This was an action of ejectment to recover the possession of fractional section 7, T. 37 N., R. 15 E., in Cook County, Illinois. By the third article of the treaty with the Potowatomies of the State of Indiana and Michigan Territory, made on the 27th of October, 1832 (7 Stat. 399), the United States agreed to grant and to convey by patent to Ash-kum, one of the chiefs, and a reservee under the treaty, two sections of land to 'be selected, under the direction of the President of the United States, after the lands shall have been surveyed.' Under this provision the lands now in dispute were selected. The selection was approved by the President on the 29th of March, 1837. Ash-kum died intestate in 1846. On the 3d of November, 1864, after his death, a patent was issued, conveying the lands 'unto . . . Ash-kum, and to his heirs and assigns forever.' Both parties claim under this patent: the plaintiff in error, who was also plaintiff below, by deed from the heirs of Ash-kum; and the defendant by deed with covenants of warranty from Ash-kum himself, while in life, 'to Louis De Salle, of the township of Niles, in Berrien County, Michigan Territory,' bearing date Oct. 24, 1835.
All the objections to the defendant's title, insisted on in the argument, except those relating to the proof of the deed of Ash-kum, and to the refusal of the court to charge as requested by the plaintiff upon the assumption of fraud in its procurement, are, as we think, disposed of by Doe v. Wilson, 23 How. 457, and Crews v. Burcham, 1 Black, 352. Similar reservations and grants under the same treaty were there involved, and it was held that, when such a patent issued, the title to the lands vested in those holding under any deed the patentee might have previously made.
The principal controversy is as to the evidence admitted to prove the deed. After proof of the loss of the original, a certified copy from the records of Cook County was offered in evidence. The record was made on the 31st of May, 1836, and the copy showed a deed purporting to convey the land, signed by Ash-kum with his mark, sealed, and attested by two witnesses. The certificate of acknowledgment is as follows:-- 'TERRITORY OF MICHIGAN, }
ss. }
BERRIEN COUNTY. }
'Be it remembered, that on the twenty-fourth day of October, anno Domini 1835, before me, Titus B. Williard, Esquire, one of the justices of the peace for said county of Berrien, came the above-named Ash-kum, an Indian chief, and acknowledged the above-written indn ture by him subscribed to be his free act and deed, and desired that the same might be recorded as such according to law.
'In testimony whereof, I have hereunto set my hand and seal the day and year above written.
'TITUS B. WILLARD, [L. S.]
Justice of the Peace.'
No certificate of any kind as to the official character of Willard was added to the deed before it was recorded. Neither was there before the record any certificate of any clerk of a court of record of Michigan, under the seal of his court, to the effect that the deed had been executed and acknowledged in conformity with the laws of that State. There was, however, annexed to the copy of the deed from the record the following certificate:--
'OFFICE OF COUNTY CLERK, BERRIEN CO., MICH., BERRIEN SPRINGS, ___ 187_.
'EDWIN D. COOKE, Clerk.
'STATE OF MICHIGAN, }ss. }
BERRIEN COUNTY. }
'I, Edwin D. Cooke, clerk of said county, and of the Circuit Court therein, the same being a court of record and having a seal, do hereby certify that the certificate of acknowledgment by Ash-kum, an Indian chief, taken before Titus B. Willard, a justice of the peace in and for said county of Berrien, on the twenty-fourth day of October, A. D. 1835, as appears on the certified copy of the deed hereto annexed, was executed according to and in conformity with the laws of the Territory of Michigan, as they existed at the time of taking such acknowledgment; and I further certify that, as appears by the records of and in the office of the register of deeds of said county of Berrien, that the said Titus B. Willard was, at the time of taking such acknowledgment, an acting justice of the peace in and for said county of Berrien.
'In testimony whereof, I have hereunto set my hand and affixed the seal of said Circuit Court, at Berrien Springs, this second day of January, A. D. 1878.