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Jackson ex dem. Sparkman v. Porter.

which gives this effect by construction of law to the acts of the party. Possession per se is evidence of no more than the mere fact of present occupation by right. Hence the declarations of a party in possession are always admitted to show the extent and nature of the interest he claimed in the land; and from the very nature of the case, it must depend on these collateral circumstances to ascertain the extent of his interest. If the occupant of land avows his interest to be that of a term of years, it would be absurd to consider his possession evidence of a fee; and it is certainly granting all that can reasonably be asked, to allow the occupant an interest as large as he claimed ; and it cannot be permitted to him to abandon such claim and set up a different interest, unless he can show his title, and that he was under some mistake of law in relation to it. These are rules founded on the plainest principles of reason and justice, and fully recognised by the Supreme Court of the United States in the case of Ricard v. Williams.

The interest of John Stedman, therefore, to the land in question, must be tried by, and limited to that which he declared it to be. And the testimony upon that point is from the plaintiff's witnesses alone, and is full and conclusive to show, that the claim in its broadest extent was no more than the Indian title, confirmed by Sir William Johnson. And the answer of the witnesses on this point did not fall from them casually, and without being expressly called for. It was made a question by direct application to the Court, whether it was competent to inquire into the declarations of Stedman as to his claim of title. And it is fair to presume the inquiry was as broad as the fact would warrant, or the answer expected. The bill of exceptions states that the counsel for the plaintiff proposed to inquire of the witness, Prout, whether or not John Stedman, while in possession, claimed to hold the

a 7 Wheat, 105.

Jackson ex dem. Sparkman v. Porter.

land by virtue of a deed from the Indians, confirmed by Sir William Johnson as superintendent of Indian affairs. This was objected to unless the deed was produced. The objection was overruled; and the witness stated, that he had many times heard Stedman claim the lands to be his by virtue of a deed from the Indians, confirmed as aforesaid—that it was given to him by the Indians, by way of compensation for the damages they had done him in the year 1763—that Stedman had no other title as the witness knew of, and that he had heard Stedman say he had not. Here then is a disclosure, not only affirmatively what Stedman did claim, but an express negation of any other title. And all the other witnesses who speak of Stedman's declarations respecting his title, either expressly or by necessary implication, refer to the Indian deed.

We may therefore safely conclude, that Stedman neither had nor pretended to have any other title.' This deed is claimed to have been given by the Seneca Indians, and confirmed by Sir William Johnson some time in the year 1764. This deed was not produced upon the trial; and it was made one of the principal objections to the nonsuit, that it ought to have been submitted to the jury to presume the existence of the deed.

Many cases were cited and much time taken up, in the discussion of the rules and principles which govern the doctrine of presumption of grants and deeds. On the one side it was contended, that this was a question exclusively for the jury, and that the Court below erred in taking it from them. On the other side it was very strenuously urged, that this presumption was an inference of law and for the Court to decide. I do not deem it necessary to enter at large into an examination of this point, or to express any decided opinion upon it. I have looked into most of the cases cited, and they certainly afford some colour for the argument on both sides. And the Jackson er dem. Sparkman o. Porter. correct view of the subject, perhaps, is to consider it a mixed question of law and fact; and in most, if not in all cases, to be submitted to the jury under the advice of the Court. The law has not defined any precise circumstances, or fixed the time, which shall necessarily raise the presumption of a deed or grant. In general, it is the policy of the law to limit this presumption to periods analogous to those of the statute of limitations. But this is not an invariable rule. Presumptions of this nature are adopted from the general infirmity of human nature; the difficulty of preserving manuscripts of title, and the public policy of supporting long and uninterrupted possessions; and are founded upon the consideration, that the facts and circumstances are such as could not, according to the ordinary course of human affairs, occur, without presum-, ing a transfer of title, or an admission of an existing adverse title in the party in possession. When the title deeds are not produced, their existence is the fact to be established ; and the circumstances from which this is to be inferred, would seem to me very clearly to be matter for the consideration of a jury. They may be rebutted by contrary presumptions. And the existence of such title deeds can never be fairly presumed, when all the circumstances are perfectly consistent with the non-existence of such deeds. If it was now to be made a question, whether John Stedman had once an Indian deed, confirmed by Sir William Johnson, I should think it a question which ought to be submitted to a jury.

But if the existence of the deed is admitted, the legal effect and operation of such deed is a question of law for the Court. And even admitting that the Court below erred in taking this question from the jury, it would be useless to send the cause to another trial on this ground, if the existence of such a deed would not vary the rights of the lessors of the plaintiff. I shall therefore assume, that John Stedman had an Indian deed,

Jackson ex dem. Sparkman v. Porter.

confirmed by Sir William Johnson, according to his claim, and give to it the same force and effect as if produced upon the trial.

A question here arises, whether, from the evidence as it stood when the nonsuit was granted, the jury would have been authorized to enter into the inquiry, and presume the existence of any other title than that which was claimed by John Stedman; and I think they would not. This principle is fully recognised in the case already referred to of Ricard v. Williams, and is certainly allowing to the occupant of land all that he could reasonably ask; unless he could show some other title, and make it appear he was under some mistake as to the claim he had set up.

The title which John Stedman uniformly claimed was that derived from the Indian deed confirmed by Sir William Johnson, and a disclaimer of having any other title. Under such circumstances, and in the absence of all proof to support any other claim of title, with what pretence could the jury be called upon to presume a grant from the crown, or a title from any other quarter?

Had the possession of Stedman been accompanied by a claim of title generally, without designating what, the question would then have been at large, and open to the presumption of any title consistent with the facts and circumstances in evidence. But when the possessor of land discloses what interest he claims in it, and his title being evidenced only by his possession and claim, it must be limited to that which he has asserted. Cases have been referred to containing very strong expressions of Judges, how far Courts and juries should go in presuming grants and deeds, to protect and quiet long and uninterrupted possessions. But it will be found in those cases, that the possession was accompanied by a claim of title

Jackson ex dem. Sparkman v. Porter.

generally, and not the designation of any particular interest. A jury could not certainly be called upon to presume more than the party claimed. If the claim was simply an estate for life or years, no Judge I presume would tell a jury they were at liberty to presume an estate in fee simple.

The next question that seems naturally to arise, is, the legal effect and operation of an Indian deed, and in what light such conveyances are viewed in Courts of Justice. This subject has recently received a very full examination of the Supreme Court of the United States in the case of Johnson v. M'Intosh.b The point of inquiry there was simply, as to the power of the Indians to give, and of private individuals to receive, a title, which could be sustained by the Court. There were no objections to the grants themselves, or that the Indians were not in the rightful possession of the land they undertook to sell. So that the broad inquiry was, their right to sell, and of the grantee to purchase. The Chief Justice, in delivering the opinion of the Court, went into a very particular examination of the principles and policy which had governed all the European nations which had made discoveries and settlements in this country, touching the rights of the natives. The title of the government to the country was placed on the ground of discovery, which title was to be consummated by possession, and which gave to the government the exclusive right of acquiring the soil from the natives, and of regulating the relations that were to exist between such government and the natives. The Indians were considered as being the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discre. tion. But their rights to complete sovereignty as independent nations, were necessarily diminished. And their power

6 8 Wheaton, 571.

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