Oliver v. Forbes

17 Kan. 113

• Court: Supreme Court of Kansas
• Decided: July 15, 1876
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action in the nature of ejectment, brought by Robert Forbes to recover from John J. Oliver and Emily L. Oliver a certain piece of land. Judgment was rendered in favor of the plaintiff, and the defendants now as plaintiffs in error bring the case to this courts The facts of the case as shown by the record are substantially as follows: The land in controversy was originally a part of the Pottawatomie Indian reservation. Under the provisions of article 2 of the Pottawatomie treaty of 1861, (12 U. S. Stat. at Large, 1192,) said land was allotted to John Riley, a Cherokee Indian by birth, but a Pottawatomie Indian by adoption, and the proper certificate for said land was duly issued to him by the commissioner of Indian affairs. Said article 2 provides among other things as follows:

“When such assignments shall have been completed, certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned, respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee or leased or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe and of Indian blood, with the permission of the president, and under such regulations as the secretary of the interior shall provide, except as may be hereinafter provided.”

The last clause refers to the following provisions of article 3 of the treaty:

“At any time hereafter, when the president of the United States shall have become satisfied that any adults, being males and heads 'of families, who may be allottees under the provisions of the foregoing article, are sufficiently intelligent and prudent to control their affairs and interests, he may, at the requests of such persons, cause the lands severally held by them to be conveyed to them by patent in fee simple, with power of alienation.” “And on such patents being issued, * * * such competent persons shall cease to be members of said tribe, and shall become citizens of the United States; and thereafter the lands so patented to them shall be subject to levy, taxation, and sale, in like manner with the property of other citizens; Provided, that, before making any such application to the president, they shall appear in open court, in the district court of 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 naturalization of aliens, 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.”

Now John Eiley was a male, and a head of a family; but he was the head of a family only two years and four months, and not five years. He was married to Mary Beaubien, a Pottawatomie Indian woman, on May 1st 1862, ánd died September 1st 1864. It is not shown that he ever made any application to the president for a patent for said land, or that he ever made any such proof as is required by said article 3, or that he ever took said oath of allegiance, or that he ever did anything else for the purpose of removing restrictions and disabilities from himself, or of perfecting and completing his inchoate title to said land. It is not shown that he ever had the least desire to become a citizen of the United States, or to sell his said land, or to be able to sell the same. In 1864, when he died, he left a widow (said Mary Beaubien Eiley) and two minor children, both girls, and daughters of himself and said Mary. Said widow and children are still living. In 1865 the widow married David Bostick, a white man, a citizen of the United States, and a resident of Kansas. By the provisions of the Pottawatomie treaty of 1866, the provisions of the third article of the treaty of 1861 were “extended to all adult persons of said tribe without distinction of sex, whether such persons are or shall be heads of families or otherwise, in the same manner, to the same extent, and upon the same terms, conditions, and stipulations as are contained in said third article of said treaty with reference to ‘males and heads of families/ ” (14 U. S. Stat. at Large, 763.) On July 27th 1867, said David and Mary Bostick executed a general warranty deed for an undivided-half of said land to Thomas J. Lazzelle and Julia Lazzelle his wife, Julia being a half-breed Pottawatomie Indian woman; and on the same day the Lazzelles executed the same kind of a deed for the same land to said John J. and Emily L. Oliver, the plaintiffs in- error* defendants below. Article 6 of the Pottawatomie treaty of 1867, which took effect in August 1868, provides, that—

“The provisions of article third of the treaty of April 19th 1862, relative to Pottawatomies who desire to become citizens, shall continue in force, with the additional provision that, before patents shall issue to such persons, a certificate shall be necessary from the agent and business committee that the applicant is competent to manage his own affairs; * * * and where any member of the tribe shall become a citizen under the provisions of the said treaty of 1862, the families of said parties shall also be considered as citizens, and the head of the family shall be entitled to patents; * * * and women who are also heads of families, and single women of adult age, may become citizens in the same manner as males.” (15 U. S. Stat. at Large, 533.)

The said treaty of April 19th 1862, is the treaty that we have denominated the treaty of 1861. It was concluded November 15th 1861; consented to, with amendments, by the senate, April 15th 1862; again consented to by the Indians April 17th 1862, and affirmed and proclaimed by the president April 19th 1862. Article 8 of the treaty of 1867, which took effect in August 1868, provides that—

“Where allottees under the treaty of 1861 shall have died, or shall hereafter decease, such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United States, and of the state of Kansas; and it shall be competent for the proper courts to take charge of the settlement of their estates under all the forms and in accordance with the laws of the state, as in the case of other citizens deceased; and in cases where there are children of allottees, left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside, and such guardians shall'give bonds, to be approved by the said court, for the proper care of the person and estate of such orphans, as provided by law.” (15 U. S. Stat. at Large, 536.)

The said treaty of 1861 is the same as the said treaty of April 19th 1862. (See above explanation.) On October 27th 1868, said David and Mary Bostick executed a general warranty deed for the undivided-half of said land to said John J. and Emily L. Oliver; and on April-10th 1869, the said Olivers took possession of said land, have continued to occupy the same ever since, and have made improvements thereon worth from $1,250 to $1,500. On the 16th of May 1870, the United States issued a patent for said land to the allottee, John Riley, and his heirs. Now the John Riley to whom this land was allotted had been dead for more than five and-a-half years when this patent was issued. On February 3d 1872, said David and Mary Bostick executed a general warranty deed for said land to Robert Forbes, defendant in error, plaintiff below. All the foregoing deeds were duly recorded in the order of their execution.

Did Forbes get any title to said land by virtue of said last-mentioned deed, as against-the said Olivers? This is the only question in the case. Now in order to determine this question in the affirmative, it is necessary to hold that the Bostieks had no power to execute deeds for said land, or to bind themselves by covenants concerning' the land at the times when they executed said deeds to the Lazzelles and to the Olivers, but that they.had such power when they executed said deed to Forbes. Now why had they such power in the latter case, and no such power in the former cases? No sufficient reason can be given; and no reason at all can be given except the mere issuance of said patent. Now how can that be considered a sufficient reason? We cannot tell. Originally, the land in question belonged to John Riley; but he had no power to sell or to incumber the land, except in a certain manner, and except upon certain terms and conditions. He died, and it descended to his heirs, one-half to his widow, and the other half to his two children. Now if the restrictions upon the sale of said land were merely personal to John Riley, then of course his widow after his death could sell and convey her interest in the land, and in that case the deed she and her husband David Bostick executed to the Lazzelles would be considered good and valid. But suppose that said restrictions were not merely personal to John Riley, but that they followed the land to his heirs, to his widow and children: then, if, by a legal fiction, under article 8 of the treaty of 1867, John Riley because of his death was to be considered as a citizen of the United States, and his estate as that of a citizen, and if, by a like legal fiction, under article 6 of the same treaty, his family, his wife and children, were to be considered as citizens, then the deed executed in 1868 by his widow, Mary Bostick, to the Olivers, must be considered as valid and binding. But suppose that the said widow, the said Mary Bostick, is not to be considered as having become a citizen by virtue of the death of Riley, and the provisions of said treaty of 1867, and that the restrictions upon the sale of said land were still in force when she and her husband executed said deed to the Olivers, so that said deed is void: then what has happened since that time to remove said restrictions, and to give her such ample power to make a valid deed for said land that we must now consider the deed made by her and her husband to Forbes as a good and valid deed ? We know of nothing. She has never made any application to become a citizen of the United States, or to have any said restrictions removed. She has never made the necessary proofs, nor obtained the necessary certificates, nor taken the necessary oath, for any such purpose. Then how could she make a valid deed in 1872, if she could not have done so in 1868 ? The only answer that can be given is, that said patent was issued in 1870. Said patent recites that “John Riley” was the allottee for said land, and then it grants the land to John Riley and to his heirs, “to have and to hold” the same-“to said John Riley and to his heirs and assigns forever.” Now, how can this patent give to Mary Bostick the power to convey said land? It does not purport to give her any such power. It does not purport to make her a citizen. It is not issued to her by name. Indeed, her name is not mentioned in the patent at all. And while she must take as an heir of John Riley, if she takes anything under the patent, yet she is not designated .in the patent as an heir. The word “heirs,” as used in a conveyance, is not a word of purchase, but is merely a word qualifying the title of the grantee mentioned in the conveyance. (Hunter v. Watson, 12 Cal. 363.) We should judge from recitals in said patent that it was issued because of the following provisions of said treaty of 1867, to-wit: “Where allottees under the treaty of 1861 shall have died or shall hereafter decease, such allottees shall be regarded, for the purposes of a careful and just settlement of their estates, as citizens of the United States, and of the state of Kansas.” (15 U. S. Stat. at Large, 536, art. 8.) “And where any member of the tribe shall become a citizen under the provisions of the said treaty of 1862 [1861] the families of said parties shall also be considered as citizens.” (15 U. S. Stat. at Large, 533, art. 6.) And these provisions of said treaty were probably taken in connection with the act of congress of May 20th 1836, entitled “An act to give effect to patents for public lands issued in the names of deceased persons.” Said act reads as follows:

“Be it enacted, That in all cases where patents for public lands have been or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assigns of such deceased patentee, as if the patent had been issued to the deceased person during life.” (5 U. S. Stat. at Large, 31.)

Now whether this patent is valid or invalid, we hardly think it is necessary to determine; for we think we should reach the same final conclusion in either case. (With respect to patents issued after the death of the patentee, see Galt v. Galloway, 4 Peters, 333; McDonald’s Heirs v. Smally, 6 Peters, 261; Galloway v. Finley, 12 Peters, 264; Landes v. Brant, 10 How. 348; Price v. Johnston, 1 Ohio St. 390.) If the patent is valid, it is so merely because it is in confirmation of preexisting rights, and not because it created any new rights. And every right existing at the time it was issued, existed at the time and before Mary Bostick and her husband executed said deed to the Olivers. From the time she executed said deed to the Olivers until said patent was issued, nothing transpired to give her any greater rights, powers, or privileges than she previously possessed. If said patent was rightfully and legally issued, then it should have been issued at the latest as early as August 1868, at the time when the treaty of 1867 took effect, which was before Mary Bostick executed said deed to the Olivers; and it is a general rule of law, that when a patent is issued it relates back to the earliest moment when it ought to have been issued. It must also be remembered that the said deed to the Olivers was a general warranty deed. Now, John Riley in his lifetime had the equitable title to said land; and his certificate of allotment was sufficient evidence thereof. When he died, his wife and children succeeded to his rights by inheritance, and not by purchase. But we do not see that it would make any material difference, so far as this case is concerned, whether we should consider that they succeeded to his rights by purchase or by inheritance. In either case, his widow was either restricted in the sale of said land, or she was not so restricted. If she was restricted, then her deed to Forbes was void. But if she was not restricted, then either, her deed to the Lazzelles, or her deed to the Olivers, was valid, and in either case Forbes by his subsequent deed would get no title. In any case, therefore, the plaintiff Forbes must be defeated. If Mary Bostick was at any time free from all restrictions in the sale of said land, it was either because the restrictions imposed by the treaty of 1861 were merely personal to their original allottees, or because such restrictions were in the present case removed by the death of the allottee and by the provisions of the treaty of 1867. Nothing else ever transpired to remove them. We suppose that it will not be claimed that the patent changed the status or condition of John Riley, for he had been dead for several years before it was issued. And we hardly suppose it can be claimed that it changed the status or condition of his widow, Mary Bostick, for it does not purport to do so, even indirectly; and her name is not even mentioned therein.

The judgment of the court below will be reversed, and cause remanded for a new trial.

Kingman, C. J., concurring. Brewer, J., not sitting in the case.