
    Hannah A. Wray, Executrix of John F. Wray, deceased, vs. John Doe ex dem. Ho-ya-pa-nubby.
    By statute of this State, (How. & Hutch. 605,) copies of records appertaining to land offices, duly authenticated, are made evidence; in an action of ejectment, therefore, by an Indian claiming under the sixth article of the Chickasaw treaty, the certificate of the register of the land office of the district, showing the date of the location of the Indian on the land in dispute, is competent evidence.
    In an action of ejectment by an Indian claiming under the sixth section of the Chickasaw treaty, which provides that “ reservations of a section each shall be granted to persons male and female, not being heads of families, who are of the age of twenty-one years and upwards, a list of whom, within a reasonable time, shall be made out by the seven persons hereinbefore mentioned, and filed with the agent, upon whose certificate of its believed accuracy, the register and receiver shall cause said reservations to be located upon lands fit for cultivation, but not to interfere with the settlement rights of others,” — the Indian having shown the reservation and the location on the land in controversy, it was held not to be necessary for him to show that a list including himself was furnished by the seven chiefs and filed with the agent; nor to produce the agent’s certificate of its believed accuracy furnished to the register and receiver prior to the location ; the location in itself was evidence that all the prerequisites were complied with.
    The presumption of the correctness of ofiicial action is a' general one, and applies to most acts of an ofiicial or a ministerial character.
    Under the sixth section of the Chickasaw treaty, the term “ reservation ” is equivalent to an absolute grant; and it needs only the location of the land to give the reservation identity, to make the title in the reservee absolute and complete; and where, after such location, the general government issues a patent to the same land to a third party, the patent will be wholly void, even at law.
    In an action of ejectment by an Indian claiming under the sixth section of the Chickasaw treaty, it is not competent for the defendant to show what certificate was appended to the roll of the reservees returned by the chiefs and agent to the register’s office, when it appeared that the name of the Indian plaintiff was in that list; the Indians had done all in their power to secure their reservations by having their names put upon the roll; if the agent afterwards neglected his duty, by failing to annex a proper certificate to the roll, the Indian is not to be prejudiced thereby.
    The instructions from the war department as to the construction of the Chickasaw treaty, have no binding force; that department could add nothing to the terms of the treaty without the consent of the other; and as the sixth section contained the positive stipulation that the reservations should be located by the register and receiver, the instruction from the war department, “ that no location under any of the articles of the treaty should be considered as final, or as conferring any right whatever until the same should be approved by the president,” is not obligatory.
    Under the eleventh article of the Chickasaw treaty, the residue of the Chickasaw country, after the reservations were taken and located, was the only portion which could be sold, as public lands of the United States.
    
      In error from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge.
    John Doe, on the demise of Ho-ya-pa-nubby, on the 9th of September, 1845, brought an action of ejectment against John F. Wray, for section sixteen, township nine, range five east, in Pontotoc county. At- the March term, 1847, the jury found a verdict for the plaintiff; a new trial was moved for and refused ; and exceptions sealed.
    From these it appears that after the jury were impanelled, the plaintiff read the following certificate to them, viz.:
    
      “ copy ”
    “ Reservations under the sixth article of the Chickasaw treaty.
    
    
      
    
    5 u R&gister's Office,
    ¿ “ Pontotoc, Miss.
    “I, Andrew J. Edmondson, register of the land office of the United States at Pontotoc, Mississippi, do hereby certify that the above is a true copy from the list of persons furnished by Benjamin Reynolds, Chickasaw agent, on the second day of November, 1838, to the register and receiver of Indians entitled to land under the sixth article of the treaty between the United States and the Chickasaw Indians, and of the location of Ho-ya-pa-nubby and all of said list that relates to said Indian, Ho-ya-pa-nubby, as the same remains of record in my office. Given under my hand this 18th day of March, 1846.
    AndRew J. Edmondson,
    
      Register of said office."
    
    This was objected to, but the objection overruled.
    The defendant then admitted his possession of the premises in controversy, and the plaintiff closed his case.
    The defendant then read to the jury patents in his favor, dated October 9th, 1845, issued by the general government to the land in controversy, signed by James K. Polk; and also the certificates of entry of the land.
    
      He then introduced Edmondson, the register of the land office at Pontotoc, and proved by him the advertisement of the public lands for sale in Pontotoc county, in the newspaper, by the government. The defendant then asked the witness “if there was any, and, if any, what certificate, appended to the roll of the reservees returned by the chiefs and agent to the register’s office?” The witness, on the objection of the plaintiff, was not allowed to answer the question.
    The testimony here closed; and on motion of the plaintiff the court instructed the jury: 1. That the sixth article of the treaty made between the Chickasaw Indians and the United States May 24, 1834, passes to such Indians as are described in said article a title in fee to one section of land, and that the title to such land passed as effectually by said article as if a grant had been executed.
    2. That the Indians’ title is conferred by the treaty, and that a location is only necessary to give identity to the land, and when the location is made as contemplated by the 6th article of the treaty, the title is consummated and becomes perfect.
    3. No patent or further grant than is contained in said article, is necessary to confer a complete title on the Indian.
    4. The location of a Chickasaw Indian, twenty-one years of age or upwards, not being the head of a family, on a section of land, conferred on such Indian a coznplete and perfect title to said land.
    5. Under the treaty, the chiefs of the Chickasaw nation have the sole and exclusive right to determine what Indians are entitled to land, under the 6th article of such treaty.
    6. The enrolling or placing the name of the plaintiff on the list of persons entitled to land under the 6th article of the treaty, by the chiefs, and his location by the register and receiver, on a section of land, is conclusive evidence of his being entitled to land under said article, and also of his title to such section of land.
    
      7. The location of a reservee under the Chickasaw treaty on a section of land vests in such reservee a title to said land, which cannot be divested by any act of the government of the United States, or of any of its officers.
    
      8. That a sale of a section of land previously designated as the location of an Indian reservee, under the Chickasaw treaty, by order of the president of the United States, or any officer of the government, would be unlawful and void.
    9. If the plaintiff was located as a reservee, under the 6th article of the treaty, on the land in controversy in this suit, a subsequent sale by the government of the United States was unlawful, and the patents issued as evidence of such sale are void, and no evidence of title.
    10. If the jury believe, from the testimony, that the plaintiff has established in himself a title to said land in controversy, under the 6th article of the Chickasaw treaty, then the government of the United States had no title to said land, and could convey none to the defendant, by patent or otherwise.
    The defendant asked the court to instruct the jury, 1. That the plaintiff must recover on the strength of a perfect title, and not on the weakness of the defendant’s. This was given.
    
      .2, That the plaintiff claiming under the treaty, and relying on that for his title, must show affirmatively that he has complied with its provisions to entitle himself to their benefit, and that nothing is to be presumed against the possession of the defendant. This was refused.
    3. That the plaintiff must show affirmatively that the commissioners mentioned in the treaty made a list of the plaintiff’s name to the agent, and that he certified its accuracy to the register and receiver, and that they located the plaintiff on the lands in controversy, or that those officers, after the plaintiff had done all he was required to do,, refused or neglected to discharge their duty. Refused.
    4. That the certificate of the register, read by the plaintiff■ to the jury, unexplained by the proof, showing and explaining the manner of the figures and abbreviations in said certificate, is not evidence of the location on the lands in controversy. Refused.
    5. A patent is the highest evidence of title; it is evidence that all 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; and a mistake cannot be set up in this court. Refused.
    
      6. The court and jury are bound to know, judicially, that the president issues his proclamation to sell public land, and that under the treaty, after the public sale is over, the lands thus offered for public sale, are subject thereafter to private sale. This was given.
    John F. Wray prosecuted this writ of error; but died before the cause was submitted in this court. The suit was revived in the name of Hannah A. Wray, his executrix and devisee.
    
      T. J. Word, for appellants,
    contended,
    1. That the 4th article of the treaty, declaring the Indians capable of managing their own affairs, and the treaty containing no provision like the Choctaw treaty, that its terms were to be construed most beneficially for the Indian in all questions of doubt, it was incumbent on the appellee to bring himself fully within all the provisions of the treaty.
    2. He should show, 1st. That he was enrolled in a reasonable time by the chiefs, and his name furnished by them to the agent. 2d. That the agent should certify to the register and receiver that he believed the list thus furnished him by the chiefs was accurate. 3d. That the register and receiver should have located him upon the particular lands claimed.
    3. There is no sufficient evidence of location; it is not shown who located the Indian, nor by what authority; it was not donq after the register and receiver had received a certified list of Indians from the agent, for that was not received until November 2, 1838 ; and the alleged location took place in July, 1838; the name of this Indian found its way to the books of the register and receiver, through the 12th article of the treaty. 7 U. S. Stat. at Large, 454. The chiefs refusing to place his name on the list, he applied in person to the register and receiver, who sent his name up to the department for further direction, with the land marked opposite his name; it was thus reserved from sale to await the action of the chiefs and the agent, and the approbation of the proper authorities at Washington.
    4. It being the duty of the president to order these lands to be sold, as other lands of the United States, all the laws directing the mode of sale and conferring power on the president to prescribe rules and regulations therefor, apply to these lands; hence the instructions to the register and receivers, in relation to these locations, subject to the approval of the president. 7 U. S. Stat. at Large, 470. This location not being approved, the land was advertised for sale, as shown by the proclamation. Pub. Land Laws, Part II. p. 214, No. 150.
    5. The instructions given- by the court were erroneous; they assume that it was proven that a location was made out; all the instructions assume facts to be proven, and are not believed to be justified by the proof.
    6. A decision for the lessor of the plaintiff draws funds from the general Chickasaw fund, and appropriates land to a particular individual, who is also interested in that general fund; the Indian’s application was made in June, 1838 ; he went west with his tribe; the government of the United States (his agent in the matter) sells his land to a citizen of this state, and passes his money to the general Chickasaw fund, and has confirmed the sale by the issuance of patents; thus showing the government’s view that it was common, and not individual property. See 9 S. & M. 130.
    
      Miller and Edmondson, for defendant in error.
    1. By the language of the 6th article of the treaty a title in fee passed to those who are embraced in its provisions. Niles v. Anderson, 5 How. (Mi.) R. 365; Newman v. Plummer, 4 lb. 522.
    2. The certificate was properly admitted in evidence, and the presumption is, that the chiefs and the agents complied with the requisitions of the treaty. Newman v. Plummer, 4 How. (Mi.) 522.
    3. The treaty gave the title; the location identified and completed it. 5 How. (Mi.) R. 525; Coleman v. Tish-ho-ma, 4 S. & M. 40. A patent was not necessary. Strother v. Lucas, 12 Peters, 412, 437, 448.
    4. The patent to the defendant below was null and void; the title to the land previous to its issuance being in the plaintiff below. Stoddard v. Chambers, 2 How. S. G. R. 285; Wilcox v. Jackson, 13 Pet. 498 ; New Orleans v. United States, 10 Pet. 663; Stark v. Marther, Walk. R. 181; Hit-tuk-ho-miv. Watts, 7 S. & M. 363; 2 How. S. C. 317; Grignoris Lessee v. Astor, lb. 344. • i
    5. The copy of the certificate was competent testimony. How. & Hutch. 605, § 24; Harris v. Newman, 3 S. & M. 565.
    6. The instructions asked and given are sustained by the following authorities: Niles v. Anderson, 5 How. (Mi.) 365; 4 lb. 522; 4 S. & M. 40; Wilcox v. Jackson, 13 Pet. 499; Comegys v. Yasse, 1 Pet. 212; Stoddard v. Chambers, 2 How. U. S. R. 285; New Orleans v. United States, 10 Pet. 663; Hit-tuk-ho-mi v. Watts, 7 S. & M. 363.
    7. The abbreviations in the certificate are common, well understood, and needed no explanation. Puckett v. Planters Bank, 5 S. & M. 470.
    In further reply to the argument of Mr. Word, counsel for the defendant in error made these points: •
    1. The treaty requires the list of reservees to be filed with the register and receiver, and it thereby becomes a part of the records of their office.
    2. The treaty does not prescribe any particular form or mode of keeping the records of the land-office, and any informality in the mode adopted cannot prejudice the rights of the plaintiff in error. The form adopted appears to be as convenient and appropriate as any other. Bagnell et al. v. Broderick, 13 Peters, 449.
    3. The register certifies that the copy contains all that relates to the enrolment and location of the defendant in error. It is not pretended that the records of the land-office contain anything more in relation to this Indian; if they did the plaintiff in error might have procured a copy. It is only necessary for the defendant in error to prove that he was located. The presumption is that he was properly enrolled; otherwise the register and receiver would not have located him.
    4. There was no error in the court sustaining objection to question by defendant below, asking the register if any certificate was appended to the list furnished by the agent. The list, or a copy of it, ought to have been produced, which would have spoken for itself. It was clearly incompetent to prove by parol whether a certificate was appended or not. Even if it had appeared that the agent had failed to annex his certificate to the list returned, as required by the treaty, ■— his neglect could not prejudice the right of the defendant in error. Coleman v. Tish-ho-ma, 4 S. & M. 40.
    5. The treaty does not require that the location of an Indian, by the register and receiver, should be approved of by the president, or any other power acting under him, or in any other capacity. This will be seen by a reference to the articles of convention between the government of the United States and the Chickasaw Indians. 7 U. S. Stat. at Large, 450.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment in the circuit court of Pon-totoc county, in behalf of. the Indian, for a section of land, claimed as a reservation under the 6th article of the Chickasaw treaty. The same land has been purchased of the government, at a sale of the public lands, by Wray, and a patent obtained therefor. The whole question is, whether the Indian reservee has preference over the subsequent patentee.

The portion of the treaty which gives rise to the claim of the Indian, is in these words: “Reservations, of a section each, shall be granted to persons, male and female, not being heads of families, who are of the age of twenty-one years, and upwards, a list of whom, within a reasonable time, shall be made out by the seven persons hereinbefore mentioned, and filed with the agent, upon whose certificate of its believed accuracy, the register and receiver shall cause such reservations to be located upon lands fit for cultivation, but not to interfere with the settlement rights of others.” 7 U. S. Statutes at Large, 450.

The reservation was secured before the date of the patent, and has preference over it, if the location was properly made. On this point the only evidence is the certificate of the register of the land-office at Pontotoc, showing that this Indian was located upon the land in dispute, in June, 1838. This certificate was objected to, and the objection overruled; in which we perceive no error. By statute of this state, copies of the records appertaining to land-offices, duly authenticated by the proper officer, are made evidence. How. & Hutch. 605. The evidence establishes a location prior to the grant issued to the defendant, in the court below. But it is insisted, that it is not shown that the requisite preliminary steps were taken to authorize the location, as it is not shown that a list, including this Indian, was furnished by the seven chiefs, and filed with the agent, and his certificate of its believed accuracy furnished to the register and receiver, prior to the location.

This evidence was not necessary. The location is in itself evidence, that all the prerequisites were complied with. A violation of duty on the part of the officers who made the location, cannot be presumed. A grant raises a presumption that all prerequisites have been complied with. Polk's Lessee v. Wendell, 5 Wheat. 293; Bagnell v. Broderick, 13 Peters, 449; Newman v. Harris and Plummer, 4 How. (Mi.) R. 522. The principle is a general one, and applies to most acts of an official or a ministerial character.

In regard to the title of the Indian under this clause of the treaty, this court has already said, “ a title in fee passed, by this language, to the reservee. The term ‘ reservation ’ was equivalent to an absolute grant. The title passed as effectually as if a grant had been executed. The title was conferred by the treaty; it was not however perfect, until the location was made; location was necessary to give it identity. The location, it seems, was duly made, and thus the title to the land in controversy was consummated, by giving identity to that which was before unlocated.” Niles v. Anderson, 5 How. (Mi.) 383. A similar construction has been been placed upon the Choctaw treaty. 4 How. (Mi.) 555; Doe v. Coleman, 4 S. & M. 46.

In this case the location was made in June, 1838. The treaty gave the title, the location fixed the sp.ot, and gave identity to it. The right thus became complete at that day.

The advertisement of the sales at which Wray purchased, excluded from sale “ the lands selected as reservations under the provisions of the treaty.” The subsequent patent issued to him for the same land was void, and might be so regarded even at law. When the reservation was selected, the land was reserved from sale, and a patent for it was wholly void. See 7 S. & M. 366 ; 2 How. S. C. R. 317, 344. It interposed no obstacle to the recovery of the plaintiff below.

In the progress of the trial, the defendant below propounded a question to the witness Edmundson, which was excluded by the court, and which forms one ground of exception. The interrogatory was, “ whether any, and, if any, what certificate was appended to the roll of the reservees returned by the chiefs and agent to the register’s office.” The exclusion of this testimony was correct. The Indians had done all in their power, to secure their reservations, by having their names put upon the roll. If the agent afterwards neglected his duty, by failing to annex a proper certificate to the roll, before he returned it to the register’s office, the Indian is not to be prejudiced thereby. Coleman v. Doe, 4 S. & M. 46. The certificate of the register showed, that the Indian was included in the list furnished by the chiefs and the agent to the register.

The instructions from the war department, as to the construction of the treaty have no binding force. One party to the treaty could add nothing to its terms, without the consent of the other. The treaty had a positive stipulation that the reservations under the 6th section should be located by the register and receiver. The instruction referred to in argument, provides that no location under any of the articles of the treaty, shall be considered as final, or as conferring any right whatever, until the same shall be approved by the president.” 2 Public Land Laws, Instructions, &c. 215. The rules of the department as to the mode of carrying the treaty into execution, and for the guidance of the officers of the government, not trenching upon the rights of the parties, would be considered obligatory. But the department could impose no new condition upon the reservees. The only class of cases in regard to the location of which, any discretion was granted to the secretary of war, was the reservation of orphan claims, in the 8th article.

The residue of the Chickasaw country, after the reservations are taken and located, was the only portion which under the treaty could be sold, as public lands of the United States. Art. XI.

It is unnecessary to pass in review the several instructions given and refused, by the court below. They were evidently prepared with much skill and care, and were well calculated to call forth a decision upon the merits of the controversy. We have examined them carefully, and are of opinion that each was correctly decided.

No error is perceived in any of the proceedings, and the judgment is affirmed.  