
    Doe ex dem. Hit-tuk-ho-mi et al. vs. Jared Watts et al.
    
      Coleman v. Tish-ho-mah, 4 S. & M. 40; and Newman v. Harris, 4 How. 560, cited and confirmed.
    A patent may be impeached for illegality or fraud, and declared void in a court of law, as well as in a court of chancery.
    A patent which issues from the general government to land, which has been previously appropriated by the government and reserved from entry, is void.
    An Indian, claiming under the I4th article of the treaty of Dancing Rabbit Creek, who has brought himself within the provisions of that article of the treaty, is clothed with a perfectly legal title, which will prevail against a patent subsequently issued by the general government to the reservation of such Indian.
    In error from the circuit court of Jasper county; Hon-.. Stephen Adams, judge.
    John Doe, on the demise of Hit-tuk-ho-mi, and of John Johnston, jr. sued Jared Watts, Isaac Garey and Alfred Brown, in ejectment. On the trial, Allan Yates, on behalf of the plaintiff,, testified that Col. William Ward was the agent of the government of the United States, charged with the execution of the-treaty of Dancing Rabbit Creek; that he was present in June or July, 1831, at Ward’s agency, to have the claims of his children to land allowed; when Ward informed the Indians' there, that all who wished to stay and become citizens had the right to do so, and that he was there ready to register their applications ; and had a book or register open for that purpose ; when a number had their names registered. Capt. Red-post-oak was at the agency at the time, and approached Col. Ward, holding a large bundle of sticks in his hand, about six or eight inches long, and informed the agent, that he had come to register for himself and people, to stay and become citizens under the treaty, and that the sticks represented the heads of the families and the number and ages of their children; but Col. Ward refused to receive them, on the ground that they were too many; at which Capt. Red-post-oak turned angrily off. That subsequently the witness was at the agency, and found the register of Indian names mutilated, and in part destroyed; the registry of his own children and others that he had registered being among those torn out; that Col. Ward told him that one Daniel Folsum, had during his absence entered the agency, and torn out the names of a great many Indians, in order to force them to emigrate west, in order to his own election as a chief among them.
    Chish-a-ho-mah, alias Capt. Red-post-oak, testified that at the date of the treaty of Dancing Rabbit Creek, Hit-tuk-ho-mi was a Choctaw, head of a family, and had an improvement on the land on which he resided at the time, and continued to live on it for about eight years, until he was dispossessed by a white man; that within six months from the ratification of the treaty, Hit-tuk-ho-mi employed him as his agent to notify Col. Ward that he wished to remain and become a citizen of the state, and receive his benefit of the 14th article of the treaty; that he did so notify Ward; the witness was the agent for all his tribe, and Ward requested witness to give him their names ; they were so numerous, Ward refused to register them all, and told witness it should all be right; he is positive he gave Col. Ward the name of Hit-tuk-ho-mi, with the request that it should be registered, as he was his near neighbor and a man of standing and influence. On a second visit, Ward positively refused to register the names of those he was agent for.
    The residence and application of Hit-tuk-ho-mi, and his continuance on the land in controversy, until dispossessed about four years prior to the suit by a white man, were proved by several other witnesses; the evidence of the defendant, upon the land in controversy was also proved. The plaintiff then read a deed from Hit-tuk-ho-mi and wife to John Johnston, sen. to the land, and closed their case.
    The defendants introduced evidence to impeach the character for veracity of Capt. Red-post-oak, and introduced also the patents from the general government, dated in 1842, predicated on certificates of entry, in 1833, of the land in controversy, which was all the evidence before the jury.
    The plaintiff asked the court to instruct the jury, that if they believed from the evidence, that Hit-tuk-ho-mi was a Choctaw Indian, the head of a family at the date of the treaty, and wilhin six months thereafter, notified the United States agent, by agent or otherwise, of his intention to become a citizen, and resided on the land for five years, next ensuing, his title was complete. This instruction as asked, the court refused to give; but gave other instructions asked for by the plaintiff, which it is not deemed necessary to notice.
    Nine charges were asked and given by the court for the defendant; of which it will be requisite to note only the following, viz.:
    1. That a patent is the highest evidence of title; it is evidence that all the prerequisites have been complied with and cannot be questioned either in a court of law or equity, unless it be on the ground of fraud or mistake.
    2. That before any title can be gained by a second pa-tentee, the first patent must be impeached and set aside, which can only be done in a court of equity.
    3. That priority of date of patent is the best evidence of title, although the opposite party made the first entry.
    The jury found for the defendants ; and the plaintiff below prosecutes this writ of error.
   Mr. Justice Clayton

delivered the opinion of the court.

This case arose under the 14th article of the Dancing Rabbit treaty, and bears a strong resemblance to cases heretofore decided by this court. Coleman v. Doe, ex dem. Tish-ho-mah, 4 S. & M. 40; Newman v. Harris & Plummer, 4 How. 560. A verdict and judgment were rendered for the defendants, and the case brought by writ of error to this court. Several charges were given by the court to the jury, at the instance of the defendants; these form the basis of the errors assigned in this court. Only part of these charges need be noticed.

The first is, that a patent is the highest evidence of title; it is evidence that all the prerequisites have been complied with, and cannot be questioned, either in a court of law or equity, unless it be on the ground of fraud or mistake.

2. That before any title can be gained by a second patentee, the first patent must be impeached or set aside, and this can only be done in a court of equity.

3. That priority of date of patent is the best evidence of title, although the opposite party made the first entry.

These instructions are opposed to the'principles laid down in the cases above referred to, as well as to cases in the supreme court of the United States.

In Stoddard v. Chambers, 2 How. S. C. Rep. 317, the court say, “On these facts the important question arises, whether the defendant’s title is not void. This question is as well examinable at law as in chancery.The patent of the defendant having been for land reserved from such appropriation, is void.” Again, in Grignon’s Lessee v. Astor, Ib. 344, the court say, “ the title became a legal one by its confirmation by act of congress, which was equivalent to a patent. It was a higher evidence of title, as it was a direct grant of the fee, which had been in the United States, by the government itself, whereas the patent was only the act of the ministerial officers.” These cases clearly show that these charges were erroneous ; and show the correctness of the principles heretofore asserted in this court.

Most of the other instructions relate to the registration of the Indian, and his residence upon the land. The law upon these points has been settled in this court by the foregoing cases, and we need not repeat what is there said. The charges do not conform to those decisions.

For these errors, the judgment must be reversed, and a new trial granted. It is unnecessary to remark upon the other points in the cause.

Judgment reversed, and new trial awarded.  