after stating the case as above, delivered the opinion of the court.
There are really • but two questions involved ih this case:. (1) whether Patrick located -this scrip and took these.lands under the blank power of attorney and deed, as trustee for Sophia Pelix; and (2) "whether the plaintiffs are estopped by their - own laches- and those of Sophia Pelix 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 Pelix, 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 Jo preemption or private sale, but. it was expressly provided in the act that no transfer or convey? nee of such scrip should be valid. In pursuance of this act, scrip Ivas issued to her in 1857, to the amount of 480 acres. The scrip itself no, being assignable, some person (who it was does not appehr) obtained possession of such scrip to the -amount of 12Ó 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, I860, 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. *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 have been sold to purchasers, whose only notice of the infirmity in their 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. ■ Fiad the notary, who took the acknowledgment, observed these blanks, he 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 ike 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 *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 tó' 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,
The substance of these authorities is that, whenever a person obtains the legal title, to land by any artifice or concealment, or by making use of facilities intended for the benefit of apother, 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 of Metropolis
v.
Guttschlick,
' ■ ■ It needs no argument to show that no additional right was acquired by Patrick under.the acts of July 25, 1868, and February 2, 1869, 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, of 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' iVhich one party is by law entitled, shall belong to another.
*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 consideratiou, and neither the person to whom she delivered them, nor- Patrick himself, could be considered her agent for fflling 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.
Mc
Morine, 6 M. &
W.
200;
Davidson
v. Cooper, 11 M.
& W. 778,
793;
Burns
v.
Lynde,
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 *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 "cestvÁ 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 defence of laches, plamtitrs rely mainly upon the fact that Sophia Félix 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 then-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 hope-less 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 non-assignable, as in this case, or'by requiring the. assent of the President to their execution of deeds as in the case of
Piehering
v. Lomax,
ante,
310, decided at this term. We -fully coincide with what was said by Mr. Justice Davis in the ' ease of the
Kansas
Indians,
But, conceding that- the plaintiffs were'inqapablé, so long as they maintained their tribal relations, of being affected with *333 laches, and that these relations were not dissolved until 1887, Avhen 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 certificate 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 offence, and the very magnitude of the consequences in this case demands, of us that Ave should consider carefully the nature of the Avrong 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 béing in collusion Avith the unknoAvn person who procured it from her. More than that, the allegations of this bill do not_ satisfy us that she did not receive full valuei'or the scrip. It is true, there are general averments that the power of attorney and quitclaim deed were obtained “,by Avicked- devices and fraudulent means;n that she never parted Avith her title to or interest in the scrip, and was the absolute OAvner 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 vieAV 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 Avith the scrip to some one, and the recital of a nominal consideration in a quitclaim deed is entitled to very littlé 'weight as evidence of the actual consideration.. ■
Hówéver this may be, taking all the allegations. of this bill together, it is very evident that. Patrick bought these *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 in imated that this should be done without giving the partietsany 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, an.d have erected buildings of a permanent character upon .their purchases. The bill charges all .these with notice- of the defeci in -Patrick’s .title, and prays that the conveyances to them be declared null' and void, and *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 received 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.