This action was brought for the purpose of determining adverse claims to 80 acres of land in Charles Mix county. Plaintiff in her complaint alleges that she is the owner of said land and asks that title thereto be quieted in her.
Defendants, by way of defense and counterclaim to plaintiff’s complaint, allege that the land in question had been alloted to one Paul Gondrow, a member of the Yankton Band of .Sioux Indians, by a so-called trust patent issued by the government of the United States, pursuant to Act of Congress approved February 8, 1887, c. 119, 24 'Stat. 388, known as the General Allotment Ljaw, and which patent bears date November 24, 1894; that said allottee died within the trust period named in said trust patent, and that thereafter said land was sold to defendants’ grantors on the 23d *322day of November, 1904, by a person who was found by the Secretary of the Interior to toe the sole heir at law of said Paul Gondrow, and which sale was approved by the Secretary of the Interior on the nth day of February, 1905.
[1] To this defense plaintiff interposed a reply, wherein she alleged that she is the mother, and the sole heir at law, of the said Paul Gondrow; that under the provisions of said allotment act, and the laws of this state, she inherited the said allotment upon the death of the said Paul Gondrow; that she • had never sold nor consented to the sale of the said land, but that she is now the owner thereof. When the case was called for trial, defendants moved for judgment on the pleadings. By this motion defendants concede the truth of the material allegations in the reply, to-wit: That plaintiff is the sole heir at law of the said allottee, that she inherited and 'became the owner of the said allotment upon the death of the said allottee, and that she had never sold nor in any manner. divested herself of the title to the said allotment. But, notwithstanding the admission of these facts, the trial court granted the motion, and entered judgment dismissing plaintiff’s complaint, and quieted title to said land in the defendant John P. Gavin. From this judgment plaintiff appeals.
The conclusion reached toy the trial court is based wholly upon what was said by this court in Daugherty v. McFarland, 40 S. D. 1, 166 N. W. 143. In that case this court laid down the to road general proposition that, where an allottee under the General Allotment Act dies, and thereafter the Secretary of the Interior approves a deed made by a party or parties claiming to be the heir or heirs at law of the deceased allottee, which deed purports to convey the allotment, such deed does in fact convey title to such allotment to the grantee named in said deed, and thereby deprives such heir or heirs of all interest in and right to said allotment; and this, too, notwithstanding thé fact that said heirs of the allottee did not consent to such conveyance, have any knowledge thereof, or receive any part of the consideration therefor. This proposition of law appellant now contends is erroneous, and we are asked to overrule the same.
[2] Whether said proposition of law is right or wrong, it was certainly unnecessary and immaterial to any of the issues involved in that case. It was therefore pure obliter dicta, and not *323controlling upon this or any other court. In the opinion in that case it is said:
“From the various acts of Congress, and from the interpretations thereof by the many decisions of the Supreme Court of the United States, we are of the opinion that the lands allotted under the act of February 8, 1887, continued to be government property; that the government, by its Congress, had complete authority over tribal Indians, and over the property, real or personal, committed to them, unaccountable to any other body or tribunal; that, while it held the property in trust for the Indians, such trust differed from' the ordinary trust, in that Congress had full authority to make or unmake the rules governing the execution of the trust; that the federal government could dispose of such property through the agency of the Secretary of the Interior; that by the approval of the deed in question it did- convey to August Lahr the fee-simple title to the whole of the tract involved, free and clear of the rights of any heirs of Goodcloud or of Iron Soldier; and that the rights, if any, of such omitted heirs, should not follow the land, but should follow the fund realized upon the sale. United States v. Thurston County, 74 C. C. A. 425, 143 Fed. 287; Nat. Bank of Commerce v. Anderson, 77 C. C. A. 259, 147 Fed. 87.”
[3] And it is further said in that case that the allotment under the General Allotment Law “amounted only to an apportionment of the tribal possessory right,” and again, “such possessory right must be the only right given by the so-called trust patent.” 'These expressions are based largely, if not wholly, upon what was said by the Supreme Court in United States v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. ed. 168. But an examination of that case will show that the facts in that case were so different from the facts in the Daugherty Case that what was said in the former has no application to the facts in the latter. In United States v. Chase the controversy grew out of an assignment of a tract of land made under the treaty of 1865 by the United .States government and the Ornfaha Tribe of Indians. 14 Stat. 667. That treaty made provision for the assignment in severalty of specified and' limited tracts of land to the individual Indian. Article 4 of said treaty contains the following provision:
“Said division and assignment of lands to the Otttahas in severalty shall be made under the direction of the Secretary of the *324Interior, and, when approved by him- shall be final and conclusive. Certificates shall -be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United Spates or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided by Congress.”
Under this provision of the treaty, members of the tribe, including defendants’ predecessor in interest, received an assignment of r60 acres of land. The assignee went into possession of the land assigned, and afterwards died, and the defendant succeeded to her rights under the assignment. While defendant was in the occupation of the said tract of land, Congress passed a law (Act Cong. August 7, 1882, c. 434, 22 Stat. 341, which was accepted and adopted by a vote of the tribe) authorizing the members of the Omaha Tribe of Indians to take land in severalty by “allotment,” which allotments were to be taken in lieu of the assignments that had been made under the treaty of 1865. The sixth section of this act provided for the issuance of trust patents covering a period of 25 years, and for full patents conveying the fee at the end of that period. ¡Under this act an Indian, other than the defendant, received a trust patent to an allotment of a tract of land, which included 40 acres of the tract' of land that was occupied by the defendant under the assignment made under the treaty of 1865. The action was brought for the purpose of determining who was entitled to this 40 acres of land. The court held that the allotment under the act of 1882 took precedence over the assignment made under the treaty of 1865. This con elusion is based upon two separate grounds. The 'first of these grounds is:
That while the assignments under the treaty specified that “the tracts assigned are for the exclusive use and benefit of the assignees, Their heirs and descendants,’ and that the tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe,” that “as applied to the situation then in hand these provisions are consistent *325with a purpose to apportion the Indian possessory- right, leaving-the fee in the United States as before.”
The court further says:
“The assignments, when approved, could well operate as a final and conclusive apportionment of that right without affecting the fee; and the right of each assignee to occupy and use the tract assigned to him, to the exclusion of other members, could well pass to his heirs and descendants, upon his death, without his being invested with the fee. If not invested with it, he of course could not alienate it, and a cautious provision intended to prevent him from attempting to do so hardly would enlarge his right. True, the provision says, ‘except to the United States or to other members of the tribe;’ but, as the restriction is also directed against leasing or other disposal, it is not improbable that the real purpose of the excepting clause is to qualify this -part of the restriction. In any event, the implication attributed to the proviion is too uncertain to afford a substantial basis for thinking the assignee was to take the fee. Other provisions and considerations suggest that an apportionment of the tribal possessory right is all that was intended.”
That it was understood that the assignees took only a possessory right under the assignments is further evidenced by the following provision contained in the assignments that were issued to the assignees:
“The said [assignee] is entitled to and may take immediate possession of said land and occupy the same, and the United States guarantees such possession, and will hold the title thereto in trust for the exclusive use and benefit of [the assignee], and * * * heirs so long as such occupancy shall continue.”
This clause clearly indicates that a right of occupancy was all that was intended to be conveyed.
The other ground upon which the decision is based is that the act of 1882 contemplated the abrogation of all rights acquired under the treaty of 1865, and that in lieu of the assignments made under that treaty the assignees were to have allotments evidenced by trust patents which provided for a patent in fee at the end of the trust period.
“All rights under the assignments, as such, were to be extinguished, and each assignee was to have the same right to take an allotment as was accorded to-other -members, -but with a *326preferred right to make his selection in.such a way that his allotment would include his improvements.”
And in conclusion the court says:
“•Concluding, as we do, that the assignment to Clarissa Chase passed only the Indian or tribal right of occupancy, the remaining question is not difficult of solution. She took that right as it was held by the tribe, without enlargement or dimunition. It was merely individualized. Upon her death, in 1875, it passed to the defendant, he being her sole heir. The act of 1882, consented to by the tribe, put into effect a general plan of allotment, which completely displaced the Indian right of occupancy, and in that sense terminated all right under the assignment. Under that plan the assigned tract was available for allotments, and the defendant was entitled to an allotment. ‘He could select the assigned tract for his allotment indeed he had a preferred right to do so. He could exercise that right, or waive it and select other lands. But he could not. select other lands and also hold the assigned tract. He was entitled to one allotment, not two. If not selected by him', the tract in question would be open to selection by another. He does not assert that he selected it, or that he was denied the right to do so, or that he received less than a full allotment without this tract; but he claims that the assignment passed the title in fee, and in consequence was an insurmounable obstacle to the allotment of the tract under the Act of 1882. This claim, as has been shown, is untenable. All that passed by the assignment was a possessory right, and this was terminated by the act of 1882.”
‘Conceding that the foregoing reasons support the conclusions reached by the court in that case, they have no application to the facts in Daugherty v. McFarland, because under the act of February 8, 1887, the parties were contracting for a fee-simple title in the first' instance. Parr v. United States (C. C.) 153 Fed. 462. Section 5, c. 119, 24 Stat. 389, Act Cong. Feb. 8, 1887, as amended by section 11, c. 405, 25 Stat. 891, Act Cong. March 2, 1889 (U. S. Comp. St. § 42011), being the act under which the allotment in that case was made, contains the following provisions:
“That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and *327will hold the lands thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land , is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever, and patents shall issue accordingly; * * * Provided, further, that the law of descent and partition in force in the state or territory where the lands may be situated shall apply thereto after patents therefor have been executed and delivered.”
Pursuant to said section, the Secretary of the Interior issued to Indians, whose selections he had approved, trust patents which contained the following provisions:
“Now, know ye that the United States of Ajmerica, in consideration of the premises and in accordance with the provisions of the eleventh section of said act of Congress of the 2d March, 1889, hereby declares that it does and will hold the land thus allotted (subject to all the restrictions and conditions contained in said eleventh section) for the period of twenty-five years in trust, for the sole use and benefit of the said Indian, or, in case of his decease, for the sole use of his heirs according to laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided that the President of the United States may, in his discretion, extend the said period by a term not exceeding ten years; and if any lease or conveyance shall be made of said lands, or contract made touching the same before the expiration of the time above mentioned, such lease or conveyance or contract shall be absolutely null and void.”
[4] This is not a grant of a “tribal possessory right,” nor a mere right of occupancy. This is a grant of- the equitable title to the land described, with an unconditional agreement by the government of the United ¡States to convey the legal title at the expiration of the trust period. Hollowell v. Commons, 210 Fed. 793, 127 C. C. A. 341; McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. ed. 566. By this instrument, no matter by *328what name it may be called, the government of the United States pledged itself in the most solemn manner to convey to the allot-tee a fee-simple title, free from all “charges or incumbrances of any kind whatsoever.” By the issuance of this so-called trust patent the tribal possessory right to the tract of land therein described became extinguished. The tribe, as such, had no further interest in or control over said tract. So far as the tribe is concerned, that particular tract is reduced to private ownership. Said tract of land is absolutely segregated from all other portions of the reservation and from the public domain. While the government retains the legal title and jurisdiction over the land during the trust period, the real ownership, together with the absolute right to a fee-simple title at the end of the trust period, has passed to the grantee. Except as to the restriction upon the alienation of the land during the trust period, the right of the allottee is absolutely unconditional. He may live upon the land or cultivate it, if he so desires; but he is not required to occupy it, nor to improve it, nor to inclose it with a fence. He need never set foot upon it, if he is not so disposed. He has only to wait until the expiration of the trust period, when he has an unqualified right to a fee-simple title, free from all restrictions of every kind or character.
This right is a valuable property right, and a right that any court of equity would recognize and protect. While this is true of the allottee, his heirs, upon his death, take a still more valuable right, because, upon the death of the allottee, his heirs become substituted for the allottee, and have the same^rights in the allotment that were enjoyed by him, but with the restriction upon the alienation removed. They may at once sell the land, or they may wait until the expiration of the trust period, and the patent from the 'government will issue directly to them. It is held by the federal courts that the allottee takes an inheritable estate under his trust patent and that his heirs acquire their title by inheritance. In Parr v. U. S. supra, where the question was under consideration, it was held that the heirs take their title by inheritance, and that this was the understanding of Congress is made perfectly clear by the language used in sections I and 2 of the Act of Congress approved June 25, 19,10 (chapter 431, 36 Statutes at Earge, 855 [U. S. Comp. St. §§ 4226, 4228]). This act not only refers to allotments of deceased allottees as inherited lands, *329but authorizes allottees who are over 21 years of age to dispose of their allotments by will, clearly recognizing the .estate as inheritable. On the other hand, where homesteaders, pre-emptors, or timber culture entrymen have died before completing their required residence or improvements, and the heirs of such entry-men are allowed to complete such residence or improvements, the patent .then issues to such heirs. In such cases, it is held that the heirs acquire their title by direct grant from the government, and not by inheritance from the deceased entryman. Aspey v. Barry, 13 S. D. 221, 83 N. W. 91; Gould v. Tucker, 20 S. D 226, 105 N. W. 624; Rogers v. Clemens, 26 Kan. 522; Cooper v. Wilder, 111 Cal. 191, 43 Pac. 591, 52 Am. St. Rep. 163; Towner v. Rodegeb, 33 Wash. 153, 74 Pac. 50, 99 Am. St. Rep. 936; Gjerstadengen v. Van Duzen, 7 N. D. 612, 76 N. W. 233, 66 Am. St. Rep. 679; Hall v. Russel, 101 U. S. 503, L. ed. 829; Herschbergen v. Blewitt (C. C.) 53 Fed. 170.
The effect, however, is the same, whether they take title by inheritance or by direct grant from the government, except that under the law the heirs take the allotment freed from restrictions upon alienation that had existed during the life of the allottee, and are authorized to sell the land prior to the expiration of the trust period and pass the title by deed. True, the deed cannot take effect until it is approved by the Secretary of *the Interior; but upon such approval title in fee vests in the grantee named in the deed. In McKay v. Kalyton, supra, the Supreme Court of the United States said:
“The suggestion made in the argument that the controversy here presented involved the mere possession, and not the title, * * * is without merit, since the right of possession asserted of necessity is dependent upon the existence of an equitable title in the claimant under the legislation of Congress to the ownership of the allotted lands.”
The title to the property in controversy in that case was based upon a trust patent identical in language and meaning with the one involved in Daugherty v. McFarland and in the case at bar. The above expression clearly indicates the views of that court upon the force and effect of the' so-called trust patents. Neither was this expression retracted or in any wise modified by anything that was said in United States v. 'Chase, because in-the latter case *330the rights involved were based on a different contract under different provisions of law.
[5] With the above principles in mind, let us review the facts relating to the land involved in Daugherty v. McFarland. Title to the land involved was derived from Iron Soldier, who at the time of his death, was seized, either as original allottee, or by inheritance from other allottees, of 480 acres of land which he was holding under so-called trust patents. When he died, he left surviving him his wife, Ptesanwin, and four children, as heirs at law. Shortly after his death, the county court of Charles Mix county undertook to administer the estate, and such proceedings were had that a decree of distribution was entered which awarded to the widow an undivided one-third of the estate and to the four children an undivided one-sixth each. These distributive shares were the equivalent of 1Ó0 acres of land to Ptesanwin and 80 acres each to the children. Further proceedings in the county court were had, to the end that a decree was entered, whereby the estate was partitioned among the heirs. The widow was given 160 acres of land in entirety, and each of the children 80 acres in entirety. A copy of this decree was filed in the Indian Office at Washington, and was adopted by the Secretary of the Interior as a proper and fair 'division of the estate; and the several tracts that were awarded to the ^individual heirs by this decree were treated by the Secretary of the Interior as the separate and individual property of the individual heirs.
The county court was without jurisdiction of the estate, and of course the various decrees entered therein were without any legal effect; but the distribution and partition attempted to be made were acquiesced in by the heirs, respectively, and each of them accepted the land awarded to him by said decree as his full share of the estate. Of course, in accepting the quantity of land awarded to the individual heirs as their full share of the estate, they waived all rights to the shares that had been awarded to other heirs, and estopped themselves from maintaining any claim against those shares. The tract of land involved in the suit was awarded to Ptesanwin and accepted by her as a part of her share of the estate. While the above condition existed, Ptesanwin sold said land to McFarland’s grantor by a deed that was approved by the Secretary of the Interior. Two of the children sold their separate tracts by deeds; and these deeds were approved by the *331Secretary of the Interior. Whether the separate tracts awarded to the other two children were sold is left in doubt by the record; nor is it material. The first effect of the approval by the Secretary of the Interior of Ptesanwin’s deed to McFarland’s grantor was to terminate the jurisdiction of the United 'States over that particular tract of land. Egan v. McDonald, 36 S. D. 92, 153 N. W. 915. The second effect was to convey a prima facie title that was good until some one else showed that he had a better title. Tripp v. Sieler, 38 S. D. 321, 161 N. W. 337. As it was shown that there was no third party who had any outstanding interest in the land or could maintain a claim against the same, Ptesanwin’s deed vested an absolutely good title in her grantee. But this was not all. After Ptesanwin’s deed had been executed and approved by the Secretary of the Interior, a partition suit was brought in the circuit court of 'Charles Mix county for the purpose of partitioning 'Iron Soldier’s estate among his heirs. All the heirs were made parties to the suit and all entered an appearance, therein. Each consented to the division ,of the estate as it had been made by the county court, and a decree in partition was entered in the case, which awarded to Ptesanwin the land she had sold to McFarland’s pmnfor
The court had jurisdiction over all the parties to .the action and of that portion of the subject-matter that had been sold with the approval of the Secretary of the Interior. This included the land in controversy. Therefore the judgment in that action was final as against the other heirs and their grantees, and extinguished any claim they might theretofore have asserted against that portion of the estate. In other words, that judgment cured any apparent defect that may have existed in the title up to that time. Because of the facts and circumstances that were shown to exist in that case, the conclusion reached by this court was right, and did full justice to all parties in interest. And it was wholly unnecessary to announce, as a general proposition of law, that the m'ere approval by the Secretary of the Interior of a deed executed by a party claiming to be sole heir of a deceased allottee, even though a stranger to the title, will convey the title to the allotment together with the equitable title of the lawful heir, to the grantee named in such deed, and thus deprive the lawful heirs of the allottee of their inheritance. 'Such is not the law.
[6] In the case at bar, when plaintiff’s son died, she at once *332became vested with all the rights he had possessed. The government still held the legal title to the land, but in trust for her. As heir of the allottee she had a right to sell it at her pleasure. When the Secretary of the Interior approved the deed purporting to convey this land to defendant’s grantor, he did it under the mistaken belief that the deed had been executed by the rightful heir. The result of his approval was to extinguish the government’s title and the government’s jurisdiction over the land, and to vest the legal title in the grantee named in the deed, but subject to the equitable rights of plaintiff as heir of the original allottee. The grantee therefore became the trustee of an involuntary or constructive trust in favor of plaintiff as the equitable owner of the land.
[7, 8] While the Secretary of the Interior may be authorized to “make or unmake” rules governing the disposition of allotted Indian lands, he has no authority to make or enforce any rule that would deprive any allottee, or the heirs of any deceased allottee, of land that had been allotted to him by trust patent, issued pursuant to the Allotment Law of 1887. He is not authorized to sell such land, nor to compel nor require the allottee or his heirs to sell it. The extent of his authority is to approve deeds that have already been executed by the owner of the land; but, as it was said Mr. Justice Brewer, in Richardville v. Thorp (C. C.) 28 Fed. ,52, and approved by the Supreme. Court of the United States in Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. ed. 49, the Secretary of the Interior “had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to divest the owner of his title without his knowledge or consent.” He is given power to supervise the sale, but this is solely for the purpose of looking after the interest of the Indian and seeing that the Indian receives a fair price for his land, and not for the purpose of seeing that the purchaser receives a good title for his money.
As was said above, when Paul Gondrow died, plaintiff, as his sole heir at law, became the owner of the land under the law then in force. She had the right to sell it, if she so desired; but she also had the right to keep it. She chose to exercise the latter option, and as it is not shown nor claimed that she ever sold or otherwise alienated it, she is still the equitable owner thereof. Frequent reference is made in respondents’ brief to the provision *333of the Act of Congress approved June 25, 1910 (36 Stat. 855;) but as that act was not passed until after the jurisdiction of the United States over the land in question had terminated we are not concerned with its provisions.
[9] Defendants are not in the position of innocent purchasers. They have been dealing with a tract of land that was allotted to Paul Gondrow. After his death, defendants’ grantors took a deed, purporting to convey title to said allotment, from one Mazar Gondrow; but there was nothing in the record to show that Mazar Gondrow ever purchased or otherwise acquired title to said tract of land or had any rights whatever therein. The defendants and their immediate grantors base all their rights on the one fact that the Secretary of the Interior approved the deed from Mazar Gondrow, who had never been adjudged to be the heir at law of Paul Gondrow, and it is admitted by the defendants that he was not such heir; therefore, by their own admission, they are claiming through a purported conveyance from a party who had no title to the land. Such conveyance conveyed nothing but the bare legal title, and plaintiff is entitled to judgment as prayed for in her complaint.
The judgment appealed from is reversed.