By the Court —
Berry, J.
— The land in controversy in this [148]*148action is a part of what is commonly known as the Half Breed Reservation lying on the right hank of the Mississippi River and in the vicinity of Lake Pepin. Jenny Cratt was a half breed or mixed blood of the Sioux nation, and a beneficiary under the treaties and acts of Congress by which the Reservation was set apart and disposed of. All the parties to this suit except Madeline Stone are white persons. During a period of time prior to August 20, 1853, Jenny Cratt and her husband Oliver Cratt, had been in the sole and exclusive possession of the premises in litigation, claiming the same as their property, and prior to said 20th day of August, they quit-claimed the same to Philo Stone, with covenants for further assurance, and also executed a bond running to said Stone, in which they covenanted to convey the said premises to him at a future day. Thereupon Cratt and his wife surrendered the sole and exclusive possession of the premises to Stone, by whom it was retained until the 20th day of August, 1853, when he and his wife quit-claimed the property to H. S. Allen, with covenants to stand seized, and for further assurance. On the 6th day of March, 1855, some doubts being entertained as to the sufficiency of the description of the land in the first deed from Stone to Allen, Stone and his wife executed another quit-claim deed in favor of Allen, which contained covenants of non-claim for further assurance and to stand seized. ' The premises described in each of the deeds from Stone to Allen are found by the Court below to be the same premises to which this action relates. The other defendants all claim under Allen, either directly or through intermediate conveyances, by a variety of titles and liens, all subsequent in their inception to the delivery and registration of the deeds from Stone to Allen, and prior to the deed from Stone to Hope. In April, 1857, Jenny Cratt entered a tract of land, comprising the land which is the subject of this action, at the Red Wing Land Office, in conformity to the laws and treaties relating to said Reservation. This is the beginning of the title in fee from the United States. On the 11th day of July, 1857, she and her husband by a warranty deed conveyed to Philo Stone “ all their and each of their right, title, interest, property, possession, claim and demand, [149]*149whatever, of in and to ” tlie premises in controversy, and the deed was duly recorded. On the 1st of March, 1862, Stone and his wife by a “full covenant warranty deed,” (as is found below), conveyed to "William Hope, the plaintiff and respondent, “all their and each of their right, title, interest, estate, property, possession, claim or demand vjhatsoever to said premises,” and this deed was also duly recorded. Here it is proper, though perhaps not very important, to say that a preliminary question was raised as to whether the. plaintiff had shown himself to be in possession, and so entitled to maintain this action to determine an adverse claim under the statute, but whatever there is in the point is waived in writing and taken out of the case. Such a practice seems to be sometimes allowed. Whitten vs. Whitten, 3 Cush., 195.
To return, there can be no question but that the deed from Cratt and wife, bearing date July 11, IBS'!, passed the legal estate in fee simple absolute to Stone. And the inquiry upon the answer to which this case may properly turn, is whether Stone then held the title subject to any valid legal or equitable rights on the part-of Allen, or of his representatives in interest, under the quit-claim deeds executed by Stone to Allen in 1853 and 1855, or the covenants therein contained. It will be recollected that Stone executed two quit-claim deeds in favor of Allen, the latter of which was intended to correct an apprehended insufficiency of the description of the land in the first deed. In our view it is unnecessary to inquire whether the first description was sufficient or not. If it was, then the second deed was superfluous for the purpose for which it was intended, and if it was not then the defect was cured by the second deed. No rights accrued to .third persons intervening the deliveries of 'the two instruments. Aside from the description the principal difference which we observe is that the second deed contains a covenant of non-claim which is not found in the first. But so far as this covenant is concerned, the weight of authority would seem to be that in a case like this it would only relate to the estate, right or interest actually conveyed by the quit-claim deed, and would not preclude the covenantor from setting up in his own favor, and against the covenantee, any after [150]*150acquired estate or interest. See 2 Washburn Real Prop., 465, 496-7, 665, and cases cited; Miller vs. Ewing, 6 Cush., 34. The other covenants are as follows: “And the said parties of the first part have covenanted and agreed, and do hereby covenant and agree, to and with the said party of the second part, that whenever they or either of them, or either of their heirs or assigns, shall hereafter acquire from the United States the title to any land which shall include the above described premises, he or they shall and will stand seized and possessed of such title of the above described premises to and for the use of said party of the second part, his heirs and assigns, and not otherwise, and that when all, any or either of the said parties of the first part shall have thus acquired the said title, lie or they shall, on demand, make such further or other conveyance of the said premises to the said jJarty of the second part, his heirs or assigns, as shall be valid and effectual to convey the said premises to him or them, and to extinguish such use and trust.” The covenant to stand seized, it would seem, can only be supported as such when based upon a consideration of blood or marriage, neither of which appears in this case. 4 Kent Com., 493. It is a principle of law “that if the form of the conveyance be an inadequate mode of giving effect to .the intention according to the letter of the instrument, it is to be construed under the assumption of another character so as to give it effect.” Ibid. And so, a covenant to stand seized is sometimes held good as a grant. But the invoking of that principle would not help this case, for at the time he entered into the covenant to stand seized, Stone had nothing to grant, and clearly, in the absence of a covenant of warranty, nothing would pass by his grant. But we can conceive of no reafion why the covenant for further assurance was not binding upon Stone, his heirs and assigns, according to its purport. There is, to be sure, a difference between the language of the first and second deeds as to the contingency upon which the obligation to make further assurance was to become operative. In the first, Stone agrees to make • further assurance when he, his heirs, &c., “ shall hereafter acquire from the United States or otherwise, the fee simple, title,”. &c. In the second deed [151]*151the words “or otherwise” are omitted. We think the difference is verbal and not substantial, and that it was immaterial whether Stone acquired title mediately or immediately from the United States. If the words “or otherwise,” were as we think superfluous, then their omission from the second deed would have no effect.
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By the Court —
Berry, J.
— The land in controversy in this [148]*148action is a part of what is commonly known as the Half Breed Reservation lying on the right hank of the Mississippi River and in the vicinity of Lake Pepin. Jenny Cratt was a half breed or mixed blood of the Sioux nation, and a beneficiary under the treaties and acts of Congress by which the Reservation was set apart and disposed of. All the parties to this suit except Madeline Stone are white persons. During a period of time prior to August 20, 1853, Jenny Cratt and her husband Oliver Cratt, had been in the sole and exclusive possession of the premises in litigation, claiming the same as their property, and prior to said 20th day of August, they quit-claimed the same to Philo Stone, with covenants for further assurance, and also executed a bond running to said Stone, in which they covenanted to convey the said premises to him at a future day. Thereupon Cratt and his wife surrendered the sole and exclusive possession of the premises to Stone, by whom it was retained until the 20th day of August, 1853, when he and his wife quit-claimed the property to H. S. Allen, with covenants to stand seized, and for further assurance. On the 6th day of March, 1855, some doubts being entertained as to the sufficiency of the description of the land in the first deed from Stone to Allen, Stone and his wife executed another quit-claim deed in favor of Allen, which contained covenants of non-claim for further assurance and to stand seized. ' The premises described in each of the deeds from Stone to Allen are found by the Court below to be the same premises to which this action relates. The other defendants all claim under Allen, either directly or through intermediate conveyances, by a variety of titles and liens, all subsequent in their inception to the delivery and registration of the deeds from Stone to Allen, and prior to the deed from Stone to Hope. In April, 1857, Jenny Cratt entered a tract of land, comprising the land which is the subject of this action, at the Red Wing Land Office, in conformity to the laws and treaties relating to said Reservation. This is the beginning of the title in fee from the United States. On the 11th day of July, 1857, she and her husband by a warranty deed conveyed to Philo Stone “ all their and each of their right, title, interest, property, possession, claim and demand, [149]*149whatever, of in and to ” tlie premises in controversy, and the deed was duly recorded. On the 1st of March, 1862, Stone and his wife by a “full covenant warranty deed,” (as is found below), conveyed to "William Hope, the plaintiff and respondent, “all their and each of their right, title, interest, estate, property, possession, claim or demand vjhatsoever to said premises,” and this deed was also duly recorded. Here it is proper, though perhaps not very important, to say that a preliminary question was raised as to whether the. plaintiff had shown himself to be in possession, and so entitled to maintain this action to determine an adverse claim under the statute, but whatever there is in the point is waived in writing and taken out of the case. Such a practice seems to be sometimes allowed. Whitten vs. Whitten, 3 Cush., 195.
To return, there can be no question but that the deed from Cratt and wife, bearing date July 11, IBS'!, passed the legal estate in fee simple absolute to Stone. And the inquiry upon the answer to which this case may properly turn, is whether Stone then held the title subject to any valid legal or equitable rights on the part-of Allen, or of his representatives in interest, under the quit-claim deeds executed by Stone to Allen in 1853 and 1855, or the covenants therein contained. It will be recollected that Stone executed two quit-claim deeds in favor of Allen, the latter of which was intended to correct an apprehended insufficiency of the description of the land in the first deed. In our view it is unnecessary to inquire whether the first description was sufficient or not. If it was, then the second deed was superfluous for the purpose for which it was intended, and if it was not then the defect was cured by the second deed. No rights accrued to .third persons intervening the deliveries of 'the two instruments. Aside from the description the principal difference which we observe is that the second deed contains a covenant of non-claim which is not found in the first. But so far as this covenant is concerned, the weight of authority would seem to be that in a case like this it would only relate to the estate, right or interest actually conveyed by the quit-claim deed, and would not preclude the covenantor from setting up in his own favor, and against the covenantee, any after [150]*150acquired estate or interest. See 2 Washburn Real Prop., 465, 496-7, 665, and cases cited; Miller vs. Ewing, 6 Cush., 34. The other covenants are as follows: “And the said parties of the first part have covenanted and agreed, and do hereby covenant and agree, to and with the said party of the second part, that whenever they or either of them, or either of their heirs or assigns, shall hereafter acquire from the United States the title to any land which shall include the above described premises, he or they shall and will stand seized and possessed of such title of the above described premises to and for the use of said party of the second part, his heirs and assigns, and not otherwise, and that when all, any or either of the said parties of the first part shall have thus acquired the said title, lie or they shall, on demand, make such further or other conveyance of the said premises to the said jJarty of the second part, his heirs or assigns, as shall be valid and effectual to convey the said premises to him or them, and to extinguish such use and trust.” The covenant to stand seized, it would seem, can only be supported as such when based upon a consideration of blood or marriage, neither of which appears in this case. 4 Kent Com., 493. It is a principle of law “that if the form of the conveyance be an inadequate mode of giving effect to .the intention according to the letter of the instrument, it is to be construed under the assumption of another character so as to give it effect.” Ibid. And so, a covenant to stand seized is sometimes held good as a grant. But the invoking of that principle would not help this case, for at the time he entered into the covenant to stand seized, Stone had nothing to grant, and clearly, in the absence of a covenant of warranty, nothing would pass by his grant. But we can conceive of no reafion why the covenant for further assurance was not binding upon Stone, his heirs and assigns, according to its purport. There is, to be sure, a difference between the language of the first and second deeds as to the contingency upon which the obligation to make further assurance was to become operative. In the first, Stone agrees to make • further assurance when he, his heirs, &c., “ shall hereafter acquire from the United States or otherwise, the fee simple, title,”. &c. In the second deed [151]*151the words “or otherwise” are omitted. We think the difference is verbal and not substantial, and that it was immaterial whether Stone acquired title mediately or immediately from the United States. If the words “or otherwise,” were as we think superfluous, then their omission from the second deed would have no effect. And any inference which might be drawn from the fact of this omission that the covenantors intended to vary their liability as expressed in the first deed, is repelled by the stipulation of the parties upon which the Court find that the second deed was “executed and delivered on account of doubts having arisen in respect to the sufficiency of the description” in the first deed.
This view would appear to be strengthened by the fact as found below, that Stone originally acquired his possession and claim of right under a quit-claim deed from Cratt and his wife, which contained a covenant for further assurance, and under a'bond for a conveyance at affivture day executed by the same parties. Taken in connection with other facts of the case, we think this has a tendency to show that the understanding and expectation was that Stone would acquire title from the United States indirectly, as he did.
Whether Stone derived his title from the United States directly or through mesne conveyance, we think he held it in trust for Allen, or Ms representative in interest. For it is obvious on general principles, and well settled by authority, that where a covenant for further assurance exists, the covenantee has the right to invoke the aid of a court of equity to compel a specific performance of the covenant. 2 Sug. Vend., 541; 2 Wash. R. P., 667; Rawle on Cov., (2d Ed.,) 208; Colby vs. Osgood, 20 Barb. (S. C.) R., 339. See also Fitch vs. Fitch, 8 Pick., 482. A vendor who has received the purchase money but has not conveyed, is a trustee of an implied trust. 2 St. Eq. Jur., 789. A covenant for further assurance would place the covenantor in a similar relation to the covenantee. And in the particular case before us the covenant would seem to be in substance the same as a contract of sale. For upon the face of the instrument in which the covenant is found, it appears that at the time of its execution the covenantor, Stone, [152]*152had no title to the premises, and by his covenant he agrees to make title when acquired to the covenantee. Under the deed of March 1st, 1862, Hope acquired the right, title and interest of Stone, and nothing more, for that is all which is attempted to bo transferred by the terms of the conveyance. This right, title and interest, as we have endeavored to show, was the fee, subject to the trust, created in favor of Allen by the quit-claim deed and the covenants, therein, and Hope took the title subject to the same trusts. 20 Pick. R., 458; 12 Met., 177; 14 N. H., 226; 3 Wheat., 452; Adams vs. Cuddy, 13 Pick., 463; 12 Pick., 66; 4 Pick., 464; 13 Pick., 116, 119, 120; 5 Gray, 528; 2 Story Eq. Jur., 784; Rawle on Cov., 420-2 and notes. And in this view of the matter it is entirely unimportant what was the effect of the registration of the quit-claim deeds from Stone to Allen prior to the acquisition of any title from the United States, and it is equally immaterial what was the effect of the possession of Robinson. For the only light in which either the possession or registration could be contended to be important would bo as notice of the rights of Allen or his representatives in interest. And if the deed from Stone to Hope had been a conveyance of the land, instead of Stone’s right, title and interest, then it might be necessary to inquire whether the registration or possession were notice to Hope of rights in third parties antecedent and adverse to his own. But as he took by the deed from Stone only Stone’s right, he of course took nothing legal or equitable which Stone had previously transferred to Allen. See authorities above cited. So that the question of notice is out of the case, or as might be said, the terms of the deed itself were notice to him of the existence of any and all rights which had previously been conferred' by Stone upon any and every other person. But it is objected that the deed from Stone to Allen was illegal and void as against public policy and the law. It is not claimed that there is any statute specifically prohibiting such transactions, or by which -they are expressly declared to be void. There would appear to be no illegality in an agreement to convey lands when title should be acquired, although at the time of executing such agreement the title [153]*153is in the United States. See Fackler vs. Ford, 24 How. U. S. R., 323; 1 Mor. (Iowa) R., 367, 275. But the statute to which our attention is called in support of the objection of illegality, is “an act to regulate trade and intercourse with the Indian tribes,” &c., passed in 1834, and found in 4 U. S. St. at Large, 730. Even if that act be applicable to the Reservation, which is by no means clear, we are unable to perceive how the deed from Stone to Allen' can be regarded as contravening it in letter or in spirit. By section 11 of the act a penalty is imposed upon any person making a settlement or survey, or designating any of the boundaries by marking trees, &e., on any lands belonging, secured or granted by treaty with the United States to any Indian triX>e, but there is nothing in this case to show that Stone, Allen, or any of Allen’s successors in interest, had done anything to subject themselves to such penalty. Section 12 provides that no purchase, grant, lease or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless it be made by treaty or convention entered into .pursuant to the constitution; and a penalty is imposed upon any person who shall without authority attempt to negotiate such treaty or convention, or to treat with any nation or tribe of Indians for the title or purchase of land by them held or claimed. Even if this provision be applicable to the half breeds and the Reservation, we can see nothing in the deed from Stone to Allen violative of the law. The facts here present a case of quit-claim deeds which probably conveyed nothing because the grantor had nothing to convey, the title being in the United States subject to a usufruct by the half breeds. Certainly there was nothing illegal or against public policy in the execution of these <deeds. But further, the deeds contained a covenant by the releasor to make such further or other conveyance as shall be valid and effectual to convey the premises when he shall liave-acquired title from the United States. There could be nothing wrong in this. We think the covenant was valid and binding in Stone; that when Stone acquired the title he held the land in trust for the performance of [154]*154his covenant, and for the reason before given that Hope took it subject to the same trust.
The judgment below is reversed, and the action' remanded for further proceedings.
[Wilson, Ch. J., dissented, but filed no opinion.]