96 F. 268 | U.S. Circuit Court for the District of Washington | 1899
In the month of December, 1878, Quin-ne-mo-se, an Indian of the Coeur d’Alene tribe, tiled in the proper district land office of the United States his application for 160 acres of land situated in this state, then Washington Territory, and within what is now the Spokane land district, as a homestead, to which he was entitled under the provisions of an act of congress approved June 3, 1875 (1 Supp. Rev. St. U. S. [2d Ed.] p. 78), which authorizes Indians bom in the United States, and who abandon their tribal relations, to take up public land pursuant to the homestead law of 1862. In February, 1884, said Indian made his final proof, and received a patent certificate, and in June, 1888, a patent was issued to him similar in form to other homestead patents, except that, following the habendum clause, there is inserted a conditional clause as follows:
“This patent is issued upon the express condition that the title hereby conveyed shall not he subject to alienation or incumbrance, either by voluntary conveyance or by judgment, decree, or order of any court, or subject to taxation of any character, but shall remain inalienable, and not subject to taxation for the period of twenty years from the date hereof, as provided by act of congress approved January 18, 1881.”
The act of January 18, 1881 (21 Stat. 315), is a special act, which, by its title, and by specific provisions in the body thereof, is so limited as to affect only transactions with and rights of the Winnebago Indians of Wisconsin. The fifth section of the act is as follows:
“Sec. 5. That the titles acquired by said Winnebagoes of Wisconsin in and to the lands heretofore and hereafter entered by them under the provisions of said act of March third, eighteen hundred and seventy-five, shall not he subject to alienation or incumbrance, either by voluntary conveyance or by the judgment, decree, or order of any court, or subject to taxation of any character, but shall be and remain inalienable and not subject to taxation for the period of twenty years from the date of the patent issued therefor. And this section shall be inserted in each and every patent issued under the provisions of said act or of this act.”
It is only by giving to the last sentence of this section a strictly literal construction that any color of authority can be shown for con
The bill of complaint is styled a “bill to quiet title to lands,” but it would be contrary to all rules of equity practice to render a decree in this case for that form of relief, for the simple reason that the bill shows affirmatively (hat the defendants are in possession of the land. Ho reason is assigned for demanding equitable relief except that the deed given by Quin-ne-mo-se to Mr. Saunders, and the claims to the land now being asserted by the defendants, constitute a cloud upon (he title of the United (States. The case must have been commenced upon the theory that by obtaining a deed from an Indian Mr. (Saunders acquired all his grantor’s rights, and that said rights have been forfeited to the government by reason of the unlawfulness of the transaction, or else upon the theory that no confiscation of property is ashed for, because tbe deed is absolutely void, and no property is conveyed (hereby. Take either horn of the dilemma, and the result is tiie same, for there is no ground for an appeal to a court of equity. In the first place, the forfeiture of an estate is a penalty, which must be prescribed by law, or it will be not adjudged; and my attention has not been directed to any statute declaring a forfeiture for such causes as are in Oils bill set forth. In the second place, if the deed is void, it cannot cloud the title of the owner, nor justify the expense and bother of a suit. The ease might very well have been disposed of by refusing the relief for which there is a specific prayer on the ground that a court of equity wall not grant a decree quieting the title to real estate in favor of a party who lacks the first essential to that form of relief, viz. possession of the property, but upon the idea that possibly, under the general prayer, the government might he entitled to have the deed surrendered for cancellation, in order to prevent the fraudulent use of if, I have given consideration to the arguments of counsel upon the main question as to the validity of the deed given by Quin-ne-mo-se to Mi*. Saunders, with the result already indicated; that is to say, I have reached.the conclusion that said deed is a valid and effective instrument conveying the title to said Indian’s homestead. Demurrer sustained.