Mr. William M. Springer argued the cause, and, with Messrs. James M. Mason and Charles H. Nearing, filed a brief for plaintiffs in error:

Plaintiff being an Indian is not subject

to the statute of limitations.

A jury having been waived and the case | subdivided, assigned, and reconveyed by a submitted to the court, judgment was ren- patent, in fee simple, in the manner hereIdered for the defendants. An appeal was inafter provided for, to the individuals and taken to the supreme court of the state, members of the Wyandotte Nation, in sever which affirmed the judgment of the lower alty." By the third article provision was court. 58 Kan. 758, 51 Pac. 276. Where- made for a survey of the lands, the appointupon plaintiffs sued out a writ of error ment of commissioners to divide the lands from this court. among the individuals of the tribe, and to make up lists of all the individuals and members of the tribe, "which lists shall exhibit, separately, first those families, the heads of 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 per sons to be intrusted with their shares of the money payable under this agreement; and, third, those who are orphans, idiots, or insane." Article four provided for the issue of unconditional patents in fee simple to those reported by the commissioners to be competent to be intrusted with the control and management of their affairs and interests; "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; and not then, without the express consent of the Presi dent of the United States first being obtained," etc.

McGannon v. Straight lege, 32 Kan. 524, 4 Pac. 1042; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901; O'Brien v. Bugbee, 46 Kan. 1, 26 Pac. 428; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; The Kansas Indians, 5 Wall. 737, sub nom. Blue Jacket v. Johnson, 18 L. ed. 667; Smith v. Stevens, 10 Wall. 321, 19 L. ed. 933.

The deed under which defendants hold does not constitute sufficient color of title to enable them to claim adverse possession. Gibson v. Chouteau, 13 Wall. 99, 20 L. ed. 536; Irvine v. Marshall, 20 How. 558, 15 L. ed. 994; Gibbs v. Consolidated Gas Co. 130 U. S. 412, 32 L. ed. 985, 9 Sup. Ct. Rep. 553; Livingston v. Peru Iron Co. 9 Wend. 511; Taylor v. Brown, 5 Dak. 343, 40 N. W. 525; Zeller v. Eckert, 4 How. 289, 11 L. ed. 979; Libby v. Clark, 118 U. S. 250, 30 L. ed. 133, 6 Sup. Ct. Rep. 1045; Smythe v. Henry, 41 Fed. 705; Deffeback v. Hawke, 115 U. S. 392, 29 L. ed. 423, 6 Sup. Ct. Rep. 95.

No title by prescription or limitation under any state statute could be acquired as against the right of the Secretary of the Interior to investigate and modify or declare void the conveyance in question; hence the statute of limitation could not begin to run, if at all, until after such action by the Secretary of the Interior.

Gibson v. Chouteau, 13 Wall. 99, 20 L. ed.


The delay of the government in acting on the property in question is a matter for which plaintiffs are not responsible.


No brief was filed for defendants in er


*Mr. Justice Brown delivered the opinion of the court:

*Margaret C. Cherloe was a Wyandotte In-[293 dian of the competent class, and as such she was given, under the treaty of 1855, allotment No. 42, to 64 acres of the land originally sued for, and received a patent therefor in fee simple, without restriction as to conveyance. This patent was dated June 1, 1859.

After the issue of such patent, and prior to August 31, 1863, Margaret C. Cherloe died intestate, leaving her grandson, Carey Rodgers, as her only heir at law; and on August 31, 1863, the said Carey Rodgers made a deed in fee simple of the land so inherited to Jesse Cooper and Mary E. Stockton.

Carey Rodgers, being himself a Wyandotte Indian, belonging to the incompetent class by reason of being an orphan, was given allotment No. 278, containing 57 acres, and on September 1, 1859, received a patent for said lands containing the following condition: "That the said tract shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior for the time being, and with the further and express condition, as

This case turns upon the proper construction of article XV. of a treaty with a number of tribes of Indians, including "cer-specified in the 4th article of the treaty tain Wyandottes," concluded February 23, 1867, and proclaimed October 14, 1868. 15 Stat. at L. 513, 517.

The facts of the case are substantially as follows:

On January 31, 1855 (10 Stat. at L. 1159), the United States entered into a treaty with the Wyandotte Indians, by the second article of which they ceded to the United States certain lands purchased by them of the Delawares, the object of which cession was that "the said lands shall be

with the Wyandottes of the 31st of January, 1855, that the lands are not to be sold or alienated for a period of five years."

On November 15, 1864, the said Carey Rodgers executed a deed in fee simple of this last-mentioned land to Jesse Cooper and Mary E. Stockton, covenanting that he was seised in fee simple, and had good right to sell the same.

On February 25, 1869, by a partition of that date by Jesse Cooper and his wife and Mary E. Stockton and her husband, there

This article makes the following distinct provisions:

1. It removes all restrictions upon the sales of lands patented to incompetent Wyandottes, which should thereafter be made.

was conveyed to Mary E. Stockton the lands | paid, or declare such sales entirely void, as sued for in this action and described in the the very right of the several cases may repetition. Defendants took title from her. quire." The said Carey Rodgers died intestate in December, 1867, at the age of twenty-one. Immediately after the execution of the deeds from Carey Rodgers to Jesse Cooper and Mary E. Stockton, the grantees took possession of all the land described in said deeds under claim of title and ownership by virtue of said deeds, made permanent improvements thereon, and they and their [204]grantees have *had and held open, undisturbed, and adverse possession of all of said lands, claiming title thereto, paid all taxes, cleared the land of timber, and cultivated the same as tenants.

In the years 1891 and 1892 there was a kind of occupancy of part of the land by persons claiming under the plaintiffs, but that does not seem to have been treated as material.

Carey Rodgers thus became possessed of two tracts of land, one of 64 acres as the heir at law of his grandmother Margaret C. Cherloe, and the other of 57 acres as a personal allotment to himself. As plaintiffs state that a settlement of the case has been made so far as relates to the Cherloe tract, we shall dismiss that tract from our opinion. The deed of Carey Rodgers's own allotment of November 15, 1864, was clearly void, since as to this contract, at least, he was incompetent, and took under a patent which provided that the land should never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior. If the case stood upon de fendants' rights under this deed alone, there could be no doubt whatever that Rodgers's heirs were entitled to the land.

But on February 23, 1867, another treaty was concluded (proclaimed October 14, 1868) with several tribes of Indians, among which were "certain Wyandottes" (15 Stat. at L. 513), the 15th article of which was as follows:

2. It provides that no sales of lands theretofore assigned to incompetents shall be made under any legal proceedings, or for taxes, until voluntarily sold by the patentee or his heirs, with the approval of the Secretary of the Interior.

3. That as to lands theretofore sold by incompetents in violation of the treaty of 1855 a thorough examination and report shall be made under the directions of the Secretary of the Interior, in order to ascertain the facts relating to such cases; and upon examination of such report and a hearing of the parties the Secretary may confirm such sales, require an additional amount to be paid, or declare the sales void.

No action was ever taken under the 3d clause to procure a confirmation by the Secretary of the Interior of the deed by Rodgers of November 15, 1864, so that, at the time the treaty of 1868 was ratified, the possession of the lands was in the defendants or their grantors holding adversely to the heirs of Rodgers, but the title still remained in such heirs by reason of the fact that his deed to Cooper and Stockton was void, and no proceeding had been taken under the 3d clause of article XV. to confirm or validate it. But although the treaty of 1855 and the patent to Rodgers had expressly provided that there should be no alienation by the grantee or his heirs, the treaty of 1868, which took effect after his death, removed all restrictions upon alienations which should thereafter be made, either by the incompetent grantee Rodgers or his heirs, who thereafter held an alienable title, and were bound to assert such title within the time specified by the statute of limitations, although no title could be gained by adverse possession so long as the land continued to be inalienable by Rodgers and his heirs. McGannon v. Straight lege, 32 Kan. 524, 4 Pac. 1042; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901.

"Art. 15. All restrictions upon the sale of lands assigned and patented to 'incompetent Wyandottes under the fourth article of the treaty of one thousand eight hundred and fifty-five 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 *Their disability terminated with the[296] any court, or otherwise, for or on account ratification of the treaty of 1868. The of any claim, judgment, execution, or order, heirs might then have executed a valid deed or for taxes, until voluntarily sold by the of the land, and possessing, as they did, an patentee or his or her heirs, with the ap-unencumbered title in fee simple, they were proval 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 one thousand eight hundred and fifty-five, it is agreed that a thorough examination and report shall be made under direction of the Secretary of the Interior, in order to [295] 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

chargeable with the same diligence in beginning an action for their recovery as other persons having title to lands; in other words, they were bound to assert their claims within the period limited by law. This they did not do under any view of the statute (whether the limitation be three or fifteen years), since it began to run at the date of the treaty, 1868, and the action was not brought until 1894, a period of over twenty years.

Plaintiffs, however, seek to avoid the effect of the statute by insisting, first, that

certain land ceded by the Senecas, in order to provide for these Indians, and would make a register of all who declared their desire to be and remain Indians in a tribal condition, who should thereafter constitute the tribe.

It is sufficient to say of this that it could not apply to Carey Rodgers personally, since he died before the treaty was ratified; and there is no evidence that his heirs ever

to become again members of the incompetent class. As article XV. removed all restrictions upon the sale of lands by incompetents if the heirs of Carey Rodgers took the position that the article did not apply to them, they assumed the burden of proving that fact.

statutes of limitations do not run against | States would set apart for the Wyandottes Indians; second, that defendants were not in possession under color of title, and therefore the statute is not available to them; third, that no title by limitation could be acquired as against the right of the Secretary of the Interior to investigate and declare the conveyance in question to be void, and hence the statute would not begin to run until after such action by the Secretary. 1. Conceding, but without deciding, that so long as Indians maintain their tribal re-elected to resume their tribal relations and lations they are not chargeable with laches or failure to assert their claims within the time prescribed by statutes, as to which see Felix v. Patrick, 145 U. S. 317, 330, 36 L. ed. 719, 725, 12 Sup. Ct. Rep. 862, 36 Fed. 457, 461; Swartzel v. Rogers, 3 Kan. 374; Blue-Jacket v. Johnson County, 3 Kan. 299; Wiley v. Keokuk, 6 Kan. 94; Ingraham v. Ward, 56 Kan. 550, 44 Pac. 14, they would lose this immunity when their relations with their tribe were dissolved by accepting allotments of lands in severalty. Now, the very first article of the treaty of 1855 provides: "Art. 1. The Wyandotte Indians having become sufficiently advanced in civilization, and being desirous of becoming citizens, it is hereby agreed and stipulated that their organization and their relations with the United States, as an Indian tribe, shall be dissolved and terminated on the ratification of this agreement; except so far as the further and temporary continuance of the same may be necessary in the execution of some of the stipulations herein; and from and after the date of such ratification, the [297] said *Wyandotte Indians, and each and every of them, except as hereinafter provided, shall be deemed and are hereby declared to be citizens of the United States, to all intents and purposes; and shall be entitled to all the rights, privileges, and immunities of such citizens; and shall in all respects be subject to the laws of the United States and of the territory of Kansas, in the same manner as other citizens of said territory; and the jurisdiction of the United States and of said territory shall be extended over the Wyandotte country in the same manner as over other parts of said territory." There was an immaterial exception not necessary to be noticed here.

2. Plaintiffs' assertion that defendants were not in possession *under color of title is [29 untenable. They had taken possession under a deed executed by Rodgers November 14, 1864, which was valid upon its face, made by one having title to the land, and in which the grantor covenanted that he was seised in fee simple, had good right to sell the same; that it was free from encumbrance, and that he would warrant and defend the title unto the grantees against the claims of all persons. The court finds that the defendants and their grantors acted in good faith in making the purchase of said lands and in taking this deed, by which we understand that they paid a valuable consideration, and had no actual notice of any defect in the title of their grantor. It is true that if the grantees had examined the Rodgers patent they would have discovered the restraint upon his alienation of the land, but it is too much to say that a deed valid upon its face, and taken in good faith for a valuable consideration, without actual notice of the facts, does not give color of title. Color of title was defined by this court in Wright v. Mattison, 18 How. 50, 56, 15 L. ed. 280, 283, “to be that which in appearance is title, but which in reality is no title." Said Mr. Justice Daniel: "The courts have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been whether there was an apparent or colorable title, under which an entry or a claim has been made in good faith." See also Beaver v. Taylor, 1 Wall. 637, 17 L. ed. 601; Cameron v. United States, 148 U. S. 301, 307, 37 L. ed. 459, 461, 13 Sup. Ct. Rep. 595. There was no evidence in this case, except from the patent, that the grantees even knew that Rod

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It seems, however, that this provision did not prove entirely satisfactory to some of the Indians, who regretted their emancipation and the loss of the protection of the government; and in the treaty of 1868 there was incorporated in the preamble a recital that "a portion of the Wyandottes, parties to the treaty of 1855, although taking lands in severalty, have sold said lands, and are still poor, and have not been com-gers was an Indian, as was the case in pelled to become citizens, but have remained without clearly recognized organization, while others who did become citizens are unfitted for the responsibilities of citizenship; have just claims against the government, which will enable the portion of their people herein referred to to begin anew a tribal existence;" therefore it was agreed by article thirteen that the United


Taylor v. Brown, 5 Dak. 344, 40 N. W. 525, much less that he belonged to the incompetent class; and they apparently received the deed, as many people do, without a careful examination of the grantor's title. In Kansas possession without paper title seems to be sufficient. Gilmore v. Norton, 10 Kan. 491; Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056.

The cases cited by the plaintiffs in support of their proposition that the deed from Rodgers did not constitute color of title are those wherein there was an element of fraud, or want of good faith, which are expressly [299] negatived by the finding of *the court in this case. Livingston v. Peru Iron Co. 9 Wend. 511.

3. That no title could be acquired against the right of the Secretary to declare the deed void, and hence the statute would not begin to run until after such action by the Secretary of the Interior. The case of Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 530, is relied upon to sustain this proposition. In that case it was held that the occupation of lands derived from the

tution of the United States because Ind. Rev. Stat. § $560, under which omitted property belonging to the estate was added to the tax duplicate by the county auditor, contains no provision for notice to any person not a resident of the county in which such omitted property is proposed to be assessed, where he not only had an opportunity to appear and set up any defense that he had, but actually did appear, and, after his demurrers and motion to dismiss had been overruled, answered and was fully heard in the trial court, and his objections to the findings and rulings of that court have been heard and considered by the supreme court of the state.

[No. 100.]

United States under a new Madrid certifi- Argued October 31, November 1, 1901. De

cate, before the issue of a patent, for the period prescribed by the state statute of limitations, was not a bar to an action in

cided January 6, 1902.

IN ERROR to the Circuit Court of Marion

County, State of Indiana, to review a

judgment in favor of the county treasurer in proceedings to assess omitted property for taxation, entered in pursuance of a final judgment of the Supreme Court of Indiana. Affirmed.

Statement by Mr. Justice Shiras:

ejectment for the possession of such lands, founded upon the legal title subsequently conveyed by the patent; nor did such occupation constitute a sufficient equity in favor of the occupant to control the legal title thus subsequently conveyed. Obviously this case has no application to the one under consideration. Here the United States had issued a patent to Rodgers "and to his heirs This is a writ of error to a judgment of and assigns forever," subject to a condition, the circuit court of Marion county, state of not that the title should ever revert to the Indiana, entered in pursuance of a final United States, but that he should not alien-judgment of the supreme court of that state, ate the lands without the consent of the Secretary of the Interior. The government chus passed all its title to the land in fee simple, and a violation of the condition of the patent would not redound to the benefit of the United States, or enable it to repossess the lands, but was simply intended to protect the grantee himself against his own improvident acts, and to declare that "William P. Gallup, having for thirtythe title should remain in him, notwith-one years been a resident therein, died, tesstanding any alienation that he might make. tate, in the city of Indianapolis, Marion We have considered all the points taken county, in December, 1893, the owner and in by the plaintiffs, and are of the opinion possession of a large personal estate in said that they are not sustained; that the judg-county. His will was duly admitted to proment of the Supreme Court of Kansas was right, and it is therefore affirmed.

Mr. Justice White and Mr. Justice Kenna dissented.


[300]*EDWARD P. GALLUP, Executor of William P. Gallup, Deceased, Plff. in Err., WILLIAM H. SCHMIDT, Treasurer of Marion County, Indiana.

in a case wherein Edward P. Gallup, execu-
tor of William P. Gallup, deceased, was
plaintiff in error, and William H. Schmidt,
treasurer of said Marion county, was defend
ant in error.

The main facts in the case were thus stat

ed in the opinion of the supreme court (154
Ind. 196, 56 N. E. 443):


bate in the Marion circuit court, and Edward P. Gallup, a resident of the state of New Hampshire, the principal and residuary Mo-legatee, was qualified as executor in January, 1894, and March 5, 1894, filed an inventory showing a personal estate of $492,628.26. Subsequently, in the spring of 1894, said *executor listed to the assessor for taxa-[301] tion for the year 1894 personal property of the estate aggregating $383,906.46. January 15, 1895, Taggart, then auditor of Marion county, discovered, on what he believed to be credible information, that a amount of personal property belonging to and in possession of said decedent had not been listed for taxation for the years 1881 to 1893 both inclusive; and upon that day, acting under § 8560, Burns's Rev. Stat. 1894, caused to be served by the sheriff upon Edward P. Gallup, as executor, who was at the time in Indianapolis, engaged in the settlement of said estate, notice in writing NOTE. As to what constitutes due process of | 359, and note; Ulman v. Baltimore (Md.) 11 law-see Kuntz v. Sumption (Ind.) 2 L. R. A. L. R. A. 224, and note; Gilman v. Tucker (N. 655 and note; Re Gannon (R. I.) 5 L. R. A. Y.) 13 L. R. A. 304, and note.

(See 8. C. Reporter's ed. 300-307.) Constitutional law-assessment for taxation of omitted property-notice to nonresident.

▲ nonresident executor is not denied any rights or privileges secured to him by the Consti

And see notes

"More than two years afterwards, to wit, December 18, 1897, the court overruled appellant's [the executor's] motion to dismiss; and on June 18, 1898, appellant [the execu tor] filed his answer in eight paragraphs. A demurrer to each, the third, fourth, fifth,

of his intention to add such omitted prop-claim to the court at the January term. erty to the tax duplicate, and requiring such 1895. executor to appear before him within five days to show cause, if any, why such property should not be so added. The notice specified the property to be added as county, township, town, and other bonds, notes, mortgages, claims, dues, demands, and other credits, money on hand and on deposit. "January 19, 1895, the executor appeared before the auditor, and filed written objections to the authority of the auditor to proceed further, which were overruled. The executor then filed an answer to the notice, and on the 21st day of January, 1895, the auditor issued a subpoena for the executor, requiring him to appear forthwith before him, and to bring with him all notes, mortgages, and bonds in his possession, as such executor, to testify in said proceeding. The executor appeared on the 24th day of January, 1895, and filed further objections to the jurisdiction of the auditor, which were overruled; and thereupon he was examined under oath.

"Upon consideration of the evidence the auditor found that William P. Gallup, in addition to the property returned by him for taxation, was the owner and in possession of other taxable personal property not listed and not taxed during the several years from 1881 to 1893 specifically stated for each year, and January 25, 1895, placed the same upon the tax duplicates, and computed and extended taxes thereon for the whole of said period, including statutory penalties and interest, the sum of $61,233.59. After the same was placed upon the dup cate in the treasurer's hands he made de[302]mand upon the executor to pay said additional taxes, but he refused to pay all or any part thereof.

"The executor on the 4th day of January,

1895, filed in the circuit court his final set-
tlement report, and gave notice that the
same would be finally heard on the 26th
day of January, 1895; and upon the day set
for the hearing of the report, the same be-
ing the next day after the additional assess-
ments had been placed upon his duplicate,
Holt, as treasurer of Marion county, filed
in said court, under § 8587, Burns's Rev.
Stat. 1894, in the term thereof that was
then running, his petition for an order up-
on the executor to show cause why he should
not pay the taxes assessed by the auditor.
The order was granted, and on February 9,
1895, the executor appeared and filed his
motion to dismiss the said proceedings for
the reason that the court had no jurisdic-
tion to proceed to hear the cause, for the
reason that the county treasurer was not
authorized, under the law, to present said

to Feople v. O'Brien (N. Y.) 2 L. R. A. 258;
Pearson v. Yewdall, 24 L. ed. U. S. 436, and
Wilson 7. North Carolina ex rel. Caldwell, 42
L. ed. U. S. 865.

On notice and hearing required to constitute
due process of law-see notes to Kuntz v.
Sumption (Ind.) 2 L. R. A. 657; Chauvin v.
Valiton (Mont.) 3 L. R. A. 194, and Ulman v.
Baltimore (Md.) 11 L. R. A. 225.

and sixth was sustained. A trial was had before the court upon the issues joined upon the petition, answers of general denial, payment and set-off, and, upon a special finding of facts and conclusions of law favorable to appellee [the treasurer] judgment was rendered against appellant [the executor] that he pay to appellee [the treasurer] on account of said omitted taxes the sum of $46,996.69."

Appeals were taken by both parties from the decree of the circuit court of Marion county to the supreme court of the state. That court was of opinion that the executor, as appellant, was not entitled to a reversal, but that, for error of the circuit court in allowing the executor a certain credit of $5,750 upon the amount recovered, the judg ment must be reversed with instructions to restate conclusions of law in accordance with the opinion of the supreme court, and render judgment thereon in favor of the treasurer for the sum of $52,746.69, with interest from October 31, 1898; and final judgment for said amount was accordingly so entered by the circuit court of *Marion [303] county, to which judgment a writ of error was allowed, and the cause brought to this court.

Messrs. W. H. H. Miller and Wayne Messrs. John B. Elam, James W. Fesler, MacVeagh argued the cause, and, with plaintiff in error: and Samuel D. Miller, filed a brief for

The statute is in conflict with the 14th

Amendment to the Constitution, because it provides for a change in the assessment of Property as made under the general law, without providing any notice to the property owner.

This statute provides for no such notice. Buck v. Miller, 147 Ind. 597, 37 L. R. A. 384, 45 N. E. 647, 47 N. E. 8.

The manner of assessment must be prescribed by the statute.

State Tax Comrs. v. Holliday, 150 Ind. 216, 42 L. R. A. 826, 49 N. E. 14; Sears v. Boston Street Comrs. 173 Mass. 350, 53 N. E. 876; Charles v. Marion, 98 Fed. 166; Cooley, Taxn. 244.

The notice must be prescribed by law, and notice not prescribed by law is no notice.

Kuntz v. Sumption, 117 Ind. 1, 2 L. R. A. 655, 19 N. E. 474; Stuart v. Palmer, 74

As to the validity of class legislation-see State v. Goodwill (W. Va.) 6 L. R. A. 621, and note, and State v. Loomis (Mo.) 21 L. R. A. 789, and note.

As to constitutional equality of privileges, immunities, and protection-see Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. (Ky.) 14 L. R. A. 579, and note.

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