HENDERSON V. TENNESSEE, 51 U. S. 311 (1850)

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U.S. Supreme Court

Henderson v. Tennessee, 51 U.S. 10 How. 311 311 (1850)

Henderson v. Tennessee

51 U.S. (10 How.) 311


If the defendant in an ejectment suit claims a right to the possession of land derived under a title which springs from a reservation in a treaty between the United States and an Indian tribe, and a state court decides against the validity of such title, this Court has jurisdiction, under the twenty-fifth section of the Judiciary Act, to review that decision.

But if such defendant merely sets up the title of the reserved as an outstanding title, and thus prevents a recovery by the plaintiff, without showing in himself a connection with the title of the reserved, and then a state court decides against the defendant in the ejectment, this Court has no jurisdiction to review that decision.

In order to give jurisdiction to this Court, the party must claim the right for himself, and not for a third person, in whose title he has no interest.

An action of ejectment was brought in the Circuit Court for

Page 51 U. S. 312

Monroe County by the lessee of the State of Tennessee, against Richard Fen, for a tract of land at Toqua, with notice to R. Stapp, W. F. Brown, John Beatty, and Solomon Aikin, as tenants in possession, endorsed, "Den, Lessee of the state, v. Fen &c., to Henderson and Calloway, issued 27 January, 1841." The declaration and notice being returned by the sheriff as served on the tenants in possession, Stapp, Brown, Beatty, Aikin, they appeared, and on the application of Thomas Henderson and Thomas H. Calloway, they were, "by leave of the court, admitted to defend in the room and stead of the tenants sued," entered into the common rule, and pleaded not guilty.

The material facts of the case are, that the land in controversy was a school section, and that the school commissioners had taken possession of and held it until a law was passed by the Legislature of Tennessee directing the school lands to be sold. About that time, one John Lowry, professedly as attorney and agent of Toqua Will, obtained possession of the land, and retained it until about 1836, when the school commissioners regained the possession, and retained the same until 1837 or 1838. Then Thomas Henderson, one of the plaintiffs in error, got possession of the tract for the heirs of one Andrew Miller, under which title it has since been held.

Andrew Miller, at the date of the Cherokee treaty of 1817, was the head of an Indian family, and resided in the Cherokee nation, east of the Mississippi; about 1 March, 1818, he settled and made improvements on the land in dispute; and on 24 May, 1818, registered his name in the office of the Cherokee agent for a reservation in right of his wife, and designated, on the books of said agent, this land as the location by him selected for reservation. From that time until he was killed August, 1818, he, with his wife and part of his family, resided on the land, claiming it as a reservation, on which he said he intended to live and die. A few days after his death, his widow sent for John Black and requested him to take possession of the land and hold it for her and her children. Black offered her $1,000 for her claim, which was refused. Black was placed in possession in the fall of 1818 by Mrs. Miller and George Hicks and James Chisolen, two Cherokees who had taken charge of Miller's estate. Two of Miller's children lived with Black were sent to school, and the expense paid out of the profits of the land. Black held possession for the children of Miller, who remained with him till put off by the school commissioners in the spring of 1822. Afterwards, Thomas Henderson got possession for the children of Andrew Miller. The land was included in the cession made to the United States by the Cherokee treaty of 1819.

Page 51 U. S. 313

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 that year, and before the treaty of 1819, no title vested in him, and consequently none could vest or descend to his heirs."

Verdict for plaintiffs. On appeal to the Supreme Court of Tennessee, the judgment of the Circuit Court of Monroe was affirmed. Thereupon the case is brought before this Court by writ of error, under the twenty-fifth section of the Act of September 24, 1789.

Page 51 U. S. 322

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