Opinion
March, 1905.
Judgment affirmed, with costs.
The judgment should be affirmed, with costs. The same action has once been in this court upon demurrer to the complaint ( 78 App. Div. 9), and it was held the complaint stated a good cause of action. Issue was thereupon joined by the service of an answer, and a trial was subsequently had, resulting in a judgment against the defendant Adelaide Pierce, from which this appeal is taken. The action was brought under section 53 of the Indian Law (Laws of 1892, chap. 679, as amd. by Laws of 1893, chap. 229, and Laws of 1900, chap. 253) to recover possession of real property on the Cattaraugus Indian Reservation, and to enforce a judgment of the Peacemaker's Court of such reservation. So far as the questions of law were determined when the case was here before they need not be reconsidered now. We then said at the conclusion of our opinion that, "upon the trial of the action, the facts with reference to the acquiring of the title in fee by the deceased and the partition thereof after his death, will have to be proved in order to maintain the action." The facts found by the court and made a basis of the judgment are briefly as follows: All the parties to the action are Seneca Indians. The plaintiff is the widow of Thomas Jemison, deceased, and is sixty-six years old. Deceased was a Seneca Indian and died on the Cattaraugus Reservation December 16, 1890, and had been married to plaintiff thirty-five years before. Prior to his death he and plaintiff had for some years been in possession of a farm on the reservation of 103.74 acres, which had been set apart and separately occupied by him, and improved by clearing the forest and reducing it to cultivation. The improvements included a house, barn, granary and other outbuildings, orchards, fences, meadows and cultivated fields. The deceased left at his death five children by a former marriage, Adelaide (defendant), Eli, Orrel, Page and Anthony, and four children by his marriage with plaintiff, Thomas, Hattie, Julia and Israel. March 23, 1894, Page, one of the older children, made an application to the Peacemaker's Court of the reservation for the appointment of commissioners to partition the farm left by deceased, and that court issued a summons for the parties to appear March 31, 1894. On that day all the parties appeared in person or by counsel. Proofs were made as to advancements made by deceased to some of the parties and as to the relative rights of the parties. The court thereupon rendered judgment, settling the rights of the parties and directing partition of the farm. April 8, 1894, an appeal was taken from the action of the Peacemaker's Court to the Council of the Seneca Nation, and April 10, 1895, the action of the Peacemaker's Court was affirmed and defendant Adelaide had notice of the affirmance. No other appeal was taken thereafter. April 25, 1895, the Peacemaker's Court appointed three commissioners to make the partition. They took the oath of office and partitioned the farm among the heirs of deceased, setting apart to the widow, this plaintiff, nine and ninety-seven one-hundredths acres, with the improvements thereon. The report of the commissioners was made, and June 11, 1895, was confirmed by the Peacemaker's Court. and the court decreed that the plaintiff, widow of deceased, should take, hold and use the property set apart to her during her natural life, and the marshal of the Seneca Nation was directed to put her in possession. During the pendency of the proceeding the defendants entered into possession of the property set apart to the plaintiff and resisted the execution of the decree. May 2, 1902, Page Jemison was served with a notice to appear before the Council of the Seneca Nation in the partition matter on May 3, 1902, and on the latter day such council adopted a resolution in form directing a new trial of the matter before the Peacemaker's Court, but the plaintiff here had no notice of that proceeding. This action had then been commenced July 17, 1901. The defendants Ira and Gideon were not parties to the partition proceedings. The defendant Adelaide was a party thereto and had ever since excluded the plaintiff from possession of the property set off to her. Upon these facts the court held that the partition proceedings were heard and determined according to law, and that the action of the council May 3, 1902, was without jurisdiction and void. It dismissed the complaint as to defendants Ira and Gideon and ordered judgment against Adelaide, confirming the decree of the Peacemaker's Court and directing the same to be carried into effect, adjudging the plaintiff entitled to possession of the property set off to her, and that she be at once put into possession thereof and maintained therein during her natural life against the defendant Adelaide. Some objections are raised to the findings of fact, but a careful examination of the record leads us to the conclusion that all the findings are supported by the evidence and the inferences fairly to be drawn therefrom. The proceedings in the Peacemaker's Court and the Council of the Seneca Nation, the appellate tribunal, were proven by the records. The proceedings were more or less informal, and the records loosely kept and preserved. There was a decree, however, in partition, which was confirmed on appeal. This action is not brought to review the trial resulting in such decree, but to enforce the decree made, and the statute makes a certified copy of the decree conclusive evidence of the right to the decree. In this action the court cannot go back of the decree to ascertain whether the plaintiff was ever married to the deceased; whether the children by the first wife were entitled to greater interests in the farm partitioned than was determined by the decree; whether the property partitioned was held by the deceased during his life by such a title as gave his widow dower therein after his death. These and other questions suggested by appellant here were settled by the decree made by the Peacemaker's Court and confirmed by the Council of the Seneca Nation on appeal, and cannot be reviewed or reconsidered by the court in this action. The action by the appellate tribunal May 3, 1902, granting a new trial in the Peacemaker's Court was clearly without jurisdiction and void as to this plaintiff, who had no notice thereof. The record does not show precisely when this plaintiff became a party to the partition proceeding. The decree provided expressly for her dower. She was interested in the decree and sought to recover the property set off to her thereunder. She was sufficiently a party to the decree to entitle her to maintain this action to enforce the same. We see nothing in the record to call for a reversal of this judgment, and, therefore, conclude it should be affirmed, with costs. All concurred.