It having been settled by
Lomax v. Pickering,
173 U. S. 26, that,
when the consent of the Secretary of the Interior is necessary to
give effect to a deed of public land, that approval may be
retroactive, and take effect by way of relation as of the date of
the deed, and it appearing from the fact of the approval by the
Secretary in this case that the Indian grantor received full
payment for his land, and was in no manner imposed upon in the
conveyance, and as the plaintiffs have no equitable rights superior
to those of the grantee in that deed,
held that the title
conveyed by the deed must be upheld.
Under and by virtue of the provisions of a treaty between the
United States of America and the Kas-kas-kia, Peoria, and other
confederated tribes of Indians, concluded on the 30th day of May,
1854, proclaimed August 10, 1854, 10 Stat. 1083, and an act of
Congress approved March 3, 1859, 11 Stat. 431, the southeast
quarter of section No. fifteen (15), in township No. seventeen
(17), south of range No. twenty-three (23) east, in the Territory,
now state, of Kansas, and other lands, were on November 1, 1859,
conveyed by the United States of America by letters patent to
Ma-cha-co-meyah, or David Lykins, a member of the said Peoria tribe
of Indians, being "Peoria Reserve No. 14." The patent contained the
following provision: "That said tracts 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." On June 3, 1864, the
patentee, David Lykins, conveyed the land to one Baptiste Peoria,
by deed of that date, which deed was on March 10, 1865, presented
to the Secretary of the Interior, and by him approved. Intermediate
the making of the deed and the approval of the Secretary of the
Interior, to-wit, on August 14, 1864, the patentee died, leaving
the two plaintiffs in error (plaintiffs below) as his sole
Page 184 U. S. 170
heirs. This action in ejectment was commenced by them on March
18, 1899, in the Circuit Court of the United States for the
District of Kansas against the defendant, in possession and
claiming title under the deed to Baptiste Peoria. A demurrer to an
amended petition was sustained, and judgment entered in favor of
the defendant, whereupon this writ of error was sued out.
MR. JUSTICE BREWER delivered the opinion of the Court.
It is contended by the plaintiffs that the deed from David
Lykins, not having been approved before his death, became thereby
an absolute nullity; that title immediately vested in them, free
from any claim of the grantee in the deed; that they never asked
for the approval of the Secretary of the Interior; never consented
that it should be given; never in any way ratified or assented to
the deed of their ancestor, and that the Secretary was without any
authority after the death of the patentee to approve the latter's
deed.
The eleventh section of the act of 1859, superseding in this
respect the treaty of 1854, contained a general provision in
reference to restricted patents to Indians in Kansas, that the
Secretary of the Interior should cause them to be issued "upon such
conditions and limitations, and under such guards or restrictions,
as may be prescribed by said Secretary," and in pursuance of this
section, the restriction referred to was placed in this patent.
That the consent of the Secretary was effective, though given after
the execution of the deed, was determined in
Pickering v.
Lomax, 145 U. S. 310. In
that case, the patent to the Indian contained a stipulation,
authorized by treaty, that the land should not be conveyed "to any
person whatever, without the permission of President of the United
States." A
Page 184 U. S. 171
deed was made by the Indiana holder of the title on August 3,
1858, which was approved by the President on January 21, 1871,
nearly thirteen years thereafter, and it was held that the approval
related back to the time of the execution of the deed, and made it
valid as of that date. In other words, the antecedent approval of
the President was not a condition of the validity of the deed. It
was enough that he approved what had been done. It is true that it
does not appear that the Indian grantor had died intermediate the
making of the deed and the approval of the President (and in this
respect that case differs from the present), but the grantee from
the Indian had died during such interval, and only by way of
relation could the action of the President be considered as making
effective an otherwise void deed to a dead man. That case came
before this Court a second time,
Lomax v. Pickering,
173 U. S. 26,
173 U. S. 27,
and in the opinion then filed the scope of the prior decision was
thus stated:
"The case was reversed by this Court upon the ground that the
approval subsequently given by the President to the conveyance was
retroactive, and was equivalent to permission before execution and
delivery."
It must therefore be considered as settled that the consent of
the Secretary of the Interior to a conveyance by one holding under
a patent like the present may be given after the execution of the
deed, and when given is retroactive in its effect and relates back
to the date of the conveyance.
But the applicability of the doctrine of relation is denied on
the ground that the interests of new parties, to-wit, the
plaintiffs, have sprung into being intermediate the execution of
the conveyance and the approval of the Secretary. But one of the
purposes of the doctrine of relation is to cut off such interests,
and to prevent a just and equitable title from being interrupted by
claims which have no foundation in equity. The doctrine of relation
may be only a legal fiction, but it is resorted to with the view of
accomplishing justice. What was the purpose of imposing a
restriction upon the Indian's power of conveyance? Title passed to
him by the patent, and but for the restriction he would have had
the full power of alienation the same as any holder of a fee-simple
title. The restriction was placed upon
Page 184 U. S. 172
his alienation in order that he should not be wronged in any
sale he might desire to make; that the consideration should be
ample; that he should in fact receive it, and that the conveyance
should be subject to no unreasonable conditions or qualifications.
It was not to prevent a sale and conveyance, but only to guard
against imposition therein. When the Secretary approved the
conveyance, it was a determination that the purposes for which the
restriction was imposed had been fully satisfied; that the
consideration was ample; that the Indian grantor had received it,
and that there were no unreasonable stipulations attending the
transaction. All this being accomplished, justice requires that the
conveyance should be upheld, and to that end the doctrine of
relation attaches the approval to the conveyance and makes it
operative as of the date of the latter.
Counsel for plaintiffs in error would liken this deed to a power
of attorney -- a mere authority to convey, which loses its vitality
at the death of the grantor of the power. It seems to us more like
a deed fully executed and placed in escrow, to be finally delivered
on the performance of a condition. While ordinarily, in case of an
escrow, title passes at the date of the second delivery, yet often,
for the prevention of injustice, the deed will relate back to the
first delivery so as to pass title at that time.
"If the grantor being a feme sole should marry, or whether a
feme sole or not should die or be attainted after the first and
before the second delivery, and so become incapable of making a
deed at the time of second delivery, the deed will be considered as
taking effect from the first delivery, in order to accomplish the
intent of the grantor, which would otherwise be defeated by the
intervening incapacity."
Prutsman v. Baker, 30 Wis. 644, 649;
Vorheis v.
Kitch, 8 Phila. 554;
Harkreader v. Clayton, 56 Miss.
383;
Black v. Hoyt, 33 Ohio St. 203.
The plaintiffs have no equities superior to those of the
purchaser. They are the heirs of the Indian grantor, and as such
may rightfully claim to inherit and be secured in the possession of
all that property to which he had at his death the full equitable
title; but when, as is shown by the approval of the Secretary, he
had received full payment of a stipulated price, and that
Page 184 U. S. 173
price was ample, and he had been subjected to no imposition or
wrong in making the conveyance, then their claims as heirs cannot
be compared in equity with those of the one who had thus bought and
paid full value. They certainly do not stand in the attitude of
bona fide purchasers.
"A person who is a mere volunteer, having acquired title by
gift, inheritance, or some kindred mode, cannot come within the
scope of the term
bona fide purchaser. To enable the
grantee to claim protection as a
bona fide purchaser he
must have parted with something possessing an actual value, capable
of being estimated in money, or he must on the faith of the
purchase have changed, to his detriment, some legal position that
he before had occupied."
Devlin on Deeds, sec. 813.
As therefore it has been settled by
Pickering v. Lomax,
145 U. S. 310,
that approval by the Secretary may be retroactive and take effect
by way of relation as of the date of the deed, and as it appears
from the fact of the approval by the Secretary that the Indian
grantor received full payment for his land and was in no manner
imposed upon in the conveyance, and as these plaintiffs have no
equitable rights superior to those of the grantee in that deed, it
follows that the title conveyed by it must be upheld. The judgment
of the Circuit Court is
Affirmed.