Henry Billings Brown

“ Admitting that the former, if standing alone, would engender a doubt as to when the grant should take effect, the habendum clause removes that doubt, and imports a present surrender of a defined tract. The addition of the words, 'by a patent from the president of the United States,' is immaterial, since it refers and is intended to be construed in connection with the third section of the act of May 28, 1830, in which the issue of a patent is merely spoken of as an optional or preferential method of acquiring full title to the land. ”

“ Repentigny, 5 Wall. 211, 267, in which the court said: 'We agree that, before a forfeiture or reunion with the public domain could take place, a judicial inquiry should be instituted, or, in the technical language of the common law, office found, or its legal equivalent. A legislative act, directing the possession and appropriation of the land, is equivalent to office found. The mode of asserting or of assuming the forfeited grant is subject to the legislative authority of the government. ”

“ Upon the other hand, no time was fixed by the president for their removal; no formal notice was ever given them to remove; but at various times, and particularly at the council held at Cattaraugus, June 2, 1846, called by the commissioners to learn the final wishes of the Indians as to emigration, the chiefs of the four tribes present were unanimous in the opinion that scarcely any Indians who wished to emigrate remained. This action constitutes practically the only claim of forfeiture. There is no finding that the other five tribes did refuse. ”

“ Touch. 74. It may explain, enlarge, or qualify, but cannot contradict or defeat, the estate granted by the premises, and where the grant is uncertain, or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying or controlling it. Jones, Real Prop. § 563; Devl. Deeds, § 215.
In this case, if the habendum clause were alone considered, there could be no doubt whatever that the Indians would take a present title to a fee simple. There is certainly no conflict between the granting and habendum clauses. ”

“ The proviso never appears to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the presidential proclamation contained all the terms of the arrangement. It is true that the proclamation recites that the senate did on March 25, 1840, resolve that the treaty, 'together with the amendments proposed by the senate of the 11th of June, 1838, have been satisfactorily acceded to and approved of by said tribes' ”

“ Chief Justice Marshall observed: 'Were it even true that these words would make the gift more explicit, which is not admitted, it surely cannot be necessary now to say that the validity of a legislative act depends in no degree on its containing the technical terms used in a conveyance. Nothing can be more apparent than the intention of the legislature to order their commissioners to make the allotment, and to give the land, when allotted, to General Greene.'
This case was followed in U.S. v. ”