# Pickering v. Lomax/Opinion of the Court

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United States Supreme Court
145 U.S. 310
Pickering v. Lomax
This case turns upon the question whether the act of congress probibiting Indian lands from being conveyed, except by permission of the president, is satisfied by his approval indorsed upon a deed 13 years after its execution, and after the death of the grantee and the sale of the land by his administrator.
1. A preliminary question is made by the defendant in error, as to the jurisdiction of this court. By Rev. St. § 709, our authority to riview final judgments or decrees of the highest courts of a state extends to all cases 'where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.' The argument of the defendant in this connection is that as the title to the lands did not pass by the treaty, which contained only an agreement to convey, the proviso ceased to be operative when the patent was issued in 1843; that the same restriction upon alienation contained in the patent was one which the supreme court of Illinois had considered; and that their construction, that no title passed from Robinson and Horton for want of permission of the president of the United States, could not be riviewed by this court. There are two sufficient answers to this contention: First, the proviso in the treaty did continue by its express terms to be operative, so long as the land was owned by the grantees or their heirs, and the object of carrying this proviso into the patent was merely to apprise intending purchasers of the restrictions imposed by the treaty upon the alienation of the lands; second, the case raised the question of the validity of an authority exercised under the United States, viz., the authority of the president to approve the deed 13 years after its execution, and the decision of the supreme court of Illinois was against its validity, so that the case is directly within the words of the statute.
2. So far as the main question is concerned, we know of no reason why the analogy of the law of principal and agent is not applicable here, viz., that an act in excess of an agent's authority, when performed, becomes binding upon the principal, if subsequently ratified by him. The treaty does not provide how or when the permission of the president shall be obtained, and there is certainly nothing which requires that it shall be given before the deed is delivered. Doe v. Beardsley, 2 McLean, 412. It is doubtless, as was said by the supreme court of Mississippi in Harmon v. Partier, 12 Smedes & M. 425, 427, 'a condition precedent to a perfect title' in the grantee; but the neglect in this case to obtain the approval of the president for 13 years only shows that for that iength of time the title was imperfect, and that no action of ejectment would have lain until the condition was performed. Had the grantee, the day after the deed was delivered, sent it to Washington, and obtained the approval of the president, it would be sticking in the bark to say that the deed was not thereby validated. A delay of 13 years is immaterial, provided, of course, that no third parties have in the mean time legally acquired an interest in the lands.
If, after executing this deed, Robinson had given another to another person, with the permission of the president, a wholly different question would have arisen. But, so far as Robinson and his grantees are concerned, the approval of the president related back to the execution of the deed and validated it from that time. As was said by this court in Cook v. Tullis, 18 Wall. 332, 338: 'The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. The retroactive efficacy of the ratification is subject to this qualification. The intervening rights of third persons cannot be defeated by the ratification.' See, also, Fleckner v. Bank, 8 Wheat. 338, 363. In Ashley v. Eberts, 22 Ind. 55, a similar act of the president approving a deed was held to relate back and give it validity from the time of its execution, so as to protect the grantee against a claim by adverse possession which arose in the interim between its date and the confirmation. 'Otherwise,' said the court, 'a mere trespasser by taking possession after a valid sale, and before its consummation, would have power to defeat a bona fide purchaser.' This case was approved in Steeple v. Downing, 60 Ind. 478, 497. In Murray v. Wooden, 17 Wend. 531, a conveyance of land by an Indian, which, subsequent to its date, had been ratified by a certificate of approbation of the surveyor general in the form prescribed by law, was held to be inoperative, upon the ground that, previous to the granting of such certificate, the Indian had conveyed to a third person, and the deed to such person had been approved in the mode prescribed by law previous to the indorsement of the certificate of approbation of the deed first executed. This was a clear case of rights intervening between the execution of the first deed and its approval. In Smith v. Stevens, 10 Wall. 321, the right to convey the lands reserved for the benefit of the Indians was expressly vested in the secretary of the interior, upon the request of any one of the Indians named, and it was held that, there being no ambiguity in the act which had provided the way in which the lands could be sold, by necessary implication it prohibited their being sold in any other way. 'The sale in question not only contravened the policy and spirit of the statute, but violated its positive provisions.' In that case there was no pretense that the requirements of the act had been fulfilled.
Nor do we consider it material that the grantee had in the mean time died, since, if the ratification be retroactive, it is as if it were indorsed upon the deed when given, and inures to the benefit of the grantee of Horton, the original grantee, not as a new title acquired by a warrantor subsequent to his deed inures to the benefit of the grantee, but as a deed, imperfect when executed, may be made perfect as of the date when it was delivered. This was the ruling of the court in Steeple v. Downing, 60 Ind. 478.
The object of the proviso was not to prevent the alienation of lands in toto, but to protect the Indian against the improvident disposition of his property, and it will be presumed that the president, before affixing his approval, satisfied himself that no fraud or imposition had been practiced upon the Indian when the deed was originally obtained. Indeed, the record in this case shows that the president did not affix his approval until affidavits had been presented, showing that Pickering was the owner, and that the amount paid to Robinson was the full value of the land, and that the sale was an advantageous one to him.
We are constrained to differ with the supreme court of Illinois in its view of the treaty, and to hold that, so far as this question is concerned, plaintiff's chain of title contained no defect.
The judgment of the supreme court is therefore reversed, and the case remanded for further proceedings not inconsistent with this opinion.

## Notes

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