JAN. TERM, 1856. CRABTREE V. MCDANIEL. 2229 *CRABTREE ET AL. Caok, and afterwards departed this life, V.
leaving her surviving the four minor McDANIEL. complainants, her only heirs and dis-tributees. That James and Jolly and A continuous, peaceable, adverse possession of their wives had removed from the slaves for the period of five years, vests title in the possessor. Pryor and wife v. Ryburn (at the pres-Creek Indian Nation, where they had ent term). long resided, to parts unknown, nor Appeal from Lafayette Circuit Court in was it known to complainants, whether Chancery. any of them were dead or alive. That Sarah, and all her sisters, were women 110N. SHELTON WATSON, Cir-of, and belonging to the Creek Nation cuit Judge. of Indians. That by the customs, laws Fowler, for appellants. and usages of that tribe, a man who Watkins & Gallagher and Hemp-did not belong to that Nation, could stead, for the appellees. not lawfully marry a woman of that nation, without first obtaining a license SCOTT, J. Crabtree and wife, and from the chief of the town or council Mary Nelson Penn, Sarah Ann Cook, of the Nation. That the defendant Priscilla Cook and Zachariah Cook, McDaniel, is a white man, and not a minors, by Crabtree their next friend, Creek Indian, and never obtained any in behalf of themselves, and all other such license to marry the said Sarah heirs of Nancy McGhirt, alias Nancy Ann. That by said laws of the Creeks, McDaniel, exhibited their bill in the a femme couverte of that tribe, holds the Lafayette circuit court, on the 25th sole and exclusive right of property iu day of January, 1853, against . James slaves, whether acquired by gift, de-McDaniel ; and afterwards filed an scent, purchase or distribution, before amendment thereto, alleging alto-or after coverture, to her sole and sep-gether, substantially, as follows, to-wit: arate use, and the husband acquires, That one Sarah McGhirt, otherwise by marriage, no estate whatever, in called Sarah Ann McDaniel, bad lately his wife's property, owned by her at died intestate, in that county, leaving the time of the marriage, or afterwards the said Nancy McGhirt her only acquired by her; aud on her death all child and heir surviving ; that before, such property descends to her chil-and at the death of Sarah, she owned dren, and in default thereof to the next in her own separate right, certain of kin of her own blood. That there slaves who are described, the exclusive had been no administration on the es-right to which vested in Nancy, as tate either of the said Sarah Ann, or sole heir. That Nancy died after-of her daughter Nancy. That the slaves wards, in that county, in infancy, in-in controversy had come into the pos-testate and without issue. That the session of the defendant McDaniel, father and mother of Sarah died in her who holds them without authority of lifetime. That the next of kin of law and as a trustee for the complain-Nancy are the sisters of her mother ants, and the other heirs and legal rep-and their descendants, to-wit : Pris-resentatives of the said Nancy, who are cilla, wife ot Crabtree, Eliza, the rightful owners, and entitled to the who married James, Elizabeth, who possessionof them. That the defend-2231 *married Jolly, and the minor ant intends removing them to parts complainants who arechildren of Han-unknown, beyond the limits of the nah, another sister of Sarah, who first State of Arkansas, pretending title married Penal, after his death married thereto. And praying for answer, in-
CRABTREE V. MCDANIEL. VOL. 17 junction, receiver, process of seizure established usages and customs. That and account of the hire, and for parti-by one of these, whenever a person, tion, distribution, and for general re-who was not held as a slave in said na-lief. The bill was verified by Crab-tion, desired to contract a marriage tree's affidavit, and upon bond and se-with a woman belonging to said tribe, curity given, process of injunction and all that was necessary to consummate of seizure was awarded, and the slaves such marriage was for the parties to taken and hired out. live together as man and wife, in an 2241 '*MePaniel answered, admit-open and public manner; and that he, ting that Sarah Ann, her father and the defendant, lived with the aforesaid mother, and her daughter Nancy, had Sarah Ann, and co-habited with her, died as alleged; that Nancy was the as his wife, from about the year 1838, only child of Sarah Ann; the relation-until the year 1846 or 1847, when she ship of complainants, Priscilla and the died. That he had several children by minors, and James and Jolly's wives, her, none of whom survived her, as alleged; that there had been no ad-except the aforesaid Nancy. That ministration of the estates of either after his marriage as aforesaid, his Sarah Ann or Nancy, and that he was wife's father died in the Creek Na-about to remove to Texas, and carry tion, leaving considerable property. the slaves in question with him; but ''That by other usuages and cus- r225 denying that Sarah Ann had any sole toms of said tribe of Indians, after a or separate estate at the time of her sufficiency of the property of the de-death, or that Nancy ever had any ceased was applied to the payment of whatsoever, denying the mode of mr.r-his debts, the residue was divided riage alleged, and that Crabtree was equally amohg his children. That in ever married to Priscilla, but admit-accordance thereto, two of the slaves ting that she is now living with him of the said Zachariali were sold for as his wife; denying that Nancy was the payment of his debts and the pro-ever known by the name of Nancy ceeds proving to he sufficient .for that MeGhirt, or by any other than Nancy purpose, the residue was equally divi-McDaniel, and also that the slaves in ded among his children and their rep-cont roversy, were ever wrongfully resentatives. That by that division the withheld by him from complainants, defendant in the right of his wife or anyone else, or ever were held by Sarah Ann aforesaid, received for his him as trustee. And averring the truth share the aforesaid two slaves, which, to be, that two of the slaves in contro-together with their issue since, are now versy, from which the others have is-in controversy. That by the custom sued sinee the former came lawfully and usages of said Creek Nation of in the defendant's possession, were Indians, the husband of any Creek originally owned by one Zachariali woman could take, have and use, as MeGhirt, a resident of the Creek Na-his absolute property, whatever might tion -A' Indians, whose wife was a descend or be disbibuted to her after woman of that tribe. That the said coverture, and that in pursuance Zachariah and his said wife, were the thereof, the defendant, as the husband father and mother of the said Sarah of said Sarah Ann, reduced said slaves Ann, and of her before mentioned sis-to his own possession, whereby they ters. That these Indians have no writ-became his absolute property and that ten code of laws for their government, from that time he has held quiet, but that their local and domestic af-peaceable and absolute possession of fairs were entirely governed by their them and of their increase, as his own
JAN. TERM, 1856. CRABTREE V. MCDANIEL. exclusive property, until taken from dered a writ of enquiry therefor, re-him by the order of the Chancellor turnable unto the next term in course ; under the prayer of this bill. And in- from which decree the complainant ap-sists that under said customs and usa- pealed to this court. ges, they have been ever since the The larger portion of the testimony aforesaid division, and are still his ab- in the record, relates to the usages, solute property. Aud again averring customs and laws of the Creek Indians, that he legally and properly acquired set up in the pleadings. It is conflict-the possession and control of said ing to a degree beyond reconciliation, slaves, under the customs and usages of and it would be, therefore, only by the aforesaid tribe of Indians, and that discarding some of it altogether, that he so held the same afterwards, as long any conclusion could be arrived at on as he continued to reside in said In- the points contested. But, however dian country, and removing them these points might be found, they therefrom to the State of Arkansas as would not be decisive of the case, be-his absolute property, he has ever since cause it must unavoidably go for the continued so to hold them, he insists defendant below, upon the ground of that, from his original lawful title and his long continued, peaceable, quiet "long continued, peaceable and quiet and adverse possession. It will, there-possession, he is entitled to hold said fore, be necessary only to set out the slaves as his absolute property, free substance of the testimony relating to from any pretended claim or demand this ground of the defense. of said claimants, or any one else, as It appears that Zachariah McGhirt the supposed heirs of the said Nancy." departed this life in the Creek Nation And alleging a want of . equity in the some time in the year 1840 or 1841, and bill, prays full benefit at the hearing, his wife, also, died about the same as if a demurrer had been interposed. time. That soon afterwards, there was The answer was sworn to, and issue a distribution of the property left by 22(P] taken ; and the cause hav*ing them, among their children and their been previously set down for final representatives. That by means of this hearing, was heard at the May term, distribution, the negroes in con troversy 1854, of the Lafayette circuit court, came to the possession of 'McDaniel, upon the bill, answer, and replication his alleged wife Sarah Ann being one and a mass of evidence by deposition, of the distribu tees. Sarah Ann died, when the court found the slaves in leaving her surviving one child named controversy to be the absolute property Nancy McDaniel, who died in the of the defendant McDaniel, and that month of March, 1846. In the year 1842, the complainants were entitled to no *McDaniel settled in Lafayette ["227 relief, dismissed their bill, with costs, county, Arkansas, where he has ever and vacating the injunction and all since resided, and where Sarah Ann other restraining orders previously and her daughters departed this life. made, decreed also that the defendant When he came there, he brought with should recover against the complain- him the aforesaid Sarah Ann and her ants all such damages as he had sus- daughter, and also the slaves in contro-tained by reason of the injunction and versy, and held the latter from thence-restraining orders aforesaid ; but be- forward, in his continuous peaceable cause the amount of damage was tm- possession, as his own property up to known, and there was not sufficient the time when, on the 26th ofJanuary; time to ascertain it, at that term of the 1853, they were taken from his posses-court, by the inquiry of a jury, or- sion by the sheriff of Lafayette county,
VoL. 17 by virtue of process of seizure, ordered by the circuit judge in vacation. There is no evidence that there ever was any adverse claim to the slaves in controversy, on the part of the com-, plainants or any one else, against Mc-Daniel, until the filing of the bill in this case, which was the 25th of Janu-ary, 1853, a period of more than five years after the death of the girl Nancy McDaniel, under whom the complainants set up title—Crabtree and his wife, living all the time in the neighborhood of McDaniel—of about twelve years from the time the negroes went into the possession of McDaniel, upon the distribution of the estate of McGhirt and wife, and of upwards of six years and one month after the approval of the statute of limitation and title in relation to slaves, expounded in the case of Pryor et al. V. Ryburn et al., decided at the present term. Upon this ground then, the decree of the circuit court of Lafayette county, must be affirmed. Cited :-19-521 ; 21-432 ; 22-473.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.