LyoN, J.
If the west forty-five acres of lot 7, in the Brothertown reservation, was legally allotted to Hannah Paul, although never patented to her, such allotment vested in her the whole beneficial interest in the lot, and the patent subsequently issued to the plaintiffs and their deceased co-trustees (under which the plaintiffs claim) is void. In such [514]*514case tbe government bas, at most, only the naked legal title, which it holds in trust for the original allottee and her representatives or grantees, and cannot convey it to a stranger. If authority be desired to propositions so manifestly correct and just, it may be found in the language of the supreme court of the United States in Wirth v. Branson, 98 U. S. 118. It is there said: “The rule is well settled by a long course of decisions that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has been pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside.” In that case a bounty land-warrant had been lawfully located on the land claimed, and subsequently a patent for the land was issued to another adversely tp the claim under the warrant. The same principle is clearly applicable to the present case.
If the allotment was made to Hannah Paul, every necessary act was done to entitle her to a patent for the lot, and such allotment was never vacated or set aside. In that case it is quite immaterial whether the defendant has or has not succeeded to her title. The plaintiffs must recover, if at all, on the strength of their own title. That failing, their action fails. The trial court found such allotment was legally made, and dismissed the complaint on the merits. If the testimony supports the finding, the judgment is correct ; otherwise, probably, it cannot be upheld.
Hoes it sufficiently appear that the west forty-five acres of lot 7 was legally allotted to Hannah Paul? The documentary evidence bearing upon this question consists of a copy of the report made by the commissioners, pursuant to the act of 1839, from the office of the register of deeds of [515]*515Calumet county, certified by the commissioner of the general land office in the form required by an act of Congress of 1812 (5 Stats, at Large, 116), which was held sufficient in McLane v. Bovee, 35 Wis. 27. Accompanying this report was a map, in the register’s office, of the Brothertown reserve, divided into lots, with the name of the person to whom each lot was allotted written thereupon. It is certified to by the surveyor under date of July 13,1840, as having been made for the use of the general land office, but is not signed by the allotment commissioners, or authenticated by the separate certificate of the commissioner of the land office. Such report and map were put in evidence by the defendant, under objection by the plaintiffs to the map as testimony. Two books were also offered in evidence by the defendant, and received under like objection, claimed to contain the tribal records of the Brothertown Indians before the allotment of their lands in severalty. From these it appeared that, by a unanimous vote of the tribe, at a meeting thereof denominated a town meeting, held September 2, 1835, the land constituting lot I was assigned -in severalty to Solomon Paul. A large number of lots were, in like manner, assigned to various members of the tribe.
In the report of the allotment commissioners, excluding the map, the east fifty acres of lot I is allotted to Solomon Paul, but no mention is made of the west forty-five acres thereof. On the map the east fifty acres is marked with the name of Solomon Paul, and on the west forty-five acres is written “ wife of Solomon Paul.” The defendant also introduced oral testimony (received under objection) to the effect that Hannah Paul was the wife of Solomon Paul; that they went into possession of lot 1 under the tribal allotment of 1835, and still lived thereon when the allotment was made under the act of 1839; and that the commissioners did, in fact, allot the west forty-five acres of that lot to Hannah Paul. It was stipulated on the trial that [516]*516Solomon Paul and wife conveyed the lot in controversy, in 1855, to a grantor (through mesne conveyances) of the defendant.
The learned counsel for the plaintiffs maintains that the map is not sufficiently identified as the map returned by the allotment commissioners to the general land office; and, if identified, that it is no part of the report of the commissioners. He argues therefrom that the entry, “wife of Solomon Paul,” on the west forty-five acres of lot 7, as delineated on the map, does not constitute an allotment, and, the report making no mention of an allotment of that parcel of land to her, none was ever made. These propositions will now be considered.
As to identity, the map itself furnishes sufficient intrinsic evidence that it was made and returned by the allotment commissioners. The report mentions nearly 500 allotments, giving the name of each allottee, and the number and fraction of his or her lot. An examination of the map shows that, with but very few exceptions, and those manifestly accidental, the map corresponds throughout with the report. The act of 1839 required the commissioners to accompany their report with a map. Finding a map in the proper office which corresponds so nearly with the report, it must be presumed that they did their duty, and that the map before us was made under their direction, and returned by them, as a compliance with the requirements of the act of 1839 in that behalf.
There is still another proof of the identity of this map. In 1845 the allotment commissioners made an amendatory return to the commissioner of the land office, pointing out certain errors which had been discovered in the report and map. In one case they say: “ Fractions 1, 2, 3, 4, 5, of west half of lot 148, were designated for Benjamin GL Fowler. In this case the map in your office is wrong in setting the aforesaid five fractions to Thos. Kiness.” Looking at the [517]*517map, we find those fractions marked to Thos. Kiness. This is very cogent proof that we have the right map before us.
Is the map part and parcel of the report? Section 5 of the act of 1839 requires the commissioners, after having made partition and division of the reservation as therein-before provided, to make “ a full report of their proceedings in the premises, setting forth the name of each person to whom they have apportioned any part of said land, the quantity apportioned or allotted to each, with the metes and bounds or other definite description of each several piece or parcel of land, and they shall accompany the said report with a fair and accurate map of the whole, showing the divisions and partitions aforesaid.” The report, excluding the map, gives the names of allottees and the number of the lot, or fraction of a lot, awarded to each. In but few cases does it specify the number of acres in a given allotment. Keither does it purport to give metes and bounds, or any definite descriptions of the parcels of land allotted. Without the map the descriptions are unintelligible, and the report would utterly fail to come up to the requirements of the act of 1839.
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LyoN, J.
If the west forty-five acres of lot 7, in the Brothertown reservation, was legally allotted to Hannah Paul, although never patented to her, such allotment vested in her the whole beneficial interest in the lot, and the patent subsequently issued to the plaintiffs and their deceased co-trustees (under which the plaintiffs claim) is void. In such [514]*514case tbe government bas, at most, only the naked legal title, which it holds in trust for the original allottee and her representatives or grantees, and cannot convey it to a stranger. If authority be desired to propositions so manifestly correct and just, it may be found in the language of the supreme court of the United States in Wirth v. Branson, 98 U. S. 118. It is there said: “The rule is well settled by a long course of decisions that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has been pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside.” In that case a bounty land-warrant had been lawfully located on the land claimed, and subsequently a patent for the land was issued to another adversely tp the claim under the warrant. The same principle is clearly applicable to the present case.
If the allotment was made to Hannah Paul, every necessary act was done to entitle her to a patent for the lot, and such allotment was never vacated or set aside. In that case it is quite immaterial whether the defendant has or has not succeeded to her title. The plaintiffs must recover, if at all, on the strength of their own title. That failing, their action fails. The trial court found such allotment was legally made, and dismissed the complaint on the merits. If the testimony supports the finding, the judgment is correct ; otherwise, probably, it cannot be upheld.
Hoes it sufficiently appear that the west forty-five acres of lot 7 was legally allotted to Hannah Paul? The documentary evidence bearing upon this question consists of a copy of the report made by the commissioners, pursuant to the act of 1839, from the office of the register of deeds of [515]*515Calumet county, certified by the commissioner of the general land office in the form required by an act of Congress of 1812 (5 Stats, at Large, 116), which was held sufficient in McLane v. Bovee, 35 Wis. 27. Accompanying this report was a map, in the register’s office, of the Brothertown reserve, divided into lots, with the name of the person to whom each lot was allotted written thereupon. It is certified to by the surveyor under date of July 13,1840, as having been made for the use of the general land office, but is not signed by the allotment commissioners, or authenticated by the separate certificate of the commissioner of the land office. Such report and map were put in evidence by the defendant, under objection by the plaintiffs to the map as testimony. Two books were also offered in evidence by the defendant, and received under like objection, claimed to contain the tribal records of the Brothertown Indians before the allotment of their lands in severalty. From these it appeared that, by a unanimous vote of the tribe, at a meeting thereof denominated a town meeting, held September 2, 1835, the land constituting lot I was assigned -in severalty to Solomon Paul. A large number of lots were, in like manner, assigned to various members of the tribe.
In the report of the allotment commissioners, excluding the map, the east fifty acres of lot I is allotted to Solomon Paul, but no mention is made of the west forty-five acres thereof. On the map the east fifty acres is marked with the name of Solomon Paul, and on the west forty-five acres is written “ wife of Solomon Paul.” The defendant also introduced oral testimony (received under objection) to the effect that Hannah Paul was the wife of Solomon Paul; that they went into possession of lot 1 under the tribal allotment of 1835, and still lived thereon when the allotment was made under the act of 1839; and that the commissioners did, in fact, allot the west forty-five acres of that lot to Hannah Paul. It was stipulated on the trial that [516]*516Solomon Paul and wife conveyed the lot in controversy, in 1855, to a grantor (through mesne conveyances) of the defendant.
The learned counsel for the plaintiffs maintains that the map is not sufficiently identified as the map returned by the allotment commissioners to the general land office; and, if identified, that it is no part of the report of the commissioners. He argues therefrom that the entry, “wife of Solomon Paul,” on the west forty-five acres of lot 7, as delineated on the map, does not constitute an allotment, and, the report making no mention of an allotment of that parcel of land to her, none was ever made. These propositions will now be considered.
As to identity, the map itself furnishes sufficient intrinsic evidence that it was made and returned by the allotment commissioners. The report mentions nearly 500 allotments, giving the name of each allottee, and the number and fraction of his or her lot. An examination of the map shows that, with but very few exceptions, and those manifestly accidental, the map corresponds throughout with the report. The act of 1839 required the commissioners to accompany their report with a map. Finding a map in the proper office which corresponds so nearly with the report, it must be presumed that they did their duty, and that the map before us was made under their direction, and returned by them, as a compliance with the requirements of the act of 1839 in that behalf.
There is still another proof of the identity of this map. In 1845 the allotment commissioners made an amendatory return to the commissioner of the land office, pointing out certain errors which had been discovered in the report and map. In one case they say: “ Fractions 1, 2, 3, 4, 5, of west half of lot 148, were designated for Benjamin GL Fowler. In this case the map in your office is wrong in setting the aforesaid five fractions to Thos. Kiness.” Looking at the [517]*517map, we find those fractions marked to Thos. Kiness. This is very cogent proof that we have the right map before us.
Is the map part and parcel of the report? Section 5 of the act of 1839 requires the commissioners, after having made partition and division of the reservation as therein-before provided, to make “ a full report of their proceedings in the premises, setting forth the name of each person to whom they have apportioned any part of said land, the quantity apportioned or allotted to each, with the metes and bounds or other definite description of each several piece or parcel of land, and they shall accompany the said report with a fair and accurate map of the whole, showing the divisions and partitions aforesaid.” The report, excluding the map, gives the names of allottees and the number of the lot, or fraction of a lot, awarded to each. In but few cases does it specify the number of acres in a given allotment. Keither does it purport to give metes and bounds, or any definite descriptions of the parcels of land allotted. Without the map the descriptions are unintelligible, and the report would utterly fail to come up to the requirements of the act of 1839. But read the map with the report, and as an integral part of it, and the provisions of the act above quoted are complied with in every particular. It seems very clear to us that the map should be so read and regarded, and that the act should be construed as meaning that the report should contain the map therein required. It necessarily results from these views that the map is just as high evidence of an allotment as are the other portions of the report; and if, as in this case, the latter is silent, an allotment on the map is sufficient to pass the whole equitable title to the land to the allottee, with tho full right to the possession thereof, leaving in the government only the naked legal title. The learned circuit judge so held.
If other proof were required to establish the fact that [518]*518the west forty-five acres of lot 7 was allotted to Hannah Paul, such proof is found in this record. The books already mentioned, which contain tribal records jjrevious to the allotment, show that allotments of portions of the Brother-town reserve were made by the tribe to many of the members thereof, in severalty, and that lot 7 was so allotted to Solomon Paul in 1835. These allotments usually contained 100 acres each, but lot 7 abutted Lake Winnebago on the west, and was fractional, containing but ninety-five acres. The act of 1839 distinctly recognized the existing laws, customs, usages, and agreements of the tribe, and directed that lands then held or possessed by members of the tribe in severalty should, as far as the same could consistently be done, be allotted to the several occupants thereof, unless a person occupied more than he was justly entitled to, in which case the overplus might be apportioned to others. See sections 2, 4. A comparison of the tribal allotments of 1835 with the map shows that these requirements of the act of 1839 were faithfully executed by the commissioners.
It satisfactorily appears that Solomon Paul went into possession of lot 7 under the tribal allotment, and was. living thereon with his wife, Hannah Paul, when the allotment under the act of 1839 was made. The last allotments usually contained fifty acres each, in one body, and ten acres elsewhere. So the commissioners appropriated the east fifty acres of lot 7 to Solomon Paul. The east side of this tract abutted a highway, and it is very probable that the dwelling of tho allottee and his wife and the principal improvements were situated thereon. Under these circumstances it would be very natural that the wife should have desired the balance of the farm to be allotted to her, and that the commissioners should have so allotted it. Moreover, the presumption is (there being no proof to the contrary) that Hannah Paul remained in actual possession and occupancy of the portion of lot 7 in controversy in this action until [519]*519she and her husband conveyed the same in 1855. These facts, aside from the parol proof that the west forty-five acres of lot 7 was actually allotted to her, strongly corroborate the accuracy of the view above expressed that the entry on the plat of that tract in the map, “ wife of Solomon Paul,” was intended to be and in fact was an effectual allotment thereof to her.
It was argued that the tribal records were not sufficiently authenticated to entitle them to be read in evidence. "We think otherwise. They are ancient instruments within the meaning of that term as used in the law of evidence. They purport to have been made by a tribal officer denominated a “ town clerk.” Such an officer is recognized by the act of 1839, which provides, in section 5, that the report and map of the allotment commissioners, or a copy thereof, shall be deposited “ with the town clerk of said tribe.” They were proved to have been in the office of the town clerk of Brothertown for many years, and there was other testimony tending to show that they were the tribal records. Besides, the books in which these records are contain abundant intrinsic evidence of a most interesting character, of the genuineness of the records. These facts render the records admissible in evidence. See 1 Greenl. Ev. §§ 21, 141, 570, and notes.
The commissioners made an allotment to “ Hannah Paul,” by name, of fifty acres in a portion of the town remote from lot 7. It is argued that, because there is no proof that there were two allottees of that name, it must be assumed that the wife of Solomon Paul is such allottee, which, of course, would make strongly against the claim that she was the allottee of a part of lot 7. It is sufficiently evident, however, that when one allotment was made to “Hannah Paul” and another to “the wife of Solomon Paul ” the commissioners were making allotments to two different persons. The allotments may have been made in that [520]*520form to distinguish between two of the same name, or the commissioners may not have known the name of the wife of Solomon Paul. The former is the more probable reason. After so great a lapse of time it ought not to be presumed that there was but one Hannah Paul in the tribe, when the map contains intrinsic evidence that there may have been, probably were, two of that name. A witness introduced by the defendant testified that his mother was a Brother-town woman, named Hannah Paul, and that she had land in the north part of the town. The land allotted to Hannah Paul was on the noi'th line of the town. Whether or not the mother of the witness was ever the wife of Solomon Paul does not appear. The testimony is not very significant, and we have, given no weight to it.
Counsel for the plaintiffs offered in evidence a copy of a map of Brotliertown, duly authenticated by the certificate of the commissioner of the general land office, and offered to testify that he examined the records of that office in May, 1888, and found two maps connected with this allotment report, one similar to that in evidence, and the other the original of the map so offered by him in evidence; also that he found a letter with the latter map showing it was sent to the office after the other map had been sent. The map and testimony were not received. If the offered testimony had been received, it could have had no influence upon the determination of the case. The rejected map is like the other, except it is drawn on a smaller scale and none of the names of allottees are written upon it. The offered testimony may be considered as in the case, and the map may be considered a part of the report of the allotment commissioners, yet it does not, in the least, affect the other map, or impair its standing as a part of such report. The testimony and map, had they been received, would not have helped the case of the plaintiff, and their rejection (if erroneous) was an immaterial error.
[521]*521The point was made in the argument that the equitable title claimed by the defendant to the locus in quo is not well pleaded. We do not reach that question, because we hold that the plaintiffs have failed to establish their title thereto. The want of title in the plaintiff is purely a legal defense, and such defense vras well pleaded by the general denial in the answer.
It was pleaded in the answer as a defense to the action, and argued by the counsel, that the act of 1839 was fully executed about January 1, 1840, and that, by the provisions of such act, the tribe of Brothertown Indians ceased from that time to have any existence as a nation, body, or tribe; hence that there are no cestuis que trust capable of taking any beneficial interest under the patent issued to the plaintiffs and their deceased co-grantees in trust, and such patent is void for that reason. Having reached the conclusion on other grounds that the plaintiffs cannot maintain the action, it becomes unnecessary to decide on this appeal whether those propositions, or any of them, are well taken.
A determination of the validity of this defense was specially requested by counsel, for the alleged reason that other similar actions, founded on the same patent, are pending, in which the question may and probably will be material. Because Of this the writer takes the liberty to suggest that it is at the least doubtful wkether the tribal character of the Brothertown Indians has entirely ceased. The act of 1839 provides that, when its provisions in certain specified particulars have been executed, the rights of those Indians “as a tribe or nation, and their power of making and executing their own laws, usages, or customs as such tribe, shall cease and determine.” But their right to receive annuities due them from the state of Hew York or the United States, the same as though the act had not been passed, is expressly reserved to them. Sec. Y. It would seem from the last provision that their tribal character is sufficiently [522]*522preserved to enable them in their capacity as a tribe to receive annuities. If so, why may not the members of the tribe, as such, he competent beneficiaries of a trust to receive money from other sources.
Again, the commissioners, under the act of 1878, in their report, make the following statement of the manner in which they disposed of a mill, and its appurtenances: “ A mill, which was built a few years ago at the expense of the nation, together with all its water privileges, property, and appurtenances, as secured and released to the nation at former periods, by instruments in the possession of our authorities, has been assigned to a member of our tribe (elected at town meeting held for the purpose) in trust for the nation, who are the proprietors.” It does not appear that the United States has ever made any objection to such disposition of the mill property. Should that property be hereafter sold by competent authority, no provision being made for distributing the proceeds, would not a court of equity direct the same to be distributed to the Brothertown Indians, according to the former usages, customs, and regulations of said tribe ? In other words, would not the court regard them as competent to take as beneficiaries under a trust ?
The act of 1878 disposes of the proceeds of the lands patented under it to trustees precisely as has just been suggested, and there seems no insuperable obstacle in the way of ascertaining who are the individual beneficiaries. Even if the tribal functions had entirely ceased before that act was passed, does not the act sufficiently restore them to enable the members of the tribe, as such, to take as beneficiaries of the trust created by the act ?
The writer strongly inclines to the opinion that all of the questions here suggested, especially the last, should be answered in the affirmative.
By the Court.— The judgment of the circuit court is affirmed.