Edde v. Pash-pah-o , 5 Kan. App. 115 ( 1897 )

binds personalty

Wells, J.

We have examined the evidence tending to prove the customs of the Kickapoo Tribe of Indians, and it appears too vague and uncertain to furnish a title to real estate. It is claimed by the defendants in error that the rights of the plaintiff were determined by the decision of the Probate Court of Brown County, made in the final settlement of the personal estate of said Q,ua-is. The contention is, that the Probate Court decided that Pash-pah-o was the sole heir at law of Qua-is, and that, having so decided, its decision was, as to that matter, res adjudicata. The Probate Court record, offered in evidence, does not show that any such question was determined by the Probate Court nor presented for its determination. It simply shows that the administrator presented a receipt pretending to be signed by the guardian of the sole heir at law of the decedent, and that thereupon it was ordered that the administration be closed. But had the record shown that the facts as assumed were determined by the Probate Court, that determination would not have been binding as to realty.

“A judgment against the administrator binds the estate under administration, but it does not bind the heir at law of the real estate, because the real estate constitutes no part of the assets under administration.” Nichols v. Day, 32 N. H. 133; 64 Am. Dec. 360.

See also American and English Encyclopedia of Law, vol. 21, p. 144; Black on Judgments, vol. 2, § 560.

The second section of the Act of Congress of 1886, chapter 897; (U. S. Stat. at Large, vol. 24, p. 219,) under which plaintiff in error claims, reads :

1. Descent of lackhunis^governed by Kansas laws.

“That where allottees under the aforesaid treaty shall have died, or shall hereafter decease, leaving heirs surviving them, and without having obtained patents for lands allotted ^ them in accordance with the provisions of said treaty, 'the Secretary of the Interior shall cause patents in fee simple to issue for the lands so allotted, in the names of the.original allottees, and such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United States and of the State of Kansas ; and it shall be competent for the proper courts to take charge of the settlement of their estates, under all the forms and in accordance with the laws of the State of Kansas, as in the case of other citizens deceased; and where there are children of allottees left orphans, 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 bonds, to be approved by the said court, for the proper care of the person and property of such orphans, as provided by law.”

Under this section, so far as the settlement of her estate and the distribution of her property, real and personal, is concerned, the deceased allottee is to be considered a citizen of the United States, and of the State of Kansas ; and distribution is to be made accordingly.

2 congress can prescribe descent of Indian lands.

In the brief of the defendants in error, the question is asked : “Could Congress enact a law, without the consent of the Kickapoo Tribe, prescribing descents and distributions of real estate?>> We think undoubtedly it could. Unless some constitutional prohibition exists, the United States can certainly control the title to property within its own limits. This is one of the incidents of sovereignty, and our attention has been called to no authority disputing the power. As bearing on this question somewhat, see Logan v. Comm’rs of Clark Co., 51 Kan. 747.

3. joinder of causes of action.

Complaint is also made by the plaintiff in error that the court erred in sustaining the demurrer of the guardian to the fourth cause of action of ,^g pet^on> We think this complaint is well founded. Under our law an action for partition of real estate and for the recovery of the rents and profits thereof can be properly joined. Scarborough v. Smith, 18 Kan. 405 ; Scantlin v. Allison, 32 id. 376, and Black v. Drake, 28 id. 483.

The judgment of the court below will be reversed and a new trial of the issues herein is ordered.