
    CARLOW, Respondent, v. JORDAN, Appellant.
    (162 N. W. 749.)
    (File No. 4022.
    Opinion filed May 16, 1917.)
    Indians — -Allotted Land — Patent to Heir — Title, By Descent or Statute? — Doctrine of Relation, Whether Applicable — Liability for Debt.
    Under a trust -patent to the heir of a deceased allottee of Indian land, the grantee takes title, not by inheritance from the deceased, but because, under Act Cong., February 8, 1887, Chap. 119, 24 Stat. 388, Sec. 6, as amended by Act May 8, 1906, 'Chap. 2-348, -34 Stat. 182 (U. S. Comp. St., 1916, Sec. 4203), and Act June 21, 1906, 'Chap. 3504, 34 Stat. 327 (U. S. Comp. St., 1916, Sec. 4235), providing that no land acquired under said act shall in any event become liable to satisfaction of any debt contracted prior to issuing of final -patent in fee therefor, and because he was designated 'by said statute as one of a class who might take title from the government under such circumstances; and under said laws the heir had no interest in the land un-til he-received said patent; hence the doctrine of relation back to -the time of the death of the allottee does not apply in determining the nature of source of title in the heir; and the heir ’had no interest in the land until he received the (patent, the interest in said land -held by the allottee during his lifetime being only a trust in his behalf, the legal title remaining in the government, and all interest held by allottee reverted back to -the United -States upon his death, and a neW title in fee went to heir under the ¡patent to him. Therefore, held, further, that said .land, after issuance of patent to the heir, was not liable to satisfaction of a judgment against th© patentee, recovered prior to issuance of tbe patent.
    .Appeal from Circuit Court, Bennett County. Hon. William Williamson, Judge.
    Action by Theodore H. Carlow, against John C. Jordan, to quiet title to India lands patented to plaintiff as 'heir of the Indian allottee. From' an order overruling a demurrer to the complaint, defendant appeals.
    Affirmed.
    
      Lawrence H. Hedrick, for Appellant.
    
      Walcott & Walcott, .and W. J. Hooper, for Respondent.
    Appellant cited: Bigelow v. Chatterton, 51 Fed. 617; United States v. Freyberg, 32 Fed.; Deffebeck v. Hawke, 1x5 U. S. 392; Carroll v. Safford, 3 Howard, 441; Cornelius v. Hessell (Wis.) 16 N. W. 550; Blatchley v. Coles, 6 Colo. 350; Steele v. Smelting Co., 106 U. S. 447; Struby, Estabrook Mercantile Co. v. Davis, 18 Colo. 93, 36 Am. St; Rep. 266; Sec. 7, Act of Cong, of May 31, 1902, (Gh. 946, 32 Stat. L. 284.)
    Respondent cited: Act of Cong. June 21, 1906, 34 U. S. Stat. 327; 32 Cyc. 1037; Hussman v. Durham, U. S. Sup. Ct. 41 L. Ed..; Monson v. Simonson, U. S. Sup. Ct. 58 E. Ed.; Gould v. Tucker et al., 18 S. D. 281; United States v. Rickert, 188 U. S- 432.
   McOOY, J.

This action was instituted to quiet title to certain lands owned by plaintiff situated in Bennett county. It appears from the complaint that one John Carlow, a Sioux Indian, under the act of Congress approved February 8, 1887, was allotted the land in question by virtue of a trust patent dated' December 18, 1906; that 'said John Carlow died on the 14th day of February, 1908; that under the law-s of the United States1 in relation to such allotments the Secretary of the Interior issued to the plaintiff, who was the father and hear of said John Carlow, deceased, a fee-simple patent for said land on the 27th day of November, 1912; that on the 30th day of January, 1911, the defendant recovered a judgment for $479.62 and costs1 against plaintiff, and which judgment was docketed and filed in said' Bennett county; that saidi judgment was based upon a promissory note theretofore executed and delivered by plaintiff to defendant; that said judgment is not a.lien against said real estate; but that the filing- and 'docketing thereof is- an apparent' lien and cloud against plaintiff’s title to said land. Plaintiff prayed judgment and decree against defendant quieting his title to said land as against said judgment, and that said judgment be decreed not to :be a lien upon or against said land. To- which' complaint -defendant demurred -on the grounds that said complaint does not state facts, sufficient to constitute -a -cause of actio-n, and that the court has no jurisdiction over the -defendant or the subject-matter of -the action. From- the ’ order overruling said demurrer, the defendant appeals.

It is appellant’s contention- -that -plaintiff’s -title and right to said land had its inception at the instant of the death of said John Carl-o-w, -and that under the rules- -o-f succession the said patent in fee issued- to plaintiff on the 27th -day of November, 1912, under the doctrine o-f relation, or relation back, was the same, for the purpose of this- action, a-s if said patent in fee had been in fact issued to plaintiff on the 14th day of February, 1908, the date of the death o-f said John Carlow-, and that any debt contracted by plaintiff after the death of John Carlow might be satisfied out of said real estate. We are o-f the opinion 'that this contention is not well grounded. T-he plaintiff did not acquire his title to- the land in question at the instant 'of the death of said allottee, as ani heir, under the laws of succession, or inheritance, of this state. Flis title did not c-ome to 'him through John Carl-o-w, but it came direct from the United States under and by virtue of certain federal statutes- w-hi-ch designated -who- might take s-uoh allotment upon the -death of the Original allottee. Act Cong. Feb-. 8, 1887, relative to- Indian allotments, as amended by Act Cong. May 8, 1906, and A-ct Oon-g. June 21, 1906. If plaintiff did not take title by or through inheritance, but because he was’ designated by statute as one of a- class wh-o- might take title from the United States, under certain circumstances, it therefore follows that the do-ctrine of relation or relation back has no application to this case. These acts of C-oogress under which plaintiff might acquire t;tle direct from the government contained the provision that:

“No land acquired under the provisions o-f this act shall in any event become liable to- the satisfaction of any debt -contracted ■prior to the issuing of 'the final patent in fee therefor.”

We are of the opinion -that the judgment of defendant is precluded from being a lien on said land of plaintiff 'by virtue of this statute; that in no case will such land 'be liable to- execution or satisfaction of any debt contracted before the issuance of the final patent. This statute expressly designates' the event that will render such land liable for the satisfaction of the debts of the person to whom the United States grants title.

Under this federal law the plaintiff, as father of John Car-low, deceased, had no interest whatever in said land until he received said patent. The interest in said land held by John Carlow during hi's lifetime was only a trust in his behalf. The legal title was at .all times in the federal government. Upon the death of John Carlow all interest held by him reverted back to the United States, and an entirely new title in fee went to the plaintiff, free and clear of all incumbrances under and by virtue of the final patent. We are of the opinion, and therefore bold, that the complaint in question states a good cause of action, and that the court had jurisdiction over defendant and the subject-matter.

The order 'appealed from is affirmed.  