While we have considered all of the assignments of error, we do not consider it important to comment upon each. As to the contention that the title acquired by the Kickapoo Indians was a fee simple, we desire to say that we do not deem it necessary to decide this point, because, under the decision of the Supreme Court of the United States — which court is the final arbiter of this case — it is held that a restriction upon the alienation of these lands is not inconsistent with a fee-simple title. See also Stevens v. Smith, 2 Kan. 243.
*13The pivotal question in this case, however, is, Which of the two deeds of Cadue conveyed the title to the land? Article 3 of the treaty proclaimed May 28, 1863, reads as follows :
“Article 3. At any time hereafter, when the President of the United States shall have become satisfied that any adults, being males and heads of families, who may be allottees under the provision of the foregoing article, are sufficiently intelligent and prudent to control their affairs and interests, he may, at the request of such persons, cause the land severally held by them to be conveyed to them by patent in fee simple, with power of alienation; and may, at the same time, cause to be set apart and placed to their credit severally, their proportion of the cash value of the credits of the tribe, principal and interest, then held in trust by the United States, and also, as the same may be received, their proportion of the proceeds of the sale of lands under the provisions of this treaty. And on such patents being issued, and such payments ordered to be made by the President, such competent persons shall cease to be members of said tribe, and shall become citizens of the United States ; and thereafter the lands so patented to them shall be subject to levy, taxation, and sale, in like manner with the property of other citizens : Provided, That before making any such application to the President, they shall appear in open court, in the District Court of the United States for the District of Kansas, and make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens; and shall also, make proof, to the satisfaction of said court, that they are sufficiently intelligent and prudent to control their affairs and interests ; that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families.”
It is contended by the plaintiff in error that Cadue, having appeared before the United States District Court and made' the proofs required by this article *14of the treaty, and having taken the oath of allegiance as a citizen of the United States, and having renounced his allegiance to the Kickapoo Tribe of Indians, became a citizen of the United States, and his disability then ceased; and that he was, from that time, empowered to act in his own behalf as. to any property he owned, the same as any other citizen of the United States. And that by making that proof and thus becoming a citizen of the United States under the provisions of article 3 of the treaty, he acquired a right to the patent with power of alienation, and that when that patent issued it related back to the date of this proof, being the first moment of time when he could by right claim the patent. And, being no longer incapacitated, that under his deed of October 20,1886 — it being a warranty deed — the after-acquired legal title conveyed to him by the patent inured to the benefit of Martin and Cole and their grantees, by estoppel.
It is contended, on the other hand, that he did not become a citizen by making the proof and taking the oath of allegiance, as required of. aliens, under the provisions of the treaty; ■ that he did not cease to be under the guardianship of the United States; that he was still incapacitated to convey the land, and that until such time as the President acted upon his application and caused the patent to issue, any deed he might make would be void. If the restriction as to alienation upon Cadue as an allottee was not removed by the proceedings in the United States District Court, then his deed of October 20, 1886, was void and conveyed no title, and the plaintiff in error could not claim title under her mortgage, by way of estoppel. This is expressly decided in Sheldon v. Donohoe (40 Kan. 346) and a number of cases therein cited, and *15also by tbe Supreme Court of the United States in a number of cases. A deed made in express violation of an inhibition provided by law is a void deed and conveys no title, nor can it create one by way of equitable estoppel.
Article 2 of the treaty of 1863, under which this land was allotted to Cadue, provided as follows :
“Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise .disposed of only to the United States, or to persons then being members of the Kickapoo Tribe, and of Indian blood, with the permission of the President, and under such rules and regulations as the Secretary of the Interior shall provide, except as may be hereinafter provided. And on receipt of such certificates, the person to whom they are issued shall be deemed to have relinquished all right to any portion of the lands assigned to others in severalty, or to a portion of the tribe in common, and to the proceeds of the sale of the same whensoever made.”
Article 3 of the treaty, under the provisions and amendments provided by the act of Congress of August 4, 1886 (24 U. S. Stat. at Large, 219), has a provision by which the land may become alienable by the allottees. The allottee was to apply to the President, and when he became satisfied that the allottee was sufficiently intelligent and prudent' to control his own affairs and interests, the President should cause the land to be conveyed to the allottee by a patent in fee simple with power of alienation. But it was further provided that, before applying to the President, the allottee should appear before the United States District Court for the District of Kansas and make proof of the facts upon which the President was authorized to issue the patent making the lands alienable. Cadue, in this case, did everything that was required of him *16to be done. He made the necessary proof and took the oath of allegiance. There was nothing left to be done but for the application to go through the ordinary routine of the executive departments of the Government and receive the approval of the President, and for a patent to issue and payment to be made to him of his share of the money belonging to his tribe.
There is a further provision in this article 3, as follows : “And on such patents being issued, and such payments ordered to be made by the President, such competent persons shall cease to be members of said tribe, and shall become citizens of the United States ; and thereafter the lands so patented to them shall be subject to levy, taxation, and sale, in like manner with the property of other citizens." But it will be noticed that in this clause of the article all mention of the power of alienation is omitted.
If, by the proceedings in the court, Cadue became a competent person to convey his land, then the deed was not void, notwithstanding no patent was issued on his application until January 19, 1888. Being competent to deed his own property and having made a warranty deed, the subsequently acquired legal title under the patent inured to the benefit of the grantee named in the deed of October 20, 1886, by way of relation or estoppel. Now, it may be assumed to be true that the public authorities were not authorized to tax this land until after the patent issued, and the land could not be subject to the levy of execution or other legal process until after the patent issued; and yet the Indian who had shown his competency, who had been adjudged competent, could nevertheless make a valid conveyance. If he had done everything that he had to do under the law, and was entitled to a patent for this land giving him full dominion over it, with*17out any exercise of discretion by the President, the mere fact that there was a delay in issuing the patent would not affect his rights, or make his act with respect to the property to which he was entitled a "void act.
A majority of this court are of the opinion that Cadue became a citizen of the United States, under the section quoted, only when the President acted upon the application and caused the patent to issue ; and while they are willling to concede that the opinion of Foster, J., in Briggs v. Sample (43 Fed. Rep. 102), is not conclusive upon them as authority, yet they-" are glad to find that the result of their own judgment, reached without the assistance of that authority, coincides with that of so distinguished and able a jurist. He says : ^ ,
“It will be observed that, under the provisions of. article 2 of said treaty, this land could not be sold to" any person other than a member of the Kickapoo. Tribe without the permission of the President of the United States. Article 3 provides the mode by which the President shall act in giving his permission to the allottee to alienate his land. Being satisfied of the intelligence and prudence of the Indian to control his own affairs and interests-, the President may cause the land to be conveyed to him ‘ by patent in fee simple, with power of alienation ; . . . and such patents being issued, and such payments ordered to be made by the President, such persons shall cease to be members of said tribe, and shall become citizens of the United States, and thereafter the lands so patented to them shall be subject to levy, taxation, and sale in like manner with the property of other citizens.’ The article further provides that before makingTapplication to the President the Indian shall appear before the United States District Court, and make certain proofs establishing his intelligence, ability to support himself and family, etc., and take the oath of allegi*18anee. This proof and oath of allegiance before the court does not of itself make the Indian a citizen, or sever his tribal relations, or procure him his patent, or make his land alienable. It is simply a preliminary proceeding to his making application to the President, and thereafter the President may act in the matter ; and not until his patent is issued, and payments of his interest in the trust fund have been ordered, does he cease to be a member of the tribe, and become a citizen, and possess the power to alienate his land. It is clear that at the time this allottee made his deed to Cole and Martin, October 20, 1886, he was not a citizen, but still held his tribal relations, and was incompetent to contract, or to be contracted with, for the sale of his land; and his deed to said parties was illegal and void. Under the plain words of the treaty, it would seem no citation of cases is necessary; but, touching on this subject, see the following cases: Pennock v. Monroe, 5 Kan. 578; Libby v. Clark, 118 U. S. 250, 6 Sup. Ct. Rep. 1045; Smith v. Stevens, 10 Wall. 321; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. Rep. 901; Maynes v. Veale, 20 Kan. 374.”
A majority of this court cannot see that justice demands the application of the rule of relation in this case, to give the plaintiff in error a title, any more than in any other case where land has been bought from a person incapable of conveying a title, or of contracting in relation thereto. They fully accept the principle laid down in Oliver v. Forbes (17 Kan. 113), that it is a general rule of law that when a patent is issued it relates back to the earliest moment when it ought to have been issued, but hold that this patent ought first to have been issued when the President acted upon the application of Cadue and issued it, as the issuing of the patent under the section in controversy is itself the thing that fixes the status of the Indian as a citizen of the United States. The issues in the last-cited case are entirely dissimilar to those in the case at bar.
*19The majority also think that there is a very plain distinction between Jenkins v. Collard (145 U. S. 546) and the case at bar. In that case the land owner was under no general disability ; as far as other property or future acquisitions were concerned, he was at full liberty to contract, and having entered into a deed with covenants of seizin; and warranty while the disability existed, the court, page 560, held : “That warranty estopped him and all persons claiming under him from asserting title to the premises against the grantee, and his heirs and assigns, or conveying it to any other parties.” The distinction drawn is the difference between the acts of a person totally incapable of contracting, and those of a person forbidden to convey certain specific property only, after the respective disabilities are removed.
We are also referred to the case of Supervisors v. United States (4 Wall. 435) as being in point, but we do not see its relevancy, as the section under consideration says that “when the President shall have become satisfied,” etc., he may exercise the powers conferred. His becoming satisfied, was the necessary preliminary to his final action. And we do not think it is a fact that it was intended that he should act solely upon the determination of the United States District Court.
The- judgment of the court below will be affirmed.
McElroy, J., concurring.