The patent through which Timothy acquired the legal title to his homestead recites that the land shall not be sold or incumbered for a period of twenty years. Despite this limitation, Timothy and Tima, in June, 1884, about two months after the patent had been issued, executed an unacknowledged lease of the land to John M. Silcott for a term of ninety-nine years. The expressed consideration for the lease was a nominal sum, payable yearly. In April, 1890, Silcott assigned an undivided one-half interest in the lease to L. A. Porter. In March, 1892, he assigned the remainder of the lease to Richard Ireland. In March, 1902, Silcott conveyed his interest in the land to Ireland by a deed of quitclaim. In October, 1903, Ireland and wife conveyed their interest in both the land and lease to William A. White and Edward A. White. In March, 1904, Porter assigned his interest in the lease to W. J. Houser and Ross R. Brattain, and at the same time conveyed to them certain fee interests in the land which he had purchased from certain of the heirs of Timothy and Tima.
In May, 1904, Houser and Brattain entered into a contract with White Brothers, above mentioned, whereby they agreed to convey to them the Porter interests, both fee and leasehold.
About 1903 or 1904 Charles L. McDonald, a lawyer residing and practicing his profession at Lewiston, in the State of Idaho, purchased the inheritances of Cora, the granddaughter of Jane, and Abraham, the grandson of young Timothy, and of Noah, the father of Abraham. The other interests were claimed by White Brothers. They also claimed the one-sixth interest inherited by Cora.
As an outgrowth of the facts stated, intricate and prolonged litigation followed. Mr. McDonald commenced a suit against White Brothers, alleging that the lease was invalid on two grounds: First, because the lease was unacknowledged, and second, because the patent to Timothy should have contained a five-year non-alienation clause in accordance with the act of Congress of March 3, 1875. He also asserted title to the entire fee in the land acquired as he claimed through conveyances from all the heirs of Timothy and Tima. He did not claim to have acquired the inheritances of Silcott or of the heirs of Edward, but his contention was that Silcott and Jane had not been legally married and that Edward had not married.
At the trial it was established that in early times living together in the manner usual between husband and wife constituted a legal marriage, according to the Nez Percé tribal custom. It was also established that, according to the same custom, either spouse was at liberty to separate from the other and at once take a new mate; thus giving legality to both the divorce and second marriage. From the evidence offered the court found that Edward was twice married; that there was living issue of both marriages, and that Silcott and Jane were legally married. It was shown that Rev. James Hines, an Indian preacher, licensed but not ordained, performed the marriage ceremony between Silcott and Jane about the year 1882, at some place on the Alpowai Creek, in the then Territory of Washington. Mr. McDonald's contention that only ordained ministers could perform the marriage ceremony and that a ceremonial marriage without proof that a marriage license had been procured was invalid, was held to be without merit.
The evidence showed that the actual consideration for the lease was that Silcott should support Timothy and Tima during their natural lives; that he did so, and that he gave them a decent burial was amply proven. Under the laws of Washington an unacknowledged lease of real property for more than a year is not valid. The Whites relied upon permanent and valuable improvements and the long continued possession of their predecessors under the lease as constituting both laches and estoppel against the right to assert the invalidity of the lease. Touching this aspect of the case it was shown that the land was unfenced and covered with sage brush, except about one acre which had been used as an Indian garden when the lease was made; that the land then had a value of five dollars per acre; that in the fall of 1890 Silcott and Porter plowed, cleared and leveled about sixty acres and planted it to fruit trees; that the next spring they planted about twenty acres to alfalfa; that in the fall of 1903 White Brothers planted about twenty acres additional to orchard; that water had been carried to the land for irrigation by those claiming under the lease, and that at the time of the trial (about 1906) the orchard was in good condition and the land of the value of $20,000.
Both the trial court and the supreme court took the view that the heirs were guilty of laches, which precluded setting aside the lease, they having permitted those claiming under it to have the undisturbed possession of the land for more than twenty years. It was also held that, in view of the valuable improvements placed on the land by those who in good faith believed the lease to be valid, it would be doing violence to the plainest rules of equity to permit those who have remained passive when it was their duty to speak, to be rewarded for their inattention to their legal rights. Upon these principles the lease was sustained. Mr. McDonald was adjudged to be the owner of the one-sixth interest inherited by Cora and the one-third interest inherited by Abraham and his father, Noah, making an undivided one-half of the fee simple title. White Brothers were adjudged to be the owners of the remaining fee interest composed of the inheritances through Edward and of John Silcott, all, however, subject to the ninety-nine-year lease. The marriages and heirships were proven by the testimony of Indian witnesses.
The case was tried at Asotin. One old Indian testified that he was born there and that he owned the town and adjoining land. In testifying to the first marriage of Edward, he caused some merriment by saying that he was busy as usual when it happened and gave little attention to an incident so trivial in his busy life. Edward Reboin, whose father was a Frenchman and whose mother was a Nez Percé Indian, was used as an interpreter. He testified to the customs of marriage and divorce among the Nez Percé Indians. He said in early times two marriage customs were recognized and followed. The simplest one has been stated. The other was to have a wedding feast, attended by the relatives and friends of the young couple; following which the happy pair betook themselves to the tepee of the husband and they twain became husband and wife.
The trial of the case consumed several days. The court permitted wide latitude in the presentation of the evidence. Several white men and many Indians gave testimony on the various phases of the case. Among others, Mr. R. P. Reynolds, now a resident of the City of Walla Walla, made oath that he was well acquainted with Timothy; that he explained the lease to him before he signed; that the actual consideration for the lease was that Silcott should support Timothy and Tima during the natural life of each thereof; that he did so and that he gave each of them a decent burial. The examination of an Indian witness through an interpreter is an interesting experience. The Indian carries his traditional stoicism to the witness stand. There he is as impassive as a piece of marble. Neither by sign nor act does he give any indication of the working of his mind to the examiner. His answer to one question rarely suggests another question. The examiner works his way in the dark as best he may. This experience is particularly true of cross-examination. It has been said that cross-examination is an art. Some artist may have seen the light in cross-examining an Indian, but to the writer the Indian has been a man of mystery.
THE PHYSICIANS