
    Murray and others vs. Wooden.
    Previous to the acts of the legislature of this state, passed in 1809 and 1810, in respect to the conveyance of lands by Indians, an Indian owning lands within this state, though by title derived from the government, had no legal capacity to convey, and a conveyance by him, unless ratified in the form prescribed by law, is inoperative and void.
    And though a conveyance of lands by an Indian be subsequent to its date ratified by a certificate of approbation of the surveyor-general in the form prescribed by law, it is still inoperative, if previous to the granting of such certificate, the Indian has conveyed to a third person, and the deed to such third person has been approved in the mode prescribed by law previous to the endorsement of the certificate of approbation upon the deed first executed.
    The certificate of approbation endorsed upon the first deed, does not operate to render the deed valid by relation from the time of its date.
    In an action of ejectment by the grantee of the second deed against the grantee of the first, the fact that the certificate of approbation endorsed upon the second deed, was improvidently or erroneously granted, will not avail to defeat a recovery.
    Nor will a recovery be prevented by showing that the grantee in the second deed or his agent, at the time of the obtaining of the second deed, knew of the existence of the first deed.
    A deed from an Indian executed and ratified in conformity to the laws of this stale, is a valid and operative conveyance, notwithstanding the law of congress that no grant oí lands from any Indian shall be valid unless made by treaty or convention entered into pursuant to the constitution of the United States. a
    
    This was an action of ejectment tried at the Seneca circuit in Mayr, 1834, before the Hon. Daniel Moseley, one of the circuit judges.
    In 1791, letters patent issued to John Sagorahasee, an Oneida Indian, who served as a lieutenant in the revolutionary war, granting to him lots No. 33 and 93, in Junius. On the 28th February, 1810, William, the son and heir of John Sagorahasee, by deed bargained, sold, remised, released and quit-claimed lot No. 93 to John B. Murray and John P. Mumford. On [532] the 5th March, 1810, the surveyor-general of the state endorsed on the deed a certificate approving the sale in these words: “I certify that the within conveyance appears to me in legal form, and to have been fairly obtained, and that the consideration therein expressed, (considering the doubtful nature of the right and interest conveyed by the grantor.) is, in my opinion, competent, and has been fully paid; I do therefore endorse this my approbation of the said conveyance, pursuant to the act entitled ‘ an act conveying bounty lands granted to certain Indians for military service in the revolutionary war,’ passed 2d March, 1810.” The execution of this deed was proved by a subscribing witness, and it was recorded in the county of Seneca on the 20th March, 1810. The plaintiffs offered it in evidence. The counsel for the defendant objected, that as the deed was a mere quit-claim and asno evidence had been offered showing either previous possession or title in the grantees, that it ought not to be received in evidence; they also objected to its introduction on the ground that the certificate of the surveyor-general was not conformable to the requirements of the statute. The objection were overruled and the deed received. It was admitted that John B. Murray was dead, and that the plaintiffs were his heirs at law. The plaintiffs then produced in evidence an exemplification of a record of judgment in partition between John P. Mumford and themselves, by which 102.¡¡ acres of land in the north end of lot No. 93 were allotted and set off to the plaintiffs. It was proved that as early as 1808, Murray and Mumford were in possession of parts of lot No. 93. The defendant was shown to be in possession of the premises in question at the commencement of this suit. Upon this evidence the plaintiffs rested.
    The defendant produced in evidence a deed from William, the son of John Sagorahasee, to Peter Smith, bearing date 7th August, 1797, conveying lots No. 33 and 93 in Junius, which was recorded in the county of Onondaga, on the I Ith August, 1797, and a deed from Peter Smith to the defendant, [533] bearing date 20th December, 1822, conveying 160 acres of land off of the north end of lot No. 93, which was recorded in the county of Seneca on the day of its date. The defendant also produced in evidence a deed from William, the son of John Sagorahasee, to Z. P. Gillet, bearing date 25th May, 1809, conveying lots No. 33 aiid 93, in Junius, with a certificate of the surveyor-general of the state endorsed thereon of the date of 26th April, 1810, that the deed had been fairly obtained, and that in his opinion the consideration was competent and had been fully secured, and that he therefore had endorsed his approbation of the conveyance in compliance with an act passed 1809, for the relief of the heirs of the Oneida Indians. This deed was recorded in the clerk’s office of the county of Seneca, on the 13th April, 1810. Gillet testified that previous to his purchase he informed the surveyor-general of his intention to purchase, who approved of the same and gave him written instructions in respect thereto; that he made the purchase and obtained the deed of 26th May,1809, in conformity to such instructions. In July, 1809, he presented the deed to the surveyor-general in New-York, who promised to endorse his approbation on his return to Albany. Simeon De Witt, the surveyor-general, testified in substance that the words, “ considering the doubtfull nature of the right and interest conveyed by the grantor,” inserted in the certificate endorsed.upon the deed to Murray and Mumford, was probably inserted on account of the previous deed to Gillet; that he understood at the time that Gillet was confined in prison and would not probably be able to fulfill his obligations. It was admitted that the deed to Murray and Mumford was procured from the grantor by an agent employed by them, and that such agent at the time of procuring the deed, knew of the existence of the previous deed to Gillet, and that it had not been approved by the surveyor-general.
    The counsel for the defendant insisted and requested the judge to charge, the jury that the deed to Murray and Mumford, being a mere quit-claim, and the grantees not being in possession of the premises, passed no title; [534] that the grantor having previously parted with his interest in the land to Gillet, the deed to Murray and Mumford was not a legal conveyance within the act of 1810; that the deed having been obtained by the agent of the grantees with full knowledge of the previous conveyance to Gillet, it was fraudulent and void as to Gillet; that the certificate of the surveyor general upon the deed of Murray and Mumford under the circumstances of the case, was a violation of his duty and void; and that inasmuch as the plaintiffs had declared upon a joint demise, and the proof showed that if they had any interest in the premises, their interest was in separate and distinct parts thereof, they were not entitled to recover under the count contained in the declaration. Instead of so charging, the judge instructed the jury that though it was doubtful whether the certificate of the surveyor-general upon the deed to Murray and Mumford was, under the circumstances of the case, a compliance with the actv still, for the purposes of the trial he would decide it to be valid; that the knowledge of the agent of Murray and Mumford of the existence of the deed to Gillet did not vitiate the deed to Murray and Mumford, and that such latter deed, though a quit claim, passed the title, the grantees having the constructive possession of the land; that the deed to Peter Smith was null and void; and that the plaintiffs were entitled to recover under the joint demise laid in the declaration. The jury found for the plaintiffs. The defendant having excepted to the decisions of the judge and to his charge to the jury, moved for a new trial.
    
      D. Cady, for the defendant,
    insisted that when the deed to Gillet was approved by the surveyor-general it became a good and valid deed by relation from the time of its date in analogy to the act 27 Hen. 8, ch. 16, respecting the enrollment of deeds (1 Bacon’s Abridg. tit. Bargain and Sale; Shep. Touch. 233, 226; 2 Vesey, 71; Cro. Jac. 52). The act of 1809 (2 R. L. 185), does not declare that the title to.land owned by an Indian patentee or his heirs shall not pass unless a certificate of approbation shall be endorsed by the surveyor general, but it is enacted that the deed shall be valid, if executed with the approbation of the surveyor-general.' When- [535] ever, therefore, his approbation is obtained, the conveyance becomes valid from the time of the execution of the deed (1 Johns. Cas. 81; Shep. Touch. 57, 59; 4 Kent's Comm. 446). The deed to Murray and Mumford did not convey a valid title. The act of 1810 contemplated legal conveyances only, and the deed to Murray and Mumford having been executed after a previous conveyance to Gillet, was not a legal conveyance, and if not a downright forgery, was grossly fraudulent (1 Johns. Cas. 70; 10 Johns R. 460; 4 Cruise, 518). Notice to the agent of Murray and Mumford of the prior deed was equivalent to a registry of the prior deed; (9 Johns. R. 163; 10 id. 40, 457, 460, 466). The approbation of the surveyor-general, endorsed on Murray and Mumford’s deed, was, under the circumstances of the case, a void act. • The deed to Peter Smith, of 7th August, 1797, was a valid conveyance; but if it must be adjudged void' by force of the act of 1788 (2 (Greenlcaf's ed. of the Laws, 194, ch. 84, 85), then, by the same rule of construction,'the deed to Murray and Mumford is void by the act of Congress of 1802, ch. 273, § 12. The act of 1788 made it penal for any person to make a contract for the purchase of land within this state of any Indian or. Indians residing within the same. This act, in the case of Goodell v. Jackson (20 Johns. R. 693), was held to extend to lands owned by an Indian in his individual right, - under title derived from the state. When the constitution of the United Slates was adopted, the duty of preserving peace with the Indians and of regulating trade and intercourse with them, devolved upon the general government; and the congress of the United States accordingly, from time to time, passed temporary acts, prohibiting the purchase of lands from the Indians within the United States; and on the 30th March, 1802, by act of that date §12, enacted that “no purchase, grant, '.ease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution.” The purchase by Murray and Mumford was in violation of this act, as much so as [536] the purchase by Smith was in violation of the act of the legislature of this state passed in 1788, and consequently the deed to Murray and Mumford was void. The counsel also insisted that the plaintiffs were not entitled to recover under a joint demise.
    S. Stevens, for the plaintiffs.
   By the Court,

Nelson, Ch. J.

Many of the important questions presented in this case arose on the deed of Smith, under whom the present defendant holds, in the case o Goodell v. Jackson, deciued in the court for the correction of errors in 1823 (2, Johns. R. 693). Military lots No. 33 and 93 in the township of Junius, were conveyed, or rather attempted to be conveyed by that deed, by W. Sagorahasee, the son and sole heir of the patentee. In that case, Smith, the lessor, brought the action to recover possession of No. 33, and failed; the present action is brought by the heirs of a subsequent purchaser from the same grantor, for the recovery of a part of lot No..93; under a deed in form, properly proved and allowed by the surveyor-general, under the acts of 1809 and TO; and the defendant deduces his title to the premises from Smith by way of defence. So far then, as respects the legal operation and effect of the deed to Smith from the Indian heir, the case of Goodell v. Jackson is in point, and affords the highest authority for our guide. The case was most elaborately and learnedly examined by Chancellor Kent, and his conclusions were unanimously concurred in by the court. One of the principal questions involved, and which received a full share of his consideration, was, whether Peter Smith was authorized to purchase from William, the heir, in the year 1797; and the conclusion at which he arrived is succinctly stated at the close of the opinion, as follows: “By the constitution and statute law of this state, no white person can purchase any right or title to land, from any one or more Indians, either individually or collectively, without the authority and consent of the legislature; and none such existed when the [537] land in question was purchased by Peter Smith in 1797.” This result was derived from an exposition of the 28th section of the constitution of 1777, and the act of the legislature passed in 1788. The force and authority of this decision is now sought to be impugned by the application of the 3d subdivision of the 8th section of the first article of the constitution of the United States, which provides that congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” and also the several acts subsequently passed by congress upon that subject (Laws of the U.S. v. 2, p. 221, § 4 ;p. 362, § 8;p. 542, §12; 3 vol. p. 288, § 12;p. 463, § 12). The provision in the state constitution of 1777, and in the act of 1788, and in the subsequent acts, had frequently been under the consideration of this court (7 Johns. R. 290, (1810); 9 id. 362. (1812); 14 id. 181, 472, (1817), previous to the discussion here and in the court for the correction of errors of the case of Goodell v. Jackson', and in none of the cases had it occurred to the counsel or the court, that this clause of the constitution of the United States, or that the acts of congress in pursuance thereof, had any bearing upon the question, or could in any way affect the authority of the state laws. The position of the learned counsel now is, that upon the adoption of the constitution of the United States, this state, by the operation of the clause in the constitution above referred to, surrendered to the general government the power to regulate the sale of Indian lands, and that thereby the 28th section of the state constitution became virtually abrogated, and that the act of 1788 and all subsequent acts upon this subject were passed without authority, and were void; and, as a necessary consequence, that neither the plaintiffs or the defendant have shown any lawful or valid title to the lot; both purchases from the Indian under which the respective parties claim title having been made in violation of the laws of congress.

The court and counsel must have considered this provision of the U. S. constitution as not applicable to purchases from individual Indians, at least in respect to the bounty lands granted by the state; and, indeed, [538] there is some difficulty in perceiving how the clause can be construed as applying to the disposition of Indian lands, either individually or by tribes. It would seem to be carrying the power simply “to regulate commerce with the Indian tribes,” to an extent beyond the legitimate and common meaning of the terms themselves, or in the connection in which they are used. It is not important, however, to discuss this question, as it must have been the received understanding of all heretofore, that the provision in the constitution of the U. S. could not be applied to the case of individual sales, or at all events not to sales of the bounty lands granted to individual Indians by the state; and that it should be confined to lands held in common by the tribes.

But it is contended that the deed to Gillet of the date of 26th May, 1809, which was approved by the surveyor-general on the 26th April, 1810, agreeably to the acts of 1809 and 1810 (see Private Laws 1809, p. 62, and the act of 1810, 2 R. L. 172, § 46), shows a title out of the person under whom the plaintiffs claim title, and must therefore defeat the action. The deed to Gillet was the oldest, but the approval by the surveyor-general took place subsequent to the execution of the deed to Murray and Mumford, and subsequent also to the approval of the same by the surveyor-general. Since the act of 1801 (1 vol. W. & S. ed. 464), all the cases agree, that the deed of the Indian conveys no title to the purchaser (see 15 Johns, R. 264, in -addition to cases before referred to); and it seems necessarily to follow, that until the terms upon which the authority to convey (to be found in the acts of 1809 and 1810) are complied with, no title passed. It is however contended, that the approval on the 26th April related bade to the date of the deed, and thereby overreached the deed to Murray and Mumford. The difficulty in the way of that position is, that previous to the act of 1S09, no ability whatever to convey existed; and then the power given was clogged with certain conditions, without the observance of which no power still existed; and it would be absurd to give effect by relation back to a time when neither the grantors nor purchaser had brought themselves within the power conferred. The case is analogous to the deed of a. feme covert which [539] takes effect only from the time of the acknowledgment under the statute, and not by relation to its date (16 Johns. R. 110); and in this respect the case is also distinguishable from the enrolment of a bargain and sale, which, if done within six months, relates back to the delivery and avoids all mesne conveyances and incumbrances; and even on this question a good deal of difficulty and conflict of opinion existed among the judges, before this construction of the 27 Hen. 8, c. 18, became settled (Cro. Jac. 52; Cro. Car. 217; Cro. Jac. 408). Although this distinct point was not under the consideration of the judge, in the examination of the case of Jackson v. Hill (5 Wendell. 532), his individual opinion was in coincidence with the one above expressed. There the deed to G. was given 29th May, 1809, and approved 26th April, 1810, and the question was. whether the approval must be simultaneous with the execution of the conveyance. The court decided that it was not. necessary, and that the deed was good from the time of the approval.

It was proved that the agent of Murray & Mumford knew of the deed to Gillet at the time he made the purchase and obtained the deed from the Indian; and it is therefore contended that the deed to Murray & Mumford was fraudulent and void; the answer to which is, that if our view above be correct, in respect to the inability of the Indian to convey, except according to the terms of the acts of 1809, and 1810, then in judgment of law, no deed to Gillet existed at the time of the execution of the deed to Murray & Mumford.

The form of the approval of the deed to Murray & Mumford was in full compliance with the statutes. Whether the consideration paid was sufficient or not, was left entirely to the discretion of the surveyor general. A simple approval is sufficient (15 Johns. R. 264). Even if that officer erred in supposing that there was some doubt about the title of the grantor, and therefore was too readily satisfied with the amount of the consideration, the error can not affect the validity of his certificate, which is good in point of form. Until vacated by a direct proceeding, it gives effect to the conveyance.

The judgment in partition, by which the interest of John B. Murray deceased, in the lot was set off to the plaintiffs jointly who recovered under the direction of the judge, and who are the heirs at law of .the deceased, is unexceptionable, and sustained the first count (2 Wendell, 443).

New trial denied.  