Pennock v. Monroe , 5 Kan. 578 ( 1870 )

By the Court,

Saeeord, J,

As to the second assignment of error in this case, that the court below erred in overruling the demurrer to the petition, we do not feel authorized or required to examine, and for the reason that the record does not properly show what was, or was not,- the action of the court in the premises.

Record: The Judges Minutes It is true that the record contains a copy of tpe minutes made by the Judge, before whom the case was tried, upon his trial docket, and under the title thereof. But this is all that appears. Such minutes are no part of the record in any case, and might be omitted entirely without affecting in any manner the validity of any proceedings had or determined therein by the court. They are valuable, however, as furnishing data, whereby the clerk is guided to some extent in making up his journal entries, if for any reason he should fail to make such entries at the precise time when proceedings are had. They are also valuable as enabling the court to pass upon the correctness of journal entries, in the particulars to which they relate, when such entries are presented for approval. They might also in a case like the one at bar, where there was no journal entry of an order of the court, furnish data from which an. entry "nunc pro tunc” might be ordered to be made, in order to cure the defective record. But they cannot be made to stand for what ought to appear in the journal of the proceedings of the court in the manner attempted in this instance. "We shall'therefore hold that such minutes are unavailable for any purpose, as affecting the case now here before us.

Petition : Its sufficiency, There is, however, one question which was attempted to be raised by the demurrer which is otherwise presented in the case, and that is, did the petition as filed below, state facts sufficient to constitute a cause of action ? "We are content to make a simple decision of this point in the affirmative, and without giving our reasons, or discussing the question in detail. We come now to the examination of another question which arises in the case, and to which counsel on either side have more particularly directed attention in their briefs. It is as to the power of the plaintiff below to make and execute the deed described in the petition, and by which she purported to convey the lands mentioned to William Pennock, one of the defendants below, on the 6th day of February, 1865. The case shows that the said plaintiff was a half breed Sac and Fox Indian, and that she held the lands in question under the tenth article of the treaty with the Sac and Fox tribe of Indians, made October 1st, 1859. It is also admitted that Pennock was a white man, and not a member of said tribe.

Indians : Sac and i?ox: Deeds by. Now by referring to the said tenth article of ° ° £be g£¿(j treaty above named, which was in full force on the 6th day of February, 1865, the date of the alleged sale, it will be seen that it contains a provision as follows, to wit: “The lands granted by this article shall remain inalienable, except to the United States, or to members of the tribe.” We are unable to see how this is to be regarded in any other light, than as amounting to a complete prohibition upon the right of the grantor in this instance, to sell her lands to any one outside of the tribe as was the defendant below, and as a consequence we think that such attempted sale was a nullity. But it is claimed for the grantee in such sale, that by construing said article ten, together with article seventeen of a treaty made February 17, 1867, with the said Sac and Pox tribe, the power or right to make it, is impliedly given. By what process of reasoning such a conclusion is to be reached, we are hot informed, nor do we feel inclined to attempt its discovery. It is true ■ that the treaty last named recognizes the fact that valid sales of the half breed Sac and Pox lands may have taken place prior to its negotiation, as for example, by and between members of the tribe; but surely there is nothing in such treaty which goes farther than this, or that can in any way be tortured into a recognition of a sale of such lands, which was absolutely prohibited and therefore void, under previously existing treaty provisions. This point seems too plain to require argument, as indeed does the whole question of the right of the plaintiff below to sell as it was sought to have her do, when examined in the light of the treaty stipulations referred to. The court below declared against such right, and we think the judgment correct. What has already been advanced is decisive of this case, and therefore we shall not allude to any other question which may have been suggested by counsel. Judgment below affirmed.

Kingman, C..J. concurring. Valentine, J. not sitting in the case.