and mortgage held by complainant. The facts :of the case bring it fairly within the rules stated by the supreme court in !3raruJtm's Ex'r v. Chappell, 12 Wall. 681. . The defense of payment being sustained by the facts, it . follows that complainant's bill must be dismissed on the merits, and that defendants recover the costs of this proceeding; Decree accordingly·
(Gircuit Gaurt, D. Kan8a8. December 26,1888.)
INDIANS-RIGHTS OF HEIRS-CONVEYANCE 011' LUID BBFORB PATENT--ESTOPPEL. " '
Act Congo Aug. 4, 1886, 2, (24 St. at Large, 219,) provides that on the death of an allottee of land under the treaty of June 28,1862, with tbe Kickapoo Indians, leaving beirs, and without having obtained patents, the secretary of the interior shall cause patents in fee-simple· to issue in the name ,of the orig, inal allottee, and that such original allottee shall be regarded as a citizen. of the United $t8tes and ofthe state of Kansas; the land to become apart ofbis , estate, to be administere!i or descend to his heirs, etc. Reld, that the United States holds 'the legal title in fee-simple in trust for the heirs of the allottee.; and the latter are estopped by ·their warranty deed conveying the land be· fore obtaining a patent frpm title against the grantee.
tn Equity. . , Bill by Lewis M.Briggs and others against Wash-puk-qua and to quiet ,titre to certain Jands conveyed to com;plliinants by defendants. Jackson &: Royse, for complainants. . Waters, Chase &: Tillotson, for defendants.
FOSTER, This is a bill, to,quiet title to the following real estate: The N. W. t of section 9, township 5, of range 17, and the S. E. t of the N. :E. t of section 8 of the same township and range, situated in Atchison county. The first-named tract was allotted to Wash-ka-ta-mosha-wa, a Kickapoo Indian, under and by virtue of the treaty with the Kickapoo Indians of June 28, 1862. 13 St. at Large, 623. The lastnamed tract was allotted to Ke-ve-nes, also a Kickapoo Indian, under the same treaty. The right of an allottee under that treaty to obtain a patent and to alienate his land depended upon his showing by proceedings in the federal court that he was competent to manage his own property, and had severed his tribal relations, adopted the habits of civilized life, and in fact should become a citizen of the United States. Both of these allottees died some time prior to without havingobmined ptttents to their lands,andwithout having taken any steps under the treaty of 1862 to procure the same. The defendant Wash-puk-qua was the wife of the first-named allottee, and the mother of the last-named, and was the only surviving heir. She afterwards married Wah-b, who is made cO-deferidant in this case. On August 28,1886, said Wash-pukqua, as·the heir of said allotteesjl1nd her husband and co-defenaant, con-
veyed to said above-described .land by warranty deed, for thl'l sum of $1,500, and the purchasers entered into possession, and made lasting and valuable improvements.on said land of th.e value of $1,000. At thEl date of said conveyance no patent for said lal).ds had been issued under the act of 1886. the second section' of said act of August 4, 1886, (24 St. 219,) it was made the duty of the secretary of the interior to issue patents when the allottee under the treaty of 1862 had died, or should thereafter die, leaving heirs, and without having received a patent for his land. Said f'ectiol1 reads as follows: "That where allottees under the aforesaid shall have died, or shall hereafter decease, leaving heirs surviving theIn, and without having obtained patents for lands allotted to them .in accordance with the provi!'ions of said treaty, the, secretary of 'the interior shall cause patents in fee-simple to issue f(}r lands so allotted, inthe names, of the original allottees, and allottees shaH be regarded, for the purpose of a careful and just settlem!'nt of their' e!ltates,. ,lM'l of the United States and of the state Of Kansas; and it shall be competent for the proP,ar c'ourts to take charge of the settlement of their estates, under all the forms and in accordance with the laws of state of Kansas;'a!4 tn the case of other citizens deceased; and where ther!' are children of allottees left orphl\ns, 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 bond, to be approvedl)y said court, for the proper care ot the p.erson and property of such orphans, as provided by law." The patents were issued in this case'some time later, and in January, 1888. The defendants now claim title to said land adverse to complainaQts, their deed to, complainants in .August, 1886, conveyed no title', and was void and of no effect, because, at that time no patent had been issued by the government, and until such patent had been issued they could convey np title. It will be seen that fhe whole controversy rests on the construction and effect to be given to the second of the of August 4, 1886., It seems evident that it was the purpose of t.hat act, on the death of the allottee havipg no patent for his l!J,nd, and lea'ving heir's, that the tItle should, without other conditions, perfected in ,the allottee and his ,heirs; and the lalld should become a part of his estate, to be administered or descend to the heirs, as the estate of any deceased citizen would under thE} laws of the state of Kansas. From and (lIter the said act of 1886 became a law, the government held legal title in trust, for the heirs of all such allottees then deceased. The right to patent was absolute and complete, and the duty of the secretary of the interior to issue the patent was imperative. Mr. Justice FIELD, in Stark v. Starr8, 6 Wall. 418, says: . "The right to a patent once vested is treated by the government, when dealing with the p\lblic lauds, as equi valent to a patent issued. When ill fact the patent does issue, it relates back to the inception ot tpe right of the patentee, so far a,s it may be necessary' to 'cut off intervening Claimants."
If the patent relates back to the inception of,the right to it to cut off' intervening claimants, with equal reason and justice it must relate back to; estop the patentee from asserting title against his grat;ltee under war.' ranty, deed made before. the patent actually issued, and after his right to.
BROYLES tI. BUCK.
it had become absolute. In Langdeau v. Hanes, 21 Wall. 530, the court uses the following language: "A legislative confirmation of a claim to land is a recognition of the validity of such claim, and operates as effectively as a grant or qUitclaim from the government. * * * If'the claim be to land with defined boundaries, or capable of identification, the legislative confirmation perfects the title to the partic,alar tract, and a subsequent patent is only documentary evidence of title." . The supreme court of Kansas has decided that a conveyance by the heir of a Pottawatomie Indian allottee, under a treaty similar to the Kickapoo treaty, and an act of congress for the settlement of their estates, August, 1868, was valid, although made before the patent was issued. And this decision war;; made on the act of 1868, whlch did not provide in terms, as does the act of 1886. that a plOl.tent should issue on the death of the allottee. Oliver v. Forbes, 17 Kan.124. lean see nothing in the language or purpose of the act of 1886 to warrant the construction clailued for it by counsel for defendants, that the heir takes the land with the same restrictions and limitations on the right of disposing of it as' existed against the allottee in his life-time. The 'patent is absolute and uncondHional,-a The whole title of the goverment paSses to the allottee, and heirs for all purpose's, and without restriction. Counsel forplaintifls bas called my attentiun to SeVeral other cases, both in tbe federal and state courts, sustaining the views berein expressed, but it is not necessary to cite further authority. 1'be plaintiffsure entitled to their decree.
BROYLES e( al. 'II. BUCK,
. (OirlJ'Uit Court, N. D. Georgia.
December 29, 1888.)
COSTS-IN FEDERAL COURT-ATTORNEY'S FEE FOR DEPOSITIONS.
Under section 824. Rev. St. U. S., the prevailinl:\" party is entitled to oollect for his attorney a fee of $2.50 for the deposition of each "taken and admitted in evidence, "to be taxed as costs, especially where the witnesses arc examined and answer separately. ' Such fees are allowed to the party as compeusation for his attorney's services in and about the depositions, and are to be taxed in addition to'tb.e fees of commissioners to take the testimony. . .
The attorney's costs, like those of the clerk and marshal, are to be collocted in the name of the prevailing party. . ";
Rule on Clerk to Tax Costs. Malcolm Johnston, for movants. Bacon & Rutherford and P. L. Mynatt, for railway company.
'Reported by Will Haight, Esq., of the Atlanta bar.