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for no other purpose whatsoever. It seems, therefore, that the $40,000 payment to recover which this action was brought is clearly identified with the $10,000 payment which the former receiver claimed was made to purchase 50 Chicago & Alton bonds for the bank, which bonds Ahlmann afterwards converted. The bank did claim title to these bonds through Ahlmann's purchase, and elected, if this defense is true, to treat the bonds as their property. V It cannot now claim the amount of the payment made on December 23, 1901, to the defendants, on the ground that the bonds were not purchased for them and were not their property. The demurrer to this defense in the answer should have been overruled. V

It remains for us to consider the demurrer to the fourth defense. It is therein alleged that in March, 1905, a former receiver of the bank began an action against the officers and directors and the personal representatives of a deceased officer and director of the bank for damages for failure to exercise that same degree of care and prudence in the execution of their trust that men of common prudence ordinarily exercise in their own affairs. Hun v. Cary, 82 N. Y. 65, 37 Am. Rep. 546. The general negligence complained of was the giving over to Ahlmann of the entire and exclusive management, control, and supervision of the said bank, and its books, records, loans, and assets, continuing him in his office as cashier after they knew that he was dishonest and had stolen the assets of the bank, and omitting, after they knew of his misappropriations and wrongful acts, to take any steps to retrieve the losses or recover the assets so misappropriated. Among the assets enumerated as lost was the sum of $40,000 received by the defendants as the proceeds of the cashier's check as alleged in the complaint. It is claimed by the defendants that this remedy is inconsistent with that sought to be enforced in this action. We fail to see how it is so. The gravamen of that complaint was the negligent conduct of the defendants resulting in loss. Certainly the sum of $10,000 had been lost to the bank at that time, and does not seem yet to have been regained. The loss complained of was not the conversion of the bank's bonds purchased with the check in question; it was the loss of the bank's money by its application to the payment of Ahlmann's individual indebtedness to the defendants. This is precisely what the plaintiff now complains of. Suppose that the receiver had first brought this action against the defendants, but had failed to collect anything upon the judgment recovered therein; would it be any defense to a subsequent action for negligence against the officers and directors of the bank that this action had been brought? Would it not have simply made the evidence of the loss resulting from their negligence more conclusive? If, on the other hand, pending the action against the officers and directors, the bank had collected this sum of $40,000 from the defendants, such collection would have reduced the amount of the damages to be recovered in the other action, but would not have been a bar to the same. The position of the bank is in each case the same. Its claim is that its funds were improperly diverted and stolen. In the one case, it sues the persons into whose

sues those whose negligence made the theft possible. The demurrer to this defense was properly sustained.

The interlocutory judgment should be modified by reversing so much of the said judgment as sustains plaintiff's demurrer to the third defense set up in the answer, and said demurrer should be overruled; and the said judgment as so modified should be affirmed, without costs to either party as against the other. All concur.

(62 Misc. Rep. 138.)

TERRANCE V. CROWLEY. (Supreme Court, Trial Term, Franklin County. January, 1909.) 1. INDIANS (8 10*)—LANDS-TITLE AND RIGHTS TO.

Indian lands within reservations are not subject to the state laws respecting real estate, so long as the Indian title is not extinguished and the Indians maintain their tribal relations or remain under the protection and control of the state.

[Ed. Note.-For other cases, see Iudians, Dec. Dig. $ 10.*] 2. INDIANS ($ 10*)-LANDS—RIGHT TO HOLD AND CONVEY.

Indian Law (1 Heydecker's Gen. Laws, p. 250, c. 5) $ 2, authorizing an Indian to take, hold, and convey real estate, extends only to lands outside of tribal lands, and does not apply to lands within an Indian reservation unpartitioned.

[Ed. Note.-For other cases, see Indians, Dec. Dig. § 10.*] 3. INDIANS ($ 13*)-ALLOTMENT OR PARTITION.

An allotment of land on the St. Regis reservation to an Indian, pursuant to Indian Law (1 Heydecker's Gen. Laws, p. 279, c. 5) § 102, is not the partition provided for by section 7, permitting a partition of tribal lands among the members of the tribe, to the end that they may hold the lands in severalty; and the Indian does not, under such an allotment, acquire title in fee simple, but it still remains in the state, and his only interest in the land allotted is the right of occupancy and use, and also, probably, the ownership of improvements.

(Ed. Note.-For other cases, see Indians, Dec. Dig. 13.*] 4. SALES (8 62*)-BREACH.

Where the transfer of a farm is an essential and material part of a contract for the sale of a stock of goods, and the court is without jurisdiction to enforce a conveyance of the farm, as it is a part of the St. Regis Indian reservation, the contract for the sale of the stock of goods cannot be enforced, and the seller held liable for a breach.

[Ed. Note.-For other cases, see Sales, Cent. Dig. $8 171-179; Dec. Dig.

§ 62.*] 8. VENDOR AND PURCHASER (8 125*)-ACTIONS-ACCOUNTING.

Where a contract for the purchase of a stock of goods cannot be enforced, because involving the transfer of a farm which is a part of the St. Regis Indian reservation, the purchaser, having in good faith executed and delivered his deed and surrendered possession of the farm, with the improvements thereon, is entitled to an accounting, and to recover the net proceeds of the farm from the time the other party took possession, and to a return of the deed executed by him, and also to a redelivery of the possession of the farm.

(Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. 8 125.] Action by George Terrance against Michael J. Crowley. Finding for plaintiff. •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-27

Kellas & Genaway, for plaintiff.
Moore & Berry, for defendant.

VAN KIRK, J. This is an action to recover damages for the breach of a contract for the purchase and sale of the goods in a store in the town of Bombay, Franklin county. The facts briefly are as follows:

George Terrance, the plaintiff, was the holder of papers purporting to be deeds of a farm of land in the town of Bombay, Franklin county, N. Y., which is within the limits of the St. Regis Indian reservation. These deeds or papers were executed, one by Hattie White, dated January 22, 1907; one by Mrs. Jennie Gray, widow of Thomas Gray, deceased, dated January 15, 1907; and one by Maggie Gray, of Hogansburgh, dated January 17, 1907. Prior to the execution of the deed by Hattie White, and on the 21st day of January, 1907. Peter Gray conveyed all his right, title, and interest in and to said Thomas Gray farm to Hattie White. Maggie and Peter Gray were only children of Thomas Gray. The plaintiff and defendant met and had an interview with reference to the purchase by George Terrance of

the stock of goods in the defendant's store in the town of Bombay. Terrance in substance told Crowley that he owned the Gray farm, and that he would buy his stock of goods for $4,000, if Crowley would take from the purchaser of the farm so much of the purchase price of the goods as the farm would pay. Mr. Crowley assented, and saw Mr. Alex. White, who agreed to take the farm for the sum of $3,300, giving two notes. George Terrance executed a deed of the farm to Alex. White; and Alex. White executed his notes, aggregating $3,300, delivered them to Mr. Crowley. and took over possession of the deed. Since that time Crowley, directly or through White, has rented and received the proceeds of the said farm. On August 1, 1907, a written agreement was made between Crowley and Terrance with reference to the sale of the stock of goods and the matters hereinbefore mentioned. By this agreement George Terrance, the party of the first part, agreed to purchase the goods for the sum of $4,000, which goods were to be inventoried on the 1st day of November, 1908, and, at the inventory price, not to exceed the sum of $4,000. It was further agreed that the balance of the purchase price, amounting to $700, should be paid by the party of the second part in monthly payments of $100 cach, beginning December 1, 1907. While there is no mention in this contract of the sale of the farm, the $700 balance of the purchase price is the difference between the $3,300 for which the farm was to be sold and the $4,000 for which the stock of goods was to be purchased. The deed from George Terrance to Alex. White, in its recitals, contains the name of Maggie Terrance, wife of George Terrance; but she has not signed the paper. The paper purports to be a quitclaim deed of the Thomas Gray farm. Under date of September 12, 1907, there is a paper, signed by Alex. White, as follows:

"I hereby certify that I have paid Michael J. Crowley $3,300 in the month of August for and in behalf of George Terrance as the purchase price of said

Under date of October 30, 1907, there is a paper, signed by defendant, Crowley, in which he recites an agreement made September 16, 1907, to rescind the aforesaid written contract of August 1, 1907, and the agreement for the purchase of the store building made August 3, 1907, on Crowley's procuring the surrender to Terrance of the deed of Alex. White, dated August 3, 1907, and on payment to Terrance of $500 cash, and the value of the hay received by Crowley from the White farm of the value of $300, which, together with the interest, amounted in all to $805.87.

The plaintiff demands judgment that an accounting be had in this action by the defendant for the amount of goods, and the price thereof, sold by the defendant since the 1st day of August, 1907, and that the plaintiff recover that amount from the defendant; in addition, that he recover the sum of $3,300 paid by him to the defendant aforesaid, and the sum of $1,500 damages for the failure of the defendant to carry out and perform the contract. The defendant refused to perform the contract for the sale of the stock of goods, and this action was brought.

Alex. White now objects to the Terrance deed, claiming that it is not a good transfer: First, because the lands are not subject to individual sale, being lands within the St. Regis Indian reservation; and, second, because, if they are subject to sale and conveyance, the wife of George Terrance must sign the deed. White claims that he delivered the $3,300 in notes to Crowley conditionally, Crowley to hold the notes until a satisfactory deed was furnished, and that, when such deed was not furnished, he recovered the notes from Crowley and burned them, without consulting Terrance.

The transfer of the title of the Terrance farm is an essential part of the contract for the purchase and sale of the stock of goods; so it is necessary first to inquire whether or not the title to this farm could be transferred, and, if it could be, whether or not the wife of George Terrance has an inchoate right of dower in the farm, so that she must join in the deed in order to give a clear title. I understand the general rule to be that, so long as the Indian title of lands is not extinguished, and the Indians maintain their tribal relations or remain under the protection and control of the state, the Indian lands within the reservations are not subject to the state laws respecting real estate; that lands within a reservation, belonging to the Indians who are members of an organized tribe, descend according to the laws and customs of the tribe, and not according to the laws of the state in which the lands lie; but lands which have been allotted in severalty to Indians, who have acquired title thereof in fee simple, descend according to the laws of the state. Love v. Pamplin (C. C.) 21 Fed. 755; Krause v. Means, 12 Kan. 335; Brown v. Steele, 23 Kan. 672; O'Brien v. Bugbee, 46 Kan. 1, 26 Pac. 428; Telford v. Barney, 1 G. Greene (Iowa) 575; Wright v. Marsh, 2 G. Greene (Iowa) 94.

The Constitution of the state of New York (article 1, § 15), provides:

“No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, seventeen hundred and seventy-five, or which may

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hereafter be made of or with the Indians, shall be valid, unless made under the authority, and with the consent of the Legislature."

In Goodell v. Jackson, 20 Johns. 697, 11 Am. Dec. 351, and Lee v. Glover, 8 Cow. 189, it is held that, while the word "Indians” is used in the plural, it includes the purchase from a single Indian. The Indian law, which gives to the individual the right to hold and convey real estate, does not apply to lands within an Indian reservation unpartitioned; and consequently that provision of the Constitution would apply. In Lee v. Glover, 8 Cow. 189, it is held (referring to Goodell v. Jackson, 20 Johns. 693, 11 Am. Dec. 351), that, by the Constitution and statute laws of this state, no white persons can purchase any title to land from any one or more Indians, either individually or collectively, without authority of the Legislature; that it is immaterial from what source the property proceeded, or whether it is owned by tribes, families, or individuals; that, if it be Indian property in land, it is protected by our Constitution and laws. Neither the spirit nor terms of the constitutional provisions are confined to Indians residing with their tribe. After it has been decided that these provisions extend to the individual property of a single Indian, acquired by purchase, or as the reward of his military services, they must be held to apply, whether the Indian resides within the body of his nation or separate and apart from them. It is analogous to the disability of infants to contract in not depending on the actual capacity to protect his own rights.

These decisions do not state the present law (except as to lands within the reservation), because the Legislature has authorized certain transfers. Under Indian Law, art. 1, § 2, it is provided that a native Indian may take, hold, and convey real property the same as a citizen; and, upon becoming a freeholder to the value of $100, he shall be subject to taxation. This provision, however, as above stated, refers only to lands held in fee simple by an Indian outside of the tribal lands. Under the general Indian law (article 1, § 6) it is provided that no taxes shall be assessed for any purpose whatever upon any Indian reservation in this state, so long as the land in such reservation shall remain the property of the nation, tribe, or band occupying the same. By the Indian law (article 7, § 106), which refers to the St. Regis tribe, and the lands in controversy, the following is provided: "The chiefs of such tribe. in council assembled may hear and determine

controversies involving the title to property between individual Indians residing on such reservation."

The lands of the St. Regis are in a reservation and still belong to the state of New York. Strong v. Waterman, 11 Paige, 607. The Indian law (1 Heydecker's Gen. Laws, p. 252, c. 5, art. 1, § 7) provides for a partition of tribal lands among the members of the tribe, to the end that the members of the tribe may hold the lands in severalty. The partition shall be made by commissioners appointed by the Indian nation whose lands are to be distributed, subject to the approval of the Commissioners of the Land Office. Then certain restrictions are fixe ed, relieving the land from the lien of any incumbrance by mortgage,

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