Mar. 1901.] Opinion of the Court-MOUNT, J. person in possession may maintain the action for the purpose of quieting his own or his adversary's claim thereto so as to avoid any uncertainty in his holding. It is said, in McDonald v. Early, 15 Neb. 63, where the action arose under a lease of school lands from the state: "A leasehold estate, running for twenty-five years in a valuable piece of property, may be of vastly greater value than a fee simple title to another piece. Besides, as we have already seen, the remedy at common law is not confined to real property at all and the statute is an enlarging rather than a restricting one. A vast amount of valuable lands belonging to one of the most sacred trust funds of the state, is now held by citizens under leases like the one copied in the petition in the case at bar. The method of obtaining these leases, as well as the payments and other duties necessary to keep them alive, are quite complicated. It is, therefore, not improbable that many cases of conflicting claims under such leases may arise, involving important property rights. Of such character is probably the case at bar. No doubt, while the facts are of comparatively recent occurrence, all such conflicting claims may be settled upon terms of justice and equity, but which might be impossible after the lapse of considerable time; and to such purpose I regard the remedy by petition in the nature of a bill quia timet, as quite appropriate." See, also, Smith v. Wingard, 3 Wash. T. 291 (13 Pac. 717); Holland v. Challen, 110 U. S. 15 (3 Sup. Ct. 495); Reynolds v. Crawfordsville Bank, 112 U. S. 405 (5 Sup. Ct. 213); Watson v. Glover, 21 Wash. 677 (59 Pac. 516). The complaint in this case states a cause of action. 3. By article six of the treaty above set out it is provided that the president may, at his discretion, cause the lands reserved to be surveyed, and assigned to such family or families as are willing to avail of the privilege, and locate on the same as a permanent home; and Opinion of the Court-MOUNT, J. [24 Wash. he may prescribe such rules and regulations as will insure to the family in case of the death of the head thereof the possession and enjoyment of such permanent home and the improvements thereon. The patent in this case was issued to George Bird as the head of a family consisting of himself and Mary Bird, and to his heirs. It is argued by respondents that, since the treaty authorizes the president to issue a patent to such family, when patent issued to the head of the family, Mary Bird, his wife, took an equal interest with George Bird. It will be observed that, while patent issued, no title which could be alienated, except by a lease for two years, vested in the patentee. The patent gave the patentee the right of possession while the family occupied and tilled a portion of the lands, but under the patent and the treaty there was no power to sell. Eells v. Ross, 64 Fed. 417. Provision is also made that, when the family neglect to occupy and till a portion of the land, the president may cancel such assignment, and in default of their return the tract may be declared abandoned, and thereafter assigned to some other person or family of such tribe. So that it is clear that the grantees under the patent obtained only the possession and right of occupancy of the lands described. There was simply a defeasible title conveyed, and that is the condition of the estate at the present time. When Mary Bird died, no greater estate was created thereby, and the only remaining member of the family might at any time forfeit all right to possession by failure to occupy and till a portion of the lands, or by roving from place to place. Admitting, therefore, that Mary Bird took an equal interest with George Bird at the date of the patent, she took only the right to occupy and till the premises while the family lived upon them. In any event, at her death she left no greater interest than the Mar. 1901.] Opinion of the Court-MoUNT, J. right of her heirs to occupy and till the premises. These heirs, not being members of the family, took no other interest in the estate. The section above quoted also provides that the president may prescribe such rules and regulations as will insure to the family, in case of the death of the head thereof, the possession and enjoyment of such permanent homes and improvements thereon. The possessory title being in the head of the family, no provision was necessary in case of the death of other members of the family. But, in case the head of the family should die, then, under the above provision, some rule may be prescribed which would insure the possession and enjoyment of such permanent home and the improvements thereon to the family. Can it be said that upon the death of a member of the family the head lost his right of possession to the interest of the deceased? If so, then upon the death of Mary one-half of the land reverted to the United States, or descended to her heirs, who were not members of the family, and who could share her interest to the exclusion of the surviving head. We think no such construction was intended. It is more reasonable to suppose that the right of possession to the whole was to continue until such time as the state and congress, acting agreeably, should convey an absolute indefeasible estate to the survivors in interest by removing the restrictions, and that during the time the government reserved the fee absolute in itself, while the family were entitled to till and occupy the premises as a permanent home, the death of either member thereof would not change the right of occupancy, or the right to enjoy the improvements thereon, but that the remaining members of the family would continue to hold and enjoy the uses and privileges for which the land was assigned by the government, viz., for the benefit of the family. Opinion of the Court-MOUNT, J. [24 Wash. We conclude, therefore, that upon the death of Mary Bird, George Bird was entitled to the right of possession and occupancy of the premises as long as he chose to occupy them as a permanent home, and that his right of occupancy and possession could not be disturbed by the heirs of Mary Bird, after her death. Under this view, and upon this construction of the treaty hereinabove referred to, Mary Bird at the time of her death, had no interest in the land in question which could descend to her heirs by a former husband. We might content ourselves with this construction of the treaty, and say nothing more upon this question, but, in our opinion, the question may be answered in the same way for other reasons. In the case of Summers v. Spybuck, 1 Kan. 370, the supreme court of Kansas had under consideration a case similar to the one at bar under a very similar treaty between the United States and the tribe of Wyandotte Indians. In stating the question then to be decided the court say: "The only question raised by the argument is, whether the competent head of a family, under that treaty, can take the title in fee simple absolute to the land allotted, assigned and patented to him according to the terms of the patent, or whether his wife and minor children, constituting his family at the time the treaty was ratified, by force of the treaty take the beneficial interest in aliquot portions, and the head of the family holds it in trust for them. The patent, conveying the land in fee simple absolute, excludes the idea of a trust, and therefore, if such trust exists, it must result from the language of the treaty, and the failure of the officers of the United States to conform to it in making the conveyance. The patent pursues the language of the treaty as to the estate granted, and the sole question remains: Was the conveyance of the land for the family in conformity with the treaty?" After considering the treaty, the court come to this conclusion: Mar. 1901.] Opinion of the Court-MOUNT, J. "The true construction of the treaty, we think, is that lands are taken, assigned and patented to the heads of families for or on account of the other members of the family.' Such use of the word 'for' is legitimate; and, considering the practice of the government, established by law in the year 1847 and continued ever since, of making all Indian payments for the whole family to its head, it is probable that both parties to the treaty so used and understood it. Such construction renders the whole treaty harmonious, and consistent with the action of the officers of the government in conveying all the land for the family to John Pipe, its head." This case is cited and followed by United States Circuit Court Judge DILLON, in Hicks v. Butrick, 12 Fed. Cas. No. 6458, in an action arising under the same treaty. In these cases the patentees took an indefeasible estate, and could, therefore, alienate the same. Under these authorities, even although an absolute indefeasible estate had vested in the patentee in this case, upon the death of Mary Bird the property descended to George Bird and his heirs. The case at bar is different from those cases, however, in this: that George Bird and Mary Bird took nothing except the right of possession and occupancy. We are, therefore, of the opinion that the state courts. have jurisdiction, that the complaint stated a cause of action, and that the answer of the defendant constituted no defense thereto. The cause is reversed, with instructions to the lower court to vacate the order of dismissal, and sustain the demurrer of plaintiff to the answer, in accordance with this opinion. REAVIS, C. J., and DUNBAR, FULLERTON and ANDERS, JJ., concur. |