The plaintiff claims to be one of the class of persons protected by the 17th article of the treaty, and files his bill in equity to enforce that right, insisting that the defendant holds the legal title to the one hundred and sixty acres of land in controversy in trust for him.
Under the agreed facts, the court is of opinion that the plaintiff is entitled, on the payment to the defendant of the appra sed price of two dollars per acre, without interest, and the amount of taxes on the said land paid by the defendant, with interest thereon at the legal rate of seven per cent per an-num, to a decree that the defendant convey the -land in question to him. The rights and equities of the government and the defendant company, as to the amount received by the defendant over the amount which was paid to the government for the land, viz., one dollar per acre, can be adjusted between them, and does not concern the plaintiff.
It is implied in the above conclusion, that we are of opinion that one who is an “actual settler,” within the meaning of the treaty, at the date of its ratification, and entitled to its protective provisions, may, after that time and before making proof under the regulations of the secretary of the interior, transfer his right to purchase the land to which he is entitled, and that the grantee may make the required proof, and thus entitle himself to make the purchase at the appraised value. If the land had not been patented by the government, the grantee, after making the due proof of his grantor’s right at the date of the ratification of the treaty, would be entitled to make the purchase, if not in his own name, then in the name of his grantor, who would hold it for the benefit of the granteé.
The 17th article of the treaty does not in terms require the settler to be in possession at the time of his purchase; but he must bo *260in actual occupancy at the date of the ratification of the treaty in order to be 'within its provisions. If thus ■ in possession his right would descend to his heirs, and, in our judgment, it may be devised or conveyed if it was complete when the treaty was ratified.
Por further construction of the 17th article of the treaty, see Langdon v. Joy [Oase Ño. 8,-062].The intention of the senate throughout to protect the “actual settler” is unmistakable, and accords with the uniform practice of the government in this respect. It was the rights of those who owned and personally occupied their improvements that the treaty sought to guard and secure. The actual settler must own the improvements in his own right and not for another, and he must personally occupy the improvements, or the land on which they are situate, for agricultural purposes, and he must thus own and'occupy them at the date of the ratification of the treaty. If he was such an owner and occupier, the treaty intended to give him the preferable right to purchase. His rights were fixed; and no one is benefited by holding that he may not transfer his right when it is thus consummate. To hold otherwise would be to imprison the settler for the time without any advantage to the government, or any rightful advantage to any one else.
What we decide is, that if the right of the actual owner and occupier at the date of the ratification of the • treaty to buy the land is complete, he may, after that, transfer to another his right in any mode which is effectual as between them, and the grantee succeeds to the ■ grantor’s rights in this respect. This court so held in Langdon v. Joy [Case No. 8,062], in which holding Hr. Justice Miller concurred.
The land in question was used by the settler for agricultural purposes, and is not “mineral land” by reason of a coal deposit underlying a portion of it. Lead and zinc, and perhaps other mineral deposits, were known to exist not far from, if not within, these “neutral lands,” and it was lands containing such deposits that was meant by the word “mineral” as used in the treaty. In sales of the public lands in Iowa, Missouri, and Kansas, lands containing coal deposits have not been reserved by the government as “mineral” lands.
In this case the improvements were on and covered each of the forty-acre tracts constituting the quarter-section of land in controversy. It is clear, therefore, that the plaintiff’s rights extend to each of the forty-acre tracts included in the one hundred and sixty acres claimed by the plaintiff.
What is said above, expressly or by implication, substantially answers all the questions submitted, except the question whether the treaty, as finally amended and ratified, provides for one or two classes of “actual set-tiers.” This question is not necessarily involved in the present case, and as its solution is not unattended with difficulties, we do not' now pronounce any definite opinion upon it-In the regulations of the secretary of the interior on this subject, he construed the 17th article of the treaty as providing for two classes of settlers, viz.: (1) Those who owned and personally occupied improvements for ‘agricultural purposes, of the value of fifty dollars, at the date of the signing of the treaty, July 19, 1866. (2) Those who, after the signing (July 19, 1S66), and before the ratification of the treaty (August 11, 1886), were actual settlers upon the land, having the qualifications of pre-emptors under the pre-emption laws of the United States.
The provisions of the first and second provisos, in respect of actual settlers, being in' pari materia, must be taken and construed together; and thus regarded, the leading purpose of the second amended proviso seems to have been to secure the rights of those set-' tiers mentioned in the first proviso by prohibiting a sale, by the secretary of the interior, en masse, which would cut them off— thus limiting, and not enlarging, the power previously given to this officer, and extending this protection to the settler from the date of the signing of the treaty July 19th, to the date of its ratification, August 11th; and the words in the-second proviso, “to each person entitled to pre-emption under the pre-emption laws of the United States,” if not intended merely as words of limitation on the power of the secretary to sell, mean probably no more than that the settler must have the qualifications of a pre-emptor as to citizenship of the United States, and be the head of a family,' or a widow, or a single man over the age of twenty-one years, not owning three hundred and twenty acres of land elsewhere, etc., to be entitled to the benefit of the treaty. But the provisions of the pre-emption laws, as to extent and character of improvements, so far as they conflict with the express provisions of the first proviso of the 17th article of the treaty, in this regard, would be controlled by the provisions of the treaty.
We doubt whether the treaty, as amended, provides for two distinct classes, making separate provisions of a different character as to each class, as the secretary of the interior seems to have supposed. But we are not prepared to express any final opinion on the subject, and leave it open. On the payment of the purchase money and taxes, as above stated, into court for the defendant, the plaintiff may have a decree for the lands. Decree accordingly.