This case turns upon the question whether the act of Congress prohibiting Indian lands from being conveyed, except by permission of the President, is satisfied by his approval endorsed upon a deed thirteen 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. Stat. sec. 709, our authority to review final judgments or decrees of the highest
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 Sm. & Marsh. 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 thirteen years, only shows that for that length of time the title was imperfect, and that no action of ejectment
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 of the United States, 8 Wheat. 338, 363. In Ashley v. Eberts, 22 Indiana, 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 Indiana, 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 endorsement of the certificate of approbation of the deed first executed. This was a clear case of rights intervening
Nor do we consider it material that the grantee had in the meantime died, since, if the ratification be retroactive, it is as if it were endorsed upon the deed when given, and enures to the benefit of the grantee of Horton, the original grantee — not as a new title acquired by a warrantor subsequent to his deed enures 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 Indiana, 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 practised 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.