purchase was nuil and void, because the prop-distrahi possunt comparare palam et bonâ fide erty had descended to the children immediately prohibetur: multo magis uxor ejus hoc facere after the death of the father, and the mother, potest." (Cod., lib. 4, tit. 38, 1. 5.) But forewho, by the effect of the law, was their natural seeing the mischief which might grow out of tutor, could not buy it. The court said it was the relaxation, it required that the purchase a general rule. But it having been shown that must be made by the guardian himself, palam the mother and purchaser had petitioned the et bona fide, and not per interpositam personam. Court of Probates for a ratification of the sale, Sed si per interpositam personam rem pupilli and that the court had ratified it upon the ad- emerit, in eâ causâ ut emptio nullius momenti vice of a family meeting, the sale was con- sit, quia non bonâ fide videtur rem gessisse. firmed. And the court held, that under the Et ita est rescriptum a D. Severo et Antonino." Spanish law (20) a tutor could purchase the (Dig., lib. 26, tit. 5, 1. 5, sec. 3.) A purchase property of his ward, with the permission of by a guardian from his co-guardian was perthe judge. mitted, if it took place in public, and bona fide. We have said more upon the relaxation of "Item ipse tutor et emptoris et venditoris the rule in the case of executors than we would officio fungi non potest. Sed enim si contuhave done, if the learned counsel for the appel- torem habeat, cujus auctoritas sufficit, procullants had not pressed, as an exemption from dubio emere potest. Sed si malâ fide emptio the rule, purchases made by executors without intercesserit, nullius erit momenti, ideoque fraud at open sale, especially when by the will nec usucapere potest. Sane, si suæ ætatis facthey were empowered to sell the estate of their tus comprobaverit emptionem, contractus valet. testator for the benefit of heirs and legatees, (Dig., lib. 26, tit. 8, 1. 5, sec. 2.) and were heirs or legatees themselves. And if The guardian might purchase at a sale made it had not been urged that the decisions of the at the suit of a creditor. Si creditor pupilli Supreme Court of Louisiana were unsafe distrahat, æque emere bonâ fide poterit." guides in interpreting the Spanish laws in re- (Dig., lib. 26, 1. 5, sec. 5.) Such is the extent spect to the incapacity of persons to purchase of the qualification of the rule of the civil law. at judicial sales particular property, on account And, its limitation not being well understood, of the official or financiering relation in which persons have often been misled to apply it to they stood to the persons who owned the prop- what they supposed to be analogous agencies, erty. It was supposed that the qualifications such as executors, when there was no authority of the rule by the civil law embraced executors, either in the text of the civil law, or in the or might do so by the reason upon which those practice under it, for doing so. But, further, qualifications were sustained. It imposes upon those qualifications of the rule mentioned were us the task of showing that the relaxations of the confined in practice to those territories in Eurule of the civil law were never permitted by the rope in which the civil law prevailed without Spanish law which prevailed in Louisiana, and modification. And it is remarkable, considerwere never extended under the civil law, to per- ing what were the influences upon Christendom mit the executor testamentarius or executor dativ- of the civil law, after its discovery in the us to buy the property which he was appointed twelfth century, and when not until some time to administer. It is a subject of curious and in- after it began to be used as a rule of law by structive examination to trace the rule or pro- which public and private rights were deterhibition, in the course of its application under mined, when in the fifteenth and sixteenth the jurisprudence of different nations. In all centuries it was the study of the wisest men, it of them, there were limited and occasional re- is remarkable that the qualifications of the rule, laxations of the rule in particular cases, in what as they have been stated, were considered imare sometimes called hard cases, but in no one perfections, and were rejected by every nation nation have purchases by executors been per- in Europe whose codes are generally admitted mitted, as a relaxation of the civil law rule. to have been compiled from the civil law, with For a general historical examination of the sub- an intimate knowledge of human [*560 ject, we have not time; we wish we had. A nature, as it has always shown itself in the brief examination, however, of the qualifica- business of life. Here, appropriate to what has tions of the rule by the civil law will not be in- been just said, is the language of Pothier. appropriate upon an appeal from a court held Nous ne pouvons acheter, ni par nousmêmes. 559*] in Louisiana, where the civil law ex-ni par personnes interposées, les choses que ists in a modified form, and is still often the font partie des biens dont nous avons l'adminrule of decision by its enlightened jurists. The istration; ainsi un tuteur ne peut acheter les prohibition of the civil law is thus expressed: choses qui appartiennent à son mineur; un adTutor rem pupilli emere non potest; idemque ministrateor ne peut acheter aucune chose de porrigendum est ad similia, id est, ad curatores, bien dont il a l'administration." (Tr. du Conprocuratores, et qui negotia aliena gerunt." trat de Vente, part 1, n. 13.) The rule of the (Dig. lib. 18, tit. 1, 1. 34; Inst., lib. 1, tit. 21, civil law, without qualification, is adopted in 23:) the codes of Holland. Quæ vero de tutoribus cautâ, ea quoque in curatoribus, procuratoribus, testamentorum executoribus, aliisque similibus, qui aliena gerunt negotia probanda sunt.' (Voet., lib. 18, tit. 1, n. 9; 2 Burge's Com., 463.) In Spain, the rule was enforced without relaxation, and with stern uniformity. Judge McCaleb cites in his opinion, from the Novissima Recopilacion, the rule, in the following words: No man, who is testamentary executor or guardian of minors, nor any other

The rule as expressed embraces every relation in which there may arise a conflict between the duty which the vendor or purchaser owes to the person with whom he is dealing, or on whose account he is acting, and his own individual interest. Nor was it ever relaxed or qualified by the civil law, further than to allow the guardian to purchase the property of the ward, palam et bona fide, at public auction. "Cum ipse tutor nihil ex bonis pupilli, quæ

66

man or woman, can purchase the property | made their purchases, and it is not pretended which they administer, and whether they pur- that they were known to any of the complainchase publicly or privately, the act is invalid, ants until the year 1817, and not then, except and on proof being made of the fact, the sale by the exhibition of an account by the execu must be set aside.' This was the law of Loui tors to some of the complainants, with declarasiana when the executors in this instance made tions that everything had been fairly done with their purchases, and it is conclusive of the a view to save the honor of the testator, and invalidity. the interests of those who were the objects of his bounty. In this view of the case, it is not necessary for us to consider the time within which remedies are barred, or property may be acquired by prescription, under the laws of Louisiana. We would willingly otherwise do so, for the result would show the same harmony in the application of the rules of the civil law and those of Louisiana upon prescription with the rules prevailing in courts of equity in England and the United States, as we trust has been shown to exist between them in the prohibition of an executor to buy the estate of his testator.

The receipts or acquittances given by two of the complainants to the executors do not af fect their rights. They were obviously given without full knowledge of all the circumstances connected with the disposal and management of the estate. Indeed, it is plain that such information had been withheld by the executors. It is true that an account was presented to them, with official signatures to it, but without vouchers of any kind to verify its correctness, and it was accompanied by a letter from Nicolas Girod, in which menaces of displeasure are mingled with intimations of future kindness.

We have thus shown that those purchases are fraudulent and void, from having been made per interpositam personam, and if they were not so on that account, that they are void by the rule in equity in the courts of England, and as it prevails in the courts of equity in the United States. It has also been shown that they are void by the law of Louisiana, as it was when they were made by the executors, and that such purchases never were countenanced in that State by any qualification of the civil law rule prohibiting purchases by those who stood in such fiduciary relations to others; that the act could not be generally done, without creating a conflict between self-interest and integrity. In every aspect in which we have viewed this case, we are called upon to direct that the purchases made by Nicolas and Jean François Girod of their testator's estate should be set aside. We shall order it to be done. Nor do we think that the complainants have lost their rights by negligence, or by the lapse of time. We can only see in their conduct the fears and forbearance of dependent relatives, far distant from the scene of the transactions of which they complain, desirous of having what was due to them, and suspecting it had been withheld, but unwilling to believe that they had been wronged by brothers, with whom they had been associated in a common interest by another brother who was dead. In a case of actual fraud, courts of equity give relief after a long lapse of time, much longer than has passed since the executors, in this instance, purchased their testator's estate. In general, 561*] length of time is no *bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not to exclude relief. (Prevost v. Gratz, 6 Wheat., 481.) Generally speaking, when a party has been guilty of such laches in prosecuting his equitable title as would bar him if his title were solely at law, he will be barred in equity, from a wise consideration of the paramount importance of quieting men's titles, We shall also direct that the actual cost and upon the principle that expedit reipublica of all permanent improvements which were ut sit finis litium; although the statutes of lim- made upon any part of the estate by Nicolas itations do not apply to any equitable demand, Girod shall be allowed to his representatives, courts of equity adopt them; or at least gener- with interest at five per cent. in the settlement ally take the same limitations for their guide, which shall be made with the complainants in cases analogous to those in which the stat- and the other persons having an interest under utes apply at law. (10 Ves., 467; 1 Cox, 149.) the will of Claude. And also an allowance Still, within what time a constructive trust will for taxes, and the expenses and cost paid in be barred must depend upon the circumstances recovering the property gained by alluvion. A of the case. (Boone v. Chiles, 10 Peters, 177.) reference to a master will be directed. We re There is no rule in equity which excludes the gret to perceive from the record that all the consideration of circumstances, and, in a case persons who are interested in the estate of of actual fraud, we believe no case can be Claude F. Girod are not parties to this proceedfound in the books in which a court of equity ing. We shall direct that they shall be perhas refused to give relief within the lifetime of mitted to make themselves parties, if they either of the parties upon whom the fraud is please to become so. But in giving the order, proved, or within thirty years after it has been it is not intended to delay those from receiving discovered or becomes known to the party their portions in whose behalf this decree is whose rights are affected by it. In this case made. The fruits of their vigilance can be that time has not elapsed since the executors apportioned according to their respective

We shall also direct the official proceedings which were had *upon the account of [*562 Nicolas Girod, against the estate of Claude, to be set aside and annulled. But there will be allowed to the representatives of Nicolas, in the settlement of the estate, the sum of $6,574.20, with interest at five per cent. The proofs in the cause show that a few months before the death of the testator there had been a settlement of accounts between him and Nicolas, and we allow that amount, as it is charged in the general account, disallowing all the other items. We suppose it to be an inadvertency in drawing up the decree, that the sum just mentioned was not allowed, as the learned judge, in his opinion, states that a settlement had taken place with that result.

2. That the adjudication of landed property, with the slaves thereto attached, situated on Bayou Lafourche, made on the 18th of Feb. ruary, 1814, to Charles St. Felix; the retroces-bution. sion of said property by said Charles St. Felix to Nicolas and Jean François Girod, on the 23d of February, 1814; the adjudication of the property situated in the parish of Orleans made to Simon Laignel on the 9th of April, 1814, and the notarial seal made to the same on the 26th of April, 1814, in pursuance of said adjudication; and the conveyance of said proper ty to Nicolas Girod, on the 28th of April, 1814, to be set aside and annulled, saving, however, the just rights of third persons, to whom two tracts of land on Bayou Lafourche, two slaves, and a piece of ground in the city of

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567*] *THE UNITED STATES, Plaintiffs, United States, and having been born in the said

The United States have adopted the principle originally established by European nations, namely, that the aboriginal tribes of Indians in North America are not regarded as the owners of the territories which they respectively occupied. Their country was divided and parceled out as if it had been vaIf the propriety of exercising this power were now an open question, it would be one for the law making and political department of the government, and not the judicial. The Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of any one of the States, Congress may, by law, punish any offense committed there, no matter whether the offender be a white man or an Indian.

cant and unoccupied land.

The 25th section of the Act of 30th June, 1834, extends the laws of the United States over the Indian country, with a proviso that they shall not include punishment for "crimes committed by one Indian against the person or property of another This exception does not embrace the case of a white man who, at mature age, is adopted into an Indian tribe. He is not an Indian," within the meaning of the law.

Indian."

The Treaty with the Cherokees concluded at New Echota, in 1835, allows the Indian Council to make laws for their own people or such persons as have connected themselves with them. But it also provides that such laws shall not be inconsistent with acts of Congress. The Act of 1834, therefore, controls and explains the treaty.

It results from these principles, that a plea, set up by a white man, alleging that he had been adopted by an Indian tribe, and was not subject to the jurisdiction of the Circuit Court of the United States, is not valid.

THI
THIS case came up on a certificate of division
from the Circuit Court of the United

States for the District of Arkansas.

At the April Term, 1845, of the said Circuit Court, the grand jury indicted William S. Rogers for the murder of Jacob Nicholson. Both Rogers and Nicholson were alleged, in the indictment, to be "white men and not In dians." The offense was charged to have been committed within the jurisdiction of the court, that is to say, in that part of the Indian country west of the State of Arkansas that is bounded north by the north line of lands as signed to the Osage tribe of Indians, produced! east to the State of Missouri, west by the Mex ican possessions, south by Red River, and east by the west line of the now State of Arkansas and the State of Missouri (the same being terri tory annexed to the said District of Arkansas, for the purposes in the act of Congress in that behalf made and provided).

The defendant filed the following plea:

And the defendant in his own proper person, comes into court, and, having heard the said indictment read, says that the court ought not to take further cognizance of the said prosecution, because, he says, heretofore, to wit, on the day of November, 1836, he then being a free white man and a citizen of the

United States, voluntarily and of his free will removed to the portion of the country west of the State of Arkansas, assigned and belonging to the Cherokee *tribe of Indians, and [*568 did incorporate himself with said tribe, and from that time forward became and continued to be one of them, and made the same his home, without any intention of returning to the said United States; and that afterwards, to wit, on the day of November, 1836, he intermarried with a Cherokee Indian woman, according to the forms of marriage, and that he continued to live with the said Cherokee woman, as his wife, until September, 1843, when she died, and by her had several children, now living in the Cherokee nation, which is his and their home.

And the defendant further says, that, from the time he removed, as aforesaid, he incorporated himself with the said tribe of Indians as one of them, and was and is so treated, recognized, and adopted by said tribe and the proper authorities thereof, and exercised and exercises all the rights and privileges of a Cherokee Indian in said tribe, and was and is domiciled in the country aforesaid; that, before

and at the time of the commission of the supposed crime, if any such was committed, to wit, in the Indian country aforesaid, he, the defendant, by the acts aforesaid, became, and was, and still is, a citizen of the Cherokee nation, and became, and was, and still is, a Cherokee Indian, within the true intent and meaning of the act of Congress in that behalf provided. And the said defendant further says that the said Jacob Nicholson, long before the commission of said crime, if any such was committed, although a native born free white male citizen of the

United States, had settled in the tract of country assigned to said Cherokee tribe of Indians west of the State of Arkansas, without any intention of returning to said United States; that he intermarried with an Indian Cherokee woman, according to the Cherokee form of marriage; that he was treated, recognized, and adopted by the said tribe as one of them, and entitled to exercise, and did exercise, all the rights and privileges of a Cherokee Indian, and country as his home, up to the time of his supwas permanently domiciled in said Indian posed murder.

And the said defendant further says that,

by the acts aforesaid, he, the said Jacob Nich olson, was a Cherokee Indian at the time of the commission of the said supposed crime, within the true intent and meaning of the act of Congress in that behalf made and provided. Wherefore the defendant says that this court has no jurisdiction to cause the defendant to make a further or other answer to said bill of indictment, for said supposed crime alleged in the bill of indictment. And the defendant prays judgment, whether he shall be held bound to further answer said indictment."

To this plea the District Attorney of the United States filed the following demurrer: