Kent, Ch. J.
delivered the opinion’of the court. The lessors of the plaintiff have made out the following paper title to the premises.
1. A patent from government in the year 1731, for 8,000 acres of land, and which included the Conajohary Castle tract, of which the premises in question are a part.
2. A release from one of the four patentees, in the year 1734, to Philip Livingston, another of the patentees, for his one-fourth part of the tract. This release invested Livingston with a moiety of the lands.
3. The will of Livingston in the year 1748, by which he devised his estate in the patent, to his. eight children, in fee.
4. A .deed from the devisees, in the year 1761, to Jellis Fonda and George Klock, for a moiety of the same patent, excepting 1,000 acres before conveyed to David Schuyler. ,
5. A deed from the heirs of Van Horne, another of the patentees, in the same year (1761) to Fonda and Klock, for a fourth part of the patent, excepting 500 acres before conveyed to David Schuyler.
These several conveyances invested George Klock, the father of the lessors of the plaintiff, with the title to an undivided fourth part and an undivided eighth part of lot no. 2. in the Conajohary Castle tract, (being the premises in dispute) provided the portions of land previously conveyed to Schuyler are located in some other part of the tract, and the fourth and the eighth parts" amount to three-eighths of the premises, or the quantity of land recovered by the verdict. The lessors of the plaintiff were proved to be the heirs at law of Klock ; and this title, so deduced, is prima facie evidence of a good title to the premises, to the extent of the recovery. We are next to examine the several objections which the defendant has raised to its validity.
He has not set up any title in himself under the patent,' except it be a deed from the executors of Fonda [384]*384in the year 1792, for a part of the premises, and a deed' from C. P. Yates, in the same year, for the residue of the premises. These deeds were given only seven years before the commencement of the present suit. The deed from conveyed no title, because, there is no evidence that he had any title, or that he was ever in possession; and the deed from the executors of Fonda (admitting that they were authorised to convey) could have operated only on the undivided share of their testator in the lot in question, as the release from Flock to Fonda, in the year 1767, was for another part of the castle tract.
The first objection raised to the plaintiff’s title is, that the Mohawk Indians of the Conajohary Castle were in possession of the premises, as well a$ of the whole Conajohary Castle tract, in the year 1761, and possessed it as their own, and, consequently, that here was ap adverse possession, which rendered the deed of 1761 inoperative.
It appeared that the Mohawk Indians had the exclusive possession of the Conajohary Castle tract, not only in 1761, but as far back as the memoiy of witnesses could reach, and one of the witnesses who testified to this effect, was 90 years of age. The Indians must, then, have been in possession of this tract when the letters patent issued, in 1731 j but this possession can never be urged against the validity of the patent, or of any of the subsequent conveyances under it. The defendant did not object to the legality of the patent, for he introduced it, and yet it must be apparent, that if the possession of the Indians was sufficient to destroy the operation of the deeds in 1761, it would be equally effectual to destroy the grant from government, in 1731. Such a suggestion, however, is inadmissible. The policy, or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we [385]*385have at present nothing to do. It cannot arise or be discussed in a contest between two of our own citizens, neither of whom deduce any title from the Indians. What would be the effect of an Indian possession or title, in opposition to the grant under the patent, if they were to be brought into collision, is not a question before us. No such title is set up, and the Mohawk Indians have, from the time of the American war, ceased to claim or occupy the lands. The most decent presumption is, that the Conajohary Castle lands had been previously purchased by-government. At any rate, no Lidian claim exists, nor does it appear that any controversy with the Indians, as to title, has ever existed. The competency of government to grant, cannot be called in question. As to the subsequent alienations under the patent, the doctrine of the common law rendering void the sale of lands, while they are in adverse possession, does not apply. The evil of maintenance could not exist in the case. That evil consisted in selling contentions and law-suits, “ whereby right might be trodden down, and the weak oppressed.” But the Mohawk Indians of the Canajohary (or Upper Mohawk) Castle, existed and occupied the lands, in question, as part of an independent tribe. This tribe inhabited what was formerly called the Upper and Lower Mohawk Castles, and was never held amenable to the jurisdiction of our courts of justice. They possessed their lands in common as belonging to the community, and they continued to be recognised in their independent or national character by the colony government, long after the date of the patent, in 1731, and even down to the time of the American war. This historical fact could be abundantly proved, if requisite, by a reference to the public documents of the country, but it may here be assumed as a fact of public notoriety. The conveyance from one individual to another, of a title to these Indian Castles, was not, then, a conveyance of a right in action, since no ac[386]*386tion could have been sustained against the Mohawk tribet
The next point raised to destroy the effect of the plain^’s title, consisted in the allegation of an existing title out of the lessors of the plaintiff, and which was supposed to reside in these same Indians of the Conajohary Castle, or in some part of them. This Indian title was deduced from the release of Livingston in the year 1763, to three Indians by name, in trust, for them and all the Indians of the Conajohary Castle. Several objections occur to defeat the force of this objection. If a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must be one that is living and operative, otherwise the presumption will be that it has become extinguished. Considering the nature of this obstacle, raised by a defendant who has no title, to defeat a plaintiff who shows a good title, the presumption as between them of an extinguishment of the outstanding title, ought to be pretty liberally indulged. It has, accordingly, been held, that the production of an old outstanding lease was not sufficient without showing a possession under it within 20 years, and that a mortgage deed would not be evidence of a subsisting title, if the mortgagee never entered, and no interest had been paid within 20 years. (Buller's N. P. 110.)
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Kent, Ch. J.
delivered the opinion’of the court. The lessors of the plaintiff have made out the following paper title to the premises.
1. A patent from government in the year 1731, for 8,000 acres of land, and which included the Conajohary Castle tract, of which the premises in question are a part.
2. A release from one of the four patentees, in the year 1734, to Philip Livingston, another of the patentees, for his one-fourth part of the tract. This release invested Livingston with a moiety of the lands.
3. The will of Livingston in the year 1748, by which he devised his estate in the patent, to his. eight children, in fee.
4. A .deed from the devisees, in the year 1761, to Jellis Fonda and George Klock, for a moiety of the same patent, excepting 1,000 acres before conveyed to David Schuyler. ,
5. A deed from the heirs of Van Horne, another of the patentees, in the same year (1761) to Fonda and Klock, for a fourth part of the patent, excepting 500 acres before conveyed to David Schuyler.
These several conveyances invested George Klock, the father of the lessors of the plaintiff, with the title to an undivided fourth part and an undivided eighth part of lot no. 2. in the Conajohary Castle tract, (being the premises in dispute) provided the portions of land previously conveyed to Schuyler are located in some other part of the tract, and the fourth and the eighth parts" amount to three-eighths of the premises, or the quantity of land recovered by the verdict. The lessors of the plaintiff were proved to be the heirs at law of Klock ; and this title, so deduced, is prima facie evidence of a good title to the premises, to the extent of the recovery. We are next to examine the several objections which the defendant has raised to its validity.
He has not set up any title in himself under the patent,' except it be a deed from the executors of Fonda [384]*384in the year 1792, for a part of the premises, and a deed' from C. P. Yates, in the same year, for the residue of the premises. These deeds were given only seven years before the commencement of the present suit. The deed from conveyed no title, because, there is no evidence that he had any title, or that he was ever in possession; and the deed from the executors of Fonda (admitting that they were authorised to convey) could have operated only on the undivided share of their testator in the lot in question, as the release from Flock to Fonda, in the year 1767, was for another part of the castle tract.
The first objection raised to the plaintiff’s title is, that the Mohawk Indians of the Conajohary Castle were in possession of the premises, as well a$ of the whole Conajohary Castle tract, in the year 1761, and possessed it as their own, and, consequently, that here was ap adverse possession, which rendered the deed of 1761 inoperative.
It appeared that the Mohawk Indians had the exclusive possession of the Conajohary Castle tract, not only in 1761, but as far back as the memoiy of witnesses could reach, and one of the witnesses who testified to this effect, was 90 years of age. The Indians must, then, have been in possession of this tract when the letters patent issued, in 1731 j but this possession can never be urged against the validity of the patent, or of any of the subsequent conveyances under it. The defendant did not object to the legality of the patent, for he introduced it, and yet it must be apparent, that if the possession of the Indians was sufficient to destroy the operation of the deeds in 1761, it would be equally effectual to destroy the grant from government, in 1731. Such a suggestion, however, is inadmissible. The policy, or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we [385]*385have at present nothing to do. It cannot arise or be discussed in a contest between two of our own citizens, neither of whom deduce any title from the Indians. What would be the effect of an Indian possession or title, in opposition to the grant under the patent, if they were to be brought into collision, is not a question before us. No such title is set up, and the Mohawk Indians have, from the time of the American war, ceased to claim or occupy the lands. The most decent presumption is, that the Conajohary Castle lands had been previously purchased by-government. At any rate, no Lidian claim exists, nor does it appear that any controversy with the Indians, as to title, has ever existed. The competency of government to grant, cannot be called in question. As to the subsequent alienations under the patent, the doctrine of the common law rendering void the sale of lands, while they are in adverse possession, does not apply. The evil of maintenance could not exist in the case. That evil consisted in selling contentions and law-suits, “ whereby right might be trodden down, and the weak oppressed.” But the Mohawk Indians of the Canajohary (or Upper Mohawk) Castle, existed and occupied the lands, in question, as part of an independent tribe. This tribe inhabited what was formerly called the Upper and Lower Mohawk Castles, and was never held amenable to the jurisdiction of our courts of justice. They possessed their lands in common as belonging to the community, and they continued to be recognised in their independent or national character by the colony government, long after the date of the patent, in 1731, and even down to the time of the American war. This historical fact could be abundantly proved, if requisite, by a reference to the public documents of the country, but it may here be assumed as a fact of public notoriety. The conveyance from one individual to another, of a title to these Indian Castles, was not, then, a conveyance of a right in action, since no ac[386]*386tion could have been sustained against the Mohawk tribet
The next point raised to destroy the effect of the plain^’s title, consisted in the allegation of an existing title out of the lessors of the plaintiff, and which was supposed to reside in these same Indians of the Conajohary Castle, or in some part of them. This Indian title was deduced from the release of Livingston in the year 1763, to three Indians by name, in trust, for them and all the Indians of the Conajohary Castle. Several objections occur to defeat the force of this objection. If a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must be one that is living and operative, otherwise the presumption will be that it has become extinguished. Considering the nature of this obstacle, raised by a defendant who has no title, to defeat a plaintiff who shows a good title, the presumption as between them of an extinguishment of the outstanding title, ought to be pretty liberally indulged. It has, accordingly, been held, that the production of an old outstanding lease was not sufficient without showing a possession under it within 20 years, and that a mortgage deed would not be evidence of a subsisting title, if the mortgagee never entered, and no interest had been paid within 20 years. (Buller's N. P. 110.)
In the present case, there is good ground to presume an extinction of the Mohawks, as a separate tribe. From the time of the American war down to the trial, we hear nothing of the three trustees, or of their cestui que trusts. No person during all that lapse of time, has appeared under that release, either as a party or a reversioner, to deduce any title or claim founded upon it. The presumption is, therefore, irresistible, that it is no longer a subsisting title. But a still more decisive objection to the release is, that it does not appear ever to have been executed by Klock, notwithstanding his name is mentioned in the body of it; and no subsisting title, under the patent, is shown to have existed at that time, in the other [387]*387grantors. The possession of the Indians from 1763, to the American war, was not of itself sufficient to justify an inference of a title derived from the releasors, because the Indian possession was merely a continuation of that which had existed from time immemorial. Nor can the presumption of a deed to the Indians, be deduced from the note or memorandum in the field-book of 1764, since the presumption is rebutted by the fact, that in 12 or 14 years after that time, the Indians abandoned the premises, and have never since returned. But it is evident, that the field-book memorandum alluded to the release of 1763, and it demonstrates, that George Klock never was a party to the release, for it specifies the names of the actual releasors. There was, then, never any outstanding title as against him ; and the other parties were, for aught that appears, strangers, who had no right to give a release ; and if any title passed, it is not now a subsisting one, since the Mohawk Indians of the Conajohary Castle have long since disappeared from the face of the country. Etiam periere ruina.
Another objection to the plaintiff’s title, is deduced from the exception in the deeds of 1761, of the 1,000 and of the 500 acres, previously conveyed to Schuyler. In what part of the tract, covered by the patent, these two portions of land had been previously located, does not appear. There was land sufficient to supply them, without touching any part of the premises ; and as the deeds were not explicit, Klock, the grantee, was left at liberty to locate these excepted tracts, in whatever part of the patent he pleased, as against every other person but Schuyler. Where a deed may enure in different ways, the grantee shall have his election which way to take it. An exception in a deed is always to be taken most favourably for the grantee, and if it be not set down and described, with certainty, the grantee shall have the benefit of the defect.
There is, then, no weight in this objection, and upon a fyll consideration of the case, the court are of opinion, that [388]*388the motion on the part of the defendant, for a nexy trial, must be denied.
Spencer, J. having been formerly concerned as counsel in the cause, declined giving an opinion.
Rule refused.