F., a half-breed of the Sioux nation, received in 1857 a
certificate of land scrip under the Treaty of July 15, 1830, 7
Stat. 328, and under the act of July 17, 1854, 10 Stat. 304, c. 83,
which enacted that "no transfer or conveyance of any of said
certificates or scrip shall be valid." In March, 1860, she executed
a power of attorney in blank and a quitclaim deed in blank, the
name of the attorney, the description of the land, and the name of
the grantee in the deed being omitted. These came into the
possession of P. on the payment of $150, who inserted the name of
R. as attorney and his own name as grantee, and a tract of 120
acres in Omaha, of which he was already in possession, but without
valid title, as the description. The deed was then delivered to him
by R., and was put upon record. P. never informed F. of this
location, or of the record of these several instruments, but
remained in possession of the located tract either personally or
through his grantees. Congress, on the procurement of P., confirmed
his title to the tract. 15 Stat. 186, c. 240 ; 269, c. 21. The
half-breed was ignorant of all this until August, 1887, when the
Sioux Indians became citizens of the United States by virtue of
article 6 of the Treaty of April 29, 1868, 15 Stat. 637. In 1888,
the representatives of F., who had deceased, filed a bill in equity
against P. setting forth these facts, averring that the power of
attorney and quitclaim deed had been fraudulently procured by some
persons unknown, and praying that P. should be decreed to have
taken the title in trust for F., and that the power of attorney and
the quitclaim deed should be declared to be fraudulent and a cloud
upon plaintiffs' title, and that the defendants be directed to
surrender the estate to plaintiffs. To this the defendants
demurred, and the court below dismissed the bill.
Held:
(1) That P. was chargeable with notice that the power and the
quitclaim deed were intended as devices to evade the law against
the assignment of the scrip, and that he acquired no title through
them.
(2) That he acquired no additional rights through the
confirmatory acts of Congress.
(3) That having no right to locate the scrip for his own
benefit, he must be deemed to have located it for F. and as her
representative.
(4) That this implied trust did not prevent him from taking and
holding possession of the land adversely to her and for his own use
and benefit.
(5) That under these circumstances, F. was bound to use
reasonable diligence in discovering the fraud and seeking
redress.
Page 145 U. S. 318
(6) That, conceding that plaintiffs were incapable of being
affected with lathes so long as they maintained their tribal
relations, the bill was fatally defective in not setting forth when
and how the alleged frauds were discovered in order that the court
might clearly see whether it could not have been discovered
before.
(7) That in view of all the circumstances, it would be
inequitable to disturb the disposition made of the case below.
(8) That the most which could be justly demanded would be the
repayment of the $150, with interest.
This was an appeal from a decree sustaining demurrers to a bill
in equity filed by the heirs of Sophia Felix against the defendant
Patrick and his grantees for the purpose of having them declared
trustees for the plaintiffs of certain lands in the City of Omaha
which in 1861 he had caused to be entered in the name of Sophia
Felix by virtue of certain scrip issued to her as a member of the
Dakota or Sioux nation of Indians.
The allegations of the bill were, in substance, as follows:
1. That in 1854, Sophia Felix, being a half-breed of the Sioux
or Dakota nation of Indians, residing in Minnesota under the treaty
of July 15, 1830, and the Act of Congress of July 17, 1854, was
entitled to have issued to her scrip for the location of 480 acres
of land, as provided by that act. That in 1857, scrip was issued to
her for 480 acres, and that before the location of said scrip, the
said Sophia Felix intermarried with one David Garnelle.
2. That on March 31, 1860, certain persons unknown, "by certain
wicked devices and fraudulent means," procured the said Sophia with
her husband, said David Garnelle, to execute a power of attorney in
blank, also a quitclaim deed in blank, a copy of each of which was
attached to the bill. The power of attorney omitted the name of the
attorney, the number of the scrip, and the description of the land,
and authorized the person whose name was to be inserted to sell and
convey and confirm unto the purchaser there of the following
described pieces or parcels of land, "to be located for us and in
our name," etc. The quitclaim deed also omitted the name of the
grantee and the description of the land, but both instruments were
otherwise in legal form.
3. That the defendant Patrick in November, 1861, procured
Page 145 U. S. 319
from some person unknown possession of said strip, to the amount
of 120 acres, and on November 21 made application to the land
office at Omaha to locate such scrip, and thereupon, in the name of
said Sophia Felix, located the same upon certain described real
estate in the County of Douglas and Territory of Nebraska (these
lands are now admitted to be within the limits of the City of
Omaha). That
"at the time of said location, the said Sophia Felix had never
parted with the title to or any interest in said scrip, and was the
absolute owner thereof and sole beneficiary therein, and these
facts the said Matthewson T. Patrick at that time and at all times
well knew, and the said location inured wholly to the benefit of
the said Sophia Felix,"
although she had no knowledge that Patrick had procured the
possession of the said scrip or located the same. That the said
Patrick,
"in securing possession of said scrip, procured the same with
the intent to appropriate the scrip to his own use and defraud the
said Sophia Felix out of the same and out of all interest therein
and out of all benefits thereunder, and located the same designing
it for his own use and benefit, and with the fraudulent intent to
deprive the said Sophia Felix out of all benefit and interest
therein."
4. That, in the further prosecution of his scheme to defraud,
Patrick secured the blank power of attorney and quitclaim deed, and
shortly thereafter caused the power to be filled out with a
description of the scrip, and of the property located with it, and
caused the name of William Ruth to be inserted as the attorney to
sell and convey the property, a description of which was so
inserted. That he also caused the quitclaim deed to be filled out
with a description of the property, and inserted his own name as
grantee, making the instrument purport to be a conveyance by Sophia
and David Garnelle to himself. That on September 7, 1863, he caused
the said power of attorney and quitclaim deed to be filed for
record in the recorder's office of Douglas County, and in
furtherance of said wrongful designs caused the said William Ruth,
named by himself as attorney, to execute and deliver to him a deed
of the property, by virtue of his pretended authority, and caused
the same to be filed for record.
Page 145 U. S. 320
5. That at and before the location of such scrip, defendant
Patrick was in possession of the premises, and had attempted to
acquire title to the same by preemption, but in that respect was
unsuccessful, and that said scrip was procured and located by him
for his own benefit, and to acquire a title which he could not
acquire under the preemption acts.
6. That in furtherance of said scheme, the said Patrick procured
the enactment of an act of Congress, approved February 2, 1869,
confirming the title to the land in question to the parties holding
by deed from the patentee.
7. That the said Patrick never informed the said Sophia or her
husband, or anyone related to her by blood,
"that he had procured and located said scrip, or that he had
procured said blank instruments and filled them out, or had caused
a deed to be executed conveying to himself the real estate herein
before described, or that he claimed any ownership therein, but, on
the contrary, fraudulently concealed the same and exercised every
precaution to prevent said proceedings coming to the knowledge of
said parties."
That, recognizing the frailty of his title, he endeavored for
several years to secure the execution of a deed by the said Sophia
and her husband without letting them know the character of the
instrument, whereby they would convey to him in fee the said
property, and to that end procured his father to write a letter, a
copy of which was made an exhibit. That all the acts heretofore
stated were in the execution of an unlawful scheme to wrong and
defraud said Sophia out of said scrip and property. That the
instruments executed as aforesaid by her and her husband were not
intended by them to be used for the purpose of conveying the said
property to any person whatsoever, or to authorize such conveyance
by any other person, and no consideration was received by either of
them for the scrip, but that Patrick has claimed, and still claims
and asserts, ownership in the premises, ever since the location of
said scrip.
8. That a large part of said land has been platted and recorded,
divided into lots, and sold by warranty deed to others, who are
made defendants as purchasers from him of particular descriptions
given in the bill.
Page 145 U. S. 321
9. That these grantees had notice of infirmities, if not actual
fraud, attaching to the title of Patrick, since, among other
things, the power of attorney and deed are dated nearly two years
prior to the scrip location. That on July 3, 1863, the United
States issued to the said Sophia Felix its patent for the premises,
which was filed for record on July 25, 1863.
10. That the said Sophia Garnelle died December, 1865, and
during her lifetime had no knowledge that Patrick had secured and
located said scrip; had no knowledge that the power of attorney and
quitclaim deed had been filled out or used in any manner, or placed
on record, and had no knowledge as to the disposition made of such
scrip, or of the acts of the said Patrick. That the plaintiffs, who
are the heirs at law of the said Sophia Felix, had no knowledge
whatever of the facts set forth until 1887, when, under a certain
treaty with the Sioux Indians, they became citizens of the United
States, and that prior to this time they had maintained their
tribal relations with the Sioux Indians, and were, by acts of
Congress, inhibited and barred from instituting any action in any
of the courts, federal or state, in the United States, were denied
access to the said courts, and had no legal standing therein as a
party.
11. That Patrick and those claiming under him ought not to be
permitted to hold such real estate, but should surrender the same
to the plaintiffs, in view of the fact that said scrip, under the
treaty of Prairie du Chien and the Act of Congress of July 17,
1854, could not be sold, assigned, or transferred, directly or
indirectly. That Patrick received said scrip in trust for said
Sophia, and located the same in trust for her, and holds possession
of the land as trustee for her and her heirs, and ought not to be
allowed to assume any adverse relation to the plaintiffs. That he
ought also account for the rents, issues, and profits of said land
for all the time he has had possession thereof, etc. Prayer that he
be declared a trustee; that the power of attorney and quitclaim
deed be declared fraudulent and void, and a cloud upon plaintiff's
title. and be cancelled; that the act of Congress confirming
Patrick's title to the lands be declared unconstitutional and void;
that the defendants
Page 145 U. S. 322
surrender possession of the land to the plaintiffs, and that the
said Patrick account for the rents and profits, etc.
There were three separate demurrers filed to this bill by
Patrick and several of the other defendants, principally upon the
ground of want of equity and laches. Upon hearing in the court
below, the bill was dismissed, 36 F. 457, and the plaintiffs
appealed to this Court.
Page 145 U. S. 325
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
There are really but two questions involved in this case: (1)
whether Patrick located this scrip and took these lands under the
blank power of attorney and deed, as trustee for Sophia Felix, and
(2) whether the plaintiffs are estopped by their own laches and
those of Sophia Felix from insisting that Patrick shall be decreed
to hold the lands for their benefit.
The facts of the case, briefly stated, are as follows: Sophia
Felix, a half-breed Indian, was entitled under an Act of Congress
of July 17, 1854, 10 Stat. 304, c, 83, to certain scrip which might
be located upon any unoccupied land subject to preemption or
private sale; but it was expressly provided in the act that no
transfer or conveyance of such scrip should be valid. In pursuance
of this act, scrip was issued to her in 1857, to the amount of 480
acres. The scrip itself not being assignable, some person (who it
was does not appear) obtained possession of such scrip to the
amount of 120 acres from the said Sophia and her husband, she
having in the meantime married, and also procured from them a power
of attorney and quitclaim deed bearing date March 31, 1860, and
executed in blank. Nearly two years thereafter, and in November,
1861, these were turned over (by whom it does not appear) to
Patrick, who located the scrip upon the lands in question, of which
he had already been in possession for some time and to which he had
endeavored, though unsuccessfully, to acquire title by preemption,
caused the name of William Ruth to be inserted as attorney in the
power, and his own name as grantee in the quitclaim deed, after
filling in the description of this property, and on July 25, 1863,
procured from Ruth, under his power of attorney, a warranty deed to
himself of the same property. The description of
Page 145 U. S. 326
the land in the quitclaim deed seems to have been defective, and
in the meantime,
viz., July 3, 1863, a patent had issued
to Sophia Felix. Patrick has been in possession of these lands ever
since. A large part of the tract has been platted and recorded as
an addition to the City of Omaha, and is divided into blocks and
lots intersected by streets, and a large part of the lands has been
sold to purchasers, whose only notice of the infirmity in either
title appears to have been the fact that the power of attorney and
quitclaim deed were dated nearly two years prior to the scrip
location.
1. The device of a blank power of attorney and quitclaim deed
was doubtless resorted to for the purpose of evading the provision
of the act of Congress that no transfer or conveyance of the scrip
issued under such act should be valid. This rendered it necessary
that the scrip should be located in the name and for the benefit of
the person to whom it was issued, but from the moment the scrip was
located and the title in the land vested in Sophia Felix, it became
subject to her disposition precisely as any other land would be. In
order, therefore, for the purchaser of this scrip from Sophia Felix
to make the same available, it became necessary to secure a power
of attorney or a deed of the land, and as the scrip had not then
been located, and the person who should locate it was unknown, the
name of the grantee and the description of the land must
necessarily be left blank. Had the notary who took the
acknowledgment observed these blanks, be would doubtless have
declined to act until they were filled out, particularly in view of
the fact that the grantors were Indians and the scheme a palpable
device to evade the law against the assignment of the scrip. It is
pertinent in this connection to note the fact that the Secretary of
State, whose certificate was made in June, 1861, certified merely
to the official character of the notary, while the clerk of the
district court of the county, whose certificate was made August 20,
1863, after the scrip was located and the blanks in the instrument
filled out, certifies that the same were executed and acknowledged
according to the laws of the State of Minnesota. As the bill
alleges that Patrick
Page 145 U. S. 327
obtained possession of these instruments while still in blank,
he is clearly chargeable with notice that they were intended as a
device to evade the law against the assignment of scrip.
Having, then, no right to locate the scrip for his own benefit,
he must be deemed to have located it for Sophia Felix, and as her
representative. It was declared by this Court as early as 1810, in
the case of
Massie v.
Watts, 6 Cranch 148, that if an agent located land
for himself which he ought to locate for his principal, he is in
equity a trustee for his principal. In that case, the defendant
Massie had contracted with one O'Neal to locate and survey for him
a military warrant for 4,000 acres in his name. Massie located the
warrant with the proper surveyor, and, being himself a surveyor,
fraudulently made a survey purporting to be a survey of the entry,
but variant from the same, so that the land actually surveyed was
not the land entered with the surveyor. This was done for the
fraudulent purpose of giving way to a claim of the defendant's
which he surveyed on the land entered for the plaintiff, whereby
the plaintiff lost the land and defendant obtained the legal title.
This Court held that Massie held such land as trustee for O'Neal.
"But Massie," said Chief Justice Marshall (p.
10 U. S.
169),
"the agent of O'Neal, has entered and surveyed a portion of that
land for himself, and obtained a patent for it in his own name.
According to the clearest and best-established principles of
equity, the agent who so acts becomes a trustee for his principal.
He cannot hold the land under an entry for himself otherwise than
as trustee for his principal."
This case was subsequently cited with approval in
Irvine v.
Marshall, 20 How. 558. So in
Brush v.
Ware, 15 Pet. 93, where an executor obtained a
certificate for 4,000 acres of land and afterwards sold and
assigned the same, when it appeared under the will that he had no
right to sell the land, it was held that the purchaser to whom the
patent was subsequently issued took with notice of the prior title
of the heirs, and was bound to make the conveyance asked from him.
To the same effect are
Stark v.
Starrs, 6 Wall. 402,
73 U. S. 419;
Meader v.
Norton, 11 Wall. 442,
78 U. S. 458.
And in
Widdicombe v.
Childers, 124
Page 145 U. S. 328
U.S. 400, it was held that a person who had obtained a patent to
lands which the patentee knew he had no right to claim took the
legal title subject to the superior equities of the rightful owner.
In delivering the opinion, Chief Justice Waite said:
"The holder of a legal title in bad faith must always yield to a
superior equity. As against the United States, his title may be
good, but not as against one who had acquired a prior right from
the United States, in force when his purchase was made under which
his patent issued. The patent vested him with the legal title, but
it did not determine the equitable relations between him and third
persons."
See also Morris v. Joseph, 1 W.Va. 256.
The substance of these authorities is that wherever a person
obtains the legal title to land by any artifice or concealment, or
by making use of facilities intended for the benefit of another, a
court of equity will impress upon the lands so held by him a trust
in favor of the party who is justly entitled to them, and will
order the trust executed by decreeing their conveyance to the party
in whose favor the trust was created. It is of no consequence in
this connection that Sophia Felix was ignorant of the defendant's
acts, or of the trust thereby created, since she was at liberty,
upon discovering it, to affirm the trust and enforce its execution.
Bank v.
Guttschlick, 14 Pet. 19,
39 U. S. 31;
Moses v. Murgatroyd, 1 Johns.Ch. 119;
Cumberland v.
Codrington, 3 Johns.Ch. 229, 261;
Neilson v. Blight,
1 Johns. Cas. 205;
Weston v. Barker, 12 Johns. 276.
It needs no argument to show that no additional right was
acquired by Patrick under the Act of July 25, 1868, confirming the
title to the lands to the parties holding by deed from the
patentee. Such act might estop the government itself from taking
proceedings to cancel the patent already issued, or to oust
Patrick, but to hold it operative as affecting the rights of third
parties would be virtually recognizing judicial power in the
legislature. In no possible view of legislative authority can it be
assumed that an act of Congress can declare that lands to which one
party is by law entitled shall belong to another.
Page 145 U. S. 329
In addition to this, however, Patrick was not a man "holding by
deed from the patentee" within the meaning of the law. The power of
attorney and quitclaim deed, being in blank when they passed from
the possession of Sophia Felix, were inoperative to convey her
title to any particular land. Nor, under the allegations of this
bill, can it be claimed that she ever authorized these blanks to be
filled, since it is averred that the instruments were procured
fraudulently and without consideration, and neither the person to
whom she delivered them nor Patrick himself could be considered her
agent for filling out the blanks. Such agency, if it exists at all,
must be exercised before the deed is delivered. In order to pass
the legal title to lands, something more is necessary than the
signature of the grantor to a blank instrument. There must be an
intent to convey, and the delivery of a deed for the purpose of
vesting a present title in the grantee, and a deed delivered
without the consent of the grantor is of no more effect to pass
title than if it were a forgery.
Hibblewhite v. McMorine,
6 M. & W. 200;
Davidson v. Cooper, 11 M. & W. 793;
Burns v. Lynde, 6 Allen 305;
Everts v. Agnes, 4
Wis. 343, 6 Wis. 453;
Tisher v. Beckwith, 30 Wis. 55;
Hadlock v. Hadlock, 22 Ill. 384;
Stanley v.
Valentine, 79 Ill. 544;
Henry v. Carson, 96 Ind. 412;
Fitzgerald v. Goff, 99 Ind. 28. At best, the deed, being a
quitclaim, conveyed only the interest of the grantor at the date of
its delivery, which was nothing.
Nichols v. Nichols, 3
Chand. 189;
Lamb v. Kamm, 1 Sawyer 238.
2. The most important question in this case, however -- the
question upon which its result must ultimately depend -- is that of
laches. While, upon the facts stated, Patrick took these lands as
trustee for Sophia Felix, he did not take them under an express
trust to hold them for her benefit (in which case lapse of time
would be immaterial), but under an implied or constructive trust --
a trust created by operation of law, and arising from the illegal
practices resorted to in obtaining the power of attorney and deed.
Patrick did not take possession under any acknowledged obligation
to her, but he located
Page 145 U. S. 330
them for his own use and benefit. His possession from the very
beginning was adverse to hers. Under such circumstances, the law
raises an obligation upon the part of the
cestui que trust
to make use of reasonable diligence in discovering and unearthing
the fraud and in applying to the courts for legal redress. In this
case, 28 years elapsed from the time the scrip was procured of
Sophia Felix, and nearly 27 years from the time it went into the
possession of Patrick, before the bill was filed. It admits of no
doubt that if Sophia Felix and these plaintiffs had been ordinary
white citizens, under no legal disabilities, such as those arising
from infancy, lunacy, or coverture, this lapse of time would be
fatal to a recovery, at least unless it were conclusively shown
that knowledge of the fraud was not obtained and could not by
reasonable diligence have been discovered within a reasonable time
after it was perpetrated.
In reply to this defense of laches, plaintiffs rely mainly upon
the fact that Sophia Felix and her heirs were at the time, and
continued to be until 1887, tribal Indians, members of the Sioux
nation, residing upon their reservation in the State of Minnesota,
and incapable of suing in any of the courts of the United States.
We are by no means insensible to the force of this suggestion.
Whatever may have been the injustice visited upon this unfortunate
race of people by their white neighbors, this Court has repeatedly
held them to be the wards of the nation, entitled to a special
protection in its courts, and as persons "in a State of pupilage."
Congress, too, has recognized their dependent condition and their
hopeless inability to withstand the wiles or cope with the power of
the superior race, by imposing restrictions upon their power to
alienate lands assigned to them in severalty, either by making
their scrip nonassignable, as in this case, or by requiring the
assent of the President to their execution of deeds, as in the case
of
Pickering v. Lomax, ante, 310, decided at this term. We
fully coincide with what was said by Mr. Justice Davis in the case
of the
Kansas
Indians, 5 Wall. 758, that "the conduct of Indians
is not to be measured by the same standard which we apply to the
conduct of other people." But their very analogy
Page 145 U. S. 331
to persons under guardianship suggests a limitation to their
pupilage, since the utmost term of disability of an infant is but
21 years, and it is very rare that the relations of guardian and
ward under any circumstances, even those of lunacy, are maintained
for a longer period than this. It is practically admitted in this
case that in 1887, when their relations with their tribe were
severed by accepting allotments of land in severalty under the
Treaty of April 29, 1878, they became citizens of the United
States; that they were then chargeable with the same diligence as
white people in the discovery of this fraud, and that, as their
bill was filed in 1888, it is claimed that they fulfilled all the
requirements of law in this particular. While, as alleged in the
bill, their discovery of this fraud may have been contemporaneous
with their becoming citizens of the United States, there is no
palpable connection between the one fact and the other, and we
think the bill is defective in failing to show how the fraud came
to be discovered, and why it was not discovered before. A simple
letter to the Land Department at any time after this script was
located would have enabled them to identify the land, and the name
of the person who had located it, and it is difficult to see why,
if they had ever suspected the misuse of this scrip, they had not
made inquiries long before they did, or why their emancipation in
1887 should have suddenly awakened their diligence in this
particular. There is, it is true, an averment that Patrick never
informed the said Sophia or her husband that he had located such
scrip, but, on the contrary, fraudulently concealed the same, and
exercised every precaution to prevent such proceedings coming to
the knowledge of the party. But no acts of his in this connection
are averred in the bill, and we are left to infer that his
concealment was that of mere silence, which is not enough.
Wood
v. Carpenter, 101 U. S. 135,
101 U. S. 143;
Boyd v. Boyd, 27 Ind. 429;
Wynne v. Cornelison,
52 Ind. 312. Indeed, his concealment is to a certain extent
negatived by the fact that he put the power of attorney and deed
upon record, in the proper county, shortly after their execution.
It was held by this Court in
Badger v.
Badger, 2 Wall. 94, in speaking of the excuses for
laches,
Page 145 U. S. 332
that
"the party who makes such appeal should set forth in his bill
specifically what were the impediments to the earlier prosecution
of his claim, how he came to be so long ignorant of his rights, and
the means used by the respondent to fraudulently keep him in
ignorance, and how and when he first came to a knowledge of the
matters alleged in his bill; otherwise the chancellor may justly
refuse to consider his case upon his own showing, without inquiring
whether there is a demurrer or formal plea of the statute of
limitations contained in the answer."
Sophia Felix and her husband must have known that she had parted
with the scrip, yet she lived until 1865, and her husband until
1882, without apparently making any attempt to discover what had
become of it. Nor did their heirs apparently make any effort to
discover it until 1887, when their intelligence seems to have
suddenly sprung into activity upon their becoming citizens of the
United States. It is scarcely necessary to say in this connection
that while until this time they were not citizens of the United
States, capable of suing as such in the federal courts, the courts
of Nebraska were open to them, as they are to all persons,
irrespective of race or color.
Swartzel v. Rogers, 3 Kan.
374;
Blue Jacket v. Johnson County, 3 Kan. 299;
Wiley
v. Keokuk, 6 Kan. 94. It was said by this Court in
Wood v.
Carpenter, 101 U. S. 140,
that in this class of cases the plaintiff is held to stringent
rules of pleadings and evidence, and especially must there be
distinct averments as to the time when the fraud, mistake,
concealment, or misrepresentation was discovered, and what the
discovery was, so that the court may clearly see whether by
ordinary diligence the discovery might not have been before made.
See also Stearns v.
Page, 7 How. 819,
48 U. S. 829;
Wollensak v. Reiher, 115 U. S. 96;
Godden v. Kimmell, 99 U. S. 201,
99 U. S. 211.
The mere fact that in 1887 these plaintiffs took their lands in
severalty and became citizens does not adequately explain how they
so quickly became cognizant of this fraud or why they had remained
so long in ignorance of it.
But conceding that the plaintiffs were incapable, so long as
they maintained their tribal relations, of being affected with
Page 145 U. S. 333
laches and that these relations were not dissolved until 1887,
when they were first apprised of their right to this land, it does
not necessarily follow that they are entitled to the relief
demanded by this bill. The real question is whether equity demands
that a party who 28 years ago was unlawfully deprived of a
certificated of muniment of title of the value of $150 shall now be
put in the possession of property admitted to be worth over a
million. The disproportion is so great that the conscience is
startled, and the inquiry is at once suggested whether it can be
possible that the defendant has been guilty of fraud so gross as to
involve consequences so disastrous. In a court of equity, at least,
the punishment should not be disproportionate to the offense, and
the very magnitude of the consequences in this case demands of us
that we should consider carefully the nature of the wrong done by
the defendant in acquiring the title to these lands. He is not
charged in the bill with having been a party to the means employed
in obtaining the scrip from Sophia Felix or with being in collusion
with the unknown person who procured it from her. More than that,
the allegations of this bill do not satisfy us that she did not
receive full value for the scrip. It is true there are general
averments that the power of attorney and quitclaim deed were
obtained "by wicked devices and fraudulent means," that she never
parted with her title to or interest in the scrip and was the
absolute owner thereof, that the blank instruments were not
intended to be used for the purpose of conveying this property, and
that no consideration was ever received for the scrip. But in view
of the fact that she and her husband are long since dead, and the
party who procured it from her is unknown, it is very improbable
that the plaintiffs could prove these facts or the nature of the
original transaction. It is evident that she intended to part with
the scrip to someone, and the recital of a nominal consideration in
a quitclaim deed is entitled to very little weight as evidence of
the actual consideration.
However this may be, taking all the allegations of this bill
together, it is very evident that Patrick bought these
Page 145 U. S. 334
muniments of title as hundreds of others bought them -- in
violation of the letter and policy of the law, but without actually
intending to defraud Sophia Felix or any other person. The law
pronounces the transaction a fraud upon her, but it lacks the
element of wickedness necessary to constitute moral turpitude. If
there had been a deliberate attempt on his part, by knavish
practices, to beguile or wheedle her out of these lands, we should
have been strongly inclined to afford the plaintiffs relief at any
time during the life of either of the parties; but as the case
stands at present, justice requires only what the law, in the
absence of the statutory limitation, would demand -- the repayment
of the value of the scrip, with legal interest thereon.
Much reliance is placed upon a certain letter written by the
defendant's agent and father to one Otis, bearing date September
21, 1863, authorizing him to procure the signature of Sophia and
her husband to certain papers, for which he was to pay $100, and it
was intimated that this should be done without giving the parties
any particular information. This letter is of little value except
as indicating that defendant desired to strengthen his title by
purchasing whatever claim Sophia and her husband might have had to
it, if it could be done at a slight expense. It is sufficient
answer to it to say that nothing ever appears to have been done
under it or by virtue of it, and it affords too feeble an
indication of previous fraud to be entitled to any weight in that
connection.
There are other considerations which require to be noticed in
this connection. By the foresight and sagacity of this defendant,
this scrip was located upon lands within the limits of one of the
most thriving and rapidly growing cities of the west. That which
was wild land thirty years ago is now intersected by streets,
subdivided into blocks and lots, and largely occupied by persons
who have bought upon the strength of Patrick's title and have
erected buildings of a permanent character upon their purchases.
The bill charges all these with notice of the defect in Patrick's
title, and prays that the conveyances to them be declared null and
void, and
Page 145 U. S. 335
that plaintiffs be admitted into possession of their lands and
that Patrick account for rents, profits, and issues so far as he
has received them. If the views put forward in their brief be
correct, that these instruments were of no greater effect than if
they had been forgeries, it is difficult to see how these transfers
can be supported, and it needs no argument to show that the
consequences of setting them aside would be disastrous. Certainly,
if they were not entitled to the lands themselves, they would be
entitled to recover of Patrick what he had received for them.
Waiving this question, however, it is scarcely within the bounds of
possibility to suppose that Sophia Felix, if she had located this
scrip, would have realized a tithe of the sum her heirs now demand
of this defendant. The decree prayed for in this case, if granted,
would offer a distinct encouragement to the purchase of similar
claims, which doubtless exist in abundance through the western
territories (Felix herself having receive scrip to the amount of
480 acres, only 120 of which are accounted for), and would result
in the unsettlement of large numbers of titles upon which the
owners have rested in assured security for nearly a generation.
In view of all the facts of this case, we think the decree of
the court below, dismissing the bill, was correct, and it is
therefore
Affirmed.
MR. JUSTICE FIELD dissented.
