
    SUPREME COURT.
    Frederica Baker, respondent, agt. George Johns and Charles Netz, appellants.
    
      Ejectment — Lease—Indian reservation— Who entitled to renewal of lease under oat of congress— Evidence,
    
    By the act of congress, approved February 15, 1875, it was provided that the then existing Indian leases should be valid and binding for the term of five years thereafter, unless by the terms thereof they expired before that time. The same act gave the holder of such leases the right to a renewal thereof in case he was the owner of “ improvements erected upon ” the land leased.
    George Jemison, a Seneca Indian, residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years, and on the 16th day of June, 1875, the same Jemison executed and delivered to the defendant Johns a lease of the land in question, and the defendant Netz is his tenant, and in possession. Under the act of congress the defendant Johns made application to the council of the Seneca nation on the 35th December, 1879, for-renewal of his lease which was granted and lease made of that date, and on 20th day of January, 1880, the plaintiff made a like application for renewal of her lease, which was granted by the councilors, and lease made of date of May 8, 1880, which included the land in lease to defendant. In action of ejectment by plaintiff, to recover the land held by defendant:
    
      Held, first, that plaintiff had made improvements on the land covered by her lease, and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal of her lease.
    
      
      Second. That the leases to the plaintiff and defendant Johns were in the strict legal sense invalid prior to the act of congress of 1875, and that they had no legal rights in respect to the leased premises, except that afforded by possession, but that act confirmed and made leases then outstanding valid, and established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that view the plaintiff became the lessee of the entire premises covered by her lease by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the land embraced in it.
    
      Third. That the plaintiff was entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant Johns had in fact no existing lease, and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to" him in such sense that he might be treated as in possession as her lessee, or assignee.
    
      Fourth. That the provision in the act of congress for renewal of leases to persons who own improvements, has reference to those only who at the time the application is made, lawfully claim under a lease, or under some one who has taken a lease which is then valid, and does not include one who has unlawfully as against such leaseholder (entitled to renewal), entered and made improvements upon some portion of the premises.
    
      Fifth. That it is conclusively established hy adjudication that the defendant Johns derived no right to possession of the premises from the plaintiff, and he had no position which enabled or permitted him as against the plaintiff to apply for or take the renewal lease under which he claims, but the right was exclusively in the plaintiff to have a renewal lease covering the entire premises embraced within that first taken by her.
    
      Sixth. That as it was the custom, and had been for years, of the council of the Seneca nation to assemble for the transaction of its business, and the action of the council when so assembled was governed by rules and by-laws, and a formal record of the proceedings was kept in a book by the clerk, a copy of such record certified by him is competent evidence-
    
      Fifth Department, General Term, April, 1885.
    
      Before Haight and Bradley, JJ.
    
    Appeal from a judgment, entered in favor of plaintiff, on verdict of Cattaraugus circuit, and from order denying new . trial.
    
      
      Ansley & Davie, for appellants.
    
      Henderson & Wentworth, for respondent.
   Bradley, J.

The action is ejectment, to recover the possession of land which is part of the Allegany Indian reservation and situated in the village of Salamanca, county of Cattaraugus. .

On the 26th day of Hay, 1871, George Jemison, a Seneca Indian residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years. And on the 16th day of June, 1874, the same Jemison, executed and delivered to the defendant Johns a lease of the land in question, and the defendant Netz is his tenant, and in possession. The plaintiff had a verdict and judgment from which and from order denying new trial this appeal is taken.

By act of congress of February 19, 1875, entitled “an act to authorize the Seneca nation of Hew York Indians to lease lands within the Cattaraugus and Allegany reservations and to confirm existing leases,” it was provided that the president of the United' States appoint three commissioners to survey, locate and establish proper boundaries of the villages of Vandalia, Carrollton, Great Valley, Salamanca, West Salamanca and Bed House, on the Allegany reservation, make maps thereof and designate on the maps defined as near as may be the lands therein then leased, and to deposit the surveys and maps in the clerk’s office of that county for record and preservation. That the then existing leases within those boundaries should be valid and binding for the term of five years thereafter, unless by the terms thereof they expired before that time. And at the end of that time and on the expiration of term of leases before then, the Seneca nation should be entitled to the possession of the lands so leased.

But it was further provided that the leases should at expiration of the term or of that time be renewable for a period not exceeding twelve years, and that the persons who may be at such time the owner or owners of improvements erected on such lands shall be entitled to such renewed leases, and continue in possession on such conditions as may be agreed upon by them and the councilors of the nation. And if they could not agree, the terms to be fixed by 'referees selected in a manner prescribed by the act (18 U. S. Statutes at Large, 330).

The surveys and maps were made, filed and recorded pursuant to that act of congress.-

The defendant made application to the council of the Seneca nation on the 25th day of December, 1879, for renewal -of the lease before mentioned to him which was granted and. lease made of that date. And on 20th day of January, 1880, the plaintiff made a like application for renewal of her lease which was granted by the councilors, at a meeting on the 8th day of May, 1880, and lease of that date made to her, which included the land in the lease to the defendant.

The plaintiff had made improvements on the land covered by her lease and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal -of her lease. The only question is whether she had the right to include within her renewed lease that portion of the land in question.

The defendant Johns claims that he had made and owned improvements on it, and that he was within the act entitling him to renewal of his lease. There is evidence tending to prove that he made improvements on this land in April, 1879 ; that there was a house on it which was built there in 1873, which he'bought of one Nelson in 1874, who had purchased it on a mechanic’s lien sale shortly before ; that the plaintiff was advised of the purchase by Nelson, and of his purpose to sell it to defendant Johns and made no objection but said that it belonged to her brother and she had no claim on it and it appears that her brother with her permission built the house and lived in it for a short time and left it, and that the plaintiff improved and cultivated the land in question until the defendant Johns took possession without her consent in 1879. As between persons competent to contract, the one prior in time of two stipulations, to the same effect would give the superior right. And such rule should be applied here unless the anomalous situation before the act of congress and the effect of its provisions since do not permit the application of such rule. For many years prior to that act the Seneca nation had a system of allotment of lands to respective Indians, for occupation, cultivation and improvement, and in aid of such purpose there was some legislation of this state (Laws of 1845, chap. 150, sec. 6; Laws of 1849, chap. 378) pursuant to which individual occupancy was observed. And it was also common for those occupants or those so entitled to occupy to make leases. But our attention is not called to any law which gave legality to any leases to white persons, prior to the act of congress before referred to, except so far as relates to police regulations and to preserve the peace and to prevent intrusion upon the reservation, the legislative power in respect to the tribe and the lands occupied by them is exclusively in congress. And the -relation of the Indians is that in the nature of ward of the general government. It, therefore, may be assumed that the leases to the plaintiff and defendant Johns were in the strict legal sense invalid prior to the act of congress of 1875. And that they had no legal right in i’espect to the leased premises except that afforded by possession, but that act confirmed and made leases then outstanding valid, and established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that view 'the plaintiff became lessee of the entire premises covered by her lease by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the land embraced in it. Then comes the effect of the act in respect to the right to have renewal. That necessarily related to an existing lease and one under which rights were vested by virtue of it in view of the confirming act, and limited such right to those lessees who were the owners ■of improvements erected on the lands covered by their leases respectively. And except so far as the lessee had relinquished to another the right to renewal of the lease, is not qualified so as to permit the reduction or severance of the premises covered by it.

While the act in terms does not distinguish between conflicting leases nor declare a preference of those of the earlier dates, in such case it must be assumed that the purpose of the statute was that the rights of the lessees and their assigns, such as the law would recognize in respect to priority should be observed and such is the fair and proper construction and effect of the act and the equitable rule to be applied (Ryan agt. Knorr, 19 Hun, 540). If this proposition is correct it follows that the plaintiff was entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant Johns liad in fact no existing lease and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to him in such sense that he might be treated as in possession as her lessee or assignee.

The evidence does not permit the conclusion of any such relation between them. There is nothing appearing in connection with the circumstances of his purchase of the house on her part which can be construed as a surrender of the possession of the premises in question to him. And as between those parties the defendant had no right to the possession. The provision in the act of congress for renewal of leases to persons who own improvements has reference to those only who at the time the application is made, lawfully claim under a lease or under some one who has taken a lease which is then valid, and does not include one who has unlawfully as against such lease holder (entitled to renewal) entered and made improvements upon' some , portion of the premises. It appears that the plaintiff resisted the interference by the defendant Johns with her possession and enjoyment of the premises which he claims, that in June, 1876, she prosecuted him by action for trespass committed on them in the years 1872, 1873 and 1874, in the county court, and a trial was had and she recovered.

And that about the 1st of May, 1879, she commenced an action in this court against him to recover the possession of the same premises, which he defended, and at the trial (May 24, 1880) it appearing that the plaintiff’s title on which the action was based at the time of its commencement had expired on 19th February, 1880, a verdict was rendered for the plaintiff for damages for the wrongful detention from her of the premises by the defendant, upon which judgment was entered against the defendant, with costs, pursuant to the statute in such case (2 R. S., 308, sec. 31; Lang agt. Wilbrahane, 2 Duer, 171; Van Rensselaer agt. Owen, 48 Barb., 61). This recovery is conclusive evidence as to the title of the plaintiff as against the defendant Johns up to the 19th day of February, 1880, and has no greater or other force or effect beyond that action between them as an adjudication (2 R. S. 309, sec. 36; Beebe agt. Elliott, 4 Barb., 457; Briggs agt. Wells, 12 Barb., 567; Cagger agt. Lansing, 64 N. Y., 417 Dawley agt. Brown, 79 N. Y., 390). And this conclusive effect is wholly given by the statute (Bates agt. Stearns, 23 Wend., 482).

Thus is conclusively established by adjudication that the defendant Johns derived no right to the possession of the-premises from the plaintiff. And if we are right in the views above given he had no position which enabled or permitted him as against the plaintiff to apply for or take the renewal lease under which he claims, but the right was exclusively in the plaintiff to have a renewed lease covering the entire premises embraced within that first taken by her.

The contention of the defendant’s counsel that the evidence presented a question of fact in respect to the action of the council on the plaintiff’s application for the renewal of he#lease and therefore the direction of the verdict was error, is not, we think, supported. It was the custom, and had been for many years, of the council of the Seneca nation to assemble for the transaction of its business.

The action of the councilors when so assembled was governed by rules and by-laws, and a formal record of the proceedings was kept in a book by the clerk.. And a copy of them certified by him are competent evidence (Laws of 1847, chap. 365, sec. 7).

It is not necessary to hold that the original record or a copy certified by the clerk is conclusive evidence that they were correctly entered in the book.

They would not be such in a direct, proceeding within a proper time to attack directly action based upon them. But in a collateral action or proceeding to which the nation is not a party and which involves inquiry into the validity of the execution of a contract made pursuant to the record of the proceedings as entered to which the nation is a party, and executed by the council by its president according to its established rules and custom, it is very questionable whether their proceedings as they appear on the record, and the execution of such contract in fact so made can be attacked in that manner. But here the plaintiff was entitled to the renewal which she received. The only question open to the council of the Seneca nation was that of terms. The nation do not complain of them and the defendant cannot. And the terms are in all respects those appearing in the record of the proceedings of the council.

If the propositions we have adopted as applicable to this case are correct it follows that no error was committed by the trial court, and that the judgment and order should be affirmed.

Haight, J., concurred; Babkeb, J., not sitting.  