taken to the supreme court of the state, which affirmed the judgment of the lower court. 58 Kan. 758, 51 Pac. 276. Whereupon plaintiffs sued out a writ of error from this court.

Mr. William M. Springer argued the cause, and, with Messrs. James M. Mason and Charles H. Nearing, filed a brief for plaintiffs in error:

Plaintiff being an Indian is not subject

to the statute of limitations.

McGannon v. Straightlege, 32 Kan. 524, 4 Pac. 1042; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901; O'Brien v. Bugbee, 46 Kan. 1, 26 Pac. 428; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; The Kansas Indians, 5 Wall. 737, sub nom. Blue Jacket v. Johnson, 18 L. ed. 667; Smith v. Stevens, 10 Wall. 321, 19 L. ed. 933.

The deed under which defendants hold does not constitute sufficient color of title to enable them to claim adverse possession. Gibson v. Chouteau, 13 Wall. 99, 20 L. ed. 536; Irvine v. Marshall, 20 How. 558, 15 L. ed. 994; Gibbs v. Consolidated Gas Co. 130 U. S. 412, 32 L. ed. 985, 9 Sup. Ct. Rep. 553; Livingston v. Peru Iron Co. 9 Wend. 511; Taylor v. Brown, 5 Dak. 343, 40 N. W. 525; Zeller v. Eckert, 4 How. 289, 11 L. ed. 979; Libby v. Clark, 118 U. S. 250, 30 L. ed. 133, 6 Sup. Ct. Rep. 1045; Smythe v. Henry, 41 Fed. 705; Deffeback v. Hawke, 115 U. S. 392, 29 L. ed. 423, 6 Sup. Ct. Rep. 95.

No title by prescription or limitation under any state statute could be acquired as against the right of the Secretary of the Interior to investigate and modify or declare void the conveyance in question; hence the statute of limitation could not begin to run, if at all, until after such action by the Secretary of the Interior.

Gibson v. Chouteau, 13 Wall. 99, 20 L. ed.

The facts of the case are substantially as follows:

On January 31, 1855 (10 Stat. at L. 1159), the United States entered into a treaty with the Wyandotte Indians, by the second article of which they ceded to the United States certain lands purchased by them of the Delawares, the object of which cession was that "the said lands shall be

members of the Wyandotte Nation, in sever. alty." By the third article provision was made for a survey of the lands, the appointment of commissioners to divide the lands among the individuals of the tribe, and to make up lists of all the individuals and members of the tribe, "which lists shall exhibit, separately, first those families, the heads of which the commissioners, after due inquiry and consideration, shall be satisfied are sufficiently intelligent, competent, and prudent to control and manage their affairs and interests, and also all persons without families; second, those families, the heads of which are not competent and proper per sons to be intrusted with their shares of the money payable under this agreement; and, third, those who are orphans, idiots, or insane." Article four provided for the issue of unconditional patents in fee simple to those reported by the commissioners to be competent to be intrusted with the control and management of their affairs and interests; "but to those not so competent the patents shall contain an express condition that the lands are not to be sold or alienated for a period of five years; and not then, without the express consent of the President of the United States first being obtained," etc.

*Margaret C. Cherloe was a Wyandotte In-[293 dian of the competent class, and as such she was given, under the treaty of 1855, allotment No. 42, to 64 acres of the land originally sued for, and received a patent therefor in fee simple, without restriction as to conveyance. This patent was dated June 1, 1859.

After the issue of such patent, and prior to August 31, 1863, Margaret C. Cherloe died intestate, leaving her grandson, Carey Rodgers, as her only heir at law; and on August 31, 1863, the said Carey Rodgers made a deed in fee simple of the land so inherited to Jesse Cooper and Mary E. Stockton.

Carey Rodgers, being himself a Wyandotte Indian, belonging to the incompetent class by reason of being an orphan, was given allotment No. 278, containing 57 acres, and on September 1, 1859, received a patent for said lands containing the following condition: "That the said tract shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior for the time being, and with the further and express condition, as specified in the 4th article of the treaty with the Wyandottes of the 31st of January, 1855, that the lands are not to be sold or alienated for a period of five years."

On November 15, 1864, the said Carey Rodgers executed a deed in fee simple of this last-mentioned land to Jesse Cooper and Mary E. Stockton, covenanting that he was seised in fee simple, and had good right to sell the same.

On February 25, 1869, by a partition of that date by Jesse Cooper and his wife and Mary E. Stockton and her husband, there

was conveyed to Mary E. Stockton the lands sued for in this action and described in the petition. Defendants took title from her. The said Carey Rodgers died intestate in December, 1867, at the age of twenty-one.

Immediately after the execution of the deeds from Carey Rodgers to Jesse Cooper and Mary E. Stockton, the grantees took possession of all the land described in said deeds under claim of title and ownership by virtue of said deeds, made permanent improvements thereon, and they and their

[294] grantees have had and held open, undisturbed, and adverse possession of all of said lands, claiming title thereto, paid all taxes, cleared the land of timber, and cultivated the same as tenants.

:

In the years 1891 and 1892 there was a kind of occupancy of part of the land by persons claiming under the plaintiffs, but that does not seem to have been treated as material.

Carey Rodgers thus became possessed of two tracts of land, one of 64 acres as the heir at law of his grandmother Margaret C. Cherloe, and the other of 57 acres as a personal allotment to himself. As plaintiffs state that a settlement of the case has been made so far as relates to the Cherloe tract, we shall dismiss that tract from our opinion. The deed of Carey Rodgers's own allotment of November 15, 1864, was clearly void, since as to this contract, at least, he was incompetent, and took under a patent which provided that the land should never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior. If the case stood upon defendants' rights under this deed alone, there could be no doubt whatever that Rodgers's heirs were entitled to the land.

was

But on February 23, 1867, another treaty concluded (proclaimed October 14, 1868) with several tribes of Indians, among which were "certain Wyandottes" (15 Stat. at L. 513), the 15th article of which was as follows:

"Art. 15. All restrictions upon the sale of lands assigned and patented to 'incompetent Wyandottes under the fourth article of the treaty of one thousand eight hundred and fifty-fiv fifty-five shall be removed after the ratification of this treaty, but no sale of lands heretofore assigned to orphans or incompetents shall be made under decree of any court, or otherwise, for or on account of any claim, judgment, execution, or order, or for taxes, until voluntarily sold by the patentee or his or her heirs, with the approval of the Secretary of the Interior; and whereas many sales of land belonging to this class have heretofore been made contrary to the spirit and intent of the treaty of one thousand eight hundred and fifty-five, it is agreed that a thorough examination and report shall be made under direction of the Secretary of the Interior, in order to [295]ascertain the facts relating to all such cases; and upon a full examination of such report, and hearing of the parties interested, the said Secretary may confirm the said sales, or require an additional amount to be

paid, or declare such sales entirely void, as the very right of the several cases may require."

This article makes the following distinct provisions:

1. It removes all restrictions upon the sales of lands patented to incompetent Wyandottes, which should thereafter be made.

2. It provides that no sales of lands theretofore assigned to incompetents shall be made under any legal proceedings, or for taxes, until voluntarily sold by the patentee or his heirs, with the approval of the Secretary of the Interior.

3. That as to lands theretofore sold by incompetents in violation of the treaty of 1855 a thorough examination and report shall be made under the directions of the Secretary of the Interior, in order to ascertain the facts relating to such cases; and upon examination of such report and a hearing of the parties the Secretary may confirm such sales, require an additional amount to be paid, or declare the sales void.

No action was ever taken under the 3d clause to procure a confirmation by the Secretary of the Interior of the deed by Rodgers of November 15, 1864, so that, at the time the treaty of 1868 was ratified, the possession of the lands was in the defendants or their grantors holding adversely to the heirs of Rodgers, but the title still remained in such heirs by reason of the fact that his deed to Cooper and Stockton was void, and no proceeding had been taken under the 3d clause of article XV. to confirm or validate it. But although the treaty of 1855 and the patent to Rodgers had expressly provided that there should be no alienation by the grantee or his heirs, the treaty of 1868, which took effect after his death, removed all restrictions upon alienations which should thereafter be made, either by the incompetent grantee Rodgers or his heirs, who thereafter held an alienable title, and were bound to assert such title within the time specified by the statute of limitations, although no title could be gained by adverse possession so long as the land continued to be inalienable by Rodgers and his heirs. McGannon v. Straightlege, 32 Kan. 524, 4 Pac. 1042; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901.

*Their disability terminated with the[296] ratification of the treaty of 1868. The heirs might then have executed a valid deed of the land, and possessing, as they did, an unencumbered title in fee simple, they were chargeable with the same diligence in beginning an action for their recovery as other persons having title to lands; in other words, they were bound to assert their claims within the period limited by law. This they did not do under any view of the statute (whether the limitation be three or fifteen years), since it began to run at the date of the treaty, 1868, and the action was not brought until 1894, a period of over twenty years.

Plaintiffs, however, seek to avoid the effect of the statute by insisting, first, that

Indians; second, that defendants were not in possession under color of title, and there fore the statute is not available to them; third, that no title by limitation could be acquired as against the right of the Secretary of the Interior to investigate and declare the conveyance in question to be void, and hence the statute would not begin to run until after such action by the Secretary.

1. Conceding, but without deciding, that so long as Indians maintain their tribal relations they are not chargeable with laches or failure to assert their claims within the time prescribed by statutes, as to which see Felix v. Patrick, 145 U. S. 317, 330, 36 L. ed. 719, 725, 12 Sup. Ct. Rep. 862, 36 Fed. 457, 461; Swartzel v. Rogers, 3 Kan. 374; Blue-Jacket v. Johnson County, 3 Kan. 299; Wiley v. Keokuk, 6 Kan. 94; Ingraham v. Ward, 56 Kan. 550, 44 Pac. 14, they would lose this immunity when their relations with their tribe were dissolved by accepting allotments of lands in severalty. Now, the very first article of the treaty of 1855 provides: "Art. 1. The Wyandotte Indians having become sufficiently advanced in civilization, and being desirous of becoming citizens, it is hereby agreed and stipulated that their organization and their relations with the United States, as an Indian tribe, shall be dissolved and terminated on the ratification of this agreement; except so far as the further and temporary continuance of the same may be necessary in the execution of some of the stipulations herein; and from and after the date of such ratification, the [297] said *Wyandotte Indians, and each and every of them, except as hereinafter provided, shall be deemed and are hereby declared to be citizens of the United States, to all intents and purposes; and shall be entitled to all the rights, privileges, and immunities of such citizens; and shall in all respects be subject to the laws of the United States and of the territory of Kansas, in the same manner as other citizens of said territory; and the jurisdiction of the United States and of said territory shall be extended over the Wyandotte country in the same manner as over other parts of said territory." There was an immaterial exception not necessary to be noticed here.

It seems, however, that this provision did not prove entirely satisfactory to some of the Indians, who regretted their emancipation and the loss of the protection of the government; and in the treaty of 1868 there was incorporated in the preamble a recital that "a portion of the Wyandottes, parties to the treaty of 1855, although taking lands in severalty, have sold said lands, and are still poor, and have not been compelled to become citizens, but have remained without clearly recognized organization, while others who did become citizens are unfitted for the responsibilities of citizenship; have just claims against the government, which will enable the portion of their people herein referred to to begin anew a tribal existence;" therefore it was agreed by article thirteen that the United

and

certain land ceded by the Senecas, in order to provide for these Indians, and would make a register of all who declared their desire to be and remain Indians in a tribal condition, who should thereafter constitute the tribe.

It is sufficient to say of this that it could not apply to Carey Rodgers personally, since he died before the treaty was ratified; and there is no evidence that his heirs ever elected to resume their tribal relations and to become again members of the incompetent class. As article XV. removed all restrictions upon the sale of lands by incompetents if the heirs of Carey Rodgers took the position that the article did not apply to them, they assumed the burden of proving that fact.

2. Plaintiffs' assertion that defendants were not in possession *under color of title is [291 untenable. They had taken possession under a deed executed by Rodgers November 14, 1864, which was valid upon its face, made by one having title to the land, and in which the grantor covenanted that he was seised in fee simple, had good right to sell the same; that it was free from encumbrance, and that he would warrant and defend the title unto the grantees against the claims of all persons. The court finds that the defendants and their grantors acted in good faith in making the purchase of said lands and in taking this deed, by which we understand that they paid a valuable consideration, and had no actual notice of any defect in the title of their grantor. It is true that if the grantees had examined the Rodgers patent they would have discovered the restraint upon his alienation of the land, but it is too much to say that a deed valid upon its face, and taken in good faith for a valuable consideration, without actual notice of the facts, does not give color of title. Color of title was defined by this court in Wright v. Mattison, 18 How. 50, 56, 15 L. ed. 280, 283, "to be that which in appearance is title, but which in reality is no title." Said Mr. Justice Daniel: "The

courts
have equally concurred in
attaching no exclusive or peculiar character
or importance to the ground of the invalid-
ity of an apparent or colorable title; the in-
quiry with them has been whether there
was an apparent or colorable title, under
which an entry or a claim has been made in
good faith." See also Beaver v. Taylor, 1
Wall. 637, 17 L. ed. 601; Cameron v. Unit-
ed States, 148 U. S. 301, 307, 37 L. ed. 459,
461, 13 Sup. Ct. Rep. 595. There was no
evidence in this case, except from the pat-
ent, that the grantees even knew that Rod-
gers was an Indian, as was the case in
Taylor v. Brown, 5 Dak. 344, 40 N. W. 525,
much less that he belonged to the incompe-
tent class; and they apparently received the
deed, as many people do, without a careful
examination of the grantor's title. In Kan-
sas possession without paper title seems to
be sufficient. Gilmore v. Norton, 10 Kan.
491; Anderson v. Burnham, 52 Kan. 454, 34
Pac. 1056.

erty to the tax duplicate, and requiring such executor to appear before him within five days to show cause, if any, why such property should not be so added. The notice specified the property to be added as county, township, town, and other bonds, notes, mortgages, claims, dues, demands, and other credits, money on hand and on deposit.

"January 19, 1895, the executor appeared before the auditor, and filed written objections to the authority of the auditor to proceed further, which were overruled. The executor then filed an answer to the notice, and on the 21st day of January, 1895, the auditor

1895.

"More than two years afterwards, to wit, December 18, 1897, the court overruled appellant's [the executor's] motion to dismiss; and on June 18, 1898, appellant [the executor] filed his answer in eight paragraphs. A demurrer to each, the third, fourth, fifth, and sixth was sustained. A trial was had before the court upon the issues joined upon the petition, answers of general denial, payment and set-off, and, upon a special finding of facts and conclusions of law favorable to appellee [the treasurer] judgment was rendered against appellant [the executor] that count of said omitted taxes the sum of $46,996.69."

ing him to appear forthwith before him, and to bring with him all notes, mortgages, and bonds in his possession, as such executor, to testify in said proceeding. The executor appeared on the 24th day of January, 1895, and filed further objections to the jurisdiction of the auditor, which were overruled; and thereupon he was examined under oath.

"Upon consideration of the evidence the auditor found that William P. Gallup, in addition to the property returned by him for taxation, was the owner and in possession of other taxable personal property not listed and not taxed during the several years from 1881 to 1893 specifically stated for each year, and January 25, 1895, placed the same upon the tax duplicates, and computed and extended taxes thereon for the whole of said period, including statutory penalties and interest, the sum of $61,233.59. After the same was placed upon the dupăcate in the treasurer's hands he made de

[302]mand upon the executor *to pay said additional taxes, but he refused to pay all or any part thereof.

"The executor on the 4th day of January, 1895, filed in the circuit court his final settlement report, and gave notice that the same would be finally heard on the 26th

day of January, 1895; and upon the day set for the hearing of the report, the same be

ing the next day after the additional assessments had been placed upon his duplicate, Holt, as treasurer of Marion county, filed in said court, under § 8587, Burns's Rev. Stat. 1894, in the term thereof that was then running, his petition for an order upon the executor to show cause why he should not pay the taxes assessed by the auditor. The order was granted, and on February 9, 1895, the executor appeared and filed his motion to dismiss the said proceedings for the reason that the court had no jurisdiction to proceed to hear the cause, for the reason that the county treasurer was not authorized, under the law, to present said

Appeals were taken by both parties from the decree of the circuit court of Marion county to the supreme court of the state. That court was of opinion that the executor, as appellant, was not entitled to a reversal, but that, for error of the circuit court in allowing the executor a certain credit of $5,750 upon the amount recovered, the judgment must be reversed with instructions to restate conclusions of law in accordance with the opinion of the supreme court, and render judgment thereon in favor of the treasurer for the sum of $52,746.69, with interest from October 31, 1898; and final judgment for said amount was accordingly so entered by the circuit court of *Marion [303] county, to which judgment a writ of error was allowed, and the cause brought to this court.

Messrs. W. H. H. Miller and Wayne MacVeagh argued the cause, and, with Messrs. John B. Elam, James W. Fesler, and Samuel D. Miller, filed a brief for plaintiff in error:

The statute is in conflict with the 14th Amendment to the Constitution, because it

provides for a change in the assessment of property as made under the general law,

without providing any notice property owner.

This statute provides for no such notice. Buck v. Miller, 147 Ind. 597, 37 L. R. A. 384, 45 Ν. Ε. 647, 47 Ν. Ε. 8.

The manner of assessment must be prescribed by the statute.

State Tax Comrs. v. Holliday, 150 Ind. 216, 42 L. R. A. 826, 49 N. E. 14; Sears v. Boston Street Comrs. 173 Mass. 350, 53 N. E. 876; Charles v. Marion, 98 Fed. 166; Cooley, Taxn. 244.

The notice must be prescribed by law, and notice not prescribed by law is no notice.

Kuntz v. Sumption, 117 Ind. 1, 2 L. R. A. 655, 19 N. E. 474; Stuart v. Palmer, 74

As to the validity of class legislation-see State v. Goodwill (W. Va.) 6 L. R. A. 621, and note, and State v. Loomis (Mo.) 21 L. R. A. 789, and note.

As to constitutional equality of privileges, immunitics, and protection see Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. (Ky.) 14 L. R. A. 579, and note.