
    Daniel Saffarans vs. James L. Terry.
    A judgment in an attachment at law, against an absconding debtor, which recites, “ this day came into court thq plaintiff by attorney, and after evidence of publication, and the defendant not having said anything, &c., but made default, therefore,” &c., is sufficient, though the record does not contain any other proof of publication, except the order of publication, and the recital in the judgment; it would be otherwise if the judgment were of a court of limited jurisdiction ; in such case, the record itself must contain proof of the notice.
    Under the fourth article of the Chickasaw treaty, it is stipulated that the Indians entitled to reservations under the treaty should not be allowed to sell them without certificates of their capacity, made by certain persons named in the treaty, and also that the sale should be approved by the president of the United States ; it was 'held, that a sale under execution upon an attachment at law, against an Indian having a reservation under the treaty, of that reservation, was valid, and passed the title thereto to the purchaser, without compliance with either of the stipulations of the treaty ; and that the purchaser’s title, thus acquired, would be better than that of á vendee, by subsequent deed of the Indian, in which all the treaty stipulations were complied with.
    It seems, that it would not have been in the power of the Indian and government of the United States by treaty stipulation, without the express assent of the state, to vest the Indian with the absolute property in the land, and at the same time say, it shall not be subject to execution for debts lawfully contracted ; that would be trenching too far on state sovereignty.
    Mr. Justice Clayton dissented, and held, that no title passed by the attachment sale ; compliance with the stipulations of the treaty were essential to pass the Indian’s title.
    The validity of a contract which is the foundation of an attachment at law, against an absconding debtor, cannot be inquired into in a controversy between a purchaser of land levied on under the attachment, and a person claiming the land by deed from the defendant in the attachment.
    On appeal from the vice-chancery court at Fulton; Hon. Henry Dickinson, vice-chancellor.
    Daniel Saffarans alleges in his bill, that by virtue of the provisions of the treaty, entered into between the Chickasaw nation of Indians, and the United States of America, concluded on the 24th day of May, 1834, and ratified on the 1st day of July, 1834, a certain Chickasaw Indian, called and known by the name of William. McGilvery, was entitled to one half section of land ; that, in pursuance of the treaty, McGilvery was located upon the east half of section fifteen, township ten, range seven, east, by the proper agent, and which has been confirmed by the secretary of war of the United States.
    That McGilvery, being entitled to this half section of land, and having the right to sell the same, did sell and convey unto the complainant said half section of land, for the consideration of four hundred dollars, then and there paid to him by the complainant; and he exhibits the deed and the certificates, which are in accordance with the provisions of the treaty.
    That James L. Terry pretends to claim title to said half section of land by virtue of a deed of conveyance, dated 20th Oct. 1843, from N. Terry, who claims title under a deed from Geo. W. Coopwood, dated 5th Nov. 1841, who claims title under a deed from the sheriff of Itawamba county, dated 1st April, 1839, copies of which are exhibited.
    That the judgment under which said land was sold is and was void, there being no notice given to Coahoma, the defendant therein, of the pendency of the attachment against him, as required by law; that the sheriff’s deed to Coopwood is also void.
    
      That Coahoma is a fictitious name, a person existing in idea only, and not located upon or entitled to lands under or by virtue of said treaty; that the circuit court of Itawamba county could not entertain jurisdiction of, or pronounce judgment against Coahoma, a person existing in idea merely; that the levy of the attachment, the judgment of condemnation, the sale under said judgment, and the conveyances are void, and communicate no title to the defendant.
    That James L. Terry is asserting title to said half section of land, and has sued, or is threatening to sue, the person in possession under complainant; that the deed of Terry is calculated to throw a cloud upon the title of complainant, and may be used vexatiously against him.
    The bill prays that James L. Terry be made defendant; that his deed be delivered up to be cancelled, and for general relief.
    The answer admits, that William McGilvery, whose native and tribal name was Coahoma, was entitled to the half section of land in controversy, under said treaty; that the same was located to Coahoma, alias McGilvery, who was a Chickasaw Indian, and known as well by one name as the other; made contracts, bought and sold, executed and performed contracts by his tribal name, and in that name made the contract upon which the judgment was obtained, by virtue of which the land was sold, and under which defendant derives title.
    Respondent knows nothing in relation to the purchase of said land from Coahoma, other than as described in complainant’s bill, and requires proof.
    The answer insists, that legal notice was given to Coahoma, otherwise called William McGilvery, of the pendency of the attachment, and every step taken to make the same valid and binding, and exhibits the record of the circuit court of Itawamba county.
    That after the sale by the sheriff to Coopwood, the. said Coahoma recognized said proceedings, and received the proceeds of sale over the amount of the judgment, interest, and costs.
    The answer charges, that defendant has had possession of the land since the date of his deed, and his grantors since the sale by the sheriff; and that defendant is a bona fide purchaser, for a just consideration ; that complainant purchased with a full knowledge of defendant’s outstanding and adverse title. That Coahoma is the-true native name of the Chickasaw Indian called ’ William McGilvery.
    The record in the attachment suit shows the execution of the affidavit and bond; the issuance of the attachment; the levy on the land in controversy; the order of publication in June, 1838, for four weeks in the “ Mississippi Intelligencer,” a newspaper published in the town of Pontotoc; and at the December term, 1838, the following judgment, viz :
    
      “ G. W. Coopwood v. Coahoma. — This day came into court . the plaintiff by attorney, and after evidence of publication, and the defendant not having said any thing in bar or preclusion of the plaintiff’s action, but hath therein altogether wholly made default, but not knowing the damages sustained by reason of - the non-performancé on the part of the defendant, it is ordered by the court, that a writ of inquiry be awarded.” This writ was duly executed, judgment rendered, and the sale took place to Coopwood under the execution as stated in the answer.
    James Bowland, a witness for defendant, proved that about twenty years ago he became acquainted with an Indian of the Chickasaw nation, known by the name of Coahoma among the Indians of the. tribe; he was also known by the name of William McGilvery; he was known as well by one name as the other.
    The vice-chancellor dismissed the bill; and the complainant appealed.
    
      John Goodwin, for appellant,
    Cited Indian Treaties, 117, 203, 261, 513; H. & H. 532; Hollingsworth v. Barbour et al. 4 Peters, 472.
    
      T. Coopwood, for appellee,
    Cited Niles v. Anderson, 5 How. R. 365; Newman v. Harris, 4 lb. 522; Gelston v. Hoyt, 1 Johns. Ch. R. 543; Simpson v. Hart, lb. 91; Brinkerhoff v.- Marvin, 5 lb. 320; Hawley v. Mar-
      
      cius, 7 lb. 174; Southgate v. Montgomery, 1 Paige, 41; Turpin v. Thomas, 2 Hen. & Munf. 139; Kincaid v. Cuningham, 2 Munf. 1; 4 Peters, 470; Shottenkirk v. Wheeler, 3 Johns. Ch. R. 275 ; 4 lb. 85 ; 6 lb. 235 ; Mock v. Cundiff, 6 Porter, Ala. R. 24; Spratt v. Spratt, 4 Peters, 406 - 408. ' .
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

The complainant filed this bill in the vice-chancery court, to quit his title to a half section of land, by removing an alleged cloud or incumbrance held by respondent.

It appears that the land was owned by a Chickasaw Indian, known by the name of William McGilvery, who acquired it under the treaty between the United States and the Chickasaws. He sold to the complainant, with all due ceremonies required by the fourth article of the treaty, on the 16th of August, 1843, and if he then owned the land the complainant’s title is perfect. The incumbrance complained of is a title acquired by virtue of a sheriff’s sale; but it is alleged that the sheriff’s deed is void, because he sold under a void judgment, rendered in an attachment suit. The objections to the judgment are two; first, that it does not appear by the record that publication was made, as required by the attachment law in cases against absconding debtors ; and, .second, that the defendant in the attachment was not the person under whom complainant claims, but a fictitious person. The further ground is also taken that, as the Indians could only convey their lands on the conditions prescribed by the fourth article of the treaty, this land was not subject to sale under process of execution.

The answer sets up a title in the respondent, who derived it from Coopwood, who purchased at sheriff’s sale on the 1st of April, 1839, and avers that it was regularly sold under a judgment, in a suit commenced by attachment by Coopwood against Coahoma, which was the tribal or Indian name of the said William McGilvery, the same person under whom complainant claims. The proceedings in attachment and the sheriff’s deed are made exhibits to- the answer, and a witness was examined who stated that, about twenty years ago, he knew very well a Chickasaw Indian called Coahoma, who was also called William McGilvery, and as well known by one name as by the other.

The attachment was regularly served out, and an order of publication made, which appears upon the record, but the record furnishes no other evidence that the publication was made than that contained in the recital in the judgment, in these words : This day came into court the plaintiff by attorney, and after evidence of publication, and the defendant not having said any thing in bar or preclusion of the plaintiff’s action, but hath therein wholly made default,” &c. In regard to the effect of recitals of jurisdictional facts, a distinction is, to be observed between courts of general jurisdiction and courts of limited jurisdiction. As to the former, every presumption is in favor of the regularity of their proceedings, whilst in regard to the latter, every thing must appear regular on the face of the record. And although the effect of recitals of jurisdictional facts is a question which has given rise to a great diversity of decisions, the better opinion seems to be, that, as regards courts of general jurisdiction, they are to be taken as prima facie evidence. 3 Phil. Evid. 1013-1015; 4 Ib. 416; 8 Yerg. 432. We cannot therefore pronounce the judgment in the attachment suit void, as it is a recital of the judgment that there was evidence of publication. Whether- publication had or had not been made, was a question of fact to be ascertained by evidence; and as the.circuit court is a court of general jurisdiction, it is to be presumed from this recital that it had all the evidence before it to enable it to pronounce judgment. The attachment had been regularly levied on the land in question as the land of Coahoma, who was an absconding debtor, and was bound from that time. It is nowhere shown that the Indian had not been previously located on the land, or that the same was not his property.

By the fourth article of the treaty, it is recited that the Indians desire to have within their own control the means to take care of themselves ; but many of them were incapable of managing their affairs, and therefore it was provided that the reservations should not be permitted to be sold without a certificate of the Indian’s capacity, made by certain persons therein named, and also that the sale should be approved by'the president. Now it is contended, that, as the Indian could not sell without the requisite ceremonies, therefore his land could not be sold under process of execution. This does not by any means follow. It would require a law of the state, or provision in the treaty with the assent of the state, to exempt it from such liability, or a provision law, disabling them from making any debt which should impose responsibility; for if they can create a debt by valid contract, the means' of enforcing it necessarily follow, in the absence of an express exemption. Nor do the evils intended to be guarded against by the treaty follow as a consequence of forced sales, for the law presumes that property so sold brings its value. The validity of the contract, which was the foundation of the attachment, cannot now be called in question.

It is not to be admitted that either of the parties to this treaty, or both together, had the power to create the exemption contended for. Property within a state is subject to its jurisdiction and laws; and although the granting power may limit the grantor to a certain mode of conveyance, it cannot invest him with the absolute property, and at the same time say it shall not be subject to execution. That would be trenching too far on state sovereignty. The assent of the state would be an indispensable requisite to the exercise of such power on the part of the general government, either by law or by treaty stipulation. A married woman cannot convey her property, except by the joint deed of husband and wife; does it thence follow that it is not liable for any debt which she may legally contract 1

If the defendant in the attachment was not the same individual who conveyed to the complainant, or was a fictitious person, then, of course, the respondent has no title. The proof tends to ■establish a contrary conclusion, although it may leave some room for doubt. But such a question can be much better determined at law, and we, therefore, leave the complainant to his legal remedy.

Decree dismissing the bill affirmed. Decree to be without prejudice to complainant’s rights at law.

Mr. Justice Clayton

delivered the following dissenting opinion.

I do not concur in the foregoing opinion. ' We have decided that a Chickasaw Indian could not, under the treatjr, transfer his title, without the certificate of his competency.by the chiefs, and without the approval of the 'president. If his voluntary deed will not pass the title, without these additional requisites, I do not think an execution sale alters the result. In this case the Indian was probably located at the time of the sheriff’s sale, but whether he was competent or incompetent, an orphan or an adult, no where appears. If he were in the class of the incompetent, his land was to be sold by the general government, and the proceeds to go into the general fund of the nation; if he were an orphan, it was likewise to be sold by the government. If he were in the class of competent Indians, his land could only be transferred upon a certificate of such competency, the sale sanctioned by the agent, and approved by the president. This whole protection is withdrawn, if an execution sale intervene, and the title made to pass by the sheriff’s deed, against the express stipulations of the treaty. I therefore think the decree is erroneous.  