McMahon v. Welsh

11 Kan. 280

• Court: Supreme Court of Kansas
• Decided: January 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

Only one question is presented to us for our consideration: Was the plaintiff’s land subject to taxation for the year 1870? But involved in this are several others of a very difficult and delicate character. It may even be asked, whether the plaintiff has shown that he owns said land, or that he has owned the same at any time between the first day of January 1870 and the present time; and therefore, whether he is liable to pay any tax that may have been levied upon said land for the year 1870, or for any other year; and therefore whether he has a sufficient interest in the' matter to maintain this action. The agreed statement of facts upon which the judgment in this case was rendered shows that plaintiff’s land was originally a part of the Wyandotte reserve; that the United States, under the treaty with the Wyandotte Indians of January 31st 1855, issued a patent for said land to one Harley Coon, an incompetent Wyandotte Indian, and that said patent “contained the usual limitation clause peculiar to all patents of lands to that class of Indians under the treaty” — but what that “usual limitation clause” was, or is, we are nowhere informed. We are therefore left to infer that it was such as was authorized by said treaty of January 31st 1855. The agreed statement of facts also shows that the patentee, Harley Coon, died in 1857, and that the land descended to one Mary Nichols, his half-sister, who wa.4 his sole heir. But whether Mary Nichols was an incompetent Wyandotte Indian, neither the agreed statement of facts, nor any other portion of the record, shows. It must therefore be presumed that, if she was an Indian at all, she was a competent Indian. The agreed statement of facts also shows that Mary Nichols sold said land in 1864 to Timothy McMahon, the plaintiff in error, and plaintiff below, for a consideration then paid, and executed and delivered to him a regular warranty deed therefor; that this deed was approved by the Secretary of the Interior February 17th 1871, in pursuance of article 15 of the treaty of February 23d 1867 between the United States and the Wyandottes and other Indians. The 4th article of the said treaty of January 31st 1855 reads as follows:

“Article 4. On the receipt by the commissioner of Indian affairs of the plot and schedule, lists of persons, and of the first proceedings of the Wyandotte Council, mentioned in the next preceding article, patents shall be issued by the general land office of .the United States, under the advisement of the commissioner of Indian affairs, to the individuals of the Wyandotte tribe, for the lands severally assigned to them, as provided for in the third article of this agreement, in the following manner, to-wit: To those reported by the commissioners to be competent to be entrusted with the control and management of their affairs and interests, the patents shall contain an absolute and unconditional grant in fee simple, and shall be delivered to them by the commissioner of Indian affairs as soon as they can be prepared and recorded in the general land office; but to those not so competent, the patent shall contain an express condition, that the lands are not to be sold or alienated for a period of five years, and not then without the express consent of the president of the United States first being obtained; and said patents may be withheld by the commissioner of Indian affairs so long as in his judgment their being so withheld may be made to operate beneficially upon the character and conduct of the individuals entitled to them. None of the lands to be thus assigned and patented to the Wyandottes shall be subject to taxation for a period of five years from and after the organization of a state government over the territory where they reside; and those of the incompetent classes shall not be aliened or leased for a longer period than two. years, and shall be exempt from levy, sale, or forfeiture until otherwise provided by state legislation, with the absent of congress.” 10 U. S. Stat. at Large, 1161.

Article 15 of the said treaty of February 23d 1867 reads as follows:

“Article .15. All restrictions upon the sale of lands assigned and patented to ‘incompetent’ Wyandottes under the 4th article of the treaty of 1855, shall be removed after the ratification of this treaty; but no sale of lands heretofore assigned to orphans or incompetents shall be made under decree of any court, or otherwise, for or on account of any claim, judgment, execution or order, or for taxes, until voluntarily sold by the patentee, or his or her heirs, with the approval of the Secretary of the Interior. And whereas many sales of land belonging to this class have heretofore been made, contrary to the spirit and intent of the treaty of 1855, it is agreed that a thorough examination and report shall be made, under direction of the Secretary of the Interior, in order to ascertain the facts relating to all such cases; and upon a full examination of such report, and hearing of the parties interested, the said secretary may confirm the said sales, or require an additional amount to be. paid, or declare such sales entirely void, as the very right of the several cases may require.” 15 U. S. Stat. at Large, 517.

" Now under these treaty provisions was not this land taxable in 1870? We suppose it will be conceded that all these lands were taxable in 1870 if they were owned by any one else except the Indians. Then who owned the land upon which the tax in controversy was levied in 1870? The plaintiff claims that he owns the land at the present time, and unless he does now own it he of course cannot maintain this action —for a party who is not liable to pay a tax cannot restrain the collection of the same. But if the plaintiff owns the land now, he certainly owned it in 1870. The deed under which he now claims was executed in 1864. The treaty under which he now claims was ratified in 1868. And he has done nothing since 1870 to make his title better or more perfect than it was before that time, except to furnish evidence to the Secretary of the Interior to show that his purchase of said land was in good faith, and for a sufficient consideration, and according to “the very right of the case” it ought to be his. Under the treaty of 1855 the title conveyed by the United States to the competent Wyandotte Indians for all lands assigned to them was a complete, absolute, and unconditional title, in fee simple. This title the Indians could of course convey, whenever and to whomsoever they chose. No restrictions, limitations, or prohibitions of any kind were imposed upon them. They could sell and dispose of their lands to the same extent, and in the same manner, that other people could sell and dispose of theirs. The incompetent Indians unquestionably held the same kind of title to their lands that the competent Indians did to theirs, except that the incompetent Indians could not sell or convey their lands for five years, and not then without the consent of the president of the United States. This restriction seems to be purely personal to the incompetent Indians, and does not affect their title to the land. It was simply an incapacity to sell, similar to the disability of a minor to sell his lands. Hence, admitting that Harley Coon, the incompetent Wyandotte Indian, could not sell or convey his said land to any one, still, could not Mary Nichols, who must be presumed, to be competent, and to whom the said land descended in 1857, sell and convey it? Can it be possible that this restriction was intended to run with the land, and to rest upon any person and every person who might afterward own the same? Undoubtedly it was intended that those who were “competent to be entrusted with the control and management of their affairs and interests,” should be entrusted with the control and management of their own affairs and interests in every respect; and therefore it must have been intended that if land descended from an incompetent to a competent Indian the competent Indian should have the power to sell and dispose of it as he might choose. But still, supposing the sale and deed from Mary Nichols to the plaintiff are absolutely void, then has the plaintiff any title to said land? Can the president and senate of the United States, by a treaty with the Wyandotte Indians, transfer a title to land which had previously been and is then vested by a patent from the United States in an individual member of the tribe, and vest such title, or any title, in another person, whenever it may be supposed that “the very right of the case” requires the same to be done? If said sale was void, then this very thing is attempted to be done by article 15 of the treaty of February 23d 1867. Now, for the sake of argument we shall assume that said sale and deed from Mary Nichols to the plaintiff were void, and that said article 15 is valid; and assuming such to be the case, then we think the plaintiff became the owner of said land at the time said treaty of February 23d 1867 was ratified, (if not before,) for, according to the subsequent determination of the Secretary of the Interior the plaintiff was according to “the very right of the case” entitled to be held to be the owner of said land by virtue of said treaty at the very time the same was ratified. At that time his right to said land became complete. It is true, the legal evidence of his title did not then become complete. It was necessary for him to make the necessary proof first, and obtain said determination from the Secretary of the Interior, before the legal evidence of his title should become complete. The secretary did not and could not create his right to said land. That was created by the treaty. The secretary merely furnished him with the legal evidence of the right which said treaty had already created. The decision of the secretary was therefore very much like that of any ordinary court of justice. It did not create a right, but merely determined who held the preexisting right, and furnished the legal evidence of that right. Now, as the legal evidence of the plaintiff’s title was not complete until after said determination of the Secretary of the Interior, it may be claimed that the plaintiff held only an equitable title up to that time. But it must be admitted that such equitable title was complete, absolute, and perfect. And land held by such a title has everywhere been held to be taxable. (See defendant’s brief, and cases there cited; also, cases cited in Stone v. Young, 5 Kas., 232, showing that the holder of the land-office certificate, before the patent issues, is the real owner of the land, and that such land is taxable.) And in cases where land has been held not to be taxable this principle has been conceded. (Parker v. Winsor, 5 Kas., 362, 373; U. P. Rly. Co. v. Douglas Co., 5 Kas., 615, 621; K. P. Rly. Co. v. Prescott & Culp, (U. S. Sup. Court,) 9 Kas., 39, 44, note.) But if said sale and deed from Mary Nichols to the plaintiff are void, and if said article 15 of the treaty of February 23d 1867 is void, and if Mary Nichols is still the owner of said land, then the plaintiff in this action has no right to the remedy of injunction to enjoin the collection of the taxes on said land. Therefore, in any case, or from any standpoint, the plaintiff cannot maintain this action. The judgment of the court below must be affirmed.

All the Justices concurring.