The charge of the court, as to the effect of the recitals in the junior patent, was clearly erroneous. It is true that if the Government of the United States had made an appropriation of the land in question to the Indian reservee under the treaty of 24th March, 1832, or it may be, that if the Indian actually had an improvement upon the land, and was the head of a Creek family, and resided on the land at the date of the treaty, and claimed it as his reservation, even though the Government had never recognized his claim, that in either case (and certainly in the case first supposed) the United States could not deprive the Indian reservee, or those who succeeded to his rights in accordance with the require-of the treaty, of the land in controversy; and that a patent, subsequently issued by the Government, could not defeat the prior right of the Indian or his legal vendee. Ladiga v. Roland, 2 How. U. S. Rep. 581; Wilcox v. Jackson, 13 Peters’ Rep. 498; Crommelin v. Minter et al., 9 Ala. Rep. 594. In such case, the Government would have no title to the land granted, or having the mere title, would have no authority of law to disregard the previous appropriation and issue a patent to another person.
But although the older patent in this case may be void, because of a previous appropriation of the same land, by the Government, to the Indian reservee, this fact cannot be proved by the bare recitals in the subsequent patent, so as to enable the junior grantee to recover against the older.
In Johnson v. McGehee & Thomas, 1 Ala. Rep. 186, the plaintiffs, McGehee & Thomas, introduced the assignment of the Creek tribe of Indians to their grantors of the land sued for, the deed from such grantors to them, and a patent from the Government to their grantors reciting.the previous loca*279tion of tbe land under this treaty, its sale by the chiefs, the approval by the President of such sale, and, in consequence of all which, the land was granted to the persons named in the patent. The patent was, however, issued by the United States after the action was brought, but if the recitals were allowed, as proof, it was clear that the plaintiffs, whose rights accrued before the patent issued, were entitled to recover. The court held that the recitals did not dispense with proof of the setting apart, or “location” of the land by the Government under the treaty, or that the assignment of the land by the tribe had been approved by the President. To the same effect is the case of Jones & Parsons’ Heirs v. Mardis’ Heirs, 5 Por. Rep. 327. As against a trespasser, these recitals would be received, if the action had been brought after the patent issued; but the defendant, in this case, occupies prima fade a very different stand in court. He has the highest evidence of legal title derived from the Government, the source of title, acquired many years anterior to the issue of the patent to the plaintiff below; and the Government cannot, by a recital in the subsequent patent that the former patent was void, render it inoperative. This would be the effect of these recitals; for, if they are to be regarded as evidence, they clearly show that the United States had, previous to the issue of the first patent, disposed of the land to the Indian reservee.
We think the plaintiff below, under the circumstances of this case, must prove the location of the Indian, as well as that he succeeded to the rights of the reservee. The mode by which this may be done is sufficiently indicated, by the decision in the case of Johnson v. McGehee & Thomas, Supra. See, as to the effect of recitals upon a previous grant, 1 Greenl. Ev. §§ 23, 21, and notes to third edition, in which the cases are collated.
Let the judgment be reversed, and the cause remanded.