
    Nashville.
    August Term, 1813.
    DREW v. CLARKE.
    v > Chancery.
    A court of equity will give relief, after a judgment at law, where the legal remedy is not plain, and where the defendant answers, and the cause is heard upon its merits, and it clearly appears that the complainant is entitled to relief somewhere. [Aec. Appleton v. Harwell, Cooke, 242, and oases cited.]
    If a man is clearly under a mistake in point of law, which mistake is produced by the representations of the other party, he can be relieved as well as if the mistake were as to a matter of fact. [See Trigg v. Read, 5 Hum. 629; Sparks ». White, 7 Hum. 86; King ¶. Doolittle, 1 Head, 77.]
    This was a bill in equity, praying relief against a judgment recovered against Drew in Wilson County, by the defendant Clarke.
    The bill states that the complainant on the 18th day of July, 1806, executed his bond to Doublehead, a Cherokee Indian, and John D. Chisolm, for six hundred and sixty-six dollars, two thirds thereof in property, and the balance in cash ; and that in 1807 Doublehead departed this life, leaving no legal representatives, whereupon the bond was assigned by Chisolm to the defendant; which assignment was alleged to have been made after the bond became due, and at a time when the defendant was well apprised of the equity of the complainant. The bill then states that the bond was given for a lease of ninety-nine years, of a certain tract of land in the Mississippi territory, on the river Tennessee, being part of a tract granted to Doublehead forever, which grant contained no words of inheritance. The grant was by virtue of a treaty between the United States of America and the Cherokee tribe of Indians. The bill also stated that Double-head believed, or pretended that he did believe, and so represented to the said Drew at the time the lease was made, that he had an absolute estate in fee simple to the land aforesaid, whereas the said Doublehead had only an estate for life therein, which was wholly determined by Doublehead’s death, an event that happened a few months afterwards. Whereupon it was alleged the land reverted by the said treaty to the Cherokee tribe ; and that the United States had so construed the grant to Double-head, at his death, by taking possession thereof with a military force, in behalf of the Cherokees, and in turning Drew’s tenant out of possession.
    
      The bill also stated that, before the lease of the land by Doublehead, the State of Georgia sold the same to Zachariah Cox and others, who were thereby invested with an estate in fee simple to the said land; and that the said Cox and others at the time of the lease aforesaid possessed a good and valid title thereto, paramount to the claim of Doublehead. In consequence of all these matters it was alleged by the bill that the consideration had wholly failed.
    Clarke answered that the bond was assigned to him after it became due; that Doublehead in his lifetime was indebted to one Washington Hall, of the city of Baltimore, in upwards of five hundred dollars, and that the bond was assigned to the defendant as Hall’s agent for the purpose of discharging the debt due from Doublehead. The answer admitted that the defendant had understood before the assignment, that the bond was given in consideration of some purchase or contract about lands to which Double-head had a claim under a treaty between the United States and .the Cherokee Indians; but that he was not informed of the particular nature of the contract, or what interest passed or was pretended to be passed by virtue thereof. The defendant further stated that the claim of Doublehead to the land was in pursuance of a public treaty duly ratified; and that he believes that the title vested in Doublehead was well known to the complainant at the time of the contract; and that he voluntarily and freely, without any warranty, made the contract aforesaid; being willing to depend on such title as was secured by the treaty and to risk such construction as should be afterwards put thereon.
    To this answer a replication was regularly filed; and the cause now came on for hearing upon the statement in the bill and answer no testimony being exhibited on either side.
    Haywood, for the complainant,
    argued that it was obvious from the terms of the lease, it being for ninety-nine years, that Drew must have understood Doublehead to have been the owner in fee. The allegation in the answer that Drew took the lease being willing to risk the construction of the treaty is affirmative, and must be proved by the defendant before it can avail him. The consideration has wholly failed, and therefore this Court ought to interfere and relieve the complainant. To say the least of the matter there was a mistake as to the kind of claim Doublehead had; and a mistake of the law as well as of fact is a good ground for the interference of a court of equity. 3 Atk. 575; 1 Yes. 126; 1 Fon. 106; 2 Chy. Rep. 81-91; 2 Bro. Chy. Rep. 150; 2 Pow. Con. 196, and onwards. Evan’s Essays, 8, 9.
    
      Hayes and Whiteside, for the defendant,
    insisted that the question how far a court of equity would relieve against a.mistake of the law could not properly be investigated in this case, as there was no proof that Drew or Doublehead were mistaken as to Doublehead’s interest, or that either of them ever supposed he had more than a life estate. But if it were otherwise, it is very clear that a mistake as to the law will' not excuse the performance of a contract. 2 East’s Rep. 459.
    Besides in this case, the contract as it is set forth in the bill, is made void by an act of Congress. 4 L. U. S. 534. A contract against law cannot be relieved against in a court of equity. 1 Pow. Con. 202, and onward. The act of Congress having made such contracts void, the complainant ought to have defended in a court of law, which he has not done, nor has he assigned any reason for a failure. 4 Hen. & Mun. 438, 447, 453, 470, 491. 1 Call, 546; 2 Yern. 696; 4 Johns. 510 ; 2 Wash. 255.
    
      Haywood, in reply.
    The act of Congress only declares the conveyance void; but it uses no such expression as to the bond which is given for the purchase-money. It is not absolutely void, although because the consideration has failed it may be rendered ineffectual by a court of equity.. When a statute undertakes to declare a particular thing void, nothing else shall be rendered so except what is expressly named. 1 Fon. Eq. 224, 295. At all events it is at least doubtful whether a defence could have been made at law, which is always a good reason for coming into equity. v
    But if a defence could have been made at law, yet I contend that the jurisdiction'of a court of equity is not thereby ousted ; because there are a variety of cases where a court of equity will give the relief sought, although ample redress might have been had at law. 2 Com. Dig. 666, 668 ; 1 Eq. Ca. 237. PI. 11; 2 Yern. 147, 148; 1 Call’s Rep. 147; 3 Call’s Rep. 531; 3 Call’s Rep. 71 - 49 ; 2 P. Wms. 424.
   White, J.

delivered the following opinion of the Court: The bill charges that Doublehead, a Cherokee Indian, represented that by virtue of a' treaty between the United States and the Cherokees, he owned in fee simple a certain tract of land; that the complainant, believing the representation, agreed to take a lease on a part of it for the term of ninety-nine years; and that to secure the payment he executed his bond to Doublehead and John D. Chisolm, for six hundred and sixty-six dollars, payable two thirds in property and one third in cash at a future day. That shortly afterwards Doublehead died, when the complainant discovered that he had only a life estate in the land, and also that the same tract had been before the grant to Doublehead granted by the. State of Georgia to Zachariah Cox & Co.; that the defendant received an assignment on the bond after it became due, and with a full knowledge of the failure of the consideration, and that he had brought a suit and recovered a judgment.

The answer of the defendant states that the bond was assigned to him after it became due; that he knew at the time of the assignment that the bond had been given about land which Doublehead claimed by virtue of a treaty, but that the treaty is a public law of which the corn-plainant was bound to take notice. The defendant also alleges that he does not know what interest Doublehead pretended to have, and that the complainant agreed to take it as a risking bargain.

No proof has been made by either the complainant or the defendant; but it has been insisted that enough is admitted by the answer to entitle the complainant to relief.

It seems undeniably true that the defendant can stand in no better situation than Doublehead. The bond, if negotiable, was assigned after it became due; and therefore the assignee is affected by any equity which would have affected the obligee.

Again : The bond was in part payable in property; and the assignment, even if made before it became due, would not draw after it those consequences attached to negotiable papers.

The question must therefore be now examined as if the suit were between the complainant and Doublehead’s representatives.

The treaty was entered into on the 7th day of January, 1806. By the first article of it the Cherokees relinquish to the United States all right, title, interest, and claim, to all that tract of country which lies north of Tennessee River, and westward of a line directed, etc., excepting two described tracts, etc., “ which first reserved tract is to be considered the common property of the Cherokees who now live on the same, including John D. Chisolm,” etc.

Doublehead’s name is not mentioned in the reservation, but it is presumed he was one of the Indians who lived upon it. From the words of the treaty as well as the spirit of it, it would seem that as to the excepted tract the Indian title is not extinguished, because it is appropriated by the Indians themselves to a particular part of their nation. It is certainly true that in the reservation there are no words of inheritance by ¿which to transmit the interest to the heirs of those for whom it was reserved. But to whom it is to belong after their death, whether to the whole nation or to any particular part of it, in the view which the Court have taken of the subject is perfectly unimportant.

The bond was given by a citizen of the United States to an Indian, and an Indian countryman, to secure the consideration money for an interest in a tract of land, to which the Indian title was not extinguished.

By the act of Congress entitled, “ an Act to regulate trade and intercourse with the Indians, and preserve peace on the frontiers,” passed in the year 1806, it is enacted, “ that no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or native, 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, &c.”

It is conceived this section of the act of Congress operates directly on this contract, and renders null whatever agreement the complainant and Doublehead may have made with respect to the land.

The complainant could not legally acquire any interest in the land by virtue of this agreement. In point of fact he does not appear to have derived any benefit therefrom, and the bond must be considered as one for which no consideration whatever was given.

In ordinary cases if one give his bond without consideration, and at the time of giving it, expected he was receiving a consideration, he can only be relieved in equity; because a want of consideration, or the failure of the consideration cannot be inquired into at law.

But in this case it has been urged that a court of equity ought not to interfere ; because by proper pleading, the complainant could have made an effectual defence at law.

It appears certainly true that if a party has a plain legal remedy, and from his own negligence or default, does not avail himself of it, a court of equity ought not to hear his complaint. It has been already stated that if this were an ordinary case, the want of consideration could be inquired into alone in this Court. What then is there to confine it exclusively to an investigation at law? The counsel for the defendant answer that the jurisdiction of this Court is ousted in consequence of the act of Congress, which makes void purchases of the kind now before the Court. The answer is by no means satisfactory. The act of Congress is entirely silent as to the effect of an instrument given to secure the consideration money for a lease or conveyance of this kind. The “ purchase, lease, or conveyance,” is made void; but whether the -purchaser is to be relieved as to the consideration, and if he is, in what court, the statute gives no directions. At all events it cannot be said to be a case in which a plain defence at law could have been made ; and yet it is most obvious that the complainant is entitled to relief somewhere.

It has been further urged that the treaty and act of Congress are public laws, of which the complainant must be presumed to have had knowledge ; and, therefore, he cannot be relieved. It is evident that Drew expected to derive a benefit from the contract when he entered into it; this expectation must have been raised by Doublehead, or some person in his behalf, as his name is not mentioned in the treaty; am.1 if a man is clearly under a mistake in point of law, which mistake is produced by the representation of the other party, he can be relieved, as well as if the mistake were as to a matter of fact.

The injunction must be made perpetual.  