
    *Lee against Glover.
    On demurrer to the replication., The declaration was . x on a covenant of seisin in land. Plea, setting forth the defendant’s title, the first link in which was a patent from the people of this state, dated January 29th, 1791, to Lieut, Nicholas Kaghnatshou, an Indian, for his military services as such lieutenant during the revolutionary war, in fee, whereby (the plea averred) he became seised, &e.; and being so seised, November 3rd, 1791, conveyed by deed to one Yan Slyck, in fee, &c., deducing the defendant’s title through several mesne conveyances. Replication, that Kaghnatshou, at the time when he conveyed to Yan Slyck, was an Oneida Indifn, within the limits of the state of New York, and that Van Slyck was a white person; and that the supposed conveyance was without the authority and consent of the legislature of the state.
    
      The conveyanee by an Indian resig®aT J“f ^ land by deed s°n) TsToid, JaTTtTím time, with his ^TLTg void, n° aot of di?" necessary to [Enable To the grantee.
    The case is not altered by the Indian deriving his title by patent from the people.
    
      General demurrer and joinder.
    
      W. H. Seward, in support of the demurrer,
    said the incapacity of an Indian to convey had never been supposed to continue longer than while he remained in a savage state with his tribe. The replication does not aver that Kaghnatshou resided within the Oneida, or any other Indian tribe when he conveyed.' Again; the grant by patent was an authority for him to convey to whom he pleased. This case is distinguishable from Goodell v. Jackson, (20 John. 698.) In that case, the Indian manifested his dissent from the conveyance insisted on, by a subsequent valid conveyance. The chancellor, in delivering the opinion of the court in that case, evidently places much reliance on the fact that the Indian resided with his tribe when he made the first conveyance. (20 John. 725, 732.)
    
      F. G. Jewitt, contra,
    relied on Goodell v. Jackson, as conclusive in support of the replication. He cited Art. 37 of the Con. of 1777, 1 Greenl. 13, 14; 2 id. 194, 5.
   * Curia, per Sutherland, J.

This case is distinguishable in only two particulars, from that of Goodell v. Jackson, (20 John. 188 and 693 :) 1. In that case it appeared that the Indian who made the grant, resided with the tribe of Oneida Indians; 2d. He expressed his dissent from the grant, by subsequently conveying to another. In this case neither of those facts exist; nor do, they appear to me to be material.

The opinion of Kent, 0., in Goodell v. Jackson, which was concurred in by the court of errors, decides, that by the constitution and statute law of this state, no white person can purchase any title to land, from any one or more Indians, either individually or collectively, without the authority and consent of the legislature; that it was immaterial from what source the property proceeded, and whether it was owned by tribes, families or individuals; that if it be Indian property in land, it is protected by our constitution and laws.

Heither the terms nor spirit of the constitutional provisions, are confined to Indians residing with their tribe. After it has been decided that these provisions extend to the individual property of a single Indian, acquired by purchase, or as the reward of his military services, they must be held to apply, whether the Indian reside within the body of his nation, or separate and apart from them. It is analogous to the disability of infants to contract, in not depending on the actual capacity to protect his own rights. There must be judgment for the plaintiff, with leave to the defendant to withdraw the demurrer, and rejoin on pay ment of costs.

Eule accordingly. 
      
       The following are the provisions of the New York Revised Statutes on this subject:—
      No purchase or contract, for the sale of lands in this state, made since the fourteenth day of October, one.thousand seven hundred and seventy-five, or which may hereafter be made, with the Indians in this state, is valid, unless made under the authority and with the consent of the legislature of this state.
      No Indian, residing within this state, can make any contract for or concerning the sale of any lands within this state, or in any manner give, sell, devise, or otherwise dispose of any such lands, or any interest therein, without the authority and consent of the legislature of this state, except as hereinafter provided.
      Any native Indian may, after the passage of this act, purchase, take, hold and convey lands and real estate, in this state, in the same manner as a citizen : and whenever he shall have become a freeholder, to the value of one hundred dollars, he shall be liable on contracts, and subject to taxation and to the civil jurisdiction of the courts of law and equity of this state, in the same manner and to the same extent as a citizen thereof. New York Rev, Stat p. 126, seca 11, 12,13.
     