HISTORY
Before any permanent settlement had been made in the
Territory of Iowa, white adventurers, trappers and
traders, many of whom were scattered along the Mississippi
and its tributaries, as agents and employees of the
American Fur Company, intermarried with the females of
the Sac and Fox Indians, producing a race of half-breeds,
whose number was never definitely ascertained. There were
some respectable and excellent people among them, children
of men of some refinement and education. For instance: Dr.
Muir, a gentleman educated at Edinburgh, Scotland, a
surgeon in the United States Army, stationed at a military
post located on the present site of Warsaw (Illinois),
married an Indian woman, and reared his family of three
daughters in the city of Keokuk. Other examples might be
cited, but they are probably exceptions to the general
rule, and the race is now nearly or quite extinct in Iowa.
A treaty was made at Washington, August 4, 1824, between
the Sacs and Foxes and the United States, by which that
portion of Lee County was reserved to the half-breeds of
those tribes, and which was afterward known as "The
Half-Breed Tract." This reservation is the triangular
piece of land, containing about 119,000 acres, lying
between the Mississippi and Des Moines Rivers. It is
bounded on the north by the prolongation of the northern
line of Missouri. this line was intended to be a straight
one, running due east, which would have caused it to
strike the Mississippi river at or below Montrose; but the
surveyor who run it took no notice of the change in the
variation of the needle as he preceded eastward, and, in
consequence, the line he run was bent, deviating more and
more to the northward of a direct line as he approached
the Mississippi, so that it struck that river at the lower
edge of the town of Fort Madison. "This erroneous line,"
says Judge Mason, "has been acquiesced in as well in
fixing the northern limit of the Half-Breed Tract as in
determining the northern boundary line of the State of
Missouri." The line thus run included in the reservation a
portion of the lower part of the city of Fort Madison, and
all of the present townships of Van Buren, Charleston,
Jefferson, Des Moines, Montrose and Jackson.
Under the treaty of 1824, the half-breeds had the right to
occupy the soil, but could not convey it, the reversion
being reserved to the United States. But on the 30th day
of January, 1834, by act of Congress, this reversionary
right was relinquished, and the half-breeds acquired the
lands in fee simple. This was no sooner done, than a horde
of speculators rushed in to buy land of the half-breed
owners, and, in many instances, a gun, a blanket, a pony
or a few quarts of whisky was sufficient for the purchase
of large estates. There was a deal of sharp practice on
both sides; Indians would often claim ownership of land by
virtue of being half-breeds, and had no difficulty in
proving their mixed blood by the Indians, and they would
then cheat the speculators by selling land to which they
had no rightful title. On the other hand, speculators
often claimed land in which they had no ownership. It was
diamond cut diamond, until at last things became badly
mixed. There were no authorized surveys, and no boundary
lines to claims, and, as a natural result, numerous
conflicts and quarrels ensued.
To settle these difficulties, to decide the validity of
claims or sell them for the benefit of the real owners, by
act of the Legislature of Wisconsin Territory, approved
January 16, 1838, Edward Johnstone, Thomas S. Wilson and
David Brigham were appointed Commissioners, and clothed
with power to effect these objects. The act provided that
these Commissioners should be paid six dollars a day each.
The commission entered upon its duties and continued until
the next session of the Legislature, when the act creating
it was repealed, invalidating all that had been done and
depriving the Commissioners of their pay. The repealing
act, however, authorized the commissioners to commence
action against the owners of the Half-Breed Tract, to
receive pay for their services, in the District Court of
Lee County. Two judgments were obtained, and on execution
the whole of the tract was sold to Hugh T. Reid, the
Sheriff executing the deed. Mr. Reid sold portions of it
to various parties, but his own title was questioned and
he became involved in litigation. Decisions in favor of
Reid and those holding under him were made by both
District and Supreme Courts, but in December, 1850, these
decisions were finally reversed by the Supreme Court of
the United States in the case of Joseph Webster, plaintiff
in error, vs. Hugh T. Reid, and the judgment titles
failed. About nine years before the "judgment titles" were
finally abrogated as above, another class of titles were
brought into competition with them, and in the conflict
between the two, the final decision was obtained. These
were the titles based on the "decree of partition" issued
by the United States District Court for the Territory of
Iowa, on the 8th of May, 1841, and certified to by the
Clerk on the 2d day of June of that year. Edward Johnstone
and Hugh T. Reid, then law partners at Fort Madison, filed
the petition for the decree in behalf of the St. Louis
claimants of half-breed lands. Francis S. Key, author of
the Star Spangled Banner, who was then attorney for the
New York Land Company, which held heavy interests in these
lands, took a leading part in the measure, and drew up the
document in which it was presented to the court. Judge
Charles Mason, of Burlington, presided. The plan of
partition divided the tract into one hundred and one
shares and arranged that each claimant should draw his
proportion by lot, and should abide the result, whatever
it might be. The arrangement was entered into, the lots
drawn, and the plat of the same filed in the Recorder's
office, October 6, 1841. Upon this basis the titles to
land in the half-Breed Tract are now held.
On page 531 of the same book, it tells pretty much the
same thing, just going into the legal and financial
aspects a little more. The only additional that might help
you is this: "A Member of the Bar" prepared a very full
and concise history of the legal contest, and the status
of the titles as they existed at the time, which was
published in the Keokuk "Register" in December, 1848,
where it is preserved, and where it may be reviewed if any
of the points involved ever become subjects of controversy
or dispute."
From The History of
Lee County, Iowa, 1879, transcribed and submitted
by Mary Sue Chatfield
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CLAIMANTS OF THE SAC
AND FOX HALF BREED RESERVATION
Gentlemen:
In attempting to address you on this occasion, it may be
well to take at least a cursory view of the principal
mooted points, which have contributed to the disquiet the
titles, to the Sac and Fox Half Breed Lands; and which
still remain to be settled by the operation of law, or by
the action of the parties themselves. In order,
therefore, to a thorough understanding of the subject, we
will first examine the treaty between the United States
and the Sac and Fox tribes of Indians, concluded at
Washington city on the 4th day of August 1824; and
secondly, the Act of Congress relinquishing the
reversionary interest of the United States in said lands,
to said Half Breeds.
First. In the last clause of the first article in the
treaty above referred to, we fine the following
provisions, to wit “It being understood, that the small
tract of land lying between the rivers Des Moines and
Mississippi, and the section of the above line between the
Mississippi and the Des Moines in intended for the use of
the half breeds belonging to the Sac and Fox nations, they
holding it, however, by the same title, and the same
manner, that other Indian titles are held.” Ratified,
18th January 1825. It would seem that the above provision
must necessarily be regarded as the foundation and origin
of all title which ever can be obtained to this property.
The Congress of the United States have recognized it as
the origin of the tenure by which those land must ever be
held, as will be seen by the following act, to wit:
“An Act to relinquish the reversionary interest of the
United States in a certain Indian reservation lying
between the rivers Mississippi and Des Moines.
Sec. 1st By it enacted by the Senate and House of
representative of the United States of America in Congress
assembled. That all the right, title, and interest, which
might accrue or revert to the United State to the
reservation of land lying between the rivers Des Moines
and Mississippi, which was reserved for the use of the
half breeds belonging to the Sac s and Fox nations, now
used by them, of some of them, under a treaty made and
concluded between the United States, and the Sacs and Fox
tribes, or nations of Indians at Washington, on the Fourth
day of August, in the year one thousand eight hundred and
twenty four, be and the same are hereby relinquished and
vested in the said half breeds of the Sacs 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.
June 30 1834 Approved”
Having now before us the only authoritative documents,
which are entitled to our regard, in determining our
opinions upon the several questions, which have hitherto
distracted the public mind in reference to the rightful
ownership of this estate, we will now proceed to examine
some of those mooted points, in relevance to the treaty
and law, already recited.
And
First. The assumption “that this reservation was intended
for the exclusive benefit of that class of half breeds who
reside among the white people, and who are necessarily
precluded any participation in the annuities arising from
the sales of other portions of the natural territory; and
therefore, that this tract was act apart to them, in lieu
of their portion of those annuities,” has contributed
much towards fixing an opinion favorable to the exclusive
claims of civilized Half Breeds, as well as extravagant
notions in relation to the speculation to be made, by the
purchase of those claims. But should it be admitted, that
the above position is in accordance with the original
intention of the Sac and Fox deputation at the time of
making said treaty, does it follow that this mental design
or intention, which is not even hinted, in the remotest
manner, in the treaty can be assumed as of sufficient
authority to determine this point? I will here, however,
advert to a circumstance which seems to be the issue in
point of fact, on this question, viz: several of the
identical individuals who composed the Indian deputation
at Washington city on the 4th of August 1824, have, in
repeated instances, sworn to and subscribed affidavits,
declaring the right of uncivilized half breed to share in
this reservation. Who can convict them of mental
equivocation? And if ever that could be done, can parol
testimony to admitted to prove, that both the treaty and
act of Congress do not mean what they say? As the
exclusive claims of civilization have been entirely lost
sight of, by the framers of the documents now before us we
shall be compelled to take this matter as it is, and not
as we might with to have it.
Secondly. The next question which seem to present itself
to our consideration _____- other by the treat and act of
Congress, those persons among the Sac and fox Indians, who
are literally “Half breeds belong to said tribes or
nations of Indians,” but whose composition does not
partake of the white man, are entitled to participate in
this reservation?
The treat expressly declares that this property was
“intended for the use of the half breeds belonging to the
Sac and fox nations,” without any other qualification, as
to birth or blood; but under the following expressed
condition, to wit: They holding it, however by the same
title, and in the same manner that other Indian titles are
held.” In accordance with this condition of the treaty,
the act of Congress seems to restrict the grant to a
certain description of half breeds, not of cast, class,
birth or blood, but “Half Breeds, who, at the passage of
this act, are under the reservation in the said treaty
entitled by the Indian title to the same,” &c. From
this description of the persons to whom Congress
relinquished this land, it appears that the essential
prerequisite is not that the individuals should be one
half white, or that they should be civilized or
uncivilized, or that they should be clothed in a blanket,
or broad cloth, calico or linen, buffalo or deer skins;
but they shall not only be Half Breeds belonging to the
Sac and Fox nations, but they shall likewise “at the
passage of this act” be “entitled by the Indians title to
the same.” Hence those Half Breed who used or occupied
this tract in the usual Indian mode of occupying land at
the date of the passage of the aforesaid act, would seem
to have some claim to priority. Having now before us
three classes of half Breeds, the Sac and fox Indians,
some of whom, out of each class were, and some were not,
holding this land “in the same manner that other Indian
titles are held,” at the passage of the act of Congress
aforesaid; the questions therefore, is not whether she was
clad in a scarlet blanket, a silk gown or a gingham frock,
nor whether he wore boots, shoes or moccasins; but where
did he or she reside?
And did he or she hold any part of this tract in actual or
constructive possession, as required by the Treaty at the
date of the relinquishment by Congress?
The Treat not only defines the character of the tenure by
which this land should be held, but also the manner of
holding it. Nearly ten years had elapsed, between the
date of the treaty and the act of Congress, affording
people time to all individuals concerned, to take at least
an Indian like possession of this property, it would seem,
therefore, that those Half Breeds who did not hold this
tract of land “in the same manner that other Indian titles
are held” on the 30th day of June 1834, could not be
“entitled by the Indian title to the same.”
Thirdly. Many persons whose pinions are entitled to the
highest respect, are under a firm conviction, that these
Half Breeds of whatever class they may be, who died prior
to the relinquishment by Congress while the land was held
by Indian tenure, could vest in their heirs, or legal
representatives, no estate or interest, by descent, but
that such estate passed to the survivors. There are many
other debatable points, which have been, or may hereafter
be raised, such for the instance as the following, to wit:
1st. Does not the act of Congress relinquishing these
land, contemplate that the Half Breed for whose use it was
intended, had taken possession thereof, and were using the
same “under the reservation in the said treat?”
2d. Was this tract intended for civilized Half Breeds
exclusively?
3d. Was it intended for the use of the uncivilized half
breeds exclusively, as they were to hold “it by the same
title, and in the same manner that other” uncivilized
“Indian titles are held?”
4th Whether should the civilized or uncivilized Half Breed
be regarded as most correctly “belonging to the Sac and
Fox nations?”
5th Was not this reservation intended for the use of all
the half breeds of the Sac and Fox nations, independent of
all other circumstances?
Impressed with the opinion that this reservation was
vested exclusively in the civilized Half breeds, and aware
that there were only about forty persons of this class the
first purchases were made, in many instances at high
prices, and all cases with a view to extensive
speculation. But at it became a matter of increasing
interest, it was also subjected to closer examination;
which resulted in the present general opinion, that
neither the Treaty or the law of Congress have given any
preference to civilized Half Breed above others.
Influenced by this view of the subject, the “Blanket
claims” (as they have been styled.) have also be brought
into market, and purchased up, though generally at reduced
prices in the first instance. Among this class of Half
Breed here denominated “blanket claimants,” we have a
third cast, viz. such persons as have already been
referred to as not partaking of the ways of white men, but
being descended from parents of whom only one was Sac or
Fox, the other being Ottoway, Pottowattamie, Winnebago,
& c. & c. These are, therefore, half breed
belonging to the Sac and Fox nations; and the Chiefs and
head men had swore, that they also, are entitled to share
in this reservation. And under a conviction, that there
is nothing in the treaty or law of Congress, which
precludes them from a participation in this property,
their portions or shares have also been purchased, and are
now matters of record. By this process the secret is
disclosed, how, and in what manner the original forty
claimants have been multiplied, first, to about a hundred,
and last to more than ONE HUNDRED AND SIXTY PERSONS. It
is by no means strange that men should adopt those views,
which appear most favorable to the pretensions, of that
particular class of Half Breeds under whom they claim.
And whilst they regard themselves as the fortunate few,
who are to acquire by this enterprise an immense fortune,
they have often deemed it necessary to invalidate and
decry the pretensions of others.
Fourthly. We will now examine the present condition of
this estate, in relation to its present and future
prospects. For the last ten years, the timber upon this
tract has been esteemed as common booty, and within that
time, more that Fifty thousand dollars damage has been
sustained by the owners of the property, in the loss of
its most valuable timber; and it is to be regretted, that
this system of plunder is still increasing – if the
present state of things continue, a few years more, this
beautiful tract of country will be stripped of all its
valuable timber. The ineffectual efforts already made to
quiet the titles to this property, has only confirmed
public opinion in the absolute uncertainty of ever
accomplishing this object. And distrust among the
claimants themselves, has excited a public apprehension,
that a compromise will never be effected, and the
consequent uncertainty of title, has, both repelled
emigrants, and invited trespassers.
It has already been suggested, that the difficulties in
relation to the ownership of this property, still remain
to be settled by the operation of law, or by the section
of the action of the parties themselves. And first, of
the operations of law, it would seem that we have had more
than enough, already.
Many had turned all their hopes of success to the late Act
of Wisconsin legislature, believing that if the provisions
of that law could be carried into effect, the numerous
vexed questions which had long disturbed the titles to
this estate, would be fairly and finally settled. The
valid claimants ascertained, and the land partitioned
amongst them or sold, and the proceeds divided under the
direction of the district Court. But how disappointed
have been the expectations, of even the warmest friends to
this measure. Every step that was taken, to carry out the
provisions of that law, was obstructed by accumulating
obstacles. It was urged that the legislature had no right
to interfere – That the Judiciary of the Territory had
exclusive, and sole jurisdiction of not only making up a
judgment upon all those points of controversy, but
likewise the exclusive right of superintending the
progress of every minutiae, in the course of these
investigations. Together with many other objections,
which it is useless to enumerate. This law therefore
being unavailing not from any real defect therein, but
from the squeamishness of some, who were charged with its
administration, it was thought best to repeal it, which
has been done accordingly, by the late legislative
assembly of Iowa Territory. We are now told that the late
legislature of Iowa, have enacted another law, under the
title of a general partition law, which is intended to
afford the desired relief. So far as I am capable of
judging, it is infinitely inferior, to the one repealed,
and possesses no adaptation whatever to the case in
question, unless the presumption can be established; that
the owners of the Half Breed Lands, are Infants, idiots,
and Lunatics, and in that event the law is a good one,
provided the friends of [those not of sound mound] are
pleased with the judge of the District Court, in his
super-added relation as Guardian.
I am fully persuaded that if any law not existing in the
Territory, or any law hereafter to be enacted, with every
possible fitness to the subject, was attempted, to enforce
the adjustment of the present difficulties it would result
in consuming more than the whole estate is worth, in Court
charges, Attorney’s fees, &c. &c. Many who had
commenced their legal career, with the strongest
probabilities of success, would be disappointed; while
others, who were almost despairing at the outset, would
find themselves to be the successful party, but not until
they have paid well, the second time, for their property,
or being unable so to do; those who had fought the battle,
must take the spoils.
We might advert to the lawless character of that
extraordinary tax sale, in December last, as evidence,
that the existing authorities in this Territory, do not
desire, an adjustment of this matter, advantageous to the
present proprietors, but would rather lay the foundation
for a new enterprise, in the form of tax-titles. And if
we may be permitted to infer, from the extraordinary
character of their recent legislation in other matters; we
should not be disappointed if the next legislative
assembly, should declare the fee simple to be duly vested,
in such tax claimant.
It is true that the tax sale alluded to, is
unconstitutional, and unlawful, in reference to the very
law under which it was pretended to be sold. But if we
are not robbed, It is not because an effort for that
purpose has been wanting. Another cloud is thrown over
this, already abstruse affair; and the projectors of this
new scheme of speculation, doubtless contemplate security
in the density of the cloud, to which this pretended sale
is designed to contribute. And now, after two years
legislating what has been accomplished? Instead of relief
from our former troubles; our embarrassments have been
increased, and our property rendered almost worthless.
Shall we suffer ourselves any longer to be thus inveigled,
by the fallacious protections of those, who, while they
affect to assist us, will ride our pockets, and run away
with the spoils? Or shall we abandon those golden notions
which were conceived at an early period in the history of
this operation; and acting generously towards each other,
make such reasonable concessions to one another, as may at
least afford an indemnity to all? When we reflect on the
almost endless appeals which, inevitably, will be taken
from one court to another; and the reversed decisions
which may be anticipated with certainty: who that wishes
to realize even a dollar, from his investments in this
property, can, for a moment hesitate, between, the
operations of law and the compromising action of the
parties themselves? Should we however, continue, to
entertain such overweening notions of our own exclusive
pretensions, as to reject the proposed compromise, we must
not be disappointed if we should entail to our posterity,
a fruitful source, of law suits and ruin. In conclusion,
we will next enquire what the parties can do for
themselves.
Fifthly. Surrounded as this affair has been, with each a
mass of accumulated embarrassments, I should long since,
have abandoned it, as a hopeless case, but I have always
been accustomed to confide in the people themselves: and I
still believe that they will act prudently and wisely, as
soon as they can act understandingly. The first step
necessarily to be taken, in order to affect a union, and
concert of action among the whole body of claimants; will
be for those who have hitherto regarded themselves, as
exclusive owners of this property to pare down, their
extravagant expectations; and abandoning these golden
dreams, act justly and generously, toward those claimants,
whose pretensions they have been disposed to disallow. A
union upon equitable terms, to all the parties interested
may be regarded as advantageous, as much to one class of
claimants as to another. But it is urged by some, that by
this plan, of admitting the claims of all who have a fair
appearance of title, upon the public records, we shall
greatly diminish the quantity of land, to which each
individual will be entitled. This is true; but it is an
easy matter to determine, who are the losers? If we can
readily ascertain this point, our object is already
attained, we need proceed no further. This question
would again involve, the reconsideration of the entire
subject; and leave us where we began. If indeed, the
quantity of land to which each individual may be entitled,
should be hereby diminished; it is equally true that this
disadvantage will be more than counterbalanced, by the
increased value of the property, arising from the security
of the titles and the severalty of the ownership. This
property has never been esteemed as valuable, at any other
period of its history as it was in the summer of 1837;
when an effort, similar in its general character to the
one now contemplated was attempted, and might have
succeeded, had it been incumbered with fewer heads and
less jealousy. I hope to be excused, for saying, that I
have always attributed the failure of that effort, in a
great measure, to the circumstance of having committed the
management of these affairs, to persons unacquainted with
the local difficulties, which incumbered the subject. And
those gentlemen with whom I endeavored to act, at that
time, will do me the justice, to say, that it was with
extreme reluctance, that I relinquished the scheme of a
compromise, for a resort to legislation. This property
has been rapidly depreciating in value, during the last
two years; hence the interests of all the parties
concerned, as well as the peace of society, and prosperity
of that valuable section of the Territory, require that
these causes of disquietude should be speedily and
efficiently removed. And to this end, a respectable
proportion of the persons interested, have already agreed
to associate themselves; and through the agency, of one or
more, general grantees, to effect a partition, but sale or
otherwise, of so much of the land as the parties so
united, may seem, from the public records, to be entitled;
assuming that there are one hundred and sixty original
claimants, to one hundred and nineteen thousand acres of
land, to be equally divided, quantity and quality,
relatively considered. All persons therefore, claiming
interest in this property are respectfully invited to call
at the office of the subscriber in Montrose, Lee County,
I. T. at as early a day as may be convenient, for the
purpose of adopting such measures, as may be thought most
advisable to secure the interest of all the parties
concerned.
I am gentlemen, very respectfully &c.
I. GALLAND
Transcribed from the Library of Congress and
contributed by Sue Simonich
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COURT DECISION
As many persons have a desire to ascertain the situation
of the title to what is called the “Half Breed Tract” in
Lee County, and the progress of judicial decision in
settling the questions respecting the title, the following
statement and remarks are made to inform such as may be
unacquainted on the subject.
The Half Breed Tract was reserved by treaty for the Half
Breeds to be held as an act of Congress to the Half Breeds
whereby they became the fee simple owners with power to
sell or dives the same. A suit was instituted in the
district court of Lee County, then in the Territory of
Iowa praying partition among the proprietors of the lands
and the same was divided into shares in severalty. Prior
to the partition just mentioned, judgment had been
recovered in the same Court under a special law
authorizing the plaintiffs to sue the owners of the Half
Breed Tract, by that designation to recover their demands
for services rendered to them and expenses incurred while
sitting as Commissioners to take proof respecting their
claims; and making the judgments a lien on the Half Breed
Tract. After the partition had been made executions
issued upon those judgments upon which the Half Breed
Tract was sold and conveyed by the sheriff to Hugh T. Reid
The Half Breed Tract before the partition was made had
been settled upon by squatters who generally claimed no
title to the land but many of the united with those who
sat up claims which had not been allowed at all or allowed
for as much land as was expected in condemning the
partition as unjust and fraudulent. A Bill in Chancery
therefore was filed in Lee District court impeaching the
Decree for fraud the venue of which was changed to the
County of Muscatine but a compromise among the parties
taking place during its pendency a decree in consequence
was made, dismissing the suit. There still being others
alleging claims not included in the partition nor in the
compromise, two other Bills in Chauncery to set aside the
partition were filed in the district Court of Lee County
to which demurrers were filed and sustained by the Court,
and the suits being taken to the Supreme Court, were
dismissed by the complainants without prejudice to any
other suits that might be brought by the complainants.
Still another Bill was filed in the same Court to impeach
the partition for fraud which was removed to Muscatine
County, owing to the Judge of the Lee district Court
(Judge Williams) having been connected with it as counsel
where on demurrer heard and decided by Judge Grant the
suit was dismissed. Various Actions of Right have been
commenced in the District Court of Lee County on the
partition title commonly called the ‘Decree title’ and on
trial of one of them before Judge Williams the validity of
title was assailed; but the title was sustained and from
that decision a writ of error has been prosecuted to the
Supreme court of Iowa which has not been decided. Another
action of Right was tried before Judge Olney holding court
for Judge Williams at the November Term of the District
court of Lee County 1848 based on the ‘Decree Title’ which
was assailed again as invalid but was held again by Judge
Olney to be valid. The case decided by Judge Olney as
well as the case decided by Judge Grant can be taken up to
the Supreme Court as the period allowed by law for that
purpose has not expired. These are the decisions that
have been made on the validity of the partition or “Decree
title.”
The title of Reid commonly called the “Judgment title” has
also undergone judicial investigation. First a motion was
made in the District court of Lee County to set aside the
sale made by Sheriff to Reid which was overruled. Next
Reid brought an Action of Right against Joseph Webster in
the Lee District Court on his title and recovered judgment
before Judge Mason then Judge of the Court and on the
trial of which Reid’s title was opposed on the ground of
invalidity from the decision of the Court a write of error
was prosecuted to the Supreme Court of the Territory of
Iowa, where the alleged defects of Reid’s title were
presented, but his title was held valid by the unanimous
decision of the Supreme court composed of Judges Mason,
Williams and Wilson and from their decision attempts have
been made to prosecute a write of error to the Supreme
Court of the United State but the case has not yet been
brought before that Court for their decision.
After Iowa became a State, Judge Williams decided in an
Action brought in the lee District Court, and on the
“judgment title” that the same was invalid; holding that
he was not bound to regard the decision of the Supreme
Court of the Territory in the case of Webster against Reid
as binding authority, from which decision Reid prosecuted
a write of error to the Supreme court of Iowa, but no
decision of that Court since the adoption of the State
Constitution has been rendered. At the November Term of
the District Court of Lee County in 1848 in an Action of
Right based on the title of Reid or “judgment title” Judge
Olney decided that the same was valid; holding that the
decision in the case of Webster against Reid was binding
authority. From this decision a write of error may be
prosecuted to the Supreme Court of the State.
From the foregoing statement it will be seen that what is
called the “Decree title” has received the judicial
decision sanctioning its validity by the following Courts.
First, by the District Court of Lee County that made the
partition Judge Mason then presiding. Second on two Bill
& impeaching the Decree or fraud --- in the Lee
District Court on demurrer also by Judge Mason. Third ---
an Action of Right decided in the district Court of Lee
County by Judge Williams. Fourth in another Bill
impeaching the Decree for fraud, decided on demurrer in
the district Court of Muscatine County, by Judge Grant.
And fifth, in an Action of Right decided by Judge Olney in
the district Court of Lee county. All of which decisions
wee pronounced upon full and able arguments made by the
court when the partition was made. The title of Reid or
“judgment title” as it is called, has also received
judicial sanction by the following Courts. First in the
case of Reid against Webster tried as mentioned before in
the district Court of Lee Co. before Judge Mason. Second
on a write of error before the Supreme Court of Iowa
Territory. Third, in an Action of Right tried in the
District court of Lee Co. at the November Term 1848 before
Judge Olney. So that what is called the Decree title has
just been decided by five Courts in different suits and
every time has been sustained while what is called the
judgment title has undergone judicial investigation in
different Courts four times and has been sustained every
time except one decision before Judge Williams in the
District Court of Lee Co. The Decree title has been
sustained by the decision of four judges viz Mason, Grant,
Williams and Olney siting as Judges of District courts.
The judgment title has been sustained by four Judges also,
vix by Judges Mason and Olney istting as judges of the
District Court and by Judges Williams & Wilson sitting
with Judge Mason as Judges of the Supreme Court of the
Territory of Iowa. Both titles have the sanctions of the
same number of Judges but they different in these
particulars to wit; that no Judge has decided against the
Decree title, whereas one has decided against the judgment
title: 2nd that all the decision given on the Decree
title were pronounced by the District Court a subordinate
Court whereas one of the three decisions given in support
of the judgment title was rendered by the Supreme Court of
Iowa Territory having the power, to affirm or reverse the
decisions of the District Court. If there was one
decision against the judgment title by Judge Williams,
this is more than compensated by the superior authority of
the decision of the Supreme court of Iowa respected by
Judge Olney, but disregarded by Judge Williams which
decision was in sanction of the judgment title. If we may
infer what will be the future from the past decisions, the
reasonable conclusion is that both what is called the
“Judgment title” to the lands and lots on the Half Breed
Tract will be held valid by the final decision of the
Supreme Court and that both are good. It may be inquired
as it is often asked how can both be good? It is answered
that they are both good and valid as links and different
links in the chain of title which was originally in the
United States next in Half Breeds, then in those whom
Decree give it by the partition. Thus far the chain is
good according to the decisions which have affirmed the
legality of the partition and what is meant by the Decree
title being good is that the partition cannot be set aside
by any decreeing a new partition against the parties to
the partition or any one claiming under them and relying
on the partition as a link in the chain of his title.
So Reid’s title or the “Judgment title” is good and is
derived as follows viz, first that the title was in the
Half Breeds as before spoken of, then judgments were
obtained against the owners of the Half Breed Tract (which
was a lien on the Tract) and a deed from the Sheriff to
Reid as purchaser of the Half Breed Tract under the
executions which issued on those judgments – And this
title is also good to any person claiming under it as
showing a valid title to the land derived from the United
State by a regular chain of title. Both titles are good
standing alone before the Court, as the basis of
adjudications, and a person owning both or claiming under
both can recover in an Action of right against any person
in this respect both are legal and valid. But in a
contest between those claiming under the “Decree title”
and “Judgment title” one plaintiff and the other
defendant, where the Court will have to decide which is
superior, the Decrees title or the Judgment title, in that
case the Judgment title will be superior, because the two
titles stand in the same relation as the title of a
defendant to judgment after his land has been sold and
conveyed under execution on judgment by the Sheriff, and
the title of the purchaser of his land under Sheriff’s
sale and deed and in such case, the purchasers title will
be superior because the Sheriff & deed transferred all
the title the defendant in the judgment had to the
purchaser.
So the title of Reid or “Judgment title” is superior to
the “Decree title” in a contest between them, because the
Sheriff’s deed to Reid conveyed to him the Half Breed
Tract on an execution against all the owners of the Half
Breed Tract (after the Decree of partition was
rendered.)and it makes no difference who owned it whether
they were half Breeds or others, or whether they were I
one out of the Decree or whether there had been a
partition or not, or whether if a partition had been made
of it , was fraudulent or not, for b the deed, no matter
who ever had the title to the land, the same was
transferred o Reid. It follows then that with both titles
or either of them a settler may be ejected; if the Decree
title is invalid, then on the Judgment title he may be
ejected; if the Judgment title is invalid and the Decree
title is valid, then on the decree title he may be ejected
if both are valid, and the question Is which is superior,
in a contest between them then Reid’s or the Judgment
title is best. If both are united unless both are invalid
the title will be indisputable.
Another illustration of the comparative strength of the
Decree title and the Judgment title was given in a suit
between Hugh T. Reid and John M. Young tired at the
November Term of the District Court of Lee Co. 1848 in
which Reid relied on his judgment title alone. After Reid
had closed his evidence Young gave the Decree title in
evidence to show that Reid’s title was barred by the
Decree, because the Judgment as incumbrances were not
allowed in the Decree, and the Judgment title, invalid,
thereby opposing the Decree title to the Judgment title,
directly, and requiring the court to decide which was
superior and the jury gave a verdict which was to depend
on that question if decided in favor of the Judgment title
by the Judge, then judgment for Reid, if in favor of the
Decree title, then judgment to be rendered for Young.
Judge Olney, after taking time to carefully examine the
subject and after hearing argument on both sides, decided
that the Judgment title was superior to the Decree title
and was “The title.”
BY A MEMBER OF THE BAR
Transcribed from microfilm and contributed
by Sue Simonich |
