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Trustees for Vincennes University v. State of Indiana.

school sections in the several townships, undoubtedly dedicated them to the uses for which they were reserved ; and they can. not be appropriated by the State to any other purpose. But the fund dedicated belonged to the United States, and they alone had the power to transfer it, and to designate the body by whom the trust, created by the act of Congress, should be administered. The law of the State complained of, does not attempt to appropriate the land to a different purpose from that to which it was dedicated. It has been sold and conveyed by th State, and the proceeds appropriated to th support of a Seminary of learning in the State. And the only question before us is, whether the trustees have the legal title to these lands, and can recover them back from the persons to whom they were sold by the State, for the purpose of appropriating them to a different seminary.

4. The act of the territorial government of 1806, incorporating this board of trustees, does not grant nor profess to grant the lands to the board. And if it had done so, the act would have been void and inoperative, because the territorial legislature had no right to grant lands which belonged to the United States; nor to exercise any power over them, without the authority of Congress.

5. The act of Congress of 1816, by which Indiana was admitted into the Union as a State, grants these lands to the State for the purposes for which they were reserved. The State is made the trustee.

My brethren have put a different construction on this clause of the law of 1816, and regard this grant as extending only to the additional township mentioned in the law. But with every respect for their opinion, it appears plain to me that this towrship, as well as the additional one, are both granted to the State by Congress. And I am confirmed in this opinion, because, with all the research I have been able to make, I have not found a 8:ngle instance in which lands reserved in a territory for the purposes of education, were not afterwards granted to the State, as the trustee to administer the trust, the school sections in the several townships, as well as others.

6. Upon these grounds, I think the plaintiffs in error have not a legal title to this land, and had no right to sell or dispose of it, nor in any way to control the proceeds; and that under the grant from Congress, in the act of 1816, the title and the right to administer the trust was vested in the State of Indiana.

7. The error in the opinion, appears to me to have arisen from regarding the reservation from sale for the purposes of education, as divesting the legal title of the United States, and putting it in abeyance, until some new body was brought into existence, Trustees for Vincennes University v. State of Indiana.

capable of taking the title as grantee, and administering the trust.

It is not necessary to this opinion to discuss the doctrine of abeyance, upon which so much learning and talent has been displayed by Mr. Fearne, in his treatise on Contingent Remainders. It is sufficient to state under what circumstances the title, in the eye of the law, is said to be in abeyance. And Comyns, in his Digest; tells us, that “when the fce or freehold of the land is not vested in any one, but stands solely in consideration of law, it is said to be in abeyance, or in nubibus."

I cannot regard the title to lands reserved from sale by Congress, for the purposes of education, as standing in this condition. A reservation is not a grant. It does not pass the title out of the United States, but leaves it where it was before. The uniform practice of the government, and of judicial decision also, appears to have proceeded on the ground that the title renained in the United States, until it was afterwards transferred by the authority of Congress. It is not usual, it is true, to issue patents for these lands, but they have been granted by acts of Congress, which the courts have always recognized as valid conveyances. And I am not aware of any case in which the validity of these conveyances of reserved lands has been doubted by the court; or in which it has been suggested that the title was out of the United States, and in abeyance from the time of the reservation. If such be the result of a reservation, the subsequent conveyance of Congress is of no value. And who is to protect the reserved lands from trespasses and depredations, while the title is in abeyance ?

In the case of Gaines and others v. Nicholson and others, re. ported in 9 'Howard, 356, the title to a section reserved for schools, was the matter in dispute. It did not, it is true, involve the question now before us. But it appears, in that case, that the section was one of those reserved for schools in the different townships in the Territory of Mississippi, by an act of Congress passed in 1803; and that afterwards, as late as the year 1815, another act was passed, authorizing the County Court of each county in the territory to lease the sections so reserved, in order to improve them, and to apply the rents to purposes of educa. tion within the township, and also to proceed and recover damages against any persons found trespassing upon them. And this law contains an express provision that every lease, in virtue of this act, shall cease to have any force or effect after the first day of January next, succeeding the establishment of a State government. The trustees of the schools, who were parties to this suit, were appointed under a law of the State, and clained under that appointment. The point in dispute, was

Trustees for Vincennes University v. State of Indiana.

whether the opposing party had not a right prior and superior to the State, by virtue of an Indian reservation, made in the treaty by which the territory had been ceded to the United States. And in deciding the question, this court treated the acts of Congress granting the land to the State, and also the law of the State appointing the Commissioners, as valid and constitutional; and it is not suggested, in the opinion, that the inhabitants of the township had a legal title to the school section, or any right to appoint Commissioners to control and administer the fund, unless authorized to do so by a law of the State. In the case before us, therefore, if the act of 1816 does not vest the title in the State, it still remains in the United States, and not in the trustees.

8. If, however, these lands were conveyed to the trustees, by virtue of the act of the territorial legislature of 1806, yet they were but agents of the State, without any private individual interests, and have no ground therefore for this proceeding in equity against the State. The whole fund was created by the public for public purposes. And in the case of the Dartmouth College, (4 Wheat. 629,) the court said, " If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States." Here the funds are contributed entirely by the public for a public purpose, and these appellants have no private individual interest, and allege none in their bill in behalf of themselves or others, which entitles them to maintain a suit against the State. They are public agents for a public purpose, and nothing more, and so describe themselves. The laws of the State, which directed the appropriation of the fund to the uses for which it was dedicated, are therefore constitutional and valid, under the decision above referred to, and in my opinion the decree of the Supreme Court of the State ought to be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Indiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same Christy v. Scott et al.

is hereby, remanded to the said Supreme Court, in order that such further proceedings may be had therein, in conformity to the opinion of this court, as to law and justice may appertain.

William CHRISTY, PLAINTIFF IN ERROR, v. William T. Scott;

William CHRISTY V. JAMES D. Finley; William CHRISTY v. WILLIAM Young; WILLIAM CHRISTY V. HIRAM Henly.

In Texas, the technical forms of pleading, fixed by the common law, are dispensed

with, but the principles which regulate the merits of a trial by ejectment and the

substance of a plea of title to such an action, are preserved. Therefore, where the plaintiff filed a petition alleging that he was seised in his demesne as of fea of land from which the defendant had ejected him, and the defendant pleaded, that if the plaintiff had any paper title, it was under a certain grant which

was not valid, this plea was bad. So also was a plea denying the right of the plaintiff to receive his title, becau e he

was not then a citizen of Texas. These pleas would have been appropriate oojec

tions to the plaintiff's title when produced upon the trial. So also where, under a plea of the statute of limitations, the defendant claimed cer

tain land by metes and bounds, and disclaimed all not included within them. There

is nothing to show that the land so included, was part of the land claimed by the . plaintiff. So also where the plea was in substance that the plaintiff had no good title against

Texas, no title in the defendant being shown. For the action may have been maintainable, although the true title was not in the plaintiff.

These four cases were brought up, by writ of error, from the District Court of the United States for the District of Texas.

They all involved the same principles, and were covered by the decision in Scott's case. It is necessary, therefore, to set out the pleadings in that case.

Christy filed his petition, alleging that he was seised in his demesne as of fee, in a certain tract or parcel of land, (which he described by metes and bounds,) from which Scott ejected him; and praying judgment for damages, and for the recovery of the lands.

Scott filed the following answer: And now comes the said defendant, and answering the petition of the plaintiff, says, that he denies all and singular the allegations in the said petition, and prays that the plaintiff be held to strict proof of the same.

2. And as to the trespasses and ejectments, or either or any of them, complained of by (the plaintiff in his petition, the defendant says he is not guilty, and puts himself upon the country, &c.

3. And the defendant further says, that as to the pretended grant or title of the plaintiff to the land described in his petition, (if any paper title he has the same bears date, to wit, the twentieth day of September, A. D. 1835, and the land described Christy v. Scott et al.

in said pretended grant or title, and in said petition, is, and was at the date of said grant, situated in the twenty frontier leagues bordering on the United States) line, and said pretended grant was made without the approbation or assent of the executive of the national government of Mexico.

4. And the said defendant further answers, and says, that if any such grant or title was made, as by said plaintiff is pretended; the same was made, (as by said plaintiff's pretended grant appears,) on, to wit, the twentieth day of September, A. D. 1835, and was not made by any public officer, commissioner, or authority, then, to wit, at the date of said pretended grant or title, existing in the State of Coahuila and Texas, competent to make the same.

5. And the said defendant further says, that the plaintiff claims the land sued for under and through a pretended grant from the government of the State of Coahuila and Texas, made to one Miguel Arceniega, as a Mexican and purchaser, and purporting to have been procured for the said Arceniega by one William G. Logan, as his agent. And the defendant says, that the said pretended grant or title of the plaintiff to the land sued for is not valid in law, because the same was procured from the government of the State of Coahuila and Texas by fraud, in this, that the said Miguel Arceniega and the said William G. Logan combined and confederated together for the purpose of evading the law, then in force, allowing the sale of lands to Mexicans, and to them only; and falsely and fraudulently represented to the said govertiment that the application by said Arceniega for the said grant of land was really and bonâ fide made for him by the said Logan, and that the said Arceniega was to be the real purchaser of said land, and to hold and enjoy the same as a Mexican citizen; while, in truth, the said Arceniega fraudulently permitted the said Logan to use his name, and in his name procure the said grant solely for the use and benefit of him, the said Logan, who was not, at the time of procuring said grant, a Mexican citizen; and who, by the false and fraudulent practices aforesaid, procured the said grant, and appropriated the land granted to his (the said Logan's) own use and benefit.

6. And the said defendant says, that the plaintiff claims the premises described in his petition by a pretended grant, purporting to have been made by authority of the government of the State of Coahuila and Texas to Miguel Arceniega, bearing date, to wit, the twentieth day of September, A. D. 1835; and that the said pretended grant was made upon the conditions that the said Arceniega, or the person or persons to whom he might alienate the land in said grant described, should cultivate the same within six years from the acquisition thereof by said

ate of Coa been made Petition byta

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