Guyatt v. Kautz

• Decision Date: 21 December 1905
• Citation: 83 P. 9,41 Wash. 115
• Court: Washington Supreme Court
• Parties: GUYATT v. KAUTZ et al.

83 P. 9

41 Wash. 115

GUYATT v. KAUTZ et al.

Supreme Court of Washington

December 21, 1905

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Annie Guyatt against Nugent Kautz and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

F. Campbell, for appellants.

Geo. T Reid, for respondent.

CROW J.

Respondent Annie Guyatt, brought this action against Nugent Kautz and August Kautz, appellants, to quiet title to 160 acres of Puyallup Indian land in Pierce county.

The allegations of the complaint are as follows:

'(1) That on the 26th day of December, 1854, a treaty was concluded between the Puyallup and other bands of Indians on the one part, and the United States on the other part and was thereafter duly ratified and confirmed by the President and Senate of the United States.

'(2) That, by the terms of said treaty, lands were reserved for the members of said bands of Indians, and it was agreed that the same were to be assigned and patented to said members in severalty; that the lands hereinafter described were a portion of the lands so reserved by said treaty.

'(3) That on and prior to the 30th day of January, 1886, Napoleon Gordon was a Puyallup Indian, and was one of the members of the Puyallup tribe of Indians, and was one of the members of said tribe entitled to an assignment of land on said reservation under the provisions of said treaty. That on and prior to said 30th day of January, 1886, said Napoleon Gordon and one Sarah, a Puyallup Indian woman, were husband and wife, and they had, prior to said date, made a location on the land hereinafter described as a permanent home.

'(4) That on the 30th day of January, 1886, under the provisions of said treaty, the United States executed and delivered to the said Napoleon Gordon a patent for said land, which said patent is in the words and figures following, to wit:

"The United States of America, to All to Whom These Presents shall Come--Greeting: Whereas, by the sixth article of the treaty concluded on the twenty-sixth day of December, Anno Domini one thousand eight hundred and fifty-four, between Isaac I. Stevens, governor and superintendent of Indian Affairs of Washington Territory, on the part of the United States, and the chiefs, headmen, and delegates of the Nisqually, Puyallup, Steilacoom, Squaksin, S'Homamish, Stechchass, T'Peeksin, Squiatil and Sa-heh-wamish, tribes and bands of Indians, it is provided that the President, at his discretion, cause the whole or any portion of the lands hereby reserved, or of such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable; and, whereas, there has been deposited in the General Land Office of the United States an order bearing date January 20, 1886, from the Secretary of the Interior, accompanied by a return, dated October 30, 1884, from the Office of Indian Affairs, with a list approved October 23, 1884, by the President of the United States, showing the names of members of the Puyallup band of Indians who have made selections of the land in accordance with the provisions of the said treaties in which lists the following tracts of land have been designated as the selection of Napoleon Gordon, the head of a family consisting of himself and Sarah, viz.: [Here follows a description of the land.] Now, know ye, that the United States of America, in consideration of the premises and in accordance with the directions of the President of the United States under the aforesaid sixth article of the treaty of the sixteenth day of March, Anno Domini one thousand eight hundred and fifty-four, with the Omaha Indians, has given and granted, and by these presents does give and grant, unto the said Napoleon Gordon, as the head of a family as aforesaid, and to his heirs, the tracts of land above described, but with the stipulation contained in the said sixth article of the treaty with the Omaha Indians, that the said tracts shall not be aliened or leased for a longer term than two years, and shall be exempt from levy, sale, or forfeiture, which conditions shall continue in force until a state Constitution embracing such lands within its boundaries shall have been framed and the Legislature of the state shall remove the restrictions, and no State Legislature shall remove the restrictions without the consent of Congress. To have and to hold the said tracts of land, with the appurtenances, unto the said Napoleon Gordon, as the head of a family as aforesaid, and to his heirs forever, with the stipulation aforesaid. * * *'

'(5) That the Sarah named in said patent was the wife of said Napoleon Gordon, and the said Napoleon and the said Sarah were the only members of said family.

'(6) That in the month of October, 1886, said Napoleon Gordon died intestate in Pierce county, Wash., leaving him surviving his wife, Sarah, but leaving no issue nor father nor mother, but leaving a sister, one Kitty Kautz.

'(7) That said Kitty Kautz was not a member of said Napoleon Gordon's family, and she received a patent for an assignment of land upon said reservation at the same time said Gordon received his patent.

'(8) That thereafter said Kitty Kautz died intestate, leaving as her sole heirs, the defendants, Nugent Kautz and August Kautz, her sons.

'(9) That thereafter, and in the year 1897, the said Sarah died, intestate, leaving as her sole heir her daughter, Annie Guyatt, this plaintiff.

'(10) That after the death of said Napoleon Gordon the said Sarah remained in possession of the land in said patent described until her death; that upon the death of said Sarah this plaintiff took possession of said land, and ever since has been, and now is in possession thereof.

'(11) That heretofore the Legislature of the state of Washington, by and with the consent of the Congress of the United States, removed the restrictions contained in said treaty against the alienation of said lands by the Indians, which said removal became operative on the 3d day of March, 1903.

'(12) That by an act of Congress passed and approved on the 8th day of February, 1887, said Sarah Gordon, Kitty Kautz, Nugent Kautz, August Kautz, and this plaintiff became citizens of the United States, and upon said date, and by virtue of said act of Congress, the tribal relations of the members of the Puyallup tribe of Indians ceased and terminated.

'(13) That by reason of the facts aforesaid the defendants and each of them claim a right and interest in and to said premises adverse to plaintiff, which claim operates as and is a cloud upon plaintiff's title to said premises.'

A copy of the sixth article of the Omaha treaty appears in the opinion of this court in Bird v. Winyer, 24 Wash. at page 274, 64 P. at page 179. Appellants interposed a general demurrer to said complaint, which being overruled, they declined to plead further. Judgment was thereupon entered, quieting respondent's title, and this appeal has been taken.

The only assignment of error is that the court erred in overruling said demurrer and entering judgment in favor of respondent declaring her the owner of the lands, and that appellants had no interest therein. Appellants contend that no title other than a mere right of possession passed to Napoleon Gordon under said patent, citing Bird v Winyer, 24 Wash. 269, 64 P. 178, and Jackson v. Thompson, 38 Wash. 282, 80 P. 454. Assuming that no right other than a mere possession was granted by said patent, and commenting on said restriction on alienation, appellants, in their opening brief, say: 'The facts in this case are squarely covered by both of those cases. The restrictions upon these lands were not removed, and the fee did not vest until after March 3, 1903. Sarah Gordon died in 1897. Six years before that time, and while there was nothing but a possessory right in the land, her daughter Annie, the plaintiff herein, was not a member of the family, but was her child by a former marriage; hence no rights would pass by inheritance to such child. It would make no difference in this case whether the court laid down the rule that Sarah, by virtue of the patent, took an equal interest with Napoleon Gordon at the date of the patent or not. What she did take was simply a possessory right, and that is all she held at the time of her death in 1897. She could not inherit from Napoleon Gordon, because there was nothing to inherit but a possessory right, which ceased at her death in 1897. The patent runs to Napoleon Gordon and his heirs; therefore, when the fee under the patent attached in 1903, it vested in his heirs alone. His sole surviving heirs on March 3, 1903, and now, are the two defendants in this case, Nugent and August Kautz; they are his blood relatives, namely, the children of his deceased sister, Kitty Kautz. He left no wife or children surviving him at the time his grant ripened into a fee title, on March 3, 1903, neither did he leave a father or mother. ...