By the Court.
Davies, J.
[After stating the facts.] — The matters stated in this answer are not set up as a counter-claim on the part of the defendant. They do not fall within the provisions of the Code of Procedure. They do not arise out of contract, or from any transaction set forth in the complaint on the foundation of the plaintiff’s claim, connected with the subject of the action.
The subject of the action is the collection of a debt, admitted by the defendant, at the time of the execution of the bond and mortgage, to be due by him, to the United States, and to secure which, this mortgage was given. That debt was origi[118]*118nally secured by a mortgage upon other lands. In 1840, the defendant admitted his liability to the United States to pay the sum mentioned in his bond and mortgage to Mr. Butler. It is of no moment whether such indebtedness arose upon his liability as surety upon a bond or otherwise. It was a conceded indebtedness, and its justice has been admitted by the subsequent payments. In 1840, when the first mortgage had been given, the Indians had not removed from the reservation as the defendant now contends they should have done, in conformity with the treaty of 1838, and if there was any neglect of duty on the part of the United States, it had occurred at that time. Yet the defendant, setting up no such claim in discharge of his indebtedness to the United States government, gave a mortgage on his interest in the lands of the five reservations, to secure the whole amount of such indebtedness, and such mortgage remained a lien upon his interest in the lands of the said five reservations, until the United States, upon the application of the defendant, in 1856, released such lien, and canceled said mortgage, and took the mortgage now in process of foreclosure in this action, upon other lands of the defendant, for the balance due of said original debt. And it is a singular fact, that at the time this new security was given, all the transactions mentioned and referred to in the defendant’s answer had happened and all the equities now interposed by him, if any, existed, and yet no mention seems then to have been made' of them, and no claim set up that the debt mentioned in the new bond and mortgage was not due. The giving of that bond and mortgage was an act entirely inconsistent with the allegation now made, that at that time there was nothing due to the United States by the defendant. No cause of action is set up by this answer, against the United States, and the equities claimed by the defendant will next be considered, as well as the affirmative relief asked for, namely, that the mortgage debt be adjudged to be fully paid, and that the bond and mortgage should be given up and canceled.
The gravamen of the defendant’s answer is, that the United States was bound by the terms of the treaty of 1838, to remove the Indians from the five reservations then conveyed to Ogden and Fellows, and that in consequence of such neglect and [119]*119refusal the defendant had sustained damages greater than the balance upon said original bond and mortgage. The duty of the United States thus to remove the Indians is stated in various forms in the answer. In one place it is alleged, that by the terms of the treaty of 1838, and by the conveyances to Ogden and Fellows, they were entitled to the immediate possession of said lands. Again, that the possession of said land to the defendant and his ten owners was fully guaranteed by the United States by the treaty of 1838. Again, it is alleged, that the United States, by becoming parties to the treaties of 1838 and 1842, guaranteed to the said pre-emption owners the possession of said lands; and again, that in consequence of the undertaking of the government to enforce said treaties, and its neglect and refusal so to do, the defendant had lost the interest on the moneys paid to the government, and the large sums paid to obtain possession of said lands. These are the various forms in which the defendant states the duty, obligation, agreement or guaranty of the United States, the failure to perform which creates the equitable defense contended for. There is no pretense that any such duty is recognized or referred to in either of the bonds and mortgages executed by the defendant to the agents of the United States, or that any agreement or understanding was ever had or existed between the defendant and the United States, or any of its officers or agents, that any such duty existed, or that the United States would undertake its performance. The nearest approach to this is the allegation in the answer that the mortgage to Butler was executed upon the express understanding and assumption on his part that the government of the United States would in good faith execute the provisions of the treaty of 1838, and give to the pre-emption owners the possession of the said reservation lands. This allegation falls far short of any understanding or agreement on the part of the United States to do the things specified, made or entered into at the time of the execution of the mortgage.
The word “ express ” as here used might seem to imply that an expression had been given to some understanding on the part of both parties at the time, but the other words used, negative any such inference. It was an understanding or assumption on the part of the defendant only, that the United [120]*120States would execute the treaty of 1831, and put the owners of the lands conveyed by the Indians into the possession thereof. The form of the allegation is evidently intended to convey the idea, that the United States were bound by the terms of the treaty of 1838, to put the defendant and his associates into the possession of the Indian lands. The same idea, as has been observed, is presented in different language several times, in the answer, and in one instance as though the United States by that treaty fully guaranteed such possession to them. The political and judicial history of the country, and the statutes of the State of New York and Massachusetts show, that at an early day a dispute had arisen between the two States, in respect jrothe title to a large tract of land within the territorial limits of the State of New York, of which the Indian reservation mentioned and referred to in the defendant’s answer formed a part. In 1786 the dispute was amicably settled by a cession from Massachusetts to New York of the sovereignty and jurisdiction over the tract then occupied by the nations of Indians mentioned, and by a cession from New York to Massachusetts of the right of pre-emption to the soil from the Indians. The lands were then in the independent occupancy of the Seneca nation and the Tuscarora nation, and owned by them, and Massachusetts acquired by the cession the exclusive right of purchasing their title to said lands whenever they became disposed to sell the same. This right became vested in the said Ogden and Fellows by proper conveyances from the State of Massachusetts. By the constitution of the United States the power to regulate commerce with the Indian tribes was vested in Congress, and by virtue of that power, Congress has passed various laws regulating intercourse with the Indian tribes. Negotiations with them must be had by and with the assent and under the authority of the United States. They are treated as a quasi nation possessing none of the attributes of an independent people, and are to be dealt with accordingly.
The Indian tribes are in a state of pupilage toward the United States government, and hold the relation to it which a ward owes to his guardian. Fellows v. Blacksmith, 19 How. U. S., 366. In 1838, Ogden and Fellows, being desirous of purchasing the pre-emption right of the Seneca nation to the four [121]*121mortgaged reservations, and from the Tuscaroras the reservation owned by them, procured the appointment of commissioners on the part of the State of Massachusetts, and on the part of the United States, to hold a treaty with said nations, and which was held on January 15, 1838, and which treaty was approved of, and proclaimed by the president of the United States April 4, 1840. By the terms of this treaty, these commissioners being present, the chiefs o.f the Seneca nation agreed to sell, and Ogden and Fellows agreed to purchase, the title of the nation to said four reservations, and a deed therefor having been first read and explained to said Indians, was made and executed by them, bearing date January 15, 1838, whereby, for the consideration of two hundred and two thousand dollars therein expressed, to them in hand paid, they granted, bargained, sold, released and confirmed unto said Ogden and Fellows, and to their heirs and assigns forever, as joint tenants, and not as tenants in common, and the commissioner on the part of the State of Massachusetts, and the commissioner on the part of the United States, certified and declared at the foot thereof that they respectively approved of the same. A similar treaty in all respects, containing a similar deed from the Tuscarora nation to Ogden and Fellows, for their reservation, was made and concluded at the same time, and certified and approved by the said commissioners in the same manner. Neither of these treaties contained any stipulations or agreements of anything to be done or performed on the part of the United States. All that was done on the part of the agent of the United States was to certify and declare that the said deed then executed in his presence, being fairly and perfectly understood by the said Indians, and that he approved- of the same.
There is not a word in either of these treaties in reference to the possession of said reservations, or anything implying that the United States was to deliver the same to the grantees named in the conveyances recited therein, or assumed any obligations or duties in relation thereto. These were the only treaties made at that time to which Ogden and Fellows could in any sense be deemed parties, or had any right or pretense to .assert any interest in the fulfillment of. At the same time, to wit, on January 15, 1838, a treaty was made between the [122]*122United States and several tribes of New York Indians, including the said Seneca and Tusearora nations, and which was amended by the Senate of the United States, on June 11, 1838, concerning the removal of said tribes to certain lands west of the State of Missouri, and lands owned by them in the western States. Article 10 of said treaty related exclusively to said Seneca nation. By this article the said Seneca nation agreed with the United States to remove to their new home in the west within five years, and to continue to reside there. The said article then recites that at the time of making said treaty, Ogden and Fellows had purchased from the Seneca nation the right and title of said nation to certain lands in the deed of conveyance annexed to the treaty mentioned, for the price of two hundred and two thousand dollars; the treaty then declares that the nation agreed that said sum should be paid to the United States, which agreed to receive the sum, to be disposed of as follows: the sum of one hundred thousand dollars to be invested in safe stocks, and the increase thereof was to be paid to said Indians annually, at their new homes, and the sum of one hundred and two thousand dollars was to be paid to the owners of the improvements on said lands, according to an appraisement to be made, on said Indians severally relinquishing their respective possessions to said Ogden and Fellows. Article II of said treaty related to the Tuscarora nation, and by it said nation agreed to accept the country set apart for them in the Indian Territory, and to remove there within five years and to continue to reside there. It is recited that at the making of that treaty, Ogden and Fellows had purchased all the title and claim of said nation in and to the lands mentioned in the deed annexed. ' That the consideration of said lands had been secured by said Ogden and Fellows to their satisfaction, therefore the United States assented to said sale and conveyance and sanctioned the same.
It is difficult to perceive from these references to the provisions of these treaties — and they are all which relate to said nation of Indians, or the lands sold and conveyed by them to said Ogden and Fellows — any grounds for the equities and claims set up by the defendant in his answer against the the United States. It is very clear that the United. States [123]*123made no agreement whatever with Ogden and Fellows, or with the defendant, or that by reason of anything contained in those treaties that government owed to them, or either of them, any duty whatever, If there has been any breach of duty, or violation of contract on the part of the United States, it has been with these tribes of Indians, and not with Ogden and Fellows, or their associates. A reference to the circumstances under which the treaty of 1842 was negotiated, and to its provisions, will furnish as little color for the claims set up by the defendant. This treaty is between the United States of America and the Seneca nation of Indians, and was made on May 20, 1842, and approved and proclaimed by the president on August 26, 1842. It recites the making of the treaty of 1838, proclaimed to have been duly ratified on April 4, 1840, and that on the date of that treaty, May 20, 1842, an indenture had been made and executed by and between the Seneca nation and said Ogden and Fellows, in the presence of and with the approbation of a commissioner on the part of the United States, and in the presence of and with the approbation of a commissioner on the part of the State of Massachusetts; which' indenture is set forth in full, and recites the indenture between the same parties of January 15, 1838; and that divers questions had arisen between the chiefs of said nation and Ogden and Fellows; and that the provisions contained in said indenture remain unexecuted ; and that said parties have mutually agreed to settle, compromise, and finally terminate all such questions and differences on the terms and conditions therein specified; among which are, that the said nation, notwithstanding the indenture of January 15, 1838, might continue in the occupation and enjoyment of the whole of said two reservations, the Cattaraugus and the Allegany, with the same right and title in all things which they had immediately preceding its execution. In consideration whereof and of the agreements therein contained, the said nation released and conveyed unto said Ogden and Fellows the said Buffalo and Tonawanda reservations. The indenture contained other provisions not necessary particularly to mention, except those of article fifth, which were, that the possession of the two reservations, thereby confirmed to Ogden and Fellows, were to be surrendered and delivered up to them, [124]*124as follows: the unimproved lands within one month after the filing of the report of the arbitrators, as provided for therein, and the improved lands within two years after the said report should have been filed. The seventh article provided, that that indenture should be in lieu of and as a substitute for that of January 15, 1838.
The United States, talcing into consideration the premises, stipulated and agreed with the said Seneca nation: 1. That the United States consented to the several articles and stipulations contained in said indenture between said nation and Ogden and Fellows; 2. The United States further consented and agreed, that any number of said nation who should remove from the State of Sew York, under the provisions of the treaty of April 4, 1840, should be entitled, in proportion to their relative numbers, to all the benefits of said treaty; 3. The United States further consented and agreed, that the tenth article of said last mentioned treaty should be deemed to be modified in conformity with the provisions of said indenture of May 20, 1842, so far as that the United States would receive and pay the sum stipulated to be paid as the consideration money of the improvements therein specified, and would receive, hold and apply the sum to be paid, and the securities to be given for the lands therein mentioned, as provided for in such indenture.
These are all" the stipulations, agreements or undertakings contained in said treaty, on the part of the United States, or affecting that government. It is seen that they are made only with the Indians, and that they are the only parties thereto. The provisions fall far short of establishing the propositions contained in the defendant’s answer, in reference to the duty of the United States to remove said Indians, to give the possession of their lands to the defendant;. As these treaties are referred to and made part of the defendant’s answer, as the foundation of his claim against the United States, they have received a careful examination and dissection lor the purpose of ascertaining what duties or obligations arise therefrom, on the part of the United States, to the defendant. It is difficult to perceive what obligations the United States incurred by these treaties, for the violation of which the defendant has any claim for damages. As well might that claim he interposed by any [125]*125other citizen of the United States, and and as well might any other debtor to that government, claim that his debt was discharged and satisfied by the failure of the United States to fulfill its treaty stipulations with the Indians. The United States, therefore, assumed no duty to the defendant, in reference to the removal of the Indians from their lands, conveyed to Ogden and Fellows, or to put the defendants and his associates into the possession thereof, and consequently no claim for damages can exist on the part of the defendant against the United States, for the omission to discharge a duty or obligation which never had an existence.
It is further alleged that the defendant and his associates were greatly damaged by reason of their being compelled to accede to the terms of the treaty of 1842. That treaty was made by the United States with the Seneca nation, and when duly ratified and proclaimed, became the supreme law of the land, binding upon the defendant and all other citizens. But it is manifest that it is not of the terms of the treaty of 1842 that the defendant complains, but of the provisions of the indenture made by and between Ogden and Fellows and the Seneca nation, to which the United States assented by that treaty. The United States were not parties to that indenture, and assumed no obligation in reference to it, to the defendant. It was an arrangement between the defendant and his associates, represented by Ogden and Fellows, and the Indians; it is to be presumed they would not have entered into it if they had not deemed it for their interest so to do. The recitals declare the reasons why it was made, — that questions and differences had arisen between the Indians and Ogden and Fellows, in relation to the indenture of January 15, 1838, not referring to any differences which had arisen between either of the parties thereto and the United States. It also recited that the provisions of said indenture remained unexecuted. .We have seen that the only parties thereto were the Indians, and the said Ogden and Fellows, and this recital is to be understood that the same remained unexecuted by them. But what is conclusive upon the claims here set up by this defendant, is that said indenture declares that the parties thereto have mutually agreed to settle, compromise and finally terminate all such questions and [126]*126differences on the terms and conditions thereinafter specified. Kow this compromise was binding and conclusive upon the parties thereto, unless impeached for fraud or mistake. Even if the United States had been a party thereto, they could have set up its finality, as it is not impeached for the reasons suggested. It has been performed, on the part of the Indian nations, by the surrender of the two reservations, the possession of which it was agreed thereby should be given to Ogden and Fellows, and all claim for damages, if any existed against the Indians for not surrendering the possession of the reservations, as it is claimed they were bound to do under the indenture of January 15, 1838, must be deemed to be settled and compromised by the new agreement of 1843.
It remains to be considered, what equities, if any, does the defendant present, arising out of the treaty of 1843. That treaty ratified on the part of the United States the indenture made between the Indians and Ogden and Fellows of Hay 30, 1843. It provided for a valuation by appraisers of the improvements which had been made by the Indians upon the lands of the two reservations, the possession of which it was thereby agreed should be surrendered, and for the payment of the amount awarded by the appraisers to the secretary of war, for the benefit of the Indians. This award was made and the money paid in 1844. Still the Indians did not remove from the Buffalo Creek reservation until the year 1846, and had not removed from the Tonawanda reservation, as they had agreed to do, by the terms of the indenture of 1843; and the defendant claims that the United States did not execute that treaty, and remove the Indians. We have already adverted to this claim, and shown how untenable it is. In 1844,1845, and 1846 the pre-emption owners themselves, induced the Indians to remove from the lands of the Buffalo Creek reservation, and obtained the possession of it. The lands or interest of the defendant therein, thus became marketable, and were accordingly sold, from time to time, by the trustees, or Mr. Fellows, the survivor. The share of the defendant, in this and the other reservations, was subject to other liens, prior to that created by the mortgage to Mr. Butler, and the proceeds of the sale of his interest in the lands of the Buffalo reservation were [127]*127entirely exhausted in the discharge of these liens. The mortgage, therefore, remained a lien on his interest in the lands of the other reservations. The defendant, during the years 1845, 1846 and 1847, was making payments upon his bond and mortgage. He had paid, in all, the sum of ten thousand dollars, which was applied in discharge of the payment of the principal and interest due thereon. In 1855 the defendant was desirous of procuring a discharge of said mortgage, thereby releasing not only his interest in the lands of the Buffalo reservation, but in those of the other four reservations, and applied to the government to make some arrangement for that purpose. He then proposed to give his bond and a mortgage upon other lands of his in the county of Dutchess for the balance then due on said mortgage, and which he admitted was, on March 1, 1855, the sum of seven thousand four hundred and forty-six dollars and four cents. Upon that application the arrangement was made by which the mortgage then held by Mr. Butler was canceled, and the present mortgage accepted as a substitute therefor. Since its execution the defendant has made payments thereon already adverted to. One of the equities insisted upon by the defendant is, that the failure of the government to put the defendant in the possession of the lands of the Indian reservations has deprived him of the means of paying the interest on said lands, and this equity is connected with or arises from the allegation of the answer, that such lands were specifically assigned for the payment of such interest. It is only necessary to say that it is impossible to discover, from the facts set forth in the answer, any grounds for such a position. It is doubtless true, as the defendant alleges, that the mortgage was executed upon the express understanding and assumption on his part, that the mortgage debt thereby secured should be paid from the proceeds of the lands thereby assigned and released under said treaty. It is not pretended that there is any other foundation for this assumption than is found in the fact that said lands were mortgaged by the defendant to the United States to secure his indebtedness. It was an understanding and assumption on his part only, and it is not claimed that it was so understood on the part of the United States, unless the use of the word “ expects ” was in-ended to convey that meaning. That it does not, has been [128]*128shown, when the force of that word, as nsed here, was commented on in another connection. But by the terms of the indenture of 1843, assented to by the United States, the possession of two of the reservations covered by said mortgage, was released to the Indians, and in 1846 the possession of the Buffalo Creek reservation was fully obtained by the defendant and his associates. The United States, hy the arrangement of 1855, fully discharged all the Indian lands from the lien of said mortgage, at which time the defendant conceded that there was a balance due to them. It is no fault of the United States if the defendant has not since then bad the full enjoyment of what they then released to him. The defendant has thus had the benefit and enjoyment of the lands mortgaged, and not the mortgagee. There is no equity therefore in the claim that interest should not accrue upon the mortgage debt.
It is also insisted that the amount contributed hy the defendant, to obtain possession of the Buffalo Creek reservation, should be set off or credited upon said mortgage, and that defendant should also be credited with his proportion of the interest on the amount paid by him to the secretary of war, under the award, made pursuant to the indenture of 1843, to pay for the Indian improvements.
The first of these claims has been already disposed of, by showing that the United States were under no obligation to the defendant, by way of contract or otherwise, to remove the Indians from their lands and put the defendant in possession thereof. If there had been, then there would have been force in the claim that the defendant should be allowed the amount of money expended by him, for doing what it was the duty of the United States to do. Under the facts stated, the expenditure incurred by the defendant must be regarded as made on his own account and for his own benefit, and which the United States is under no obligation, legal or equitable, to re imburse to him. In reference to the second claim, it is only necessary to observe that the moneys paid to the secretary of war, pursuant to the provisions of the indenture of 1843, were • paid to him as the trustee for the respective Indian owners of the improvements thus compensated for. Such moneys belonged to said Indians, and if any interest accrued thereon [129]*129while the same was in the hands of their trustee, or he was chargeable with any such interest, it belonged to the owner of the principal, and was to be paid to him. As was well observed in the opinion of the supreme court in this ease: “ The defendant and his associates were under a strict legal obligation to pay this money, and the government derived no benefit from it. If any rights accrue to the defendant, in consequence of this payment, they must be asserted against the Indians, for the transaction was one between them and the white purchasers exclusively.”
It follows from these views and considerations, that there is nothing set up in defendant’s answer which presents a legal or equitable defense to the foreclosure and sale of the mortgaged premises, or which in anyway modifies or alters the contract between the parties thereto. The judgments of the special and general terms were, therefore, correct, and should be affirmed.
All the judges present concurred.
T. A. Johksoít, J., also read an opinion for affirmance.
Judgment affirmed, with costs.