dissenting:
The cause was submitted to the court below for trial, without a jury. The plaintiff offered in evidence the following: The Indian treaty; a patent from the United States to Alexander Eobinson, for land which included the tracts in controversy; a partition'between Alexander Eobinson and his children, wherein there was set off to Joseph Eobinson, one of the children, the lands in controversy, made February 18, 1847; a warranty deed of August 3,1858, duly recorded, conveying, for the consideration of $4100, from Joseph Eobinson and his wife, to John F. Horton, the lands last named, to which deed is appended the approval of the President of the United States, dated January 21, 1871; an administrator’s deed, from tlie.administrator. of the estate of- Horton, to Moses. W. Baer, dated October 16, 1863, consideration $318.53, duly recorded, conveying said lands,—the deed having been made, in pursuance of an order of s°ale for payment of debts of said estate, made by the county court of Cook county. Then followed several intermediate conveyances of the premises, by warranty deeds, down to a warranty deed dated November 10, 1866, recorded November 23,1886, from Henry H. Dyer and wife, to Aquila H. Pickering, the plaintiff, conveying, for the consideration of $1600, the same premises. At the close of the plaintiff’s evidence, the defendants’ counsel, without offering any evidence, moved the court that the plaintiff’s testimony be excluded and the case dismissed, on the ground that the foundation of the plaintiff’s title fails, in that the deed from Joseph Robinson to Horton, made in 1858, was made in direct violation of the terms of the patent as to obtaining the approval of the President of the United States, which motion the court sustained, and plaintiff excepted.
The plaintiff’s counsel requested the court to hold the proposition of law, that it was not necessary to apply to the President of the United States for leave to convey; that the President had power to approve any deed Joseph Robinson might make, subsequent to its execution and delivery, and that such approval would make the deed valid. The court refused to so hold, to which the plaintiff excepted, and after overruling a motion for a new trial, the court gave judgment in favor of the defendants.
Joseph Robinson held the absolute fee in the land in question, under a patent from the United States, with the simple qualification that he or his children or heirs should not lease or convey the land without the permission of the President of the United States. We have in the ease a warranty deed of the land, for a valuable consideration, made by Robinson, with an approval thereof by the President of the United States indorsed upon the deed. This, it is thought, effectuates a conveyance of the land from Robinson, and notwithstanding the fact that the approval of the President was not obtained .until at the considerable length of time which here appears, after the making of the deed. There appears ,the permission of the President, and that fulfills the condition for the making of the conveyance. This condition was designed for the benefit of the Indian, as a safeguard of his interest against fraud, imposition, and his own improvidence, in the disposition of his land. ■ A supervisory care, in this respect, it was thought best should be exercised; and the measure of guardianship which it was seen fit to provide, was the President’s permission to a conveyance of his land by the Indian. This granting of permission was a duty imposed upon the President, and no one else. How and when he should perform it, was for him to determine, and not for a court to adjudge. No time or form of granting the permission was prescribed. The President assumed to act in the discharge of the duty which was imposed upon him, by giving his sanction to the conveyance. Whether it was proper for him to do so at such a length of time after the making of the deed, was, it is conceived, for his sole determination.
A similar view was taken in respect of a like provision in the case of Ex dem. Godfrey v. Beardsley, 2 McLean, 412, where the permission was given before the deed was made. Justice McLean there said: “Neither the treaty nor any law prescribes the form in which this sanction (permission) should be given. The treaty imposed the duty upon the President, and he could execute it in such form and manner as his discretion should dictate. * * * Except by permission of the President, Pierre Moran could not convey this land. That permission was obtained before the deed was executed. Now, whether it would have been more judicious to have withheld the sanction until the execution of the deed, is a matter about which differences of opinion may exist. But whether given before or after the deed, it is equally within the power of the President. ”
In Jackson v. Hill, 5 Wend. 532, where, in order to the validity of a deed made by an Indian, the approbation of the surveyor-general was required by the law of New York, it was held that a deed made without such approval, but subsequently approved, was good from the time such approbation was in fact given. And see, to same effect, Murray v. Wooden, 17 Wend. 531.
I think the court erred in its rulings, and that the judgment should be reversed.