Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 22
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43-44 SUPREME COURT.
McMullen v. Hodge.
grant, alnd carries to the Illdians the full capacity to take il the precise form of
the o'rait.
Not only are there express laws of the Spanish mollarley which authorized
the Indianls to purchase and alienate real [43] estate, but tlhe judicial decisions
of this country have fully recognized their power. Mitchell v. United States
(9 Pet. R., 752) is an authority which asserts the righlit of the Illndian to liold
an(l sell. Inl Martin v. Johnson, (5 Mart. R., 635,) the court say: '"*But it is
said that such locations of the Indians on any tract of land (lid not convey to
them thie property of soil, but gave them a more possession for the purposes of
the Indianl mode of life. Ry tle laws of the Indies, 1, 6, 27, however, it is
recognized that Indians can lold lland as well as other people ; nay, that they
can alienate it with permission of Government." (Id., 470 ; 2 White, 34; Id.,
51, 54.) In the same case it wa's held that no one but the Illdianl is able to
take advantage of a nullity in the sale. Spencer v. Grimbnall (6 Mart. N. S.,
355) is to tile sarm effect.
The Inldian communities were always clothed with the same faculties as
corporations wherever Indians resided togetller as a commlunlitty. They were
entitled to liold property as a community land to alienate it. From the Louisiana
decisions already quoted it seems that wherever a community of Ildians
settled tley were, under the laws of Spain, entitled to land, and might sell
and choose another location, and were again invested with a league square
without formal grant. These laws are sufficient proof that these communities
had capacity to take by grant. After such a length of time a charter of incorporation
would be presumed if necessary. (Stockbridge v. Stockbridge, 12
3Mass. R., 400; 2 Kent Comm., 277; 12 Wheat. R., G4.) Again, thel grant itself
would constitute the lgrantees a body corporate as to the grant. (2 Kenlt Comm.,
276; 7 Mass. R., 445; Denton v. Jacksotn, 2 Johnis. ClI. R.; I Cow.. 671.)
Tlie grant in this case is iot to tie Catholic church, nor to tile mission, nor
to tlie pol)plation of tlie mission generally, but to tlhe " native Indialns"1 of the
mission of San Jose. It is difficult to see how such languagoe can be tortured
into meaning to the mission in its corporate capacity. The lanlluage evidently
means, not thle mission as a foundation, nor the [44] whole mass of the population
of the mission, but the resident native Indians of tlme mission. It is a
grant to a particular class of individuals by name, and tleir express enumeratioii
is by every rule of construction the exclusion of all other beneficiaries. It
is not easy to understand how a grant of land to parties residing in a particular
house could be held to inure to the benefit of the owner of tle house instead of
tle residents blamed. The words of the grant to the Illdians make it a conveyance
in fee with a defeasance; but granting that it might be construed either
to tlat (efect or as a tenancy at will, the grantees would be supported in claiming
tlhe fee, on the obvious principle that the grant must be taken most favorably
to them, and that they have a right to elect if it is capable of two constructions.
Such a grallt is as certain as a grant to or an entry by the leirs of J. F., which
lias belel held good, (Hunt v. Wickliff, 2 Pet. R., 207,) or a grant to the wife of
A. That is certain which Imay by proof be reduced to certainty. (Shlaw v.
Loud, 12 Mass. R., 448.) It was not difficult to show by proof who were native
Indianls of tile mission. (Shlep. Touch., Cll. 12, p. 246; 1 Paine C. C. R., 652.)
See also Bac. Abr., p. 378, Tit. GRANT, (C.,) to the point tlat where there.are
sufficieilt marks of distinction the grant would be good without any name at all.
But gralting thle position that this was a purchase of land by the Indians
witll tleir own funds, the title to which was made to the mission for their
bellefit, tills would oly constitute the mission a trustee for the benefit of the
Ildimas, adlll would not make the grant.clhurch property. (2 Kent Comm.,
279; Phillips Academy v. King, 12 Mass. R., 546; Vidal v. Girard's Ex'rs, 2
How. U. S. R., 186; Hempstead v. Hempstead, 2 Wend., 133.) And ais it is a
principle of law that a court of chancery will never let an estate fail for want
of a truste(, the suppression of tlhe mission coulcl iiot alect tlhe estate of the
Indians. Were a trustee necessary to the preservation of the estate a court of
equity would appoint oine in place of the one extinguished. Neither was the
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/30/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .