An allotment certificate issued under the Choctaw-Chickasaw
agreement of July I, 1902, c. 1362, 32 Stat. 641, passes the
equitable title only; the legal title remains in the United States
until conveyed by patent, duly recorded, as provided by § 5 of the
Act of April 26, 1906, c. 1876, 34 Stat. 137, and the allotment in
the meantime is subject to be set aside, by the Secretary of the
Interior, for fraudulent procurement.
The doctrine of
bona fide purchase will not aid the
holder of an equity to overcome the holder of both the legal title
and an equity.
Mandamus is a discretionary remedy, largely controlled by
equitable principles; it will not be granted to promote a wrong --
to direct an act which will work public or private mischief, or
which, while within
Page 245 U. S. 309
the letter, disregard the spirit of the law. So
held
where the relator, purchaser in good faith and without notice of a
fraudulent Indian allotment, sought to get in the legal title as
against the United States by compelling the Secretary of the
Interior to issue and record a patent.
44 App.D.C. 63 affirmed.
The case is stated in the opinion.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This is a petition for a writ of mandamus brought in the Supreme
Court of the District of Columbia to compel the Secretary of the
Interior to restore the name of Nicholas Alberson, deceased, to the
rolls under the Choctaw-Chickasaw Agreement of July 1, 1902 (32
Stat. 641), and to execute and record a patent for land described
in an allotment certificate issued in his name by the Dawes
Commission.
Under that act, only the names of persons alive September 25,
1902, were entitled to entry on the rolls. Alberson had died before
that date. The entry of his name and the issue of the certificate
were procured by fraud and perjury. These facts, now conceded, were
established by the Commission to the Five Civilized Tribes, and the
Secretary of the Interior, upon recommendation of the Commission,
removed Alberson's name from the rolls, held the certificates for
cancellation, and allotted the land to others. Notice of the
hearing before the Commission was given to Alberson's administrator
and attorney of record, but not
Page 245 U. S. 310
to the relator, who had, under the Oklahoma law, recorded the
deed assigning the certificates, and was in actual possession of
the premises. The certificates had issued on or before April 7,
1906. The notation removing Alberson's name from the rolls was made
January 11, 1908. The relator purchased the certificates before
January 11, 1908, for value in good faith without knowledge of the
fraud or notice of the proceedings for cancellation hereinbefore
referred to. The Supreme Court entered judgment for the relator,
commanding issue and record of the patent, but making no order in
respect to restoring Alberson's name to the rolls. The relator
acquiesced in the judgment, but, on writ of error sued out by
respondent, the judgment was reversed by the Court of Appeals (44
App.D.C. 63), and the relator brings the case here on writ of
error.
The nature of the Choctaw-Chickasaw Agreement [
Footnote 1] and the rights incident to
enrollment and allotment have been frequently considered by this
Court. Enrollment confers rights which cannot be taken away without
notice and opportunity to be heard.
Garfield v. Goldsby,
211 U. S. 249.
Certificates of allotment, like receiver's receipts under the
general land laws, entitle the holder to exclusive possession of
the premises. Act July 1, 1902, § 23, 32 Stat. 641-644;
United
States v. Detroit Lumber Co., 200 U.
S. 321,
200 U. S.
337-338. But enrollment and certificates may be
cancelled by the Secretary of the Interior for fraud or mistake,
Lowe v. Fisher, 223 U. S. 95,
because, although the equitable title had passed,
Michigan Land
& Lumber Co. v. Rust, 168 U. S. 589,
168 U. S. 593,
the land remains subject to the supervisory power of the Land
Department,
Knight v. Lane, 228 U. S.
6, until issue of the patent,
United States v.
Wildcat, 244 U. S. 111,
unless, under the statute, the power expires earlier by lapse of
time.
Ballinger
Page 245 U. S. 311
v. Frost, 216 U. S. 240.
Under § 5 of the Act of April 26, 1906, c. 1876, 34 Stat. 137, the
legal title can be conveyed only by a patent duly recorded.
Brown v. Hitchcock, 173 U. S. 473,
173 U. S. 478.
The provision in § 23 of the Act of July 1, 1902, that
"allotment certificates issued by the Commission to the Five
Civilized Tribes shall be conclusive evidence of the right of any
allottee to the tract of land described therein"
has relation to rights between the holder and third parties. The
title conferred by the allotment is an equitable one, so that
supervisory power remained in the Secretary of the Interior.
We are not required to decide whether, as suggested in
Lowe
v. Fisher, 223 U. S. 95,
223 U. S. 107,
the power to remove Alberson's name from the rolls had, because of
§ 2 of Act April 26, 1906, expired before the Secretary acted. For
the Supreme Court of the district did not order the name restored,
and its judgment was acquiesced in by the relator. The claim which
the relator makes in this Court rests wholly upon the fact that the
relator was a
bona fide purchaser for value. But the
doctrine of
bona fide purchaser for value applies only to
purchasers of the legal estate.
Hawley v. Diller,
178 U. S. 476,
178 U. S. 484.
It "is in no respect a rule of property, but a rule of inaction."
Pomeroy, Equity Jurisprudence, § 743. It is a shield by which the
purchaser of a legal title may protect himself against the holder
of an equity, not a sword by which the owner of an equity may
overcome the holder of both the legal title and an equity.
Boone v.
Chiles, 10 Pet. 177,
35 U. S.
210.
Mandamus is an extraordinary remedial process which is awarded
not as a matter of right, but in the exercise of a sound judicial
discretion. It issues to remedy a wrong, not to promote one; to
compel the performance of a duty which ought to be performed, not
to direct an act which will work a public or private mischief or
will be within the
Page 245 U. S. 312
strict letter of the law, but in disregard of its spirit.
Although classed as a legal remedy, its issuance is largely
controlled by equitable principles. [
Footnote 2] The relator having itself only an equity seeks
the aid of the court to clothe it with the legal title as against
the United States, which now holds both the legal title and the
equity to have set aside an allotment certificate secured by fraud.
A writ of mandamus will not be granted for such a purpose.
See
Turner v. Fisher, 222 U. S. 204. The
judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
See, e.g., Stephens v. Cherokee Nation, 174
U. S. 455;
Woodward v. De Graffenreid,
238 U. S. 284.
[
Footnote 2]
People ex rel. v. Assessors, 137 N.Y. 201;
People
ex rel. v. Jeroloman, 139 N.Y. 14;
Commonwealth ex rel.
Vandyke v. Henry, 49 Pa. 530;
Indiana Road Machine Co. v.
Keeney, 147 Mich. 184;
United States v. Fisher, 39
App.D.C. 176, 181.