Wally's Heirs v. Kennedy

• Decision Date: 31 July 1831
• Citation: 10 Tenn. 554
• Parties: WALLY'S HEIRS v. NANCY KENNEDY.
• Court: Tennessee Court of Appeals

10 Tenn. 554

WALLY'S HEIRS

v.NANCY KENNEDY.

Supreme Court of Errors and Appeals of Tennessee.

July Term, 1831.

Opinion of the court delivered by Judge CATRON. (WHYTE, J., absent.)

This was an action of ejectment brought by the heirs of Wally against the defendant, claiming the land in controversy as a reserve, by virtue of the treaties of 1817 and 1819 with the Cherokees. The material question involved is this: on the trial below, the defendant proved that the suit was prosecuted for the benefit of another, and not the lessors of the plaintiff, who had contracted to convey their interest before the suit was brought. On this point the court charged the jury, “that if they believed the lessors of the plaintiff had sold their interest in the land in dispute, they must find a verdict for defendant.” The jury accordingly found a verdict for the defendant. The charge of the circuit court was grounded on the act of 1827, ch. 39, passed December 6th of that year. This suit was commenced 27th August, 1827. The act first provides, “that interrogatories might be exhibited to the plaintiffs, and if it should appear that the suit was prosecuted in trust for another, it should be dismissed.” This mode was not pursued: or, “that the defendant on the trial of the cause might prove by witnesses, that the suit was instituted or prosecuted, in whole or in part, upon a contingent interest, or in trust for any other person than the one in whose name such suit was brought; and if the facts should so appear from such examination, it should operate as a bar to the recovery of the plaintiff.” The act of 1827 is a partial law, applying only to suits then brought, or which might thereafter be brought in the name of any Indian reservee, to recover lands under the provisions of the treaties of 1817 and 1819, between the United States and the Cherokee Nation of Indians.

The treaties secured to the reservees the right of citizenship. Of course in 1827 they held the same relation to the body politic, and were entitled to the same measure of constitutional protection, as the citizens of Tennessee.

Does that part of the act of 1827, which declares that the suit shall be barred if the defendant prove it was prosecuted in trust for another, violate the constitution? By this it is declared that no free man shall be disseized of his freehold, or deprived of his property, but by the judgment of his peers or the law of the land. What is “the law of the land”? This court, on two occasions, and upon the most mature consideration, has declared the clause “ law of the land” means a general public law, equally binding upon every member of the community. The rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, the mass of the community, and those who made the law, by another; whereas a like general law affecting the whole community equally could not have been passed. Vanzant v....