GEORGE S. GAINES, FRANCIS S. LYON AND HIS WIFE, SARAH LYON, JAMES M. DAVENPORT AND HIS WIFE, ALETHAN DAVENPORT, GOODMAN G. GRIFFIN AND HIS WIFE, WILLEY ANN GRIFFIN, GEORGE FREDERICK GLOVER, ANN GAINES GLOVER, LOUISA DAVENPORT GLOVER, MARY THOMPSON, AND MARY A. GLOVER, APPELLANTS,

v.

ISAAC W. NICHOLSON, POWHATAN B. THERMOND, LEWIS B. BARNES, JOHN T. MOSELEY, S. M. GOODE, AND JOHN HILMAN

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the Southern District of the State of Mississippi.

The bill was filed by the appellees in the court below against the defendants, to enjoin proceedings in an action of ejectment brought to recover possession of the sixteenth section of township twelve, range eighteen east, County of Kemper, State of Mississippi.

By the twelfth section of an act of Congress, passed March 3, 1803,' entitled “ An act regulating the grants of land, and providing for the disposal of the lands of the United States south of the State of Tennessee ” (2 Stat. at Large, 229), the sixteenth section in each township was reserved, and appropriated to the support of schools within the same. And by the sixth section of an act of Congress, passed April 21, 1806, entitled an act in addition to the act aforesaid (2 Stat. at Large, 401), it was provided, that whenever the sixteenth section should fall upon land already granted by Congress, or claimed by virtue of a British grant, the Secretary of the Treasury should locate another section in lieu thereof for the use of schools within the township. And by an act of Congress, passed January 9, 1815, entitled “ An act to provide for leasing certain lands reserved for the support of schools in the Mississippi Territory ” (3 Stat. at Large, 163), it was provided, that the county court of each county in the Territory should appoint agents, who were empowered to lease these reserved sections for the purpose of improving the same, or for an annual rent, as they might think best; and to apply the proceeds; to purposes of education within thé township.

. The act also provided for laying out the sections into convenient farms, of not less than one hundred and sixty, nor more than1 three hundred and twenty acres each; for the removal ‘of intruders and trespassers; and also for the punishment of all persons cutting timber or committing other waste upon the tract.

The last section provided, that the leases granted by virtue of the act should be limited to the. period of the termination of the Territorial government, and should cease after the 1st of January next succeeding the establishment of the State government.

It is admitted that the appellees are the trustees of schools and school lands .in "township No. 12, duly elected and qualified under the la'ws of the State of Mississippi; and that they are charged with the care and management of the same (How. &. Hutch.. Dig., p. 125, et seq.); and also, that John Hilman, the defendant in the ejectment suit, was in possession under, a lease from the said trustees.

They had - taken possession of the section as early as 1834. The suit in ejectment was brought in 1841. .

The premises lie within the territory formerly belonging to the Choctaw nation of Indians, and which was ceded to the United States, by treaty, at Dancing Rabbit Creek, 27th September, 1830 (7 Stat. at Large, 333).

By the supplementary articles of that treaty (p. 340), certain reservations were made to Indians by name, and among others the following: — “ Also, one section is allowed to the following persons, to wit, Middleton Mackey, Wesley Train, Choclehomo, Moses Foster, D. W. Wall, <fcc., to be located in entire sections, to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert-, who are authorized to locate theirs on any unimproved unoccupied land.”

D. W. Wall, one of the reservees, on the 27th of August, 1832, assigned all his right and title under the treaty to George S. Gaines and Allen Glover, who procured a patent for the sixteenth section to be issued to them, in pursuance of this claim under the treaty, by the President, on the 7th of. December, 1838.

The former, and the heirs of the latter, compose the plaintiffs in the ejectment suit in the court below, claiming under the patent; and the defendants in the bill filed to enjoin that suit by the school trustees, claiming' under -the acts of Congress above referred to.

The court below granted a-preliminary injunction on the filing of the bill, staying the proceedings ..-at law, and on the final hearing decreed a perpetual injunction ; and also, that the defendants relinquish all their right and interest in the section to the school trustees and their successors in office.

The clause in the treaty reserving to Wall, among others, a section of the land ceded, upon a strict construction of its terms, would seem to confine the reservation to a tract, not exceeding a section, on which he resided and had made improvements at the date of the treaty; but a more liberal construction has been properly given to the clause by the officers of the government, and which was inculcated by the eighteenth article of the treaty itself, by which the reservee is-allowed a section, although not a resident at the time, and without having made any improvements upon the particular tract. In cases of residence and improvements, the location must be such as shall include them.

Wall, it seems, was a minor, and resided with his father at the date of the treaty, and therefore was not within its terms, so that "locality could be given to any particular section by a reference to residence or improvements. But under the liberal construction mentioned, the right to a section, notwithstanding, existed, — a right, however, to no particular tract or section , but at large, to be located upon some portion of the ceded territory, — what, in common parlance, is denominated a float.

The deed to Gaines and Glover does not profess to convey any particular section, but only his right, generally, to that amount of land reserved to him under the treaty. A location, therefore, became necessary before the issuing of the patent by the President.

The bill charges that the grantees, Gaines and Glover, in order to induce the President to issue the patent to them for the sixteenth section of township No. 12, which, it is claimed, had been appropriated by the acts of Congress already referred to, for the use of schools, falsely and fraudulently represented that Wall resided upon the same at the date of the treaty, and had made improvements thereon; thus bringing the application for the particular parcel of land within the strict terms of the treaty, and presenting a case upon which the right to it was, confessedly, paramount to any that could be pretended in the State or township, as a school reservation.

This is the ground set forth by the complainants upon which to invoke the equitable interposition of the court to set aside and annul the patent, and remove the encumbrance from their title, and to stay the proceedings at law. And undoubtedly, if the facts thus charged have been established by the pleadings and proofs, a right to such equitable interposition for the relief sought has been made out, and the decree of the court below should be upheld.

But, on looking into the answer and proofs , in. the record, there does not appear to be any evidence of the fraud or imposition alleged-; nor any thing to rebut the presumption, which we must assume till the contrary is shown, that the patent was issued with a full knowledge of all the circumstances upon which the complainants rely to invalidate it. . Fraud' is not to be presumed, and .the burden, therefore, lay upon the complainants to establish it; and having failed, all ground for the equitable relief failed also ; and the court-below should have dismissed the bill, leaving the parties to the settlement of their rights in the action at law. In the absence of fraud or imposition in the issuing' of the patent, the question was one of conflicting title under the treaty on one side, and the acts of Congress, appropriating every sixteenth section in the townships for the benefit of schools, on the other, —-a question-purely of law. •

The State of Mississippi acquired a right to every sixteenth section, by virtue' of these acts, on the extinguishment-of the Indian right of occupancy, the title to which, in respect to the particular sections, became vested, if vested at all, as soon as the surveys were made and the sections designated. No patent was necessary, or is ever issued, for these school sections. And the question presented is, whether the general right reserved to Wall under the treaty, to select a section of land in the ceded territory, operated to suspend the vesting of the title in th§ State, till a selection could be made and patent issued, under the direction of the President ; or .whether the selection in respect to these general floating rights, that bound no particular parcel or section, must be made in subordination to the.right acquired by the State.

The question, as before said, is one of law, and should have been left to the trial at law in the action of ejectment pending between the parties.

There is no doubt but that all persons' in whose behalf reservations were made under the treaty, and who were residents upon any particular tract, and had made improvements thereon at its date, were entitled to the section, including their improvements, in preference to any other right that could have been previously acquired under the government; because the land embraced within the section was so much excepted from the cession. No previous grant of Congress could be paramount, according to the rights of occupancy which this government has always conceded to the Indian tribes within her' jurisdiction.

It was so much carved out of the Territory ceded, and remained to: the Indian occupant, as he had never parted with it. He holds, strictly speaking,-not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.

But the question here is, whether the reservation of a right, not to any particular parcel or section of the territory ceded, but a right, generally, to have that quantity of land out of it, and to be located under the direction of the President, stands upon the same footing, and has the effect to cut off the right claimed by the State to have attached under the acts of Congress to the school section previous to the location made by the President.

We forbear expressing any opinion upon it, as the question is not now properly before us, and as it belongs to the action at law, the trial of which should not be anticipated or the case prejudged.

We shall therefore reverse the decree, and remit the proceedings to the court below, with directions to dissolve the' injunction and dismiss the bill of the complainants. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.