Hardin v. Ho-yo-po-nubby's Lessee

27 Miss. 567

• Court: Mississippi Supreme Court
• Decided: October 15, 1854
• Status: Published

Opinion

Mr. Justice Handy

delivered the opinion of the court.

This action was brought by the defendant in error, a Chickasaw Indian, for a tract of land claimed by him in virtue of a location made in his behalf as a reservee, under the sixth article of the treaty of the 24th of May, 1834, made between the United States and the tribe of Indians of which he was a member. The plaintiff in error claimed title to the land under a patent from the government, obtained subsequently to the location, as claimed by the Indian, so that the merits of the case depend mainly upon the question whether the location so conforms .to the provisions of the treaty as to vest a valid title in the defendant in error.

In the progress of the case in the court below, two preliminary questions arose, which first require consideration: —

First. At the instance and upon the affidavit of the defendant below, the attorneys for the plaintiff’ were required, by rule of court, to show their authority for instituting the action. In answer to the rule, they showed that they did so under an employment by one Ayres, who purported to act as the agent of the plaintiff; and they produced a power of attorney signed by the plaintiff in the State of Arkansas, acknowledged by him before a justice of the peace there, whose official character was shown by the certificate of the clerk of the circuit and probate courts of the county where the acknowledgment was made, under official seal. The court held this as showing a sufficient authority in the attorneys to institute the suit, and discharged the rule, to which the defendant excepted.

It is true, as is urged in behalf of the plaintiff in error, that. there was not sufficient evidence shown to prove the power of attorney according to strictly legal rules; and if it had been necessary to the suit as a muniment of title, or to make out the plaintiff’s case in the usual and regular course of proceeding, the proof of its execution would have been insufficient to admit it in evidence. But the strict rule of proof is not applicable to the matter under consideration.

An attorney is an officer of court, and responsible to the court for the propriety of his professional conduct, and the proper .use of the privileges he has as such. No warrant of attorney is required by our laws or practice to enable him to appear for and to represent a party in court. He is permitted, by almost universal practice in this country, to do so under verbal retainer, and it is only in cases of clear want of authority or abuse of his privilege that he is held to be incompetent to institute a suit or to represent a party in court. The presumption is in favor of his authority, and though he may be required to show it, yet if he acts in good faith and the want of authority is not manifest, he will not be held to have acted without authority, because it is not shown according to strictly legal rules. If this were not so, the greatest inconvenience in practice would continually occur both to clients and attorneys; for suits are frequently instituted by attorneys under the authority of letters from their clients, who are strangers, and whose handwriting is unknown to them, and could not be proved without great trouble and delay. If required in such a case to produce his authority, the production of the letter, though he might be unable to prove the handwriting, would be sufficient; and so of a letter written by a party purporting to be the agent of the plaintiff. All that is required to be shown in such cases in the first instance, is, that the attorney has acted in good faith and under an authority appearing to be genuine, though informal. It then devolves upon the party impeaching the authority, to show by positive proof, that it is invalid, and insufficient in substance. McKiernan v. Patrick, 4 How. 333; Rogers v. Park's Lessee, 4 Humph. 480.

We think, therefore, that sufficient authority was shown in the attorneys here, and that the rule was properly discharged.

Second. The defendants then produced to the court a power of attorney, purporting to be signed by the plaintiff, acknowledged before, and certified by the clerk of the circuit court of the District of Columbia, whose official character was attested by the certificate of the chief judge of that court, who was certified to be such by the secretary of State under the seal of his office, and authorizing Jacob Thompson to ■ dismiss any suit or suits which might be pending in his name, in virtue of which Mr. Thompson appeared and moved the court to dismiss the suit, which was resisted by the counsel for the plaintiff, and overruled by the court.

The defendant in error insists, that this power of attorney could not be admitted in support of the motion without legal proof of its execution; that the certificate of acknowledgment of the clerk, attested by the judge and secretary, was insufficient for that purpose, because there is no law of this State authorizing such a mode of authenticating such instruments, and consequently, when offered in evidence, the execution must be proved by the rules of the common law.

We consider these positions well founded. There is nothing in the step proposed to be taken that took it out of the legal rule in relation to the proof of the instrument on which it was based. The motion was deliberately made, in virtue of a document.in the possession of the party making it, where no surprise could be alleged in his behalf, and when he might have prepared himself with the necessary evidence to prove the instrument. He was bound to know that the document as presented was not sufficiently proved, and to come prepared to prove it according to the rules of law. No presumptions existed in favor of its' execution, and there was nothing in the circumstances under which the motion was made to entitle the paper to more favorable consideration than is required by strictly legal rules, applicable to the proof of documents relied upon by a party as the foundation of a strictly legal right in a suit pending and on trial. He could not object, that in an effort to apply a rigid legal rule to the plaintiff, a like rule was required as to the evidence on which his motion was founded.

On the trial of the case, the plaintiff’s lessor offered and relied upon as the evidence of his title, the certificate of the register of the land-office at Pontotoc, showing a location of the land in his behalf, under the 6th article of the treaty with the Chickasaws. This certificate was objected to by the defendant, but the objection was overruled, and it was read to the jury; to which the defendant excepted. The competency of this certificate has already been determined by this court in a suit instituted by this same Indian against another party for a parcel of the same land located and described in it. In the same case, the validity and legal effect of the certificate, as well as the most of the other points now urged in behalf of the plaintiff in error, were presented and decided by the court. Wray v. Doe, 10 S. & M. 452. Questions thus settled, and determining the rights of a particular party, we do not consider open to review, unless the former decision be palpably erroneous. This not being the case with that decision, we do not think it proper to hold that it is not the law of this case.

There are, however, some points presented here which were not settled in that case, and which deserve consideration.

1. The certificate relied upon by the plaintiff’s lessor to show the location, will be found in the case as reported in 10 S. & M. 454. It shows a location made on the 29th of June, 1838, in behalf of this Indian, of the entire section of land, (of which the premises in controversy here are part,) and certifies that the same is “ a true copy from the list of persons furnished by Benjamin Reynolds, Chickasaw agent,«on the second day of November, 1838, to the register and receiver, of Indians entitled to land under the sixth article of the treaty between the United States and the Chickasaw Indians, and of the location of Ho-yopo-nubby as the same remains of record,” in the register’s office.

It is insisted in behalf of the plaintiff in error, that this certificate was insufficient to show a location in behalf of the plaintiff’s lessor, because it shows that the location, if made at all, was made by the agent in June, 1838, before he furnished the register and receiver with the list required by the treaty, which was done on the 2d of November, 1838. The list referred to is provided for in the first clause of the sixth article of the treaty, in these words: —

“Also reservations of a section to each shall be granted to persons male and female, not being heads of families, who are of the age of twenty-one years and upwards, a list of whom, within a reasonable time, shall be made out by the seven persons herein before mentioned, and filed with the agent; upon whose certificate of its believed accuracy, the register and receiver shall cause said reservations to be located upon lands,” &c. 7 U. S. Stat. at Large, 452.

It appears that the location was made before the agent furnished the register and receiver with the list mentioned in the treaty; and the question presented is, whether the treaty requires the list to be filed with these officers before the location can be made. We think that the treaty does not require the list to be so filed. It provides that the list shall be made out by the seven chiefs, and “ filed with the agent, upon whose certificate of its believed accuracy, the register and receiver shall cause such reservation to be located.” All that is required to be filed with the register and receiver is the agent’s certificate of the believed accuracy of the list, and such a certificate could be made without returning the list made by the seven chiefs, and filed with the agent, to the register and receiver.

But it is said, the certificate offered in evidence shows that the location was made by the agent, who had no power to do it, and not by the register and receiver, because it shows that the list of persons entitled was not furnished by the agent to the register and receiver until November, 1838, and that the location was made in June, 1838, and hence that the location could not have been made by the register and receiver. But we have above seen that the location might have been made by the register and receiver upon the certificate of the agent, and without the return of the list to them. The certificate required may have been made by the agent, upon the return of the list to him by the chiefs, and the location may then have been made by the register and receiver upon the list filed with the agent, which list may not have been deposited with the register and receiver for several months afterwards. In the case above referred to, it is held that the location is evidence of itself that all the prerequisites were complied with, and that a violation of duty on the part of the officers who made the location is not to be presumed. And hence such a construction will be given to the certificate offered in evidence as will justify the acts of the officers, and render the location valid.

2. The defendant offered in evidence a diagram of the entire township in which the land in controversy lies, with a certificate signed by the register and receiver, that it was a correct transcript of the original then in their office, designating the different sections which were located as Indian reservations, under the 5th and 6th articles of the Chickasaw treaty. The paper was admitted by the court; and the defendant then introduced James W. Drake, the receiver of public moneys at the land-office at Pontotoc, and asked him to explain to the jury the meaning of certain figures and letters in red and black ink, and pencil marks appearing on the several sections of land as marked out on the diagram; to making which explanation the plaintiff objected, and the objection was sustained, and the defendant excepted. This ruling of the court is assigned for error.

It does not appear for what purpose the explanation was offered, and its relevancy does not therefore sufficiently appear to enable us to determine whether the evidence was competent. But so far as we can understand the object for which it was offered, it was to show by explanation of the letters, figures, and marks on the paper, which were otherwise unintelligible, that the section of land claimed as having been reserved for the plaintiff, had not been so reserved. If this was the object, the testimony was incompetent. The plat of the land was admissible only on the ground that it was “ a record appertaining to the land-office,” Hutch. Dig. 864, § 3; and as such, it was not susceptible of parol explanation in its material parts; for in order to be a record, it must be certain, clear, and intelligible, and it can be tried by nothing but itself upon bare inspection. Moreover, it was incompetent to show by this kind of evidence, that the land had been disposed of otherwise than as a reservation for the Indian; because, if such were the case, it could have been shown by the regular books and records of entries and sales of lands required by law to be kept in the land-offices ; and such evidence, for aught that appears, could have been adduced if the fact sought to be proved by this evidence had existed.

3. The instructions granted at the instance of the plaintiff’s lessor are objected to; but they are substantially the same as those passed upon and sustained by this court in the case of Doe v. Wray, and we do not think that they contain error to the prejudice of the defendant’s case, under the state of facts presented in the record.

4. It is said that the court erred in rejecting the deposition of one Epperson, offered by the defendant. We have carefully examined the bill of exceptions in reference to this point, and find that it is silent as to whether this deposition-was rejected or admitted. Consequently we cannot know what was the action of the court in the matter, and cannot pronounce whether it was proper or improper.

The other questions urged in. behalf of the plaintiff in error appear to be settled in the case of Wray v. Doe, and do not, therefore, require further examination.

The judgment is affirmed.