#### Michael Sheehan, Resp’t, *v.*Xaver Mayer, Impl’d, etc., Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

1. Indians — Lease made by Seneca Indian of lands on Reservation— U. S. Session Laws 1874-5, p. 330.

In June, 1872, a Seneca Indian residing on the Alleghany Indian reservation in Cattaraugus County, executed to plaintiff a lease of a piece of land on said reservation for the term of thirteen years, from November 1st, 1872. The land leased was within one of the villages mentioned in U. S. Session Laws 1874-5, p. 330, entitled “ An act authorizing the Seneca Nation of New York Indians, to lease lands within the Cattaraugus and Alleghany reservation, and to confirm existing leases.” Plaintiff, on November 30th, 1875, assigned said lease, and transferred possession of said land with the buildings thereon, to defendant, and to secure the payment of the consideration defendant on the same day executed to plaintiff a mortgage on his interest in the lease and all buildings thereon erected or to be erected. Defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, plaintiff commenced an action to foreclose said mortgage. After trial judgment was duly entered, directing that the premises be sold, that the purchaser be let into possession, that the proceeds, or so much as may be necessary, be applied to the payment of the amount unpaid on the mortgage, and that the deficiency if any be paid by defendant. The act referred to made valid all then existing leases of lands within the boundaries of the villages therein named, in which Indians of the Seneca Nation or persons claiming under them were lessors (with an exception not material to this case), for a period of five years after the passage of the act, except such as by their terms expired at an earlier date. It also provided that at the expiration of a lease the Nation should be entitled to the possession of the lands and have power to lease the same. Such leases were made renewable at their termination for periods not exceeding twelve years, and persons who at such time might be the owners of improvements erected upon such lands were entitled to such renewed leases. *Field,*that the lease in question, if invalid before the act, was made valid by its provisions.

2. Same — Foreclosure of mortgage on leasehold and improvements —When defendant may not raise question of the expiration of LEASE.

*Held,*that defendant could not raise the question whether the lease had expired, it not having expired when this suit was commenced and it not appearing that he had been disturbed in his possession when judgment was entered.

3. Same — Right of renewal — What interest is sufficient for.

*Held,*that plaintiff’s interest, as mortgagee of the improvements and leasehold gave him a right of renewal, under the act. and from the fact that his assignee continued in possession under the lease it might be presumed, if necessary to support the judgment, that the lease had been renewed.

Appeal from a judgment entered upon a decision, made at the Cattaraugus special term and from an order denying a motion to modify the judgment.

*Henderson and*Wentworth, for appl’t, *Ansley and Vreeland, for*resp’t.

Smith, P. J.

In June, 1872, Casler Redeye, a Seneca Indian, residing on the Allegany Indian reservation in the county of Cattaraugus, executed to the plaintiff a lease of a piece of land on said reservation, for the term of thirteen years from the first *236day of November, 1872. The land, so leased, was within the boundaries of the village of Great Valley, one of the villages mentioned in the act of Congress, approved February 19th, 1875, entitled “ an act authorizing the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases.” (U. S. Sess. Laws, 1874-5, p. 330.)

On the 30th of November, 1875, the plaintiff assigned said lease, and transferred the possession of said land on which were then a house and barn, to the defendant, in consideration of the sum of eleven hundred dollars agreed to be paid therefor by the defendant, to secure the payment of which, the defendant, on the same day, executed to the plaintiff a mortgage upon the house and barn, and also upon his interest in said lease and all buildings then on said land or thereafter to be erected thereon.

The defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, the plaintiff commenced this.action to foreclose said mortgage. The action was tried in May, 1881, and in March, 1884, judgment was entered directing that the premises be sold, that the purchaser be let into possession, that the proceeds, or so much thereof as may be necessary, be applied to the payment of the amount unpaid upon the mortgage, and that the deficiency, if any, be paid by the defendant.

Subsequently, the defendant moved at special term to modify the judgment so as to conform to the decision of the trial judge, and particularly to strike out the provision that the purchaser at the foreclosure sale be let into possession. The motion was denied.

The argument of the appellant’s counsel, if we correctly apprehend it, may be summed up in the proposition that the lease referred to was void at its execution, and at the most was made valid by the'act of February, 1875, for five years only, from the passage of said act, and that as the five years had elapsed before the trial, the court erred in holding that the mortgage was then a subsisting lien upon the premises.

The act referred to made valid all then existing leases of lands within the boundaries of the villages therein named, in which Indians of the Seneca Nation, or persons claiming under them, were lessors, (with an exception not material to the present case,) for a period of five years after the passage of the act, except such as by their terms expired at an earlier date. The act also provided that at the expiration of a lease, the Nation should be entitled to the possession of the lands and have power to lease the same. It also made such leases renewable, at their termination, for periods not exceeding twelve years, and provided that the persons who might be at such time the owners of improvements erected upon such lands, should be entitled to such *237renewed leases, and to continue in possession of such lands on such conditions as might be agreed upon, by such owners and the councillors of the Seneca Nation, or in case of their disagreement, by referees, to be chosen as provided in the act. (§. 3.)

The lease in question, if invalid before the act, was made valid by its provisions. We do not think the defendant is in a position to raise the question whether the lease had expired. Clearly, it had not expired, when this suit was commenced, as that was within five years after the passage of the act. Whether the plaintiff had availed himself of the right of renewal, under the act, is a question which does not concern the defendant. It does not appear that the defendant had been disturbed in his possession when judgment was entered. For aught that appears, his only right to the possession was under the lease assigned to him by the plaintiff. The right of the Indian Nation to the possession of the land, at the expiration of the five years, was subordinate to the right of the owner of the improvements to a renewal of the lease, for twelve years thereafter. While it was not proved at the trial that the lease had been renewed, neither was the contrary shown. The plaintiff’s interest, as mortgagee of the improvements and of the leasehold, we conceive, gave him the right of renewal, under the act, and. from the fact that his assignee continued in possession under the lease, it may be presumed, if necessary to support the judgment, that the lease had been renewed,

We think the case was correctly disposed of at the trial, and upon the motion under review, and that the judgment and order should be affirmed with costs.

1886, Oct. 1. — Judgment and order affirmed with costs.

Op. by Smith, P. J.

Bakkbr & Haight, J. J., not sitting.

Bradley, J., concurs.

Affirmed.