Per Curiam,
Mason, Chiff Justice.
In the examination of this case we shall first enquire whether the owners of the half breed tract, had such a title to the land in controversy as to.enable the purchaser at a sale on an execution against them, to maintain an action of ejectment, or its equivalent under our statute, an action of right.
In the year 1824 the Sac and Fox tribes of Indians relinquished to the United Stales by treaty “ all their right, title, interest and claim to the lands which the said Sac and Fox tribes have or claim within the limits of the State of Missouri, which arc situated lying and being between the Mississippi and Missouri rivers and a line running from tho Missouri at the entrance of the Kansas river, north one hundred miles to the north west corner of the State of Missouri, and from thence east to the Mississippi, it being understood that the small tract of land lying between the rivers Des Moines and the Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the U9e of the half breeds belonging to the Sac and Fox nutions, they holding it however by the same title, and in the'same manner as other Indian lands are held.” The land in controversy is a portion of this half breed tract.
Two or three important questions have been raised as to the effect of this treaty. In the first place, is this half breed tract thereby ceded to the United States? The cession embraces all the lands which lie in the the State of Missouri and comprehended within certain boundaries. The half breed tract is within those boundaries but not within the State of Missouri. If it was intended to cede all the lands lying within those boundaries, why pre/ex the description of (heir location being, within the State of Missouri? This portion of the description was doubtless intended to have some effect and we therefore conclude that, these lands which were thus dedicated to the use of the half breeds were [476]*476not by that treaty ceded to the United States; and if while that slate of things existed, the beneficiaries had all become extinct, the lands would have reverted to the Sac and Fox tribes of Indians. *
But in 1832, another treaty was held with these Indians, in which the following tract of country was ceded to the United States: “ Beginning on the Mississippi river at the point where the Sac and Fox boundary line (as established by a previous treaty) meets that river, thence up said boundary line to a point fifty miles from the Mississippi, measured on said line; thence in a right line to the nearest point on the Red Cedar of the Iowa, forty miles from the Aiississippi river; thence in a right lino to a point in the northern boundary line of the State of Missouri, fifty miles measured on said boundary line ¡rom the Missiissippi river; thence by the last mentioned boundary line to the Mississippi river, and the western shore of said river to the place of beginning.”
This cession includes the half breed tract, and shows that the parties to these treaties-did not understand that tract to have been ceded by the treaty of 1824. It was however fully ceded by this treaty of 1832.
A more difficult question growing out of this treaty of 1824, relates to the title which the half breeds acquired by that treaty. They were to hold “ by the same title, and in the same manner as other Indian lands are held.” From this it has been contended that the half breeds were to hold this land in the same manner ir: all respects as though they were a nation by themselves, including the qualified right of sovereignty which the Indian tribes are permitted to exercise in their own territories ; that by virtue of these treaties no new rights were acquired by the United States—the rights of the Sacs and Foxes, having been merely transferred to the half breeds ; that until the rights of this new nation shall have been extinguished by treaty with them, our territorial laws could rightfully exercise no control over these lands, any more than over those of the Sioux or Potawatorrues, lying within our territorial limits ; and that therefore the sale of the half breed tract on an execution against the owners, was an absolute nullity and gave no right of property to the plaintiff in this suit.
We do not think this a correct view of the subject. The treaty of 1824 conferred upon the half breeds the right of private property in the lands, not that of sovereignty over them. The provision that they were to bold it by the same tille and in the same ¡banner as other Indian lands are held, was intended principally if not entirely to prevent them from transferring their property without the consent of the United States, and the jurisdiction of the latter became entire and absolute. [477]*477The title of the half breeds was not disturbed by this latter treaty, inasmuch as a cession of land from one nation to another does not effect the right of private property.
On the 30th of June 1834, an act of Congress was passed declaring « that all the righ-, title and interest which might accrue or revert to the United States, to the reservation of land lying between the Mississippi and Des Moines rivers which was reserved for the use of the half breeds belonging to the Sac and Fox nations, now used by them or some of them under a treaty made and concluded between the United Slates and the Sac and Fox tribes or nations of Indians at Washington on the 4tfy day of August, 1824, be and the same are hereby relinquished and Tested in said half breeds of the Sac and Fox tribes or nations of Indians, who at the passage of this act are under the reservation in the said treaty entitled by the Indian title to the same with full power and authority to transfer their portions thereof by sale, devise or descent, according to the laws of the State of Missouri,” Since the passage of this act but little doubt exists as tothe.exact nature of the half breed title. To ascertain the number of interests in this tract, their extent and who are entitled to them, may still-occasion great difficulty, but when, once ascertained the precise nature of their titles is easily understood', being nothing more or less than a full fee simple title, as tenants in common. It matters not what was t,he”previous half breed tenure. To those then holding, was given the full and absolute ownership. The change effected was not beyond the scope of lawful legislation, for if as has been contended, the half breeds under the treaty were each individually entitled to a life occupancy, the change affected by tfiis act of 1834 is no greater than though estates in tail had been changed into fee simple titles. Although a legislature may not have the power to destroy vested rights, it can create or augment them, even though the interest of posterity should be effected thereby.
Nor is it material, so far as the efficacy of this act of 1834 is concerned, whether or not it violates the treaty ef 1824, by making a different disposition of those lands from what was stipulated fur in that treaty'. Government is certainly under the strongest moral obligation to preserve inviolate the faith of all treaties, but if the legislative power which in such matters is sovereign, sees proper to violate this duty, .there is no power in the judiciary to prevent it. True, a treaty is by the constitution declared to he a supreme law of the land, but so is an act of Congress. The latter may repeal the former in the same manner that one statute, may- repeal another. It is an act of sovereignty, which if the [478]
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Per Curiam,
Mason, Chiff Justice.
In the examination of this case we shall first enquire whether the owners of the half breed tract, had such a title to the land in controversy as to.enable the purchaser at a sale on an execution against them, to maintain an action of ejectment, or its equivalent under our statute, an action of right.
In the year 1824 the Sac and Fox tribes of Indians relinquished to the United Stales by treaty “ all their right, title, interest and claim to the lands which the said Sac and Fox tribes have or claim within the limits of the State of Missouri, which arc situated lying and being between the Mississippi and Missouri rivers and a line running from tho Missouri at the entrance of the Kansas river, north one hundred miles to the north west corner of the State of Missouri, and from thence east to the Mississippi, it being understood that the small tract of land lying between the rivers Des Moines and the Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the U9e of the half breeds belonging to the Sac and Fox nutions, they holding it however by the same title, and in the'same manner as other Indian lands are held.” The land in controversy is a portion of this half breed tract.
Two or three important questions have been raised as to the effect of this treaty. In the first place, is this half breed tract thereby ceded to the United States? The cession embraces all the lands which lie in the the State of Missouri and comprehended within certain boundaries. The half breed tract is within those boundaries but not within the State of Missouri. If it was intended to cede all the lands lying within those boundaries, why pre/ex the description of (heir location being, within the State of Missouri? This portion of the description was doubtless intended to have some effect and we therefore conclude that, these lands which were thus dedicated to the use of the half breeds were [476]*476not by that treaty ceded to the United States; and if while that slate of things existed, the beneficiaries had all become extinct, the lands would have reverted to the Sac and Fox tribes of Indians. *
But in 1832, another treaty was held with these Indians, in which the following tract of country was ceded to the United States: “ Beginning on the Mississippi river at the point where the Sac and Fox boundary line (as established by a previous treaty) meets that river, thence up said boundary line to a point fifty miles from the Mississippi, measured on said line; thence in a right line to the nearest point on the Red Cedar of the Iowa, forty miles from the Aiississippi river; thence in a right lino to a point in the northern boundary line of the State of Missouri, fifty miles measured on said boundary line ¡rom the Missiissippi river; thence by the last mentioned boundary line to the Mississippi river, and the western shore of said river to the place of beginning.”
This cession includes the half breed tract, and shows that the parties to these treaties-did not understand that tract to have been ceded by the treaty of 1824. It was however fully ceded by this treaty of 1832.
A more difficult question growing out of this treaty of 1824, relates to the title which the half breeds acquired by that treaty. They were to hold “ by the same title, and in the same manner as other Indian lands are held.” From this it has been contended that the half breeds were to hold this land in the same manner ir: all respects as though they were a nation by themselves, including the qualified right of sovereignty which the Indian tribes are permitted to exercise in their own territories ; that by virtue of these treaties no new rights were acquired by the United States—the rights of the Sacs and Foxes, having been merely transferred to the half breeds ; that until the rights of this new nation shall have been extinguished by treaty with them, our territorial laws could rightfully exercise no control over these lands, any more than over those of the Sioux or Potawatorrues, lying within our territorial limits ; and that therefore the sale of the half breed tract on an execution against the owners, was an absolute nullity and gave no right of property to the plaintiff in this suit.
We do not think this a correct view of the subject. The treaty of 1824 conferred upon the half breeds the right of private property in the lands, not that of sovereignty over them. The provision that they were to bold it by the same tille and in the same ¡banner as other Indian lands are held, was intended principally if not entirely to prevent them from transferring their property without the consent of the United States, and the jurisdiction of the latter became entire and absolute. [477]*477The title of the half breeds was not disturbed by this latter treaty, inasmuch as a cession of land from one nation to another does not effect the right of private property.
On the 30th of June 1834, an act of Congress was passed declaring « that all the righ-, title and interest which might accrue or revert to the United States, to the reservation of land lying between the Mississippi and Des Moines rivers which was reserved for the use of the half breeds belonging to the Sac and Fox nations, now used by them or some of them under a treaty made and concluded between the United Slates and the Sac and Fox tribes or nations of Indians at Washington on the 4tfy day of August, 1824, be and the same are hereby relinquished and Tested in said half breeds of the Sac and Fox tribes or nations of Indians, who at the passage of this act are under the reservation in the said treaty entitled by the Indian title to the same with full power and authority to transfer their portions thereof by sale, devise or descent, according to the laws of the State of Missouri,” Since the passage of this act but little doubt exists as tothe.exact nature of the half breed title. To ascertain the number of interests in this tract, their extent and who are entitled to them, may still-occasion great difficulty, but when, once ascertained the precise nature of their titles is easily understood', being nothing more or less than a full fee simple title, as tenants in common. It matters not what was t,he”previous half breed tenure. To those then holding, was given the full and absolute ownership. The change effected was not beyond the scope of lawful legislation, for if as has been contended, the half breeds under the treaty were each individually entitled to a life occupancy, the change affected by tfiis act of 1834 is no greater than though estates in tail had been changed into fee simple titles. Although a legislature may not have the power to destroy vested rights, it can create or augment them, even though the interest of posterity should be effected thereby.
Nor is it material, so far as the efficacy of this act of 1834 is concerned, whether or not it violates the treaty ef 1824, by making a different disposition of those lands from what was stipulated fur in that treaty'. Government is certainly under the strongest moral obligation to preserve inviolate the faith of all treaties, but if the legislative power which in such matters is sovereign, sees proper to violate this duty, .there is no power in the judiciary to prevent it. True, a treaty is by the constitution declared to he a supreme law of the land, but so is an act of Congress. The latter may repeal the former in the same manner that one statute, may- repeal another. It is an act of sovereignty, which if the [478]*478judiciary could arrest they might paralize all the energies of war itself, on the ground that the declaration of war was a violation of treaties.
Since the taking effect therefore of the act of 1834, the hatf breed tract has been to the fullest extent individual property, and as such was by the organic act of the territory placed under our municipal regulations. Any other construction would lead to the most serious inconveniences. The act just referred, to authorized the alienation of the interests of the half breed owners, and it is a well known fact that to a very considerable extent they have already availed themselves of this privilege. Is that whole tract now and forever hereafter to be exempt from taxation and from sale under execution whether in the hands of the half breeds themselves or of thei r assignees ? This it seems to us would be the effect of establishing the principles contended for by the counsel for the plaintiff in error, for if those lands are not now subject to our laws when will they become so ? It has been seriously doubted whether an express stipulation on the part of the State to exempt certain Indian lands forever from taxation, was such a contract as to be placed beyond the reach of future legislation. The case of the State of New Jersey vs. Wilson, 7th, Crunch R. 164, however established t bat principle, but the court in that case went to the verge of judicial power. The principle contended for here would, by a very unnatural and8unnecessary inference not only exempt these lands from taxation, but place them beyond the range of all territorial or State legislation.
But it has been contended that the act of 1834 is a private statute and therefore not now to be noticed as it has not been set forth in the pleadings or the proof. We have had more serious doubts upon this subject than upon any other part of the case, bur have come to the conclusion that it is such a statute as should be judicially noticed.
The rule followed in Kentucky has sound reason to support it, that in this country where all laws public as well as private are published in the statute book, the distinction between public and private statutes should no longer be preserved, 2d Pirtle’s Digest 19. The main reason of the English rule ha certainly ceased, 3d Tomlin, 519.
But is this statute private? A statute is public which concerns the whole people, 7 Mass. R. 9, 10 Mass R. 9 and 92. This reí surrenders to the half breeds the revertionary interest, and yields up the preemption right which the United Stales then had in this tract of land. So that although in regard to the half breeds it is a private statute yet in regard to the rights of the government, that is to say the people, ¡Í is a public law.
[479]*479We shall next proceed to enquire into the correctness of the decision of the court below rejecting the proof ,c that the judgment, execution, sheriff’s sale and sheriff’s deed, constituting the evidence introduced by the plaintiff were all procured by fraud, by the said plaintiff and others, and that the whole title of the plaintiff was based upon fraud and fiction.” ' •
The general rule that fraud vitiates all judgments as well as contracts is to be taken with some qualifications. If vitiated, that fact cannot be shown on all occasions and by all parties. Although a contrary opinion ha3 been sometimes entertained, the more recent and sounder doctrine seems to be that a party to a judgment cannot collaterally impeach it for frauds ; 4th Scammon’s R. 371; 8th Ohio R. 108; 22d Maine R. 130; 3d Johnson R. 168. Much less would a mere stranger be thus permitted to impeach it. '/
As a general rule a judgment at law is a conclusive act, so far as not to be disturbed or even enquired into in another proceeding at law. Although obtained by fraud it is valid; until by a direct proceeding in chancery instituted for that purpose, the remedial power of that court is invoked, and the injustice which the rigid rules of the common law would enforce is prevented.
But even a mere contract, however fraudulent, is not a nullity. It is valid to the parties to the fraud themselves and as against all others, except those who have been directly injured thereby. If therefore a judgment were of no higher nature than a simple contract, Webster did not show himself in a condition to object to it for fraud. It was not sufficient that he had an adverse possession of the land in controversy. A defendant in ejectment has generally such a possession. Still where he shows no title he will not be permitted to prove the forgery of the deed on which the title of the plaintiff rests. Adams Ejectm’t 29 note.
What has now been said in relation to the defendant below not being permitted to show fraud, applies with still greater force to the objection that he was not allowed to show irregularity in the proceedings, as that there was tno service nor publication, nor demands proved before tho auditor, &c. A writ of error would have been the appropriate mode of proving defects of such a nature, and no one but a party thereby injured could even there successfully seek a remedy.
Similar in character are the objections (hat have been raised on the ground of the unconstitutionality of the acts of the legislature, through which the indebtedness accrued and the judgments were obtained. 16 Pickering R. 87.
[480]*480Judgments rendered under an unconstitutional law are not nullities. A sheriff levying and selling under such a judgment would not be a trespasser. 1st Chitty 210 and note. And this seems to be-¡f test upon that subject, 3d Peters R. 193.
The case becomes still stronger when lands have been sold under such judgment and transferred to the purchaser. If the defendant is willing to have his debt paid by the sale of his property under such a judgment, shall a stranger be allowed to interfere and disturb that arrangement ? If this were permitted, the purchaser at a sheriff’s sale holds his property for twenty years, at the mercy of any intruder who shall discover that the law under winch the judgment was obtained was unconstitutional, 10th Peters R. 471; 16th Pickering, 87.
Such a rule would produce the greatest inconvenience, by rendering titles insecure, as well by discouraging persons from purchasing at such sales.
The sacrifice at which the defendant’s property must be sold could not be prevented by any waiver on his part, because the law would permit some troublesome neighbor to set aside the judgment, which it might be the wish as well as the interest of both parties interested to have remain firm nn effectual forever. The law will not thus countenance impertinence and intermeddling.
Nor is the reason of this rule modified in the least by the fact, that the defendant below held the land in controversy by an adverse possession. Such a possession is within the reach of every intruder, and would (were a contrary rule to prevail) effectually protect his possession, if he could avoid the force of a writ of forcible entry and detainer.
What difference in fact can it make to the defendant below, whether the action against him be brought by the plaintiff below or by any other “ owners of the half breed tract ?” The true rule in all these cases seems to be that unless the defendant in ejectment has some defence that would be good against the former owner he cannot object to a forged or fraudulent deed, nor to the fraud irregularity or unconstitutionality of the proceedings by which the present owner has acquired title.
As corrollaries to the conclusions attained as above, it follows that the court below did not err in admitting evidence of the judgment, execution, levy and return of the sheriff, nor in admitting the sheriff’s deed, nor in overruling the motion for a nonsuit, as set forth iu the first, second and seventh bills of exceptions.
The next point to be considered in the proof of tide derived from Na-ma-taupus, which was proiered by the defendant below and rejected by [481]*481the court. It is very questionable whether such proof should have been admitted even if Na-ma-tau-pus had been fully proved to have been one of the Sac and Fox half breeds. The title óf the land was in the hand* of a purchaser under a sale directed by a court of general jurisdiction. If that judgment were irregular, fraudulent or founded upon an unconstitutional law, could ore of the parlies to the judgment obtain a remedy in this collateral manner?
But even if the law should permit such a course, we think there was no sufficient evidence that Na-maUa-pas was one of the Sac and Foz half breeds. The principal witness on this subject was one who did not Understand the Indian language, lie stated that on one occasion he was in company of several whiles and Indians, and that then this individual was said to be a half breed of the Sac and Fox tribes; at another time the witness took the acknowledgment of the deed from Na-rna-tau-pus, when he heard several persons (a part of whom were under oath) state that they believed him a half breed of the Sac tribe. His complexion indicated a half breed. Witness had also heard some persons who bad married half breeds make similar statements as to his pedigree. From the necessity of the case the same strictness of proof is not required in relation to pedigree as for most other purposes, still the same general rules are observed.
The best evidence w Inch the nature of the case admits, is required where heresuy evidence in such case is allowed. It is the statements of relatives by blood or marriage, who are generally best acquainted with the facts they state.
No evidence of that kind was offer red ir. the present case. But even if the peculiar habits and manners of the Indians bo such as to require a further modification of the rule of evidence, at least general reputation in the tribe might have been proved by persons who could understand the language. Bullard slated that several persons had informed him that such reputation existed. The original hearsay would have been infinitely better evidence than this hearsay of a hearsay.
The principles involved in the instructions asked and refused by the court, have already been substantially discussed. If the conclusions above stated are correct, there was no error in refusing the instructions;
Judgment affirmed.