DARGAN, C. J.
— We will not examine in detail every question that has been presented in the course of the argument, but only such as are material to the merits of the cause, .as it is presented to us by the record.
When this case was before the Supreme Court of the United States, the facts material to the right or title of Sally Ladiga were in substance the same, as they now appear from the record before us; and that court held, that a grandmother of the Creek tribe of Indians, with whom her grandchildren resided, was the head of a family, within the meaning of the second article of the treaty concluded on the 24th day of March, 1832, between the United States and the Creek tribe East of the Mississippi River.
" It was also held, that, as Sally Ladiga resided on the half section of land in controversy, and selected it as her reservation, and made application tp the agent of the Government to be located upon it, the< refusal of the locating agent to recognize her right upon the ground that she was not the head of a family, did not in any manner affect her title derived under the treaty. It was also held, that, as she had made application to be located on the land, and her application being refused and she afterwards being removed from the country [28]*28by tbe military force of tbe government, sbe bad not abandoned tbe land, nor lost ber title thereto derived from tbe treaty, and consequently that ber title was superior to tbe title of tbe defendants, wbicb is derived under tbe same article of tbe treaty wbicb authorizes the President to select twenty sections of land for the benefit of tbe orphan children of tbe Creek tribe, to be divided amongst them or to be sold for their benefit as the President might direct. See 2 Howard E. 581. This decision, the effect of wbicb we have stated, is conclusive to show that tbe title of Sally Ladiga, so long at least as sbe was in life, must prevail over tbe title of tbe defendants ; and we yield to it, not only as authority binding upon us, but as a correct exposition of tbe treaty.
But as she has departed this life since tbe institution of this suit, tbe question arises, whether sbe bad such an estate as would descend to ber heirs at law, who had removed west of tbe Mississippi with their tribe.
Before tbe treaty tbe ultimate fee simple to tbe land was vested in tbe General Government. This at least was tbe policy adopted by our Government in reference to tbe Indian lands. Tbe Indians were allowed tbe right of possession, but not tbe right of disposition — that right, or tbe ultimate fee, was claimed by tbe Government of tbe United States. Tbe Indians however bad an interest in tbe soil, and that interest was tbe right to occupy and enjoy, and tbe Government of tbe United States has never assumed to deprive them of that right, except by contract founded on sufficient consideration. And in tbe treaty of tbe 24th March, 1882, it was part of tbe consideration, moving from the General Government to tbe Creek tribe, that each head of a Greek family should he entitled to a half section of land, to be selected by him or ber so as to include bis or her improvement, if tbe selection could be-so made. Tbe second article of the treaty, wbicb conferred this right on tbe beads of families, also provides, that tbe tracts thus selected should be reserved from sale for their use for the term of five years, unless sooner disposed of by those entitled to them. Tbe third article stipulates, that these tracts of land, thus selected by tbe beads of families, may be conveyed by tbe persons selecting tbe same for a fair consideration, in such manner as tbe President may direct, but that tbe [29]*29contract should not be valid until it had received the sanction of the President. The fourth article provides, that at the end of five years all the Creeks entitled to these selections and desirous of remaining shall receive patents therefor, in fee simple, from the United States.
If we were to admit that, under these articles, an Indian reservee would forfeit his title to the land allotted to him, by abandoning the possession and removing from the country within the five years, as was indicated in the case of Wells v. Thompson, 13 Ala. 793; still, I think it clear, that if the Indian reservee took possession of the land allotted to him, and neither sold it, according to the provisions of the third article of the treaty, nor abandoned it by leaving the country within that time, then he became entitled to a patent, and was vested with the fee simple title.
The fourth article of the treaty, it is'true, provides, that at the end of five years, all the Creeks entitled to these selections and desirous of remaining, shall receive patents therefor in fee simple. But there is no provision made in the treaty prescribing the mode in which the desire of the Indian re-servee shall be made known to the Government, nor is any time prescribed after the expiration of the five years, within which he should make his wish or desire known, but he becomes entitled to a patent at the expiration of five years, if he is desirous of remaining in the country. This desire, I think, is sufficiently indicated by his failure to sell within five years, and his remaining upon the land allotted him without abandonment. An Indian reservee who had not sold, but had remained upon his reservation, would have performed the condition upon which he was to receive a fee simple title to the land allotted to him, and he would hold it to himself and to his heirs forever, as any other tenant in fee; and consequently upon his death the land would descend to his heirs at law, who could even before the issuance of the patent bring ejectment. This view may not be entirely consistent with the case of Wells v. Thompson, supra, or rather with the reasoning employed in that case, but I hold it to be in accordance with the plain meaning of the treaty; for at the very moment of the expiration of the five years, the Indian became entitled to a patent in fee simple, for then the condition sub[30]*30sequent annexed to tbe grant was performed, provided be bad neither sold nor abandoned tbe land. Tbe bead of a Creek family, therefore,, took a title under tbe treaty defeasi-ble upon tbe condition that be either sold or abandoned tbe land within five years. If be bad done neither within that period, that is, if be neither sold it according to tbe provisions of tbe third article, nor abandoned tbe land, bis title then became absolute and indefeasible, and of course descended to bis heirs.
We have seen from tbe decision of tbe Supreme Court of tbe United States, made in this case, that Sally Ladiga became entitled to tbe land in controversy, by virtue of tbe treaty, as tbe bead of a family, and it is certain that she has not sold her right according to tbe provisions of tbe third article of tbe treaty. Nor did she abandon tbe land; on tbe contrary, she repeated her application before several locating agents, all of whom rejected it, and although she removed from it in consequence of some difficulty between her and one Smith, who it seems surrounded her cabin by a field opened by him, yet she was found in a shelter upon or near tbe land, by a soldier of tbe United States, and was carried by him to a company then about to emigrate west. She was neither asked nor consulted whether she wished to abandon tbe land or not, but, so far as we can discover, was removed without any regard to her wishes, and this too, after tbe expiration of tbe five years. In no just sense can it be said that she abandoned it, which implies a voluntary act. She removed from tbe land in consequence of tbe unlawful act of an intruder, and was then removed from the country by tbe Government, without any inquiry whether she desired to remain on tbe land or not. To bold this to be a voluntary abandonment of tbe land, within tbe meaning of that term which would work a forfeiture of her title, would, in my judgment, be a stain upon our Government. It would in effect be, to allow lawless force to defeat individual rights. But it would have sufficed to have said, that tbe Supreme Court of tbe United States have decided that she bad not abandoned tbe land, and consequently was still invested with tbe title, notwithstanding her removal from tbe country, and therefore her title of necessity must have descended to her heirs; for not having sold tbe land, and not having abandoned it within five years, her estate became absolute [31]*31and indefeasible, and ber beirs at law may maintain ejectment upon ber title.
It is however urged, that tbe court erred in tbe admission of evidence introduced by tbe plaintiffs to show that Sally Ladiga was tbe bead of a family. Groodwyn, a witness introduced by tbe plaintiffs, testified that in March, 1882, be sold to Sally Ladiga some clothes for tbe boy Arcbecbee, and she then told him that it was tbe same boy be bad seen with ber in 1831. To tbe admission of this testimony tbe defendants excepted.
It must be borne in mind that tbe objection is to tbe Avbole of tbe testimony, and not to any specific part of it; consequently, if any portion of it was admissible, there was no error in admitting it, for tbe court is not bound to separate tbe evidence when tbe objection is to tbe whole, and if any part of it be admissible there is no' error in refusing to reject it. And I think that, even if what Sally Ladiga said at tbe time of purchasing tbe clothes, that Arcbecbee was tbe same boy that tbe witness saw with her the year before, was madmissi-ble, still, it is very certain that tbe witness might well have testified to tbe act of selling ber clothes for Arcbecbee, for it tended to prove that he was one for whom Sally Ladiga was bound to provide as a member of ber family.
It is again insisted, that tbe court erred in admitting tbe common rumor amongst tbe tribe of tbe Creek Indians, that tbe plaintiffs were tbe children and grandchildren of Sally Ladiga. But as this question was raised it cannot be reviewed by this court; for it does not appear from tbe bill of exceptions that this proof was offered to tbe jury, but to tbe court, upon tbe motion to revive tbe suit in tbe name of tbe plaintiffs as tbe beirs at law of Sally Ladiga. By our statutes, a party from whom lands arc unlawfully withheld, may bring ejectment or trespass to trjr titles for tbe recovery thereof at bis election. Clay’s Digest 320 ; Jordan v. Abercrombie, 15 Ala. 580. And if the action of trespass to try titles be brought to recover tbe free-bold, and tbe plaintiff die pending tbe suit, the action does not abate, but may be revived in tbe name of .bis beirs at law. Jordan v. Abercrombie, supra; The State ex rel. Nabors’ Heirs, 7 Ala. 459.
[32]*32Inasmucb as tbe action may be revived in tbe name of tbe beirs, tbe coart may, without violating tbe law, require some proof of tbeir beirsbip; but we could not say that it would be error to revive tbe suit on motion merely, without any proof whatever of tbe beirsbip of tbe plaintiff, for notwithstanding tbe court might allow tbe suit to be revived in tbe names of tbe plaintiffs, as tbe beirs at law of tbe deceased plaintiff, still, upon tbe trial before tbe jury, they would have to prove them beirsbip as part of tbeir title, and if they failed in this they would fail in tbe suit, although tbe suit was revived in tbeir names. Tbe proof, therefore, to which tbe defendants excepted, being introduced to tbe court as laying a predicate for reviving tbe suit, is not revisable; and it is therefore immaterial to inquire whether it would have been legitimate evidence to prove tbe beirsbip of tbe plaintiffs before tbe jury or not; for if tbe order of revivor bad been made without any proof at all, it could not have been an error of which tbe defendants could have complained; they might still have contested tbe beirsbip of tbe plaintiffs upon tbe trial.
We however deem it proper to say, that in questions of pedigree tbe declarations of deceased members of a family have always been received as evidence, to establish tbe parentage or descent of tbe particular individual whose relationship is tbe subject of investigation. Green. Ev. Vol. 1, § 103, and cases there cited; Starkie on Evidence, Vol. 2, 834.
This brings us to tbe last question we propose to examine, and that is, tbe first charge contained in tbe bill of exceptions. Tbe language of that charge is: “ that if each of tbe defendants was in possession of a different quarter section of tbe half section of land in controversy, and each- claimed title to tbe quarter section in bis possession, and there was no connection between tbe title and possession of tbe defendants, and if they found that Sally Ladiga was entitled to tbe land as a reservation to her under tbe treaty of 1832, they must return a verdict for tbe possession of each quarter section separately against each defendant.” This charge is assailed on two grounds: first, because a joint action cannot be maintained against two defendants, who occupy distinct parts of tbe land sued for, and between whom there is no connection; and secondly, because this charge assumed that tbe plaintiffs [33]*33were entitled to recover, irrespective of tbe fact, whether or not they were the heirs at law of Sally Ladiga.
In respect to the first objection, it is sufficient to say; that if land be withheld from one unlawfully by several tenants, they may be all sued in one action, and if they possess distinct parts separately, and not in connection with each other, they may protect themselves ;against a joint judgment for damages; but the rule is well settled, that the plaintiff is not compelled to sue all separately, for the recovery of the possession, but may sue them jointly and recover of each the portion occupied by him. Jackson ex dem. Haynes, et al. v. Wood and others, 5 John. 278; Camden et al. v. Haskell, 3 Rand. 462; Adams on Eject. 235.
The second objection to the charge, however, we think is well taken; for if the right of a plaintiff to recover depends on three or more distinct facts, a charge that assumes he may recover if two only be established, must be erroneous. In the case before us, it may be that Sally Ladiga was entitled to the land in controversy as a reservation, and the defendants may have separately occupied distinct portions of it, and still, the plaintiffs could not recover without showing that they were the heirs at law of Sally Ladiga; but this'charge, standing alone, rendered it unnecessary for the jury to inquire into the question of heirship, and placed the right of the plaintiffs to recover on the two questions, the title of Sally Ladiga, and the possession of the defendants.
It is however urged, that we should presume that in the other instructions given by the court to the jury, and which do not appear in the bill of exceptions, the jury were informed by the court that they must find that the plaintiffs were the heirs at law of Sally Ladiga; especially, as the record informs us that the court, in response to the defendants’ inquiry upoD the motion to revive the suit, informed them, that they might contest the plaintiffs’ heirship upon the trial before the jury.
We are satisfied, that the court as well as the counsel engaged in the cause, knew that it was indispensably necessary to the plaintiffs’ right of recovery, to establish their heirship, and it may be, that the jury were in fact so instructed, but the record does not show that they were; it shows that they were charged, that the plaintiffs were entitled to recover, if [34]*34Sally Ladiga was entitled to the land as her reservation under the treaty, and if the defendants were in possession of separate parts of it. This charge, standing alone, and unexplained by other instructions, is erroneous, and the record does not show what explanation or other instructions tending to explain it were given. We therefore cannot say the charge is not erroneous within itself, and without further instructions it is erroneous; and in order to take away the error, we must see the further instructions that were given, and which had this effect.
For this error, we are constrained to reverse the judgment, and remand the cause for another trial.
PHELAN, J.
— The action was commenced below in the name of Sally Ladiga; she died, and the suit was revived in the name of her heirs at law.
In respect to the charge for which the judgment below is reversed, it is said: here is an affirmative charge which embraces but two points of law, when three were necessary to be stated, to inform the jury fully of the duty which devolved on the plaintiffs to make good their action. The court below charges the law respecting the title of Ladiga. and the possession by the defendants, but omits to notice the heirship of the plaintiffs. The alleged error, then, is not in misdirecting the jury on the points of law which were noticed, but in omitting to notice another point altogether.
Now I will ask, does it, in the first ¡dace, clearly appear from the record, that this point was omitted altogether by the judge below ? And, if omitted, does it, in the second place, further clearly appear from the record, that such omission was to the injury of the plaintiffs in error ?
I do not think it clear, from the record, that the point as to the heirship of the plaintiffs was wholly omitted in the charge to the jury. The bill of exceptions itself discloses that “ other charges” were given, besides those set down in the bill. The nature of the trial, and the purely formal nature of the point as to heirship, (about the law of which there could hardly be a dispute) lead to the fair presumption, as it seems to me, that one of these “ other" charges to which the bill of exceptions refers, was a charge respecting the heirship [35]*35of tbe plaintiffs, and tbat tbe reason wbj it is not set out, or more specifically noticed in tbe bill, is, tbat there was no exception taken to it.
In Donnell v. Jones, 17 Ala. Rep. 689, tbe court say, “ When we are called upon to construe a doubtful bill of exceptions, tbat construction will be adopted wbicb is most favorable to tbe regularity of tbe judgment.” Indeed, it is a general principle, well established, and, I may say, a favorite one with appellate courts, to indulge all reasonable presumptions and intendments in favor of tbe regularity of tbe action of tbe court below. 14 Ala. Rep. 822; 6 Ala. Rep. 801; 7 Ala. Rep. 19; 3 S. & P. 444.
But even admitting tbat, with tbe aid of this favorable rule of construction, we cannot presume tbat any charge on tbe point of heirship was given, tbe next question recurs; does it clearly appear from the record, tbat tbe omission to charge on tbat point was to tbe injury of tbe plaintiffs in error?
Let it be borne in mind, tbat tbe charge does not state any rule of law erroneously; its error is alleged to consist, in omitting to state a certain point altogether. Tbe rule fairly deducible from such a doctrine, I bold to be this: tbat it is necessary for a judge of tbe Circuit Court, when be makes an affirmative charge, to state tbe law wbicb relates to every material allegation of tbe plaintiff’s declaration, or his charge will be erroneous.
Can such a rule be made to consist with tbe doctrine tbat tbe party seeking to reverse must clearly show error, and tbat all reasonable intendments and presumptions shall be in favor of tbe regularity of judgments. I do not think it can, as I will endeavor to show.
We know tbat in almost every proceeding in tbe inferior courts, there are certain formal matters of fact, wbicb must be proved to entitle tbe plaintiff to recover, wbicb rarely ever become tbe subject of controversy. Again: we know tbat nothing is more common in practice than for a defendant, either to save costs, or for some other good reason, to abandon altogether some legal point in tbe defence, although such abandonment never appears upon tbe record.
Now it is undeniable, that in cases where there are such uncontroverted matters of fact or conceded points of law, [36]*36charges are continually given by the circuit judges, wbicb, under this rule, would reverse judgments, without the slightest injury having been done to the defendants by the omission to notice them in the charge.
To illustrate my meaning: A plaintiff sues as administrator, and the defendant by plea puts the character in which he sues in issue. At the trial the plaintiff brings his letters into court, proving conclusively his character, and there is not a word of controversy more on that subject from beginning to end, but the case is strongly litigated, on the plea of non esi factum, for instance. The court charges the jury, and says^: “ Gentlemen, if you find that the defendant executed this bond, you must find for the plaintiff.” The attorney for the defendant says, “I except to that charge,”and takes his seat, without saying more. The judge, and probably every body else but himself, has forgotten that ho had a plea in that plaintiff was not administrator; the proof upon that point was conclusive; he has made no allusion to that defence in his argument; and if the judge’s mind reverts to it at all, he regards it as tacitly abandoned. Does the counsel want a charge upon that point ? Not at all; that is the very thing he does not want. To disclose what he wants would defeat his object, which is, to keep a charge that does him no harm in its present frame, that he may reverse the judgment upon it, when he knows that the least allusion to its supposed defect would result in a prompt correction by the court.
This court would be compelled to reverse for error in the charge in the case I put, on the principle established in this case. I will put another case.
A party is indicted for assault and battery. The State does not prove the venue — a merely formal thing. The court says; “ Gentlemen, if you find that the defendant struck the prosecutor without provocation, you must find him guilty.” The counsel for the defendant says, “I except to that charge, and I ask the court to charge the jury, that it was necessary for the State to prove that this offence was committed in this county.” ‘-True,” says the judge, “ that is necessary, but it is a mere formal and technical thing, and I will allow the solicitor to prove that now.” Is any injury done to the defendant by this? None. Such a course is perfectly lawful. Here [37]*37tbe counsel, by disclosing tbe ground of bis objection, enables tbe court in a moment to obviate it, and not only to supply tbe charge, but tbe proof to base it upon. What, then, if tbe counsel bad cbosen to except, without disclosing tbe ground of bis objection, shall that better bis client’s condition ? In other words, shall a cautious and artful concealment accomplish ends which openness and fairness cannot ?
What I now propose, seems to me to furnish tbe ground for a sound distinction in cases of this sort.
If an affirmative charge touching tbe merits of the action, strictly so called, is correct, such charge should not be held to be erroneous because it does not likewise embrace formal and technical matters, unless it be excepted to in the court below for that reason.
To recover in any action, a plaintiff must first have a good cause of action, and, secondly, he must pursue it in a formal manner, correct according to the rules of law. If a charge covers the first matter, and is correct, the court may stop at that; and if the defendant wants a charge in respect to formal matters, he must ask it, or he ought not to be allowed to object in an appellate court, that such formal matters were not noticed. The trespass on the lands of Sally Ladiga, the locus in quo, was the gravamen of the declaration, and the m&rits of the action embraced this and the title of Sally Ladiga only; all other things were formal.
It is not every allegation in a declaration necessary to make it good, even upon general demurrer, that embraces the merits of the action. Waldrum and Wife v. Quarles, 20 Ala Rep. If a party goes to trial without demurring, he is held to be precluded from assigning as error in an appellate court, many such omissions in the declaration; but if the court below makes an affirmative charge, and does not cover such matters, although not objected to on that account, it is by this decision held to be error. This does not seem to me to be consistent.
Such a 'rule as I propose would secure to one party every just right, and at the same time prevent the other party from being lulled into a false security by his silence, when he ought to speak out; it will at the same time prevent the circuit judges from the consequences of a cautious and artful silence on the part of counsel.
[38]*38I close these observations in tbe language of C. J. Collier, in the case of Crawford v. The Bank, 7 Ala. Rep., 210.” “ General objections, calculated to entrap tbe court and tbe adverse party, should be discountenanced, and when they are not promotive of justice, should be most unfavorably regarded in an appellate court.”
I am dealing with a principle, and what I suppose to be its injurious consequences, but, lest it might be supposed that some parts of this opinion are intended to have a personal bearing on the counsel who conducted this cause for tbe plaintiffs in error in tbe court below, I take occasion to say, that I intend nothing of tbe kind. Their conduct was in all respects wholly unexceptionable. It is tbe consequences, of tbe rule adopted by tbe court, that I aim to combat, and that alone. Tbe construction that will be given in this court to a bill of exceptions is oftentimes not fully apprehended, either by tbe counsel who prepares or tbe judge who signs it.
CHILTON, J., having been of counsel in this cause before bis election to tbe bench, did not sit.