actual notice of the deed from Armstrong to the plaintiff of September 11, 1856, or that plaintiff claimed an interest in the land so conveyed to him. [154 U.S. 163, 171] The defendants herein claim title to the pieces or parcels of land in controversy as grantees of Gilman, and under and through the deed to Gilman of August 31, 1864.
The large stone or rock at the head of St. Louis River bay, nearly adjoining Minnesota point, described in the deed from Armstrong to Prentice, is the beginning of the boundary of the tract conveyed, is well identified, and was generally known to the few people familiar with the place, and was recognizable at the time of the trial below; and a mile square, measured from that point, as called for in the deed, would wholly depart from the shore of St. Louis bay, and would cover about one-half or three-fifths land, and the remainder the water of Lake Superior.
The land selected by Buffalo Chief lay upon the shore of St. Louis bay, immediately adjoining Minnesota point; and this selection was followed, as near as it could be, by the patents of the United States issued to satisfy that reservation, considering the elimination from the mile square of the lands held by the traders, and the vagueness of Buffalo's description, and the necessity of conforming the final grant to the surveys of the United States.
If the lines of the course called for as east and west in the deed of Armstrong to Prentice, under which the plaintiff asserts his title, were exactly reversed, the description in that deed would include a large part of the land actually selected by Buffalo Chief, and also included in the patents from the United States, but it would not include the land sued for in this action.
The instrument executed by the Chief Buffalo, dated September 30, 1854, was the only selection or appointment ever made by him under the sixth clause of the second article of the said treaty.
Chief Buffalo died in the month of October, 1855.
At the date of the deed to Prentice, of September 11, 1856, Armstrong did not have any interest in land in St. Louis county, Minnesota Territory, except what he was entitled to under the Buffalo selection and appointment above referred to, and under the above assignment from the other. [154 U.S. 163, 172] The conclusions of law found by the circuit court were:
That the appointment of persons to whom the United States were to convey the section of land reserved by the above provision of said treaty, made by Chief Buffalo on the 30th day of September, 1854, was a valid and sufficient appointment under that provision, and, upon the ratification of the treaty, vested in Armstrong and the other appointees named such an interest as the treaty gave to the land so reserved;
That the patent of the United States to Armstrong, and his acceptance of it, was a valid execution of the treaty on that subject;
That the deed from Armstrong to plaintiff, of September 11, 1856, was, in its execution, acknowledgment, and recording, a valid and sufficient deed, and its record constructive notice of its contents;
That the description in the deed of Armstrong to plaintiff, of September 11, 1856, is insufficient to convey his interest in or title to any other or different tract of land to which he might have been entitled under said treaty than the tract described therein, and that said deed is ineffectual as a conveyance to plaintiff of any interest or title, except such as Armstrong had in or to the land therein described, and that plaintiff took no title under it to the land for the possession of which this action is brought;
That the quitclaim deed from Armstrong to Gilman, of August 31, 1864, conveyed to the latter such interest, and no more, as Armstrong had in the land therein described at the date of said deed; and
That the plaintiff is not entitled to recover in this action, and judgment must go in favor of the defendants, for their costs and disbursements.
John F. Dillon, Elihu Root, and Saml. B. Clarke, for plaintiff in error.
W. W. Billson, for Owen Fargusson, one of the defendants in error.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. [154 U.S. 163, 173] The court below correctly interpreted the decision in Prentice v. Stearns, 113 U.S. 435 , 5 Sup. Ct. 547, as holding that the deed from Armstrong to Prentice, under which alone the latter can assert a title to the land in controversy, was an instrument designed to convey a defined tract or parcel of land, not any possible interest existing in Armstrong under the treaty with the Chippewas, the selection of Buffalo, and the appointment that the lands selected by him should be conveyed to Armstrong and other named relatives.
This question was reargued in the court below, in the present case, in the light of additional facts supposed to have been adduced.
Mr. Justice Miller, in his opinion in this case, said: 'We remain of the opinion we were on the former trial. The first descriptive clause of the deed from Armstrong to Prentice is of a tract of land a mile square, beginning at a large stone or rock, which, as a matter of fact, we find in the present case is now identified, and was well known at the time the deed was made. The description proceeds with the points of the compass one mile east, one mile north, one mile west, one mile south, to the place of beginning. It would be difficult, the beginning point being well ascertained, to imagine that Armstrong intended to convey any other land, or any other interest in land, or interest in any other land, than that so clearly defined; and, if that description is to stand as a part of the deed made by Armstrong to Prentice, it leaves no doubt where the land was, and there is no occasion to resort to any inference that he meant any other land than that. It is now found as a fact that this boundary would include a surface from one-half to three-fourths of which is land, and the remainder is water of Lake Superior.' 43 Fed. 270.
The specific description by metes and bounds of the land conveyed by the Armstrong deed to Prentice, namely, 'one undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota, and known and described as follows: Beginning at a large stone or rock at the head of St. Louis River bay, nearly adjoining Minnesota point, commencing at said rock, [154 U.S. 163, 174] and running east one mile, north one mile, west one mile, south one mile, to the place of beginning,'-does not, it is conceded, embrace the land in dispute. Indeed, the plaintiff insists, on several grounds, that that description should be rejected altogether, as inaccurate and mistaken; and he is driven to rest his claim of title to the lands in dispute upon the clause of the deed immediately following the words above quoted, namely, 'and being the land set off to the Indian chief Buffalo, at the Indian treaty of September 30, 1854, and was afterwards disposed of by said Buffalo to Armstrong, and is now recorded with the government documents.'
But the plaintiff, although compelled to rely upon the words last quoted, insists that they mean what, in our opinion, is not justified by a fair interpretation of them. It seems entirely clear that the words in the clause beginning 'and being the land,' etc., were intended to describe generally what had been before specifically described by metes and bounds; that 'and being' is equivalent to 'which is,' in which case this clause of general description-the specific description by metes and bounds being rejected as not embracing the land-cannot, it is conceded, be regarded as an independent description of the subject of the conveyance.
It is said that the deed should not be construed as intended to convey merely a specific tract, and thereby make it inoperative, because, at the time it was executed, Armstrong did not have any interest in a specific tract that he could convey, but only a general right, under the Buffalo document, to have land located and patented to him by the United States. Referring to the argument made by counsel in support of this view, Mr. Justice Miller said: 'They say that the reference to the land set off to the Indian chief Buffalo at the treaty of 1854 meant not any definite piece of land, but any land which might come to Buffalo or his appointees, of whom Armstrong is one, by the future proceedings of the government of the United States in that case; and that, no matter where such land was found, provided it was within the limits of the land granted by the Chippewa treaty, then the deed from Armstrong to Prentice was intended to convey [154 U.S. 163, 175] such after-acquired interests which were patented to the parties by the United States. We do not see anything in the whole deed or transaction between Armstrong and Prentice that points to or indicates any such construction of it. Both clauses of the description are definite as to the land conveyed, and treat it as a piece of land well described, well known, and well defined. Of course, any man endeavoring to ascertain what land was conveyed under that grant would suppose that, when he found the stone or rock which we now, as a matter of fact, find to have an existence, and can be well identified, he had bought a mile square according to the points of the compass, the southwest corner of which commenced at that rock. He would not suppose that he had bought something that might be substituted in lieu of that mile square by future proceedings of the government of the United States. And so with regard to the other description. Buffalo had made his selection, had described the land which he designed to go by that treaty, not to him, but to his relatives, whose names are given; and it was an undivided half of this land thus selected by the Buffalo chief, and not other land, or different land which might come to Armstrong, that he conveyed, and intended to convey, to Prentice.'
After distinguishing this case from Doe v. Wilson, 23 How. 457, and Crews v. Burcham, 1 Black. 352, Mr. Justice Miller proceeded: 'But, in the case before us, not only had Buffalo made his selection, and designated the parties to whom the land should go, but the selection had definiteness about it, to a certain extent. It was a thing which could be conveyed specifically, and which Armstrong undertook to convey specifically. It is not necessary that we resort to the supposition that Armstrong was talking about some vague and uncertain right-uncertain, at least, as to locality, and as to its relation to the surveys of the United States-which he was intending to convey to Prentice, instead of the definite land which he described, or attempted to describe. If such were his purpose in this conveyance, it is remarkable that he did not say so in the very few words necessary to express that idea, instead of resorting to two distinct descriptive clauses, neither [154 U.S. 163, 176] of which had that idea in it, one of which is rejected absolutely by the plaintiff's counsel as wholly a mistake, and the other is too vague in its language to convey even what plaintiff claimed for it. We are not able, therefore, to hold, with counsel for plaintiff, that, if this conveyance does not carry the title to any lands which can be ascertained by that description in the deed, resort can be had to the alternative that the deed was intended to convey any land that might ultimately come to Armstrong under the treaty, and under the selection, and under the assignment to Buffalo.' 43 Fed. 276.
We are entirely satisfied with these views. It results that neither the description by metes and bounds, nor the general description of the lands conveyed by the deed under which the plaintiff claims, is sufficient to cover the lands here in dispute.
Another matter deserves notice. It is found as a fact that if the lines of the course called for as east and west in the deed of Armstrong to Prentice, under which the plaintiff asserts title, were exactly reversed, the description in the deed would include a large part of the land actually selected by Buffalo chief, and also included in the patents from the United States. But this fact is immaterial, for it is found that if the course were reversed, as suggested, it would not include the particular lands here in controversy.
The case, then, is this: Looking into the deed under which the plaintiff claims title, for the purpose of ascertaining the intention of the parties, we find there a specific description, by metes and bounds, of the lands conveyed, followed by a general description which must be held to have been introduced for the purpose only of showing the grantor's chain of title, and not as an independent description of the lands so conveyed. As neither description is sufficient to cover the lands in suit, there can be no recovery by the plaintiff in this action of ejectment, whatever may be the defect, if any, in the title of the defendants. If this were a suit in equity to compel a reformation of the deed upon the ground that, by mistake of the parties, it did not properly describe the lands intended to be conveyed, and if such a suit were not barred [154 U.S. 163, 177] by time, a different question would be presented upon the merits.
What has been said renders it unnecessary to consider whether the deed from Armstrong and wife to Prentice was so acknowledged and certified as to entitle it, under the laws of Minnesota, to record in that state, and, by such record, become legal notice of its contents to Gilman, and those claiming under him.
We perceive no error in the record, to the prejudice of the plaintiff in error, and the judgment is affirmed.