Pickering v. Lomax

STATEMENT BY MR. JUSTICE BROWN.

This was an action of ejectment brought by Pickering against John A. Lomax and William Kolze to recover two parcels of land in Cook county, Ill., which had originally been granted by the United States to certain Indians under the treaty of Prairie du Chien of July 29, 1829. A jury was waived, the case tried by the court, and a judgment rendered in favor of the defendants. The plaintiff thereupon sued out a writ of error from the supreme court of Illinois, which affirmed the judgment of the lower court. 11 N. E. Rep. 175.

Upon the trial, in order to establish his title, the plaintiff offered in evidence article 4 of the treaty of Prairie du Chien, (7 St. p. 321,) which, so far as the same is material, reads as follows: 'There shall be granted by the United States, to each of the following persons, (being descendants from Indians,) the following tracts of land, viz.: To Claude Laframboise, one section of land on the Riviere aux Pleins, adjoining the line of the purchase of 1816; * * * to Alexander Robinson, for himself and children, two sections on the Riviere aux Pleins, above and adjoining the tract herein granted to Claude Laframboise. * * * The tracts of land herein stipulated to be granted shall never be leased or conveyed by the grantees, or their heirs, to any persons whatever, without the permission of the president of the United States.'

Plaintiff then offered in evidence a copy of the patent issued December 289, 1843, signed by President Tyler under the provisions visions of the above treaty, granting the lands, including those in litigation, to Alexander Robinson for himself and children. The patent also contained the provision: 'But never to be leased or conveyed by him, them, his, or their heirs, to any person whatever, without the permission of the president of the United States.'

The next instrument in plaintiff's chain of title was a decree in a suit in partition instituted February 22, 1847, in the Cook county court of common pleas, between Alexander Robinson and his children, and eyidence to show that the lands in question were set out to Joseph Robinson, one of the children.

The following deeds were then put in evidence:

Deed dated August 3, 1858, from Joseph Robinson and wife to John F. Horton, which had indorsed upon it the approval of the president of the United States, which approval was dated January 21, 1871.

Deed from Leon Straus, administrator, etc., of the estate of John F. Horton, deceased, to Moses W. Baer, dated October 6, 1863, and made in pursuance of an order of sale by the county court of Cook county for payment of debts.

Several intermediate convey ances of the premises, down to a deed dated November 10, 1866, from Henry H. Dyer and wife to Aquila H. Pickering, the plaintiff.

The defendant introduced no evidence, but at the close of the plaintiff's case moved that the plaintiff's testimony be excluded, and the case dismissed, upon the ground that the deed of August 3, 1858, from Joseph Robinson and wife to John F. Horton was made in direct violation of the terms of the patent as to obtaining the approval of the president to the conveyance.

This motion was sustained, the court being of the opinion that Robinson had no authority to convey without obtaining the permission of the president beforehand; that the subsequent sanction obtained by persons claiming title under Robinson was invalid; and that, even if such sanction would have the effect of giving force to the deed, yet, as the grantee under that deed was dead, the administrator's deed would not carry any title to the purchaser from the administrator, but that, if any title accrued by reason of the sanction of the president, it would be to the heirs of Horton.

Thereupon the court rendered judgment for the defendant, which was affirmed by the supreme court of Illinois, (11 N. E. Rep. 175, 120 Ill. 293,) and the plaintiff sued out a writ of error from this court.

L. H. Bisbee and ''Wm. Eliot Furness'', for plaintiff in error.

Robert Hervey, for defendants, in error.

Mr. Justice BROWN, after stating the facts in the foregoing lauguage, delivered the opinion of the court.