The common source of title in this case was Alexander Robinson, an Indian, to whom the lands were patented by President Tyler, December 28, 1843, under the provisions of Art. IV of the treaty of Prairie du Chien, 7 Stat. 320, subject to the following proviso: "But never to be leased or conveyed by him," (the grantee,) "them, his or their heirs, to any person whatever, without the permission of the President of the United States." The lands were subsequently allotted and set off to Joseph Robinson, one of the patentee's children, by a decree in partition of the Cook County Court of Common Pleas.
Pickering claimed title through a deed from Joseph Robinson and wife to John F. Horton, dated August 3, 1858, recorded July 16, 1861, but without the approval of the President endorsed thereon. The deed was, however, submitted to and approved by the President, January 21, 1871, and a certified copy of the deed with such approval recorded March 12, 1873.
Lomax's title was by deed from Joseph Robinson to Alexander McClure, dated November 22, 1870, submitted to and approved by the President, February 24, 1871, and recorded March 11, 1871, in Cook County.
Upon the first trial, plaintiff's chain of title being proved the defendant Lomax introduced no evidence, but at the close of plaintiff's testimony moved that the case be dismissed upon the ground that the deed of August 3, 1858, from Joseph Robinson and wife to Horton was made in direct violation of the terms of the patent, which required the approval of the President to the conveyance. This motion was granted, the court being of opinion that Robinson had no authority to convey without obtaining prior permission of the President, and that the subsequent approval of the deed was invalid. Thereupon judgment was rendered for the defendant, which was affirmed by the Supreme Court of Illinois. 120 Illinois, 289, 293.
The case was reversed by this court upon the ground that
It will be observed that the deed to Horton of August 3, 1858, antedated the deed to McClure of February 22, 1870, by more than twelve years, and was recorded July 16, 1861, while the deed to McClure was recorded March 11, 1871, nearly ten years thereafter. The deed to Horton also antedated the deed to McClure in the approval of the President by about a month, viz.: Horton, January 21, 1871; McClure, February 24, 1871.
Defendant, however, relies upon the fact that the McClure deed was recorded with the approval of the President endorsed thereon March 11, 1871, while plaintiff's deed with such approval was not recorded until March 12, 1873. The real question then is whether the recording of the Horton deed of July 16, 1861, without the approval of the President endorsed thereon, was notice of plaintiff's title to subsequent purchasers.
By section 30 of the conveyancing act of Illinois, it is provided that "all deeds, mortgages and other instruments in writing which are authorized to be recorded shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until the same shall be filed for record."
The Supreme Court of Illinois was of opinion that the deed to Horton was entitled to record, although it had not received
Even if this be not a construction of the state statute binding upon us, and decisive of the case, we regard it as a correct exposition of the law.
The deed is an ordinary warranty deed upon its face, signed by the parties, and regularly acknowledged before a justice of the peace. There was nothing to apprise the recorder of any want of authority to convey, or to justify him in refusing to put the deed on record. Whether the grantors had authority to make the deed as between themselves and the grantees, or subsequent purchasers, is a matter which did not concern him. Though the deed might be impeached by showing that the grantor had no such authority, the record was notice to subsequent purchasers that they had at least attempted to convey their interests.
A deed may be void by reason of the infancy or coverture of the grantors, and yet may be, under the laws of the State, entitled to record and notice to subsequent purchasers. While the record of a void deed is of no greater effect than the deed itself, and is not such notice as will give protection to a bona fide purchaser, yet it may, under certain circumstances, be a notice to intending purchasers, or third persons, that the grantor has intended and undertaken to convey his title. Thus, in Morrison v. Brown, 83 Illinois, 562, a deed of trust executed by a married woman, her husband not uniting therein,
So, in Tefft v. Munson, 57 N.Y. 97, the record of a mortgage prior to the acquisition of title by the grantor was held to be constructive notice to a subsequent purchaser in good faith, and under the recording act, giving it priority to the title. See also United States Ins. Co. v. Shriver, 3 Md. Ch. 381; Alderson v. Ames, 6 Maryland, 52; Stevens v. Hampton, 46 Missouri, 404.
In this case however, it appears from McClure's own statement that when Robinson came to him in 1870 to sell him his right to the land, he told him that he had already sold the premises, but without the approval of the President, and that McClure sent his own attorneys to examine the record. He thus had not only constructive but actual notice of the Horton deed.
The approval of the President was no proper part of the deed. The language of the restriction in the original patent was "but never to be leased or conveyed by him, [the grantee,] them, his or their heirs, to any person whatever, without the permission of the President of the United States." How that permission should be obtained or expressed is left undetermined by the proviso. We see no reason why it might not have been by a memorandum at the foot of the petition for approval, or even by a letter to that effect. The essential fact was that permission should be obtained and expressed in some form, of which, in all probability, a record was kept in the Department.
Indeed, we think it sufficiently appears that at the time the deed to McClure was approved by the President, February 24,
There is nothing in the fact that the partition proceedings, under which Robinson obtained title to the land in dispute, were not approved by the President. Not only were these partition proceedings set forth as a part of the record of the case at the time he approved the Horton deed, but as already
The judgment of the Supreme Court of Illinois is therefore