United States ex rel. Zane v. Zane

Townsend, J. This action was commenced at law by the appellant, but subsequently she amended her complaint, and upon allegations of insolvency asked for the appointment of a receiver, for an injunction, and other equitable relief, and thereupon the case was transferred to the equity side of the docket, and proceeded to final judgment. To reverse the final judgment of the court below, appellant has appealed to this court, the only question in the case being as to the ownership of the land described in the complaint. Appellant claims as the heir of Eli Zane, deceased, who died without issue, but who made a will, under and by virtue of which the appellee Tabitha Zane claims a part of the land in [191] controversy, and the issue is narrowed down to the question whether|Eli Zane could dispose of this land, or any part of it, by a will.’f|If he could not, then there is no serious contention but what appellant should recover, and the judgment of the court below should be reversed. If he could make a will of this land,|_the judgment of the court below should be affirmed. It appears from the complaint that the said Eli Zane was a Wyandotte] Indian, and that he held said land under a patent as follows: “Copy of Patent. The. United • States of America,f to all to whom these presents shall come, greeting: Whereas,' there has been deposited in the general land office of the United States a schedule of allotments of land, dated January 11th, 1892, from the acting commissioner of Indian affairs, approved by the secretary of the interior January the 14th, 1892, whereby it appears that under the provisions of the act of congress approved February 8th, 1887 (24 Stat. 388), Eli Zane, an Indian of the Wyandotte tribe or band, has been allotted the following described land, viz.: “The east half of the northeast quarter of section twenty, township twenty-seven north, of range twenty-four east, and the north half of the northeast quarter of section twenty-two, township twenty-seven north, of range twenty-four east, Indian meridian, Indian Territory, containing in all one hundred and sixty acres: Now, know ye, that the United States of America, in consideration of the premises, and in accordance with the provisions of the fifth section of said act of congress of the 8th of February, 1887, hereby declares that it does and will hold the land thus allotted (subject to all the restrictions and conditions contained in said fifth section) for the period-of twenty-five years, in trust for the sole use and benefit.of the said .Eli Zane, or, in case of his decease, for the sole use of his heirs, according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his' [192] heirs, as aforesaid, in fee, discharged of said trust, and free of 'all charge or incumbrance whatsoever: provided, that the president of the United States may, in his discretion, extend the said period.’ In testimony whereof, I, Benjamin Harrison, president of the United States of America, have caused these letters to be made patent, and the seal of the general land office to be hereunto affixed. Given under my 'hand, at the city of Washington, this nineteenth day of April, in the year of our Lord, one thousand eight hundred and ninety-two, and of the independence of the United States the one hundred and sixteenth. By the President. (Sgd.) Benjamin Harrison, by M. McKean, Secretary. D. P. Roberts, Recorder of the General Land Office. (Seal of United States General Land Office.)” Said patent was issued under the provisions of Section 5 of the act of congress approved February 8, 1887, entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes.” Said section 5 is in part as follows: “Sec. 5. That upon the approval of the allotments provided for in this act by the secretary of the interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: provided, that the president of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as [193] herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or' contract shall be absolutely null and void: provided, that the law of descent and partition in force in the state or territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided; and the laws of the state of Kansas regulating the descent and partition of real estate shall, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act.” Section 5, Supp. Rev. St. U. S. p. 535. It thus appears that under said patent and act of congress the title was in the United States, and that the government of the United States was holding said land for said Zane, or, in ease of his death, for his heirs. It does not appear that the government was holding the same for the devisees of said Zane, and we are of the opinion that Zane was powerless to devise the same. The act expressly makes any conveyance or contract by him absolutely void, and upon his death the government, under the act, became the trustee for his heirs, the same as it had been trustee for him in his lifetime. The government, under the act, was to hold said land as trustee for Zane or his heirs for 25 years, and then to issue patent in fee. The only title that Zane had was one of occupancy. That congress has power to place restrictions and limitations on the conveyance and disposition of lands belonging to the Indians has frequently been decided. See Libby vs Clark, 118 U. S. 250, 6, Sup. Ct. 1045, 30 L. Ed. 133; Stevens vs Smith, 2 Kan. 247; Baldwin vs Letson (Kan.) 49 Pac. 619. The statute of descents and partitions of the state of Kansas, which, by the said act of congress of February 8, 1887, is put in force by the following provision of said act, viz: “And the laws of the state of Kansas regulating the descent and partition of real estate shall, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act,” — is as follows: “If [194] the intestate have no issue, the whole of his estate shall go to his wife, and if he have no wife, nor issue, the whole of his estate shall go to his parents.” Comp. Laws Kan. 1879, p.' 380. There is no dispute that appellant is the widow and heir of Eli Zane, deceased, he leaving no issue, and the act of congress precludes, in our judgment, any one but the heir having the land; and therefore, without discussing the views presented by appellees, we are of the opinion that the case should be reversed, and remanded for further proceedings. Reversed and remanded.