Doe ex dem. Lafontaine v. Avaline

• Decision Date: 29 May 1856
• Citation: 8 Ind. 6
• Parties: Doe on the demise of Lafontaine and Another v. Avaline
• Court: Indiana Supreme Court

8 Ind. 6

Doe on the demise of Lafontaine and Another v. Avaline

Supreme Court of Indiana

May 29, 1856

ERROR to the Miami Circuit Court.

The judgment is reversed with costs. Cause remanded.

J. U Pettit, N. O. Ross and R. P. Effinger, for plaintiff.

D. D Pratt, S. C. Taber, R. Brackenridge, Jr., I. Blackford and A A. Cole, for defendant.

Stuart J. Davison, J., dissented.

OPINION

Stuart, J.

Ejectment for a section of land in Miami county. Trial by the Court, and judgment for the defendant.

The evidence, consisting partly of admissions, is all made part of the record, in the form of an agreed case.

Both parties claim title through Catharine Lasselle; the plaintiffs as the heirs at law, the defendant as the vendee of the devisee. Catharine was a daughter of the Miami chief, Richardville. Her first husband, Lafontaine, was also an Indian, and at one time, head chief of the nation. After the death of Lafontaine, she married Francis D. Lasselle, to whom she devised the section of land in controversy.

Lasselle conveyed to Avaline, the defendant.

The lessors of the plaintiffs denying the validity of the will, claim as the heirs of the devisor.

The exact date of the marriage with Lasselle does not appear, but inferentially it must have been some time late in the fall of 1848; for the agreed state of facts, which will be more fully referred to hereafter, briefly says that "the marriage continued about six weeks." The will is dated 21st November, 1848, and speaks of Lasselle as then her husband. Her death occurred in the early part of January, 1849, taking six weeks from the date of the will as the duration of the marriage.

It is unfortunate that the evidence leaves such events as the date of her marriage and death in doubt. Matters of such notoriety could have been easily ascertained. It is to be regretted that they were not supplied. A statement of these dates would have rendered all the argument addressed to that point, both by counsel and the Court, unnecessary, and thus superseded the minute examination which is required to reach these facts by inference.

There is no controversy but that the act of 1847, (p. 108,) giving married women the power to devise by "last will and testament," was in force at the date of the devise by Catharine Lasselle to her husband. But, beyond the bare removal of the disability of coverture in that one particular, the act can have no bearing on this case.

The only question arising on the validity of the will, resolves itself into the competence of Catharine to devise. Was she, in November, 1848, a person competent to make a will under the laws of Indiana? To this end, we will inquire first, whether, when the will was made, there was any statutory disability resting upon the Indians in this State, rendering any contract or devise of their lands, in certain contingencies, void. And, secondly, if there was, was Catharine Lasselle an Indian within the meaning of these statutes?

First, then, as to what acts in relation to the Indians were then in force.

The first act in point of date, seemingly bearing on the question, is chapter 66, R. S. 1843. This act, approved February 3, 1841, is entitled an act for the relief of the Miami and other Indians. The first, second, third, and fourth sections abolish, as to the Indians the writ of capias in all its forms. Suits brought against them are directed to be instituted by summons without bail. In brief, it abolishes imprisonment for debt, so far as these Indians are concerned, as one measure of relief to them. The other measure of relief is contained in the fifth section in these words: "No white man or negro shall hereafter have the benefit of any of the legal remedies for the collection of debts hereafter contracted by an Indian within the limits of the State of Indiana; and all contracts hereafter made with Indians shall be null and void." R. S. 1843, p. 1038.

By joint resolution of the General Assembly, at the same session, approved seven days thereafter, the fifth section above recited was suspended for the period of five years. R. S. 1843, p. 1039. So that the fifth section of the act of February 3, 1841, did not go into operation until February, 1846. This act and suspending resolution are among the few enactments published at length in the R. S. of 1843, without revision or alteration.

In the body of the R. S. of 1843, chapter 28, treating of "real property and the alienation thereof," and under the particular head, "of the persons capable of holding and conveying lands," the third section provides, that, "No Indian can hereafter make any contract for or concerning lands within this State, or in any manner give, sell, devise, or otherwise dispose of, any such lands, or any interest therein, by which such Indian shall be divested of the absolute control, possession, or management of such lands, for a longer time than five years, without the authority or consent of the legislature of this State, except such sale, gift, or devise shall be to an Indian." R. S. 1843, p. 414.

The R. S. of 1843, in which this provision is embodied, took effect in the spring of 1844; at what exact time, is not material to the present inquiry.

On the 11th of February, 1843, a further act "relative to suits against the Miami Indians," regulating the mode of suing the individual Indians of that tribe, was approved, the third section of which declares that "every contract which may hereafter be made with any Indian shall be absolutely null and void." Gen. Laws, 1842-3 pp. 38, 39.

Thus stood the statute law of the State in relation to Indians, up to the early part of 1848. On the 11th of February of that year, an act was passed repealing the act for the relief of the Miami Indians, of February 3, 1841, and also the act of February 11th, 1843, "relative to suits against the Miami Indians." But the third section of the twenty-eighth chapter, R. S. 1843, is not embraced in the terms of the repealing act. Nor does the act of 1848 repeal the third section of chapter 28, R. S. 1843, by implication. For it is not a repeal of all acts on that subject matter, but a repeal of two specified acts, particularly identified by the date of their approval. Each act repealed is specially designated in a separate section. There is no room to indulge a presumption that it was intended to repeal a third and separate act, on the same subject, which contains different provisions, was passed at a different time, and is not mentioned or included in any specific or general terms used in the repealing act.

The position assumed in argument, viz: that it was the intention of the legislature to repeal all acts relating to Indians, is, therefore, not only unwarranted, but repelled by the precise language used by the legislature to indicate how far, and upon what particular statutes the repealing act should operate. All implication is thus excluded.

The third section of chapter 28, as above quoted, stood as the law in relation to Indians during the year 1848. But on the 15th of January, 1849, that section, also, was repealed in terms of particularity similar to those employed in the repeal of the other Indian enactments; thus putting it beyond all doubt that the legislature did not repeal, nor intend to repeal, the third section in 1848.

That section, then, waiving, for the present, the question of Indian blood, is the law of this case, unless Mrs. Lasselle survived its repeal on the 15th of January, 1849. But that can hardly be made out consistently with the agreed state of facts. For the will is dated November 21, 1848. She was married then, and speaks of Lasselle in the will as her husband. The only evidence touching her death is, that "she married Lasselle, with whom she lived about six weeks, and died." The dates of the marriage and death are nowhere more particularly disclosed. We must presume the marriage to have taken place some time before the date of the will; for it is not very probable that she would set about making so grave an instrument amid the festivities of her wedding-day. If one or two weeks be assumed as a reasonable time for the marriage to have taken place prior to the date of the will, then the close of her six week's nuptials would have been in December, 1848. This hypothesis would leave the third section above quoted still in full force at her death.

Even assuming the very great improbability that the marriage and the will bear the same date, the expression "about six weeks," does not save the devise from the operation of the statute. For that language, "about six weeks," could hardly be expanded to cover a period of about two months. These words would as easily cover a period falling short of six weeks as a period running over a few days. The 3d of January, 1849, would be fully six weeks from the date of the will, leaving twelve days over to be covered by the word "about." This construction would clearly be more forced and unnatural than the other, which supposes the marriage to have taken place some weeks before the date of the will, and her death about the middle of December.

There can, therefore, be no hesitation in saying that, from the record, the third section of chapter 28, R. S. 1843, was in force at the time of her death. That section, if applicable to the facts of the case, must govern the construction of the will. Kelly v. Stinson, 8 Blackf. 387.

The section thus in force, and quoted in full above, may, so far as it bears on the supposed facts of this case, be thus abstracted, viz: "No Indian can hereafter devise any lands, within this State, without the authority or consent of the legislature, except such devise be to an Indian."

It is not contended that the previous authority or subsequent consent of the...