Burlington hawk-eye. [volume] (Burlington, Iowa) 1845-185?, 1846-04-16

Nor is The reason Of This rule mod fed
IN the least by the fact tina, the defendant
below held the land in Controversy by an
adverse possession. Such a possession 10
within the reach Of every intruder and
would (wero contrary rule TO prevail
effce,uaIy proiec. his possession II ne
could avoid the force Of writ OF iofeio!o
entry and deiainer.
VIVA, difference in fact can il make 10
the defendant below whether the action
aeains. him be brough, by the Plaintiff
below or by any olher"owners OF the Half
Breed lrac,!' The true rule in all these cases
seems to be that unless the Defendant in
siec,ment has some defence tina, would be
good against the former owner he cannot
obiec, 10 forged or fraudalen, deed. nor
10 the fraud itregulari,y or uncons,iu'ion
alily Of the proceedings by which the
present, owner has acquired unc.
As corollaries TO the conclusions attain
ed as above il follows that the Cour, below
did not err in admitting evidence Of the
Judgment. execution, levy and return OF
The Sheriff. nor in admitting The Sher
ifs deed. nor in everything the motion
for nonsuit rs seiforth in the l,i, ID and
9TH bills of exception.
The next point to be considered is the
proof of title derived from M malta pas
which was profIared bv the defendant.
below and rejected by the Court. Il is
very questionable whether such proof
should have been admitted even if Ma ma
pas had been fully proved TO be
one Of The Sac and Fox half breeds. Tbs
title of the land was in The hands Of a
purchaser under sale directed by q Co0tl
Of general jurisdiction.
If that judgment WIS irregular, fraud
ulent or founded upon an unconstitutional
law, could one Of the parties 10 he judg-
ment obtain remedy in this collateral
manner.
But even if the law should PERM, such
course we think there was no sufficient
evidence that Nama-,s-pas was Que oil
the Sac and Fox half breeds. The prin
cipal witness on this subject was one who
did not understand the Indian language.
He stated tina, on one occasion he was in
company of several whites and Indians
and that then this individual was said to
be half breed of the Sac and Fox tribes,
at another time the witness tosk the &C.
acknowledgement Of the deed from Ma ma
ta-pas when he heard several persons "a
part Of whom were under OATH ata,e
that they believed him half brsed of ,ha
Sac tribe. His complexion indicated {
half breed. Witness had also heard SEINE
persons who had married half breads
make similar statements as to his pedi
gree. From the necessity Of the ceso the
same siriciness of proof is no. required ii
relation to pedigree as for mos, other pur
poses, still the same general rules are ob
served.
The best evidence which the nature o
the case admits, is required whers here
say evidence in such eases is allowed. |
10 the statements of relatives by blood O
marriage, who are generally best acquaint
ed with the facts they state.
No evidence of that kind was Offered
in the present case. But even if th'
peculiar habits and manners Of the Indians
be such as 10 require further modifica
ton of the rule of evidence a, least gene
raj reputation in the tribe might hav:
been proved by persons who could un
ders,and the language. Billiard state(
that several persons had informed him tha
such reputation existed. The origna
hearsay would have been infinitely better
evidence than this hearsay of a hearsay
The principles involved in the instruc
tions asked and refused by the Court
have already been substantially discussed
If the conclusions above stated are cor
rect, there was no error in refusing n,
instructions.
Judgment affirmed.