J102 i
FEDERAL! REPORTER,
vol. 43.
thein firm1s p8ll:13:of business, after the lsf May; 1888. I will aign,adecreedrawpin'8ooordance with the principles settled by the court of 'appeals of Virginia .inthe case of McArthurv. Oha8e, 13 Grat. , '683,60 fa.r as:itis applicab1eoo the case at bar. ..
;1:',:
BRIGGS .
i1'j1"
'
v.
"
SAMPLE
et. al.
(Oircuit
oduit, D.Kan8a8.
July
L' DBBD......VALIDITy-INDIAN Tins.' ,
B.
'.rhe treaty with the KiokapQo Indians (18 U. S. St. provided that the land allotted to the Indians could not be sold to white rilen'without permission of the president, which permission llhould be signified bv his causing the land to be patented to ,tb,e Indians "with power of. alienation, " and that. b!lfore reoeiving patent the Indians must appear before the district oourt) make proof of their intelligence and ability, and take the oath of: allegianoe. An Indian oonveyed his land by warranty deed on the day he made suobproof, and after he had obtained his patent conveyed the land to another grantee.' Held, that the seoond grantee took the land, sinoetbe first deed, belnA' made before patent, was'1nefrectual to convey the . ,land, either directly or by el\tllppel. BAME-RECORDING-NOTZOE.
Thereoordiog' of the first'deed before the patent was granted oonatituted no ;notioe tl) the sec\lnd grantee.
.
In ,Equity. J H· ./rI. Jackson,. for plaintift. A. F. Ma1tin, for defendants. FOSTER, J ..' The complainants file their bill in equity to quiet title to 40 acres oflaI)d, in Atchison county, Kan., alleging title and possession in themselves, a.nd further alleging. that the action involves a construction of a treaty of tile United States with .the Kickapoo tribe of Indians, and that the set up SOme claim to said property which constitutes cloud upon complainants' title; and pray to have the title quieted, and for an injunction a,gainst def.endants from interfering with complainants' po,ssession. The facts are briefly these: 'I'he land was allotted to Meahem-a-wa, (Peter eadue,) a Kickapoo Indian, under the treaty with sl,lch tribe proclaimed May 28, 1863. 13 U. S. St. 624. On October 20, 1886, s/licl Indian appeared before the United States district court, and made proof as contemplated by the third article pf said treaty, and the oath ofallegiance therein provided for. On the 24th day of December, 1887, the president of the United States directed a patent to issue to said allottee, and on the 19th day of January, 1888, said patent was issued, and delivered to the,patentee; and on the 25th day of January, B.aid patentee conveyed the by wauanty deed to these complainants. The source ofthe defendants'title is a.warranty deed executed and delivered by ,aid allottee toW.:e.Oole and A.F. Martin on the 20th day of October, 1886 t being the same day he made his proof before the United States court, bqt long before the patent'was issued, and before the presi-
BRIGGS fl. SAMPLE.
103
dent ordered it to be issued. This deed was recorded in the office of the register of deeds of Atchisol). .cQunty on the same day it was executed. AU of these grantees are white. men, and in no way connected with the tribe of Indians, and, it appears from the evidence, complainants are inposseseion. The question to be determined under this state of facts is this: Which of these grantees has the legal title to said land? Article 2 or said Kickapootreaty has this provision relating to allotments in severaJty: "Until otherwise provided by law, such tracts shall be exempt from levy, taxatiQn,orsale,;;t.od .shallbe alienable in fee, or leased, or otherwise disposed of, only to thl;l United States, or to persons then being members of the Ki$.. apootribe, and of Indian blood, with the permissioJl. of the president, and der such rules and regulations as the secretary .of the interior shall provide; except as may be hereinafter provided." Article 3' ofsaid treaty is, as follows: "At any time hereafter, when the president of thll United States shall have become satisfied that any adults,being males and heads of families, who may be allottees Ullder the provision of the foregoing article, are sufficiently intelligent andptlldent to control their affairs and interests, he may, at the request of sucn persons, cause the land severally held by them to be conveyed to them bY .io fee-simple, with power of alienation, and may at the same time cause to be !!e,t apart, and placed to their credit severally. their propOl'tion of the cash, value of the ctedits of the tribe, principal \\nd interest. then held in trust Qy'the United ::ltates, and also. as the same may be received, their proportion of the proceeds of the sale of lands under the provisions of this treaty; apd such patents being issued, and such payments ordered to be made by the prc&ident, such competent persons shall cease to be members of said tribe, and shall become citizens of the United States; and thereafter the lands so them shall he subject to levy, taxation, and sale, in like manper with the property of other citlzens: provided that, before making anysucli application to the president, they shall appear in open court. in the district eourtof the 'United states for the district of Kansas, and make the same proof, and take the same oath of allegiance. as is provided by law for the natura:Iization of'slieus, ,and shall also make proof, to the satisfaction of said court,that they are. sufficiently intelligent and prudent to control their affairs and interests; that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families."
It will be observed that, under the provisions of article 2 of said treaty t this land could not be sold to any person other than a member of the Kickapootribe without the permission of the president of the United States. Article 3 provides. the mode by which the president shall act in giving his lJermission to the allottee to alienate his land. Being satisfied of the intelligence and prtldence of the Indian to control his own affairs and interests, the president may cause the land to be conveyed to him "by patent in fee-simple,with power of alienation; * * * and such plltents being issued, and such payments ordered to be made by the prespersons shall cease to be members of said tribe, and shall become citizens of the United States, and thereafter the Inndsso patented to them shall be subject to levy, taxation, and sale in like manner with the property of other citizens." The article further provides that before making to the president the Indian shall appear before
FEDERAL REPORTER,
\
,
the United Strites district"court, and make certain proofs estahlishing hisintelligence, ability to support himself and family; etc., and takp. the oath of allegiance. This proof and oath of allegiance before the comt does notof.itself make the Indian a citizeu) or sever his tribal relations, or.procute him his patent,or make his land alienable. It is simply a preliminary proceeding to his making application to the president, and thereafter the. president may-act in the matter; and not until' his patent is issued, and payments of his interest in the trust fund have been ordered, does' hece:rse to be a member of the tribe, and become a citizen, and pass.ess the- power to alienate his land. It is clear that at the time this allottee madehis deed to Oole and Martin, October 20, 1886, he was not a citheld his triblll relations, and was incompetent' to contract, or 'be 'contracted with,' for the sale of his land; and his to said parjies was illegal and void. Under the plain words of the treaty, it would seem no citation of cases is necessary ; but, touching on this subMonroe, 5 Kan. 584; Libby v. Clark, 118,U. S. 250, 6 Sup. ct. Eep. 1045; Smith v. Stevens. 10 Wall. ,327; $/wf,don v;. Donohoe, 40 Kan.346, 19 Pac. Rep. 901; Maynes v.
to
Yealt,2()·Kan... 874.
'rfhe defendants, however; insist that the. title afterwards acquired by the allottee issuing ofpatent accrued by operdtion of law to his first grantees, tinder the covel)aqta 'of warranty, and that he and his subsequentgrantE;les are estopped to set up the subsequently acquired title. This position is not tenable. A void deed with covenants of warranty does not convey an after-acquired title. The grantor. was incompetent, !lnd under disability to make the contract. The cO,nveyance was in violation of law, and he may repudiate his act; but, if he invokes the aid bf a court of eC1l1ity, he must doequity. The questi?nremains, can the patentee ijis' g'rantees, witl1 knowledge of the former, conveyance, invoke the aid ·of this· court to quiet title against that conveyance, and at the same time hold the proceeds of that sale? On thisquestion,eitherparty may cite authorities within 20 days, and in time no decree \vlll be entered. . On further consideration" of the complainants' liability to refund the purchase money paid by Oole; and Martin, the complainants make the point that they are bonafide purchasers without notice, and therefore took tha land free ofsuch equity. On looking into the testimony, I find that both complainants testify that they had no actual notice of the prior sale by their grantor,and their testimony is not contradicted. The possession of Samuels appeared to be substantially the same both before and after the sale, and the record of the· deed to Oole and Martin did not imI,>Uoonoticeto the complainants; for they were not bound to look further back than the date of the patent,as their grantor's power to sell had its inception with the issue of the patent; and not before. The complainahts are entitled to their decree. j
9r
..
!'. GREEN.
:105
CORNEl,L
GREEN· et
al.
(Cirtmft Court, N.D. Illin0i8. July 14, 1890.)
1.
Where a bill for foreclosure makes a certain person defendant as executor and as guardian, and the return to the process shows that he was served as executor and guardian, and the bill statlls that he has an individual interest in the mortgaged land, a decree of foreclosure binds him as well in his individual as in his reprei;lentative cap;Wity. 2. EQU1TY PLEADIXG-DEMURRER. . . Where a bill to redeem from a mortgage which has been foreclosed alleges that the complainant was not a party to the ·foreclosure suit, and makes the and record in that suit a part of the bill, from which record it appears that saId cf;lInplainant was a party defendant to the foreclosure suit, the allegation that he was.ntlt'aparty. being an averment of a mere legal conclusion, is not admitted by a demurrer.
In E!l\lity.
On demurrer to bill. Reed&- Dyche, for complainant. Bi8bee" Ahrens &- Decker, for defendants.
BWilqWrT, J. The defendants have interposed a general.demurrer to the .billfi1ed in this case, wqich has. been argued and submitted. The bill chargci;J, in substance, that in 1871 George W. Gage was the owner of divers lots and parcels of land in the city of Chicago and vicinity, uponwhieh he made a trust·deed to secure· the payment of his notesM of $50,000; and that in 1873 he made another trust-de.ed upon the same property, to secure the payment of notel'! 'to the amoullt $100,000, making a total incumbrance upon the property of $150,000 and accruing interest; that in December, 1874, after the making and recording of the aforementioned trust-deeds, Gage made a deed in feesimple of the same lands to William F. Tucker, which was duly recorded in the office of the recorder of Cook county; that George W. Gage died in September, 1875, after the execution and recording of said deed tQ Tucker; and' that Tucker died' about September, 1887, leaving him surhis heirs at law, and that since tqe viving awHlow and two children 25th day of Janul1ry, 1890, those two children and heirs of Tucker haye conveyed: all their right, title, and interest in the said property to the complainant. The bill further charges that in November, 1875, the de.:. fendant Mrs: Green, having become the owner and holder of the notes secured by said two filed in this court a bill to foreclose the same; 'thatauch proceedings were had in said case as that a decree of foreclosure was entered, finding that there was due to the complainant Mrs, Green the sum of $186,566; and that on the 2d day of January{ 1877, all the said lots and parcels of land were sold under said decreEl.\ and became the purchaser thereof, which sale was duly confirmed, I1hda 'deed made to the purchaser by the master in chancery of this court. The bill further alleges that William F. Tucker \vasthe owner of reqordof all the said lots and parcels of land at the time of the foreclosut:e proceedings, and so remained up to the time of his death;