Drew v. Carroll

• Decision Date: 27 June 1891
• Citation: Drew v. Carroll, 154 Mass. 181, 28 N. E. 148 (Mass. 1891)
• Parties: DREW v. CARROLL.
• Court: Supreme Judicial Court of Massachusetts

154 Mass. 181

28 N.E. 148

DREW v. CARROLL.

Supreme Judicial Court of Massachusetts, Barnstable.

June 27, 1891

Report from superior court, Barnstable county ALBERT MASON, Judge.

HEADNOTES

Deeds 114(1)

120 ----

120III Construction and Operation

120III(B) Property Conveyed

120k114 Particular Description

120k114(1) In General.

A deed which conveys all the grantor's real estate in certain towns, "consisting of homestead and dwelling house I reside in, and outbuildings and woodland and cleared land, of whatsoever name or nature, and however bounded or situated," includes his rights as a tenant in common of undivided lands situated therein.

Indians 13(10)

209 ----

209k9 Lands

209k13 Allotment or Partition

209k13(10) Operation and Effect.

If a member of an Indian tribe mortgages the undivided interest acquired by him in its undivided lands, under St.1869, c 463, and subsequently partition is duly had of such lands the mortgage lien will attach to the portion passing to the mortgagor.

Indians 15(1)

209 ----

209k9 Lands

209k15 Alienation in General

209k15(1) In General.

Under St.1869, c. 463, the members of the tribe of Herring Pond Indians acquired both legal and equitable rights as tenants in common of the undivided lands of the tribe, which they could convey by deed.

Mortgages 128

266 ----

266III Construction and Operation

266III(C) Property Mortgaged, and Estates of Parties Therein

266k128 Particular Words or Terms.

A mortgage of "all the real estate" the mortgagor owns in certain towns, "of whatsoever name or nature," includes the mortgagor's rights as tenant in common of undivided land in such towns.

COUNSEL

C.F. Chamberlayne, for plaintiff.

S.M. Thomas, for defendant.

OPINION

KNOWLTON J.

The fundamental question in this case is whether, under St.1869, c. 463, the members of the tribe of Herring Pond Indians acquired rights in the lands held in common belonging to that tribe, which they could transfer by deed. On January 20, 1870, Anthony T. Johnson executed a mortgage of real estate to Seth Briggs, and the defendant, Elizabeth C. Carroll, now holds the title which was created by that mortgage. The property covered by the mortgage was described as follows: "All the real estate I own in the town of Sandwich and county of Barnstable, and also all the real estate I own in Plymouth, county of Plymouth, and state aforesaid, consisting of homestead and dwelling-house I reside in, and out-buildings and woodland and cleared land, of whatsoever name or nature, and however bounded or situated." This description is in the most comprehensive terms, and we are of opinion that it is broad enough to include his rights, if he had any, as tenant in common of undivided lands.

In determining whether he had an interest which he could convey, we must consider the language and the purpose of the statute above referred to. The first section of the act made all Indians in the commonwealth citizens of the commonwealth, "entitled to all the rights, privileges, and immunities, and subject to all the duties and liabilities, to which citizens of this commonwealth are entitled or subject." The second section declared that all Indian lands "rightfully held by any Indian in severalty, and all such lands which have been or may be set off to any Indian, shall be and become the property of such person and his heirs in fee-simple," with a proviso exempting them from attachment or seizure on execution for a debt or liability existing before the passage of the act. Having all the rights of a citizen, an Indian, under this statute, could sell or control in any way all his interests in property, whether legal or equitable, as freely as any one else. It remains to inquire whether the statute gave him any rights which were transferable in the common lands.

Previously all the common lands had been held and controlled by the commonwealth for the benefit of the Indians, who were treated as wards of the state. The state recognized only certain equitable rights of ownership in the Indians, and it kept their property and exercised a guardianship over them to protect them from the consequences of their own imprudence. Mayhew v. Gay Head, 13 Allen, 129; Danzell v. Webquish, 108 Mass. 133; In re Coombs, 127 Mass. 278; Pells v. Webquish, 129 Mass. 469; Brown v. Wenham, 10 Metc. (Mass.) 495; Lynn v. Nahant, 113 Mass. 433, 449. The statute above referred to put them, for the most part, on the basis of ordinary citizenship. It gave them all the rights of citizens, and confirmed their titles to their individual property. In regard to lands held in common, it made an exception of the Indians of Marshpee and Gay Head, and continued the state's ownership and control of their common lands for their benefit until the passage of St.1870, c. 293. In re Coombs, 127 Mass. 278. As to all others, it gave every Indian a right immediately to have his share of the common lands of the tribe set out to him or sold for his benefit. At the same time it gave him a right to have his share in any funds or other property held in trust for the tribe paid over to him. A method was provided through which his title might be established. Commissioners were to be appointed by the probate court, who were to act...