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Statement of the Case.

the three last-named pieces of land have since been deeded by the said Matthew, Joseph, and Antoine May-Dway-Gwon to Charlotte Armstrong, but previous to the date of said deeds the above-named Joseph, Matthew, and Antoine May-DwayGwon had assigned or transferred all their right, title, and interest therein to the said Benjamin Armstrong. I, the aforesaid Benjamin G. Armstrong, did sell by deed and contract to Frederick Prentice, which I, the said Charlotte Armstrong, knew at the time, but did not know but that by getting another deed or conveyance after the patents were issued we could sell the property, but am now satisfied that we had sold and assigned all our right, title, and interest to Frederick Prentice previous to our deeding to any other person or persons, and that we had no right to deed or convey to any other person or persons, as the title to the lands above described was then virtually and by right vested in the said Frederick Prentice, and that the first deed for the one-half and the contract for the remaining half of said land, with the payment thereon made at the time by the said Frederick Prentice, bound us to give him good and sufficient deeds to said property whenever so demanded; and we do hereby assign and quitclaim all our right, title, and interest now or at any time held by us to all the above-described property in fulfilment of our agreement with the said Frederick Prentice.”

The tract of land which Chief Buffalo had designated as his selection on the day of the treaty did not correspond with the section lines when the land came to be surveyed into sections, and part of it was found to be occupied and claimed by certain Indian traders under the treaty. After a lengthy correspondence and investigation in the Department of the Interior, the relatives of Buffalo, entitled to the land reserved for them, conceded the validity of the claims of these Indian traders, and, in lieu of the lands thus held by them, received other lands adjacent to that selected by Buffalo to make up the quantity of six hundred and forty acres, but not in the form of a parallelogram, though maintaining a continuous connection.

A report of the Secretary of the Interior to the President,

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Statement of the Case.

under the date of September 21, 1858, and made part of the findings, contained, among other things, the following:

"Now, therefore, under all the circumstances of the case, it having been fully proved that these relatives of the Chief Buffalo acquiesce in the selection made for them by Agent Gilbert, and desire that patents should issue to them for this land, and the Commissioner of Indian Affairs having recommended such approval, I have respectfully to request that you will approve the same in order that patents may issue in accordance with their request as follows, viz.: To Matthew May-dway-gon, S. W. sec. 22, T. 50 N., R. 14 W.-160 acres; To Antoine May-dway-gon, E. N. E. sec. 28 and W. N. W. sec. 27, T. 50 N., R. 14 W.-160 acres; to Joseph May-dway-gon, S. E. sec. 28, T. 50 N., R. 14 W.160 acres; to Shaw-bwaw-skung or Benjamin G. Armstrong, W. S. W. sec. 27, lot No. 3, sec. 34, lot No. 5, sec. 27, 182.62."

The patent to Armstrong, issued October 23, 1858, contained the following recitals and description of the land embraced by it:

"Whereas it appears from a return dated the twenty-seventh day of September, one thousand eight hundred and fifty-eight, from the office of Indian Affairs to the General Land Office, that there has been selected and approved for' Shaw-BwawSkung, or Benjamin G. Armstrong,' as one of the 'connections' of said Chief Buffalo, the west half of the southwest quarter and lot number five, both of section twenty-seven, and lot number three of section thirty-four, containing together one hundred and eighty-two acres and sixty-two hundredths of an acre, all in township fifty north, of range fourteen west, of the fourth principal meridian, in the State of Minnesota. Now, know ye, etc."

The parties, at the trial, entered into the following stipulation :

"It is admitted for the purposes of the trial of the aboveentitled action that the land in dispute described in complaint of plaintiff herein is part of the land described and included in the patent of the United States to Benjamin G. Armstrong,

Statement of the Case.


dated October 23, 1858, and recorded in book ‘B,' at page 500, in the office of the register of deeds of St. Louis County, Minnesota; that the defendants are in possession of the specific portions of said land described in their respective answers herein, and as respects the Northern Pacific Railroad Company is in possession of the certain portions of said land colored blue upon the map hereto attached, and that all the defendants assert title to said respective portions derived from a certain deed made and executed by Benjamin G. Armstrong and wife to John M. Gilman, dated August 31, 1864, and recorded in the office of the register of deeds of St. Louis County, Minnesota, September 12, 1864, in book 'C' of deeds, at page 665, and from certain other deed made and executed by Benjamin G. Armstrong and wife to Daniel S. Cash and James H. Kelly, bearing date October 22, 1859, and filed for record in the office of the register of deeds in and for said St. Louis County January 5, 1860, and thereafter recorded in book 'C' of deeds, at page 206; that the said defendants have succeeded to whatever title or right said Kelly and Cash and said Gilman obtained by virtue of said deeds, respectively, in and to the premises in dispute; that at the commencement of this suit said defendants withheld said premises and the rents, issues, and profits of the same from said plaintiff, although they had theretofore been requested to admit him to the possession of an undivided half (1) of said premises and the rents and profits thereof; that the undivided half (1) of the portion of the premises described in said complaint claimed by each of said defendants is worth fifty thousand dollars ($50,000) and upwards." The court found the facts in accordance with this stipulation.

The United States government surveys of the lands ceded by the treaty of September 30, 1854, to the United States had not been made at the date of the deed from Armstrong to plaintiff and were not made until the year following that date.

Gilman took the above conveyance without actual notice of the deed from Armstrong to the plaintiff of September 11, 1856, or that plaintiff claimed an interest in the land so conveyed to him.

Statement of the Case.

The defendants herein claim title to the pieces or parcels of land in controversy as grantees of Gilman and under and through the deed to Gilman of August 31, 1864.

The large stone or rock at the head of St. Louis River Bay, nearly adjoining Minnesota Point, described in the deed from Armstrong to Prentice, is the beginning of the boundary of the tract conveyed, is well identified, and was generally known to the few people familiar with the place, and was recognizable at the time of the trial below, and a mile square measured from that point as called for in the deed would wholly depart from the shore of St. Louis Bay and would cover about onehalf or three-fifths land, and the remainder the water of Lake Superior.

The land selected by Chief Buffalo lay upon the shore of St. Louis Bay, immediately adjoining Minnesota Point, and this selection was followed as near as it could be by the patents of the United States issued to satisfy that reservation, considering the elimination from the mile square of the lands held by the traders, and the vagueness of Buffalo's description, and the necessity of conforming the final grant to the surveys of the United States.

If the lines of the course called for as east and west in the deed of Armstrong to Prentice, under which the plaintiff asserts his title, were exactly reversed, the description in that deed would include a large part of the land actually selected by Chief Buffalo, and also included in the patents from the United States. But it would not include the land sued for in this action.

The instrument executed by the Chief Buffalo, dated September 30, 1854, was the only selection or appointment ever made by him under the sixth clause of the second article of the said treaty.

Chief Buffalo died in the month of October, 1855.

At the date of the deed to Prentice, of September 11, 1856, Armstrong did not have any interest in land in St. Louis County, Minnesota Territory, except what he was entitled to under the Buffalo selection and appointment above referred to, and under the above assignment from the other.

Opinion of the Court.

The conclusions of law found by the Circuit Court were

That the appointment of persons to whom the United States were to convey the section of land reserved by the above provision of said treaty, made by Chief Buffalo on the 30th day of September, 1854, was a valid and sufficient appointment under that provision, and, upon the ratification of the treaty, vested in Armstrong and the other appointees named such an interest as the treaty gave to the land so reserved;

That the patent of the United States to Armstrong and his acceptance of it was a valid execution of the treaty on that subject;

That the deed from Armstrong to plaintiff; of September 11, 1856, was, in its execution, acknowledgment, and recording, a valid and sufficient deed, and its record constructive notice of its contents;

That the description in the deed of Armstrong to plaintiff of September 11, 1856, is insufficient to convey his interest in or title to any other cr different tract of land to which he might have been entitled under said treaty than the tract described therein, and that said deed is ineffectual as a conveyance to plaintiff of any interest or title except such as Armstrong had in or to the land therein described, and that plaintiff took no title under it to the land for the possession of which this action is brought;

That the quitclaim deed from Armstrong to Gilman of August 31, 1864, conveyed to the latter such interest, and no more, as Armstrong had in the land therein described at the date of said deed ; and

That the plaintiff is not entitled to recover in this action, and judgment must go in favor of the defendants for their costs and disbursements.

Mr. Elihu Root, (with whom were Mr. John F. Dillon and Mr. Samuel B. Clarke on the brief,) for plaintiff in error.

Mr. William W. Billson, for Fargusson, defendant in error, submitted on his brief.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

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