By the Court,
Cobb, C. J.
The judgment of the court below was for the partition of land which, under the Wyandotte treaty of January 31st, 1855, was allotted and assigned to John Pipe by the commissioners appointed pursuant to article [413]*413third of that treaty, he being a member of that tribe placed in the competent class by said commissioners, and the head of a family, consisting of himself, Mary Pipe, his wife, and Maria and Winfield Pipe, his minor children by a former wife.
He had received a patent for the land so assigned purporting to convey it all to him, pursuant to the treaty, in fee simple absolute.
The plaintiffs in error claim to hold all the land under a trust deed made by John Pipe to them, to secure the payment of a sum of money which at the time of the trial was still unpaid.
George Spybuck and James Spybuck claim as heirs of Mary Pipe, who died childless, and Marie and Winfield Pipe,. as members of the Wyandotte tribe, claimed to have the land conveyed to their father, as head of the family, partitioned, and to hold each one-fourth thereof.
The court held that John Pipe took and held title to the land, one-fourth to his own use and the other three-fourths in trust for Mary, Maria and Winfield Pipe respectively, and partitioned the land accordingly, leaving to the plaintiffs in error but one-fourth subject to their lien.
The only question raised by the argument is whether the competent head of a family, under that treaty, can take the title in fee simple absolute to the land allotted, assigned and patented to him according to the terms of the patent, or whether his wife and minor children, constituting his family at the time the treaty was ratified, by force of the treaty take the beneficial interest in aliquot portions, and the head of the family holds it in trust for them. The patent conveying the land in fee simple absolute, excludes the idea of a trust, and, therefore, if such trust exists it must result from the language of the treaty, and the failure of the officers of the United States to conform to it in making the conveyance. The patent pursues the language of the treaty as to the estate granted, and the sole question remains: Was the' conveyance of the land for the family in conformity with the treaty ?
[414]*414This question, on account of the amount of property to be affected by it, is quite important, and from the obscure phraseology of the treaty, very difficult to determine.
Different portions of the treaty, at first view, seem to conflict. The whole instrument must therefore be considered, and the intention of the contracting parties sought by comparison of its several parts, and in the spirit and purview of the whole.
The first article provides for abolishing the tribal organization of the Wyandottes, and making them citizens of the United States.
By the second article, the Wyandottes cede all theii’j. lands to the United States and declare that the object of the cession is that the lands, with certain exceptions, “shall be subdivided, assigned and reconveyed by patent in fee simple, in the manner hereinafter provided for, to the individuals and members of the Wyandotte nation in severalty.”
Article third provides for the survey of the lands into sections, half and quarter sections, and for the appointment of commissioners “whose duty it shall be” (in the language of the treaty,) “ to cause any additional surveys to be made that may be necessary, and to make a fair and just division and distribution of the said lands among all the individuals and members of the Wyandotte tribe, so that those assigned to or for each shall, as nearly as possible, be equal in quantity and also in value, irrespective of improvements thereon; and the division and assignment of the lands shall be so made as to include the houses and, as far as practicable, the other improvements of each person or family, be in as regular and compact a form as possible, and include those for each separate family all together. The judgment and decision of said commissioners on all questions connected with the division and assignment of the lands shall be final.
“ On the completion of the division and assignment of the lands as aforesaid, said commissioners shall cause a plat and [415]*415schedule to he made, showing the lands assigned to each family or individual, and the quantity thereof. They shall also make up carefully prepared lists of all the individuals and members of the Wyandotte tribe, those of each separate family being arranged together, which lists shall exhibit separately, first, those families, the heads oi which the commissioners, after due inquiry and consideration, shall be satisfied are sufficiently intelligent, competent and prudent to control and manage their affairs and interests, and also all persons without families; second, those families the heads of which are not competent and proper persons to be entrusted with their shares of the money payable under this agreement; and third, those who are orphans, idiots, or insane.”
The language used in the second article, “the individuals and members of the Wyandotte nation,” standing alone would clearly include all persons of that tribe, infant members of families and married women as well as others, and entitled each to a share of the land, to be subdivided, but by the language of the same article, the land is to be subdivided, assigned and reconveyed by patent in fee simple “ in the manner hereinafter provided,” and thus we are referred to subsequent parts of the treaty to ascertain the true meaning of this.
By article third, above cited, the commissioners are required to make a fair and just division and distribution of the said lands among all the individuals and members of the Wyandotte tribe, so that those assigned- to or for each shall, as nearly as possible, be equal, &c.
This language imports that a portion of the “ individuals and members ” are to have land assigned to them and others for them.
The schedule and plat to be made by the commissioners is to show “the lands assigned to each family or individual.”
They are not required to show what land they have assigned to each member of a family as a unit, but to the family as a [416]*416unit, and the “individuals” alluded to must- of course be persons not members of families. ( The language used seems to admit of no other construction.
There are no means provided in the - treaty by which the commissioner of Indian affairs, who is to advise as to the issuing of patents or the officer who is to issue them, can know what particular land (if any) are assigned to the several members of families, and therefore no conveyance to them could be made.
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By the Court,
Cobb, C. J.
The judgment of the court below was for the partition of land which, under the Wyandotte treaty of January 31st, 1855, was allotted and assigned to John Pipe by the commissioners appointed pursuant to article [413]*413third of that treaty, he being a member of that tribe placed in the competent class by said commissioners, and the head of a family, consisting of himself, Mary Pipe, his wife, and Maria and Winfield Pipe, his minor children by a former wife.
He had received a patent for the land so assigned purporting to convey it all to him, pursuant to the treaty, in fee simple absolute.
The plaintiffs in error claim to hold all the land under a trust deed made by John Pipe to them, to secure the payment of a sum of money which at the time of the trial was still unpaid.
George Spybuck and James Spybuck claim as heirs of Mary Pipe, who died childless, and Marie and Winfield Pipe,. as members of the Wyandotte tribe, claimed to have the land conveyed to their father, as head of the family, partitioned, and to hold each one-fourth thereof.
The court held that John Pipe took and held title to the land, one-fourth to his own use and the other three-fourths in trust for Mary, Maria and Winfield Pipe respectively, and partitioned the land accordingly, leaving to the plaintiffs in error but one-fourth subject to their lien.
The only question raised by the argument is whether the competent head of a family, under that treaty, can take the title in fee simple absolute to the land allotted, assigned and patented to him according to the terms of the patent, or whether his wife and minor children, constituting his family at the time the treaty was ratified, by force of the treaty take the beneficial interest in aliquot portions, and the head of the family holds it in trust for them. The patent conveying the land in fee simple absolute, excludes the idea of a trust, and, therefore, if such trust exists it must result from the language of the treaty, and the failure of the officers of the United States to conform to it in making the conveyance. The patent pursues the language of the treaty as to the estate granted, and the sole question remains: Was the' conveyance of the land for the family in conformity with the treaty ?
[414]*414This question, on account of the amount of property to be affected by it, is quite important, and from the obscure phraseology of the treaty, very difficult to determine.
Different portions of the treaty, at first view, seem to conflict. The whole instrument must therefore be considered, and the intention of the contracting parties sought by comparison of its several parts, and in the spirit and purview of the whole.
The first article provides for abolishing the tribal organization of the Wyandottes, and making them citizens of the United States.
By the second article, the Wyandottes cede all theii’j. lands to the United States and declare that the object of the cession is that the lands, with certain exceptions, “shall be subdivided, assigned and reconveyed by patent in fee simple, in the manner hereinafter provided for, to the individuals and members of the Wyandotte nation in severalty.”
Article third provides for the survey of the lands into sections, half and quarter sections, and for the appointment of commissioners “whose duty it shall be” (in the language of the treaty,) “ to cause any additional surveys to be made that may be necessary, and to make a fair and just division and distribution of the said lands among all the individuals and members of the Wyandotte tribe, so that those assigned to or for each shall, as nearly as possible, be equal in quantity and also in value, irrespective of improvements thereon; and the division and assignment of the lands shall be so made as to include the houses and, as far as practicable, the other improvements of each person or family, be in as regular and compact a form as possible, and include those for each separate family all together. The judgment and decision of said commissioners on all questions connected with the division and assignment of the lands shall be final.
“ On the completion of the division and assignment of the lands as aforesaid, said commissioners shall cause a plat and [415]*415schedule to he made, showing the lands assigned to each family or individual, and the quantity thereof. They shall also make up carefully prepared lists of all the individuals and members of the Wyandotte tribe, those of each separate family being arranged together, which lists shall exhibit separately, first, those families, the heads oi which the commissioners, after due inquiry and consideration, shall be satisfied are sufficiently intelligent, competent and prudent to control and manage their affairs and interests, and also all persons without families; second, those families the heads of which are not competent and proper persons to be entrusted with their shares of the money payable under this agreement; and third, those who are orphans, idiots, or insane.”
The language used in the second article, “the individuals and members of the Wyandotte nation,” standing alone would clearly include all persons of that tribe, infant members of families and married women as well as others, and entitled each to a share of the land, to be subdivided, but by the language of the same article, the land is to be subdivided, assigned and reconveyed by patent in fee simple “ in the manner hereinafter provided,” and thus we are referred to subsequent parts of the treaty to ascertain the true meaning of this.
By article third, above cited, the commissioners are required to make a fair and just division and distribution of the said lands among all the individuals and members of the Wyandotte tribe, so that those assigned- to or for each shall, as nearly as possible, be equal, &c.
This language imports that a portion of the “ individuals and members ” are to have land assigned to them and others for them.
The schedule and plat to be made by the commissioners is to show “the lands assigned to each family or individual.”
They are not required to show what land they have assigned to each member of a family as a unit, but to the family as a [416]*416unit, and the “individuals” alluded to must- of course be persons not members of families. ( The language used seems to admit of no other construction.
There are no means provided in the - treaty by which the commissioner of Indian affairs, who is to advise as to the issuing of patents or the officer who is to issue them, can know what particular land (if any) are assigned to the several members of families, and therefore no conveyance to them could be made.
Article four of the treaty provides that “ on the receipt, by the commissioner of Indian affairs, of the plat and schedule, lists of persons, &c., 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 patents shall contain an express condition that the lands are not to be sold or alienated for a period of five years, &c.” The members of families other than the heads do not belong to either of these classes, they have neither been reported by the commissioners as competent or incompetent, and as no other provision is made by the treaty for issuing patents it seems manifest that none were intended to be granted to that class of persons.
The true construction of the treaty, we think, is that land s are taken, assigned and patented to the heads of families “for or on account of the other members of the family.” Such use of the word “for ” is legitimate, and^considering the practice of [417]*417the government established by law in the 1847, and continued over since, of making all Indian payments, for the whole family, to its head. It is probable that both parties to the treaty so used and understood it. iJucli construction renders the whole treaty harmonious and consistent with the action of the officers of the government in conveying all the land for the family to John Pipe, its head,
We come to this- conclusion upon a consideration of the language of the treaty only. But other consideration are not wanting to sustain it.
Before tlio making of the treaty the head of a Wyandottefamily occupied such portion of land as was required by the wants of himself and family. He made improvements to the extent of his wants, and had the exclusive use and control of them. But if the construction of the treaty maintained by the defendant is to prevail, these improvements may be divided into as many parcels as there arc members of the family, and he be left to support and educate his children by the use of one of such parcels, in most cases quite inadequate for that purpose; while the parcels assigned to minor children would,, in many, if not most casos, lie unimproved and useless during; their minority,
- Such a distribution of land would be unjust to the heads of families, the poverty of parents tend to prevent the education of the youth, and greatly retard that advance of the Wyandotte people in civilization and prosperity which the treaty was designed to promote.
That the Wyandotte chiefs and head-men who made the treaty cr the government of the United States- designated such a construction is incredible.
The assignment and patent to John- Pipe, rested in him a title in fee simple absolute to the one hundred and forty-seven acres of land in question, and the trust deed of said John Pipe and Jane Pipe,, bis wife, to the plaintiffs gave [418]*418them a valid lein thereon; and the court, therefore, erred in excluding such lein from part thereof.
The judgment must be reversed Avith costs against the defendants, and a neAAr trial granted for the purpose of partitioning the land betAveen other parties, subject to the lein of the plaintiffs in error.
All the Justices concurring.