# Henderson v. Tennessee/Dissent Woodbury

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* Dissenting Opinion Woodbury
United States Supreme Court
51 U.S. 311
Henderson v. Tennessee
Mr. Justice WOODBURY dissented from the opinion delivered by the court.
My view of the present case is, that this tribunal has jurisdiction over it, and, also, that the judgment below ought to be reversed.
In order to enable us to exercise jurisidiction in this class of causes, it need only appear, that in the state court some right or title set up under treaty with the United States was drawn in question and overruled. The title set up below by the defendants seems very clearly to have been one of this character. The record states that 'it was proved by sundry witnesses that Andrew Miller was the head of an Indian family; resided in the Cherokee nation east of the Mississippi at the date of the treaty of 1817, between the United States and the Cherokee nation; that from the spring of 1818 till his death in July or August of the same year, he resided on the land in dispute, claiming the same as a reservation, where he said he intended to live and die; and that the land in dispute was not ceded by the treaty of 1817, but was by that of 1819.' Now, on such facts it is averred and admitted that the court instructed the jury, 'that although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of the same year, and before the treaty of 1819, no title vested in him, Andrew Miller, and consequently none could vest or descend to his heirs.'
It is difficult to conceive how it is possible to say, that a title under a treaty was not thus set up or drawn in question, and was not overruled by the state court, so as to give to this court jurisdiction to revise any error committed. Such a title seems to have been the only one interposed against a recovery, and was the only one decided on below, and was there explicitly overruled.
The sole argument offered here to obviate this conclusion does not appear to have been there presented or relied on. It is, that, though Miller's title was there set up and overruled, it was not set up as existing in the tenants, or as the title under which they entered or claimed.
But the Judiciary Act, in order to give to this court jurisdiction under the twenty-fifth section, does not in terms require that such title should have been entirely vested in the tenants. It seems sufficient if it was drawn in question, or was set up, and could legally be set up, in defence, and was overruled. (1 Stat. at L., 85.)
What is drawn in question in any case depends on the facts and the law applicable to that particular case. Here the title of Miller's heirs under the treaty, I have already shown, was certainly drawn in question, and as certainly was overruled by the judge.
But it is argued, that the defendant must have had a right under the United States to make the defence, or we have no jurisdiction. That, however, is begging the question on the merits. It seems quite sufficient to have him set up such a right and to have it overruled.
Here, too, the court below seemed to concede, that Henderson possessed such a right under Miller's heirs; but decided against him, on the ground that the right of Miller himself was defective.
Again, the question of right is not the guide, but the question of claim, and the claim being overruled. Nor need the claim be to the whole estate or interest. I such an action as this, the persons in possession may have, in themselves, no title in fee, nor for life, nor even for years. It is sufficient if a mere tenancy at will, for or in behalf of those possessing a larger estate, is claimed.
So it may be only a naked possession, if the legal estate is shown to be in other persons than the plaintiff, the latter not being authorized to disturb the possession of the tenant, unless he has the legal estate. 4 Burr., 2484; 9 Wheat., 515; Greenleaf's Lessee v. Birth, 6 Pet., 302.
Here, however, the defendants appear to have gone further, and to have made a claim in privity with the heirs, or set up a right under Miller and the treaty, though not to the whole interest. In a just view of the record, therefore, they seem to have brought themselves within what is now required, even by the opinion of this court. Because, though the original defendants claimed no title in themselves, unless it was a tenancy at will under Henderson and Calloway, and hence, probably, the latter were requested to defend, and did defend, yet it clearly appears on the record, that the latter set up rights for the heirs of Miller, and relied in defence on the title of those heirs, and the court did not overrule the propriety of such a mode of defence, but the title itself of Miller's heirs set up under the Cherokee treaties.
The title under the treaty was not only thus set up and overruled, but it was set up by Henderson and Calloway, claiming rights under it in privity under the heirs of Miller.
The widow of Miller, as early as 1818, is proved to have put Black in actual possession of the land, 'to hold it for her and the heirs of Andrew Miller.' And he, with two of the children, remained in possession and cultivated the land till 1822. No question can exist, that, if Black was the defendant here, he could rightfully protect himself under the Miller title. But it is said that Henderson and Calloway were never, like him, put into possession by the widow or the heirs, and never held it for them with any privity by lease or otherwise. We think differently. Another portion of the record says expressly, after Black had been expelled by the plaintiffs, and the plaintiffs by others, between 1822 and 1837 or 1838, that 'Thomas Henderson got possession for the heirs of Andrew Miller, under which title it has since been held.'
During the three or four years which ensued before this action was instituted, it would therefore appear, not only that the present defendants were in possession, in person or by others, 'for the heirs,' which is the very expression used as to Black's possession, but would naturally mean in one case, no less than the other, with the privity or request of the heirs, and as agents for them. But to remove all doubt as to this in respect to Henderson, who entered for the heirs of Miller, the record adds, that under the Miller 'title it has since been held.'
Giving a fair construction to all the words in the record, and to all the other facts stated, it is difficult to misunderstand this language. The widow and heirs regarded the reservation as valuable. She refused to sell their rights in it for $1000 offered by Black. It was not abandoned as unworthy of attention; but Black was first put into possession with privity as agent or tenant to them. And after he was expelled, Henderson, as another agent, seems not only to have regained the possession for the heirs, but to have held it by their title since, and probably as their agent or tenant, with like privity. The notice to Henderson, Likewise, to take on himself the defence in this case, and his admission by the court to defend, confirm this view. A third person, disconnected entirely with the title or right of possession, would not usually be admitted. 10 Johns. (N. Y.), 69; 1 Cai. (N. Y.), 151; Fairclaim v. Shamtitle, 3 Burr., 1299, 1301. He was doubtless admitted, then, from his connection with Miller's title. Lord Holt says (Comb., 209), 'No person is admitted to defend in ejectment unless he be tanant, and is or hath been in possession or receives the rent.' Bac. Abr. Ejectment, B. 2. Runnington on Eject., 192, 199, 201, 209.
It is urged further in objection, that Miller's heirs are not parties here. Neither is the owner of the fee a party in ejectment in any case where a lessee or agent under him makes a sub-lease and is admitted to defend for his sub-lessee.
Looking to the whole record, then, these considerations seem to dispose of the question of jurisdiction in favor of the original defendants. But the plaintiffs below rely on some detached expressions in the record from which to infer a different result. Such as the judge speaking of 'an outstanding title' in Miller's heirs. Probably, as already explained from the whole case, the judge meant, by the words 'outstanding title,' one which did not exist in the plaintiffs, and one which, though represented by, had not been conveyed to, the defendants by any formal deed. Under that aspect, all is natural, and our jurisdiction is unimpaired. Such a case would be entirely unlike that of Owings v. Norwood's Lessee, 5 Cranch, 344. But if he meant by outstandiny title one which existed elsewhere, but which the defendants did not set up, nor mean to avail themselves of as a defence by their connection with it, he departs in all essentials from the rest of the record, and all the proof in it, that Henderson entered for the heirs of Miller, held it two or three years under their title, and set it up as his defence.
My dissent rests on this view of the case, though it is by no means certain, that, if a naked outstanding title were shown merely to defeat the plaintiff, and not held under nor relies on through any privity in defence, and it was examined by the court below, when set up to defeat the action, we should not exercise jurisdiction to revise the decision, if a treaty connected with that title is there overruled; because the treaty is a part of the defence there, as much as in other cases. It is relied on for exemption in the action as much as in other cases. The title under a treaty is called in question and decided against as fully as in other cases. The dangers from such a defence being overruled by a state court are as serious as in other cases.
So a judgment of a state court is reversible here at all only when in collision with defences offered under authority from the United States. And here the state court not only overruled an authority so set up, but did it in favor of their own state and of their own citizens, and against the validity of a claim in behalf of an Indian widow and Indian orphans. On general principles, therefore, and with entire respect for the court of Tennessee, it would seem proper, that, if any case should be open to revision by another tribunal, it ought to be one of this character.
As it would be of no use to sustain jurisdiction here, unless in favor of the validity of the title overruled, I would add a few words as to the merits being with the Miller title. It must be conceded, that the title of Miller's heirs ought to be upheld against the plaintiffs, if it became perfected before his death; or if it was so perfected afterwards as to operate or relate back to a time before his death.
The judge below rested his ruling entirely on the position that Miller, dying before the treaty of 1819, though after that of 1817, had acquired no title to the land claimed. But he had fulfilled all the requisites of the treaty of 1817, not afterwards varied by that of 1819. He entered on the lands under the treaty of 1817, which extended to territory afterwards, as well as then, ceded. He improved them under it. He was the head of an Indian family. He registered them under it. See Treaty, art. 8 (7 Stat. at L., 159). He resided on them under it. And the only remaining requisite, the census, which had been provided for by the first treaty, was dispensed with by the treaty of 1819 (7 Stat. at L., 195). Though his death, then, had intervened, his rights had commenced under the treaty of 1817, and become perfected by it and by that of 1819, ceding the territory and dispensing with the census. All, then, should relate back to the period of his entry and registration. It is very familiar law to have proceedings operate back to their commencement, and references need not be extended beyond the common cases of amendments in writs, records, and returns, as well as titles to land confirmed or ratified where before partly completed. Com. Dig. Confirmation; Vin. Abr. Relation; 4 Kent. Com., 450, n.; Clary's Heirs v. Marshall's Heirs, 5 B. Mon. (Ky.), 266; Landes v. Brant, post, 348; 12 Johns. (N. Y.), 141; 3 Cow. (N. Y.), 75; 12 Mo., 145.
As this court, in the opinion just delivered, has not gone into the consideration of the validity of the title of Miller's heirs, I forbear further remarks upon it until brought before us in some other action and form, more acceptable to a majority of the members of this tribunal.
Justices McLEAN, WAYNE, and McKINLEY concurred with Mr. Justice WOODBURY.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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