McDougald vs. Hall. 2d. According to the law and practice in England, a bill had to be filed to foreclose a mortgage on real estate, and all parties interested had to be made parties. 3d. If subsequent incumbrancers were not made parties, they could file a new bill and open the decree. Authorities.-Prince, 423; Calvert on Parties, 128; Powell on Mortgages, 306; 2 Mad. Ch. 188; ib. 128; 3 Ves. Jr..317; ib. 129; ib. 130; 2 Vern. 185; ib. 518; ib. 601; Story Eq. Jur. 193, (2) note 1 on page 227; 3 John. Ch. R. 459; Story Eq. 195; Prince, 420; (5 Con. Eng. Ch. 5;) 1 Russ. & Myln, 332, 426, 539. HINES HOLT, for the defendant in error, cited the following authorities. 2 Tidd. Prac. 1135 et seq.; Ala. R. 131; 4 Porter R. 421. By the Court.-WARNER, J., delivering the opinion. The record in this case shows, that Hall, the defendant in error, was proceeding to foreclose a mortgage against Wheelock and Willard, in the Court below, and that Daniel McDougald, who was no party to the record or proceedings in that Court, filed objec tions, in writing, against the foreclosure of Hall's mortgage. Whether McDougald would have been entitled to have [1.] been made a party to the proceeding in the Court below, on a proper application for that purpose, it is not necessary for us now to determine. His application was not to be made a party to the suit in the Court below-he only appeared by his counsel, and offered objections to the foreclosure of the mortgage; and contends that that would have the effect to make him a party. We do not think so, nor do we think he had any right to be heard, until he was regularly made a party, by the judgment of the court. It would be intolerable, and greatly embarrass the proceedings in courts of justice, if individuals, at their pleasure, could be permitted to interlope into cases to which they were not parties, and make objections. If McDougald has such rights and interests in the mortgaged property as is suggested by his counsel, we do not see in what manner they are to be prejudiced by the foreclosure of the mortgage, as between other parties. When the judgment of foreclosure had between the parties to the record in this case, shall be made to operate on his interests, he will have ample op Howell adm'r. vs. Fountain and others. portunity to assert them: the judgment of foreclosure between Hall and Wheelock and Willard, will not foreclose any rights which he may have to the mortgaged property, unless he claims title under them. Let the judgment of the Court below be affirmed. Judgment affirmed. No. 30.-JOHN D. HOWELL, administrator of Jonathan Hudson, for the use of Seaborn Jones, plaintiff in error vs. JOHN FOUNTAIN, EDWARD CAREY, MICHAEL PERRY, and others, members of the Columbus Land Company, defendants in error: [1.] Courts of justice will not lend their aid to enforce an iminoral or illegal contract; if it be executed they will not disturb it, but leave the parties where they find them. [2.] No action can be maintained upon a contract growing out of an immoral or illegal transaction, when the transaction was not subsequent or collateral, but directly connected with the unlawful act. In Equity. Bill and demurrer in Muscogee Superior Court. May Term, 1847. Before Judge ALEXANDER. For the facts stated in the bill, and the grounds of demurrer, and errors alleged in decision below, see the opinion delivered by the Supreme Court. JONES, BENNING & JONES, for the plaintiff in error, cited the following authorities: Story Eq. Pl. sec. 326, 328, 455, 541, 543; Cooper Eq. 187; Mitford, 180; Story on Part. secs. 217, 218, 219, 220, 221; Coll. on Part. 143; Story on Part. secs. 222 et seq. to 233; 1 Bos. & Pul. 74; 5 Eng. Ch. 27; 5 Maule & Selw. 336; 14 Com. Law R. 67; Treaty with the Creek Indians, 1832, in 5 Porter, 413, in note, also the case; 1 Bos. & Pul. 3; ib. 296; 2 Bos. & Pul. 467; 1 Cowen, 32; 2. P. Will. 432; 11 Fast. 180; 2 Story Eq. 1201, and notes; 1258, 1259. 1260, 1261, 1262, 1263; 8 Eng. Ch. 172; Howell adm'r vs. Fountain and others. 1 Ves. Jr. 329; 12 Ves. Jr. 395; 1 Howard R. 56; 2 Story Eq. secs. 960, 961, 962. HOLT, for defendants in error, cited. 5 Porter R. 403, 408; 2 Stewart R. 175; 11 Wheat. 258; 3 Maule & Sel. 117, 126; 1 Bos. & Pul. 551, (296 conclusive ;) 3 East. 222; 11 East. 300; 1 Taunton, 227; 4 John. Ch. 559; 3 Condensed Eng. Ch. 643; 17 Ves. 273, 278; 14 id. 129; 6 Cond. Eng. Ch. 410; 3 John. Ch. 193, 194; 2 McCord. Ch. 413. By the Court.-NISBET, J., delivering the opinion. The complainant in this bill alleges, that Hudson and Fountain, who were partners in buying and selling lands, had, in accordance with the requirements of the treaty made by the Federal Government with the Creek Indians, at Washington, in 1832, purchased the reservation upon which an Indian by the name of Stincharnalika had been located; that the reservee, Stincharnalika, was brought before the certifying agent for the purpose of having the contract certified, and that Hudson and Fountain paid to the Indian, for the land, the sum of two hundred dollars; that, upon examination, it was found that the same land had been bought by the agents of the Columbus Land Company, a partnership entered into also for the purpose of buying and selling lands, and had been certified to that company, and the contract forwarded to Washington for the approval of the President, in accordance with the treaty; that the contract, thus certified, appeared to have been made between the Columbus Land Company and the Indian, Stincharnalika; and that the agents of the Columbus Land Company, appearing before the agent of the government, and in the presence of Hudson and Fountain, and of the Indian, Stincharnalika, confessed that, by mistake, they had bought the land, not of Stincharnalika, the true owner, but of an Indian called Istencharna, who represented himself to be Stincharnalika, the true owner and reservee; and that thus the contract had been certified in his name to them-they having paid Istencharna one hundred dollars for it. The agent being about to write to the government at Washington, to denounce the contract of the Columbus Land Company as fraudulent, and to prevent its approval by the President, it was then and there agreed, (the agent of the government approving and consenting thereto,) that, in order to prevent inju Howell adm'r vs. Fountain and others. to the character of the Columbus Land Company, he should not write to Washington and cause the President to withhold his approval to the contract of that company for the land, but should permit it to be approved, and that when it should be approved and sent back, they, the Columbus Land Company, would convey the land to Hudson and Fountain; that Hudson and Fountain should not insist upon the agent's certifying and sending on their contract with Stincharnalika, but would waive their right to have it certified and approved; and further, that Istencharna, the false Indian, should retain the one hundred dollars paid to him, and that his land should be certified to the Columbus Land Company. The bill proceeds to state further, that in pursuance of this agreement, the contract for Stincharnalika's land, with the Columbus Land Company, was returned approved by the President, that one-half of the land had been conveyed by the Columbus Land Company to Mr. Fountain, and that the Company had refused to convey the other half to the complainant, who was the administrator of Jonathan Hudson, deceased, one of the partners of the firm of Hudson and Fountain. The bill is brought by the administrator of Jonathan Hudson, deceased, for the use of Seaborn Jones, to enforce, so far as his interest is concerned, the contract thus made between the Columbus Land Company and Hudson and Fountain. I omitted to state in its proper place a fact charged in the bill, which is important to be stated, and that is, that Hudson and Fountain, although buying lands on their own account, were at the same time members of, and of course interested in, the Columbus Land Company. The bill prays that the defendants shall account with the complainant for the money arising from the sale of the land, or rather the one-half of it, which belonged to him, and be decreed to pay over the same with interest. It was demurred to, in the Court below, upon several grounds, and among them this, to wit, "because the contract which the complainant seeks to enforce, was against public policy, illegal, and in violation of the treaty between the government and the Creek Indians, approved at Washington on the 4th day of April, 1832, and therefore void.” The demurrer was sustained, and the complainant excepted. The decision we make, on the ground of demurrer above stated, controls this case; we shall therefore express no opinion upon any other. [1] By the second article of the treaty, the United States enged "to allow ninety principal chiefs of the Creek tribe, to Howell adm'r. vs. Fountain and others. select one section of land each, and every other head of a Creek family to select one-half section each, which tracts shall be reserved from sale for their use, for the term of five years, unless sooner disposed of by them." By the third article it is provided that, "these tracts may be conveyed by the persons selecting the same, to any other person for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appointed for that purpose by the President, but shall not be valid until the President approves the same." (For the treaty see 5 Porter Ala. R. 414.) This treaty is the supreme law of the land, by the Constitution of the Union, and obligatory upon all the departments of the government, State and Federal. This principle has been settled by the Supreme Court, and will be found applicable to this case: to wit, "Where a treaty is the law of the land, and, as such, affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the Court as an act of Congress." United States vs. The Schooner Peggy, 1 Cranch, 103; 1 Cond. R. 256. The rights of the parties litigating before this Court are affected, as we shall see, by the Creek treaty. We hold that it must be regarded by us with the same solemnity, and to the same intents, as if it was an act of Congress. In reviewing the transactions detailed in this bill, several preliminary remarks become proper. And first, it is certainly true, that the contract between Hudson and Fountain and Stincharnalika was a fair and legal contract. We do not see that it, in any respect, contravenes the treaty. It was founded on a valuable consideration, which was paid; the Indian was brought before the certifying agent, and declared himself satisfied with it; and they were entitled to have it certified and sent on to the President for his approval. Under this treaty, no contract for the sale of the Indian reservations operated as a valid conveyance, until certified by the agent, and approved by the President. By the third article, the reservee is authorized to sell, in such manner as the President may direct. The manner of selling, directed by the President, was for the Indian owner and the purchaser to appear before the agent, and, if the Indian then assented to the contract, the purchase money was paid to him in the presence of the agent. This was intended, no doubt, to protect the ignorant and improvident savage from fraud and imposition. In this the governmen |