Taylor v. Brown/Opinion of the Court
By section 15 of the act of March 3, 1875, (18 St. p. 402, c. 131,) any Indian born in the United States, who was the head of a family, or who had arrived at the age of 21 years, and who had abandoned, or might thereafter abandon, his tribal relations, was, on making satisfactory proof of such abandonment, entitled to the benefits of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862, and acts amendatory thereof: 'provided, however, that the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance, or the judgment, decree, or order of any court, and shall be and remain inalienable, for a period of five years from the date of the patent issued therefor.'

By section 16, in all cases in which Indians had theretofore entered public land under the homestead law, and proceeded in accordance with the regulations of the land office, the conditions prescribed by law having been complied with, the entries so allowed were confirmed, and patents directed to issue thereon, 'subject, however, to the restrictions and limitations contained in the fifteenth section of this act in regard to alienation and incumbrance.'

West came within the sixteenth section, and obtained his patent accordingly.

The question, upon the disposition of which the decision of the supreme court of the territory was based, and which we are first to consider, arises upon the proper construction of the proviso to the fifteenth section. The restraint on alienation was to continue for a period of five years. Was it the intention that the computation of time should include the day of the issue of the patent? If so, the deed of June 15, 1885, was not invalid, and the decree must be affirmed.

In Matthews v. Zane, 7 Wheat. 164, 211, Mr. Chief Justice Marshall remarked that it was the known rule 'that a statute for the commencement of which not time is fixed commences from its date;' and in Arnold v. U.S., 9 Cranch, 104, 120, in which it was held that a statuted providing that it should take effect 'from and after the passing of this act' took effect immediately, Mr. Justice Story said that 'it is a general rule that, when the computation is to be made from an act done, the day on which the act is done is to be included.'

But this cannot be said to be a universal rule, either in England or this country. Webb v. Fairmaner, 3 Mees. & W. 473; Robinson v. Waddington, 13 Adol. & E. (N. S.) 753; Sheets v. Selden's Lessee, 2 Wall. 177; Calvert v. Williams, 34 Md. 672; Parkinson v. Brandenburg, 35 Minn. 294, 28 N. W. Rep. 919; Bemis v. Leonard, 118 Mass. 502, where many cases are referred to and considered.

In Hatter v. Ash, 1 Ld. Raym. 84, it was argued that the words 'from the date,' when used to pass an interest, included the day, aliter, when used by way of computation in matters of account, and Powell, senior justice, was of this opinion, but the other justices expressed none.

The distinction indicated was recognized by the supreme court of Pennsylvania in Lysle v. Williams, 15 Serg. & R. 135, where a scire facias was issued on the 22d of July, 1823, upon a bond dated the 22d of July, 1818, and payable in five years from the date, and the court held that, as upon the execution of the bond an immediate interest passed to the plaintiff, the first day should be included in the five years, and that the scire facias was properly issued.

While it is desirable that there should be a fixed and certain rule upon this subject, it must be conceded that the rule which excludes the terminus a quo is not absolute, but that it may be included when necessary to give effect to the obvious intention.

This was the view entertained by Lord Mansfield, who ruled in Pugh v. Duke of Leeds, Cowp. 714, that 'the sense of the word 'from' must always depend upon the context and subject-matter, whether it shall be construed inclusive or exclusive of the terminus a quo.'

In Lester v. Garland, 15 Ves. 248, it was held by Sir William Grant that, in computing time from an act or event, no general rule of inclusion or exclusion should be laid down; that it depended on the reason of the thing, according to the circumstances.

In Griffith v. Bogert, 18 How. 158, 163, the law of Missouri allowed the lands of a deceased debtor to be sold under execution, but prohibited it from being done until after the expiration of 18 months from the date of the letters of administration upon his estate. The case involved a sale which took place on the 1st of May, 1821, the letters of administration being dated November 1, 1819; and it was held that the sale was valid, as the terminus a quo should be included. Mr. Justice Grier, speaking for the court, discussed the vexed question of the inclusion or exclusion of the terminus a quo with great vigor, and said: 'It would be tedious and unprofitable to attempt a review of the very numerous modern decisions, or to lay down any rules applicable to all cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm, rather than destroy, any bona fide transaction or title. The intention and policy of the enactment should be sought for and carried out.' And, reasoning upon the case in hand, he added: 'The object of the legislature was to give a stay of execution for eighteen months, in order that the administrator might have an opportunity of collecting the assets of the deceased, and applying them to the discharge of his debts. The day on which the letters issue may be used for this purpose as effectually as any other in the year. The rights of the creditor to execution are restrained by the act for the benefit of the debtor's estate. The administrator has had the number of days allowed to him by the statute to collect his assets and pay the debts. The construction which would exclude the day of the date is invoked, not to avoid a forfeiture or confirm a title, but to destroy one, obtained by a purchaser in good faith under the sanction of a public judicial sale.' And see Dutcher v. Wright, 94 U.S. 553.

It may also be observed that, as to the general doctrine that the law does not allow of fractions of a day, it is settled that, when substantial justice requires it, courts may ascertain the precise time when a statute is approved or an act done. Louisville v. Bank, 104 U.S. 469.

The power of free alienation is incident to an estate in fee simple, but a condition in a grant preventing alienation to a limited extent, or for a certain and reasonable time, may be valid, and the grantee forfeit his estate by violating it, (1 Prest. Est. 477;) and while such a result does not ensue in transactions with members of a race of people treated as in a state of pupilage, and entitled to special protection, (Pickering v. Lomax, 145 U.S. 310, 12 Sup. Ct. Rep. 860; Felix v. Patrick, 145 U.S. 330, 12 Sup. Ct. Rep. 862,) yet the proviso in question may fairly be held to have been adopted in view of general principles. If, when the patent issued, June 15, 1880, West could have conveyed, but for a specific restriction taking effect at the same moment, then that date should be included in the period of five years prescribed. The proviso is that the title shall not be subject to alienation in the various ways described, and shall be and remain inalienable, for a period of five years from the date of the patent. Possibly the language is susceptible of being construed to mean that the land should be inalienable on the day of the issue of the patent, and for five years after that date, two periods of time; but we are of opinion that the more natural and the true construction is that only one period is referred to, and that the day the patent issued should not be excluded. The limitation on alienation was to be and to remain; that is to say, the land was to be on the first day not subject to alienation, and so to remain until the five years had expired. The protection of the Indian against the improvident disposition of his property was full attained, in the judgment of congress, by fixing the period of five years, and no reason is perceived why any more than that time should be assumed to have been within the legislative contemplation.

The power to alienate came with the patent, and the restriction for the period named was carefully drawn to operate eo instanti; that is, to commence, in its entirety, coincidently with the possession of the power.

The decree of the supreme court of the territory is affirmed, and the mandate will issue to the supreme court of South Dakota for further proceedings in conformity to law. 

Notes