
    Jackson, ex dem. Gillet and others, against Brown.
    A conveyance Indian, in 1791I tothfatio'fthe 1801 “(seethe act relative to passed 10th of Jprii,^s,v.i. •¿N.R.L. isa) which he was dividual capa«net fmm his heh-6’ oT ml Indian to whom it was granted by the state, for his services during ary war, isya]jacksmi v.‘ SJotms.’ Rep. although special'autho* icgisiatu™ 1116 and without dón of thelul '
    vc"o1--rcnerai" In t¡ndian.edpaf heirs “in °ursuS anee of the 55th section of the act,(sees.36. c. irá.) to'a deed !nopera°yd,and elide him imm aftei wards giving his assent ib a valid and operative deed from the same grantor, for the same land.
    Ihe endorsement of his approbation, on the deed, needs not state his reasons for giving it J approve of the within deed,” is sufficient
    THIS was an action of ejectment brought to recover part. of lot No. 16, in the town of Junius, in the comity of Seneca. Issue was joined in February, 1816 ; and the defendant, aficrwar<ls, in August term, 1816, pleaded puis darrein continuance, that the plaintiff ought not further to have and mainacti°n on the demise of David Tcwahangarahkan, one of the lessors, because David had, on the 25th of July, 1816, by his indenture duly approved by the surveyor-generai, granted, bargained, sold, and released the premises in question, and all action and actions in relation thereto, to the defendant and his heirs. The cause was tried before -^iv. J* Spencer, at the Seneca circuit, in June, 1817.
    Letters patent for lots No. 4 and 16, in the town of Junius, 1 7 7 were, on the 29th of January, 1791, issued to Honyost Tewa- ’ . ’V hangarahkan, an Oneida Indian, and a lieutenant in the line of this state, who was killed in 1779, for his services in the revolutionary war. Honyost left two sons, Honyost, and the Jessor, David, who is an Oneida indian, residing with the Oneida tribe. On the 31st oí December, 1791, Elizabeth an<* Honyost, the widow, and one of the sons and heirs of Honyost, the patentee, by deed, without authority from the legislature, or the approbation of the surveyor-general, conveyed the two lots No. 4 and 16, in consideration of ten pounds, to Cornelius A. Van Slyck, who, in December, 1792, conveyed to J. Atkinson, who, afterwards, conveyed the same to James Fisk. Fisk, in March, 1808, conveyed the Prem'ses iu question to Cass, who, on the 9 th of July, 1811, conveyed the same to the defendant. On the 1st of August, J __ 1792, one Honyost Tewahangarahkan, a Cayuga Indian, who was admitted to have no interest, conveyed the two lots to P- Campbell, who, in October, 1797, conveyed the same to H. Matthews. The defendant, and those under whom he claims' had been in possession of the premises, claiming title, ¿¡nee the year 1 303. By indenture, dated May 26th, 1809llonyost and David, the sons and heirs of the patentee, in consideration of 2,000 dollars, granted the two lots, Nos. 4 and 16, to the lessor, Gillet, in fee. On this deed was endorsed the certificate of the surveyor general, that it appeared to him that it had been fairly obtained ; that the consideration was competent, and had been sufficiently secured, in consequence of which he endorsed his approbation. By indenture, dated the 25th of July, 1816, the lessor, David, re* citing that he claimed an undivided moiety in lot No. 16. in consideration of 80 dollars, released to the defendant, and several other persons, being in possession, and their heirs, all his interest therein, and also released all actions and demands in relation to the same. This was the release mentioned in the defendant’s plea, puis darrein continuance. The surveyor general’s approbation was endorsed in these words. “ Surveyor generaPs office, Albany, July 27th, 1816. I approve of the within deed. Simeon De Witt, surveyor gene-raid’ To show that the consideration mentioned in the release was incompetent, it was proved, on the part of the plaintiff, that the lot, at the time of the execution of it, was worth 12,000 dollars.
    A verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, on a case" containing the facts above stated.
    The case was argued by Sill and Brown for the plaintiff, and Cady, for the defendant.
   Spencer, J.

delivered the opinion of the court. The lessors of the plaintiff claim a right to recover one half of the lands in the defendant’s possession, either under the deed from David, the Indian, as one of the two heirs of his father, to Gillet, of the 25th of May, 1809, or else upon the demise of David.

Since the case of Jackson v. Sharp, (14 Johns. Rep. 472.) there can be no doubt that the deed of the 31st of December, 1791, from the widow and one of the sons of the patentee, is a valid deed; b'ut if it were not, the defendant, or those under whom he claims, entered on the premises in 1803, under claim and colour of title; and, consequently, the conveyance to Gillet, in 1809, was void and inoperative.

The right to recover on the demise of David will depend on the right of the surveyor general to give his assent and approbation on the release of the 25th of July, 1816, to the defendant and several others.

The objections to this deed are, 1st. That the surveyor general, having given his approbation to the deed from David to Gillet, his power was exhausted, and he could not give his approbation to any other deed from the same Indian for the same land, and, 2d. That the approbation is informal and defective.

By the 55 th section of the act relative to the different tribes and nations of Indians within this state, passed 10th of April, 1813,(2 N. R. L. 158.) the heirs of the Indians to whom land was granted for military services in the revolutionary war were rendered capable of taking and holding by descent, and every conveyance thereafter to be executed by the patentee, or his heirs, to any citizen of the state, for any such land, was declared to be valid, if executed with the approbation of the surveyor general, to be expressed by an endorsement on such conveyance, and signed by him.

By an act of the 2d of March, 1810, the surveyor general was authorized to ascertain whether legal conveyances made by an Indian patentee of lands’ granted for military services in .the revolutionary war, or their heirs, had been obtained fairly, for a competent consideration paid, or property secured, to be paid to the grantors, before he endorsed his approbation, in pursuance of the act for the relief of the heirs of the Oneida Indians.

If the deed to Gillet was void for maintenance, in consequence of an adverse possession, it would seem to me that the approbation of the surveyor géneral would follow the fate of the principal or subject matter, and that it would be avoid execution of the power entrusted to him. His assent being given to a deed that could have no effect or operation in law, was not an execution of the power vested in him, and could not preclude his approvingof a valid deed. Indeed, the act of 1810 which confers the authority on the surveyor general of approbating deeds given by Indian patentees, or their heirs, restricts the approbation to legal deeds; the deed, then, to Gillet not being legal, the approbation on that ground was void, and being void, it is a nullity.

The second point is untenable. The act of the 13th of April, 1813, requires only the approbation of the surveyor general to be expressed by an endorsement on the conveyance ; he is not required to set forth the reason^ or inducements to such approbation, and the one given in this case is a compliance with the act.

Judgment for the defendant..  