258 F. 520 | D.C. Cir. | 1919
This case involves the right of the relator, Sykes, to a mandamus against the Secretary of the Interior, requiring him to deliver to Sykes a deed for land allotted to Dwight Butter, a full-blood Choctaw Indian, in distribution of the tribal property. Congress placed certain restrictions upon the alienation of such land, but by Act May 27, 1908, c. 199, 35 Stat. 311, the Secretary of the Interior was authorized to remove them “under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” Pursuant to this authority the Secretary provided for the removal of the restrictions on Butter’s property by the following order:
By direction of the Secretary the land in question was offered for sale at public auction for the benefit of Butter, having been first appraised at $1,300. Sykes bid $1,500 and paid down one-tenth of the purchase price, as required by the terms on which the property was offered for sale. The clerk in charge notified the superintendent of the Five Civilized Tribes of Syke’s bid, and recommended that it be accepted. In turn the superintendent informed Butter of the offer and requested him to execute a deed for the land, if the offer was acceptable to him. Butter appeared before one Foltz, a representative of the superintendent, and signed, and delivered to him, a deed for the land in favor of Sykes. This deed Foltz sent to the superintendent. Soon thereafter the latter, having learned that a very large gas well had been “brought in” within 1% miles of the land, informed Butter of it by letter and asked him if hg was still willing to accept Syke’s offer, and, if not, the deed would be returned to him for cancellation. Butter wrote at first that he wanted $2,000 instead of $1,500 from Sykes, and later asked $5,000 or $6,000. Some time afterwards he changed his mind and requested the superintendent to deliver the deed to Sykes and collect from him the $1,500. This the superintendent refused to do, saying:
“It is not believed that it would be to your best interests at this time to sell this land.”
The action of the superintendent was reported to the Secretary of the Interior through the proper channels, and approved by him.
Was the superintendent Sykes’ agent or the agent of Butter? We do not think he was either, for he was a public officer discharging his duties as such when he received the deed from Butter. Smith v. United States, 170 U. S. 372, 18 Sup. Ct. 626, 42 L. Ed. 1074. But, whether or not he was the agent of Butter, he certainly was not the representative of Sykes, and in consequence the delivery to him was not a delivery to Sykes. Butter, it is true, authorized him to deliver it to Sykes, but he did not execute the power, and until it was executed no title passed.
We think the judgment of the lower court is right, and it is therefore affirmed, with costs.
Affirmed.