Edde v. Pash-Pah-O

• Decision Date: 30 April 1897
• Docket Number: 196
• Parties: JASPER EDDE v. PASH-PAH-O, a Minor, JAMES BARTHOLOMEW, as Guardian of Pash-pah-o, A. F. MARTIN, Guardian ad litem of Pash-pah-o, AND F. M. WILSON
• Court: Kansas Court of Appeals

48 P. 884

5 Kan.App. 115

JASPER EDDE v. PASH-PAH-O, a Minor, JAMES BARTHOLOMEW, as Guardian of Pash-pah-o, A. F. MARTIN, Guardian ad litem of Pash-pah-o, AND F. M. WILSON

No. 196

Court of Appeals of Kansas, Northern Department, Eastern Division

April 30, 1897

April 30, 1897.

Error from Brown District Court. Hon. J. F. Thompson, Judge. Reversed.

This action was brought by plaintiff in error against defendants in error for partition and for the rents and profits of certain lands.

Plaintiff and defendants claimed from a common source of title, Qua-is a Kickapoo Indian woman, who was the allottee and patentee of the land. She had been married twice. Prior to 1888 she died a widow. By her first marriage she had one child who died leaving neither wife nor issue. By her second marriage she had two children, one of whom died leaving neither wife nor issue; the other is the defendant Pash-pah-o. Qua-is had been divorced from each of her husbands. These divorced husbands each claiming an individual one-third interest in the land as heirs of Qua-is through their deceased children, conveyed their interests to the plaintiff in error. Plaintiff in error contended that under the laws of Congress the lands descended according to the laws of Kansas and that the distribution should be made accordingly.

The defendant in error Pash-pah-o met this contention with the claim that, under certain customs of the tribe to which he belonged, he was the sole and only heir of his mother. He interposed as a further defense that the acts of Congress providing for the descent and distribution of those lands according to the laws of Kansas were void, because Congress had no power to enact such laws. The defendant further contended that, the Probate Court having regularly administered upon the estate of Qua- is and found that the defendant Pash-pah-o was the sole heir of his mother plaintiff in error was concluded thereby.

Plaintiff in error had joined his action for partition with one for rents and profits. A demurrer for misjoinder having been sustained, he excepted.

The court below found generally for the defendant in error.

Judgment reversed.

W. F. Guthrie, for plaintiff in error.

A. F. Martin, and James Falloon, for defendants in error.

OPINION

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 Qua-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...