217 F. 11 | 8th Cir. | 1914
As we,view the case, we do not think that it is one where the defense of innocent purchaser may be applied. Chester Hawkins, having died before April 1, 1899, must be considered as having had no existence, so far as being a citizen of the Creek Nation entitled to an allotment of land under any law of Congress. The patents issued by the Creek Nation ran to a person not in being, and therefore conveyed no title whatever. There being no ancestor entitled to an allotment of land, there was no land to which the heirs of Chester Hawkins were entitled. As we understand the Creek Agreement, in cases where the ancestor dies before allotment, but after enrollment, the lands were to be conveyed directly to the heirs; therefore there was no pretense in this case that the heirs were seeking an allotment as representatives of a deceased ancestor. There can be no question but that the patents were void. The only question is as to whether a case is presented where under any circumstance an innocent purchaser of the land can be protected. If no title passed from the Creek Nation, then the vendees of James and Ella Hawkins obtained no title, nor did the lessees of the Iowa Land & Trust Company.
We are of the opinion that, as Chester Hawkins never had any existence so far as being entitled to an allotment of land is concerned, and having died before April 1, 1899, he was, so far as being an applicant for a patent to the land in controversy, a myth, and that the
“The patents, being issued to fictitious parties, could not transfer the title, and no one could derive any right under a conveyance in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent bona fide purchaser is protected. A subsequent purchaser is bound to know whether there was, in fact, a patentee, a person once in being, and not a mere myth, and he will always be presumed to take his conveyance' upon the knowledge of the truth in this respect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument having a legal existence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument, or one executed to fictitious parties; that is, to no parties at all, however much deceived thereby the purchaser may be. Even in the case of negotiable instruments, where the doctrine is carried farthest for the protection of subsequent parties acquiring title to the paper, it cannot be invoked if the instrument be not genuine, or if it be executed without authority from its supposed maker. Floyd’s Acceptances, 7 Wall. 660, 676 [19 L. Ed. 169]; March v. Fulton County, 10 Wall. 676, 683 [19 L. Ed. 1040].”
We think the present case comes clearly within the principles above announced. McLeod v. United States, 187 Fed. 261, 109 C. C. A. 207, and McClure v. United States, 187 Fed. 265, 111 C. C. A. 1, are-easels where the Court of Appeals of the Ninth Circuit held for cancellation patents to land even where the land had been conveyed tobona fide purchasers.
It is claimed, however, that this court in the case of United States v. Jacobs, 195 Fed. 707, 115 C. C. A. 507, decided that the bona fide purchaser had a right to rely upon the finding of the Commission to-the Five Civilized Tribes, that Pearlie Jacobs in that case was a living member of the tribe on April 1, 1899. We think the present case is clearly distinguishable from United States v. Jacobs, supra, in this respect: It appears from the opinion in that case that Pearlie Jacobs was a freedman member of the Creek Nation or Tribe of Indians and had been enrolled, but that she .died before an allotment was made-to her, and that under the law the heirs applied for the allotment and patents were issued to them. So far as a bona fide purchaser is concerned, the fact that the heirs of Pearlie Jacobs made an application for an allotment as representatives of a deceased ancestor, and that patents issued to them direct, presents a very different case from the one at bar. In the case cited the title to the land undoubtedly passed. The grantees were in being as held by this court. The bona fide purchaser dealing with the heirs, who had the apparent title on the face of the patent, would have a right to rely upon the judgment or finding of the Commission to the Five Civilized Tribes that the patentees were entitled to the land. In the case at bar there was no instrument which conveyed in any way the title to the land in question from the' Cherokee Nation to James and Ella Hawkins. We therefore think that this is a case where the patents must be held to be void, even as against an innocent purchaser, if any such exists.
“No doubt those officers found from the proofs submitted to thorn that the lands were agricultural and not coal lands, for that was a prerequisite to issuing the patents; hut the proceedings were not adversary in any true sense of the term. The applications and proofs of the entryinen were strictly ex parto. The government was not called upon to make any adverse showing, no Issue was framed, no hearing was had, and no one represented the government, save in the sense that the land officers did so.”
In the case at bar the hearing before the Commission to the Five Civilized Tribes wras purely ex parte. The United States or the Creek Nation was not represented, and no issue was framed or tried.
From what has been said, it results that the decree below in favor of the lessees of the Iowa Land & Trust Company should be reversed, and the case remanded, with instructions to render a decree in favor of the United States against all defendants; and it is so ordered.
I doubt that a deed or patent to a dead man is so utterly void that his heirs can convey no valid interest to