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It has since, more than once, been recog22]nized by this court, *that "the influence for which a will or deed will be annulled must be such as that the party making it has no free will, but stands in vinculis." Conley v. Nailor (1886) 118 U. S. 127, 134 [30: 112, 115]; Ralston v. Turpin (1889) 129 U. S. 663, 670 [32: 747, 750]. See also Mackall v. Mackall (1890) 135 U. S. 167, 172, 173 [34: 84, 87].

evidence conclusively showing that nearly made to the long intimacy between father all the statements in the deed itself were and son, the alleged usurpation by the latutterly false, and in part from a letter writ-ter of absolute control over the life, habits, ten to the father by the daughter a few days and property of the former, efforts to prebefore executing the deed and while they vent others during the last sickness of the were living under the same roof, which, as father from seeing him, and the subjection of the court declared, clearly appeared upon its the will of the father to that of the son, man. face to be "a fabrication, designed to conceal ifest in times of health, naturally stronger the very facts and circumstances which it in hours of sickness. A confidential relation palpably betrays," and "not the production between father and son is thus deduced, of an inexperienced girl, but of a far more which, resembling that between client and practised and deliberate author." attorney, principal and agent, parishioner and priest, compels proof of valuable consideration and bona fides in order to sustain a deed from one to the other. But while the relationships between the two suggest influence, do they prove undue influence?" In giving a negative answer to that question, the court affirmed the following propositions: "Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practised, even though it inIn Ralston v. Turpin, just cited, in which duce the testator to make an unequal and the object of the bill was to set aside deeds unjust disposition of his property in favor made to an agent by his principal, this court, of those who have contributed to his comfort speaking by Mr. Justice Harlan, recognized and ministered to his wants, if such dispothe rule of law that "gifts procured by sition is voluntarily made. Confidential reagents, and purchases made by them, from lations existing between the testator and their principals, should be scrutinized with beneficiary do not alone furnish any prea close and vigilant suspicion," and conceded sumption of undue influence. That that in the case then before the court the the relations between this father and his agent held such relations, personal and oth- several children, during the score of years erwise, to the principal, as would enable preceding his death, naturally inclined him him to exercise great influence over the lat- towards the one and against the others, is ter in respect to the mode in which his prop- evident and to have been expected. It would erty should be managed; that the principal have been strange if such a result had not trusted the agent's judgment as to matters followed; but such partiality towards the of business more than the judgment of any one, and influence resulting therefrom, are other man; and that he had an abiding con- not only natural, but just and reasonable, fidence in the agent's integrity, as well as in and come far short of presenting the undue his desire to protect his interests. Notwith-influence which the law denounces. Right or standing all this, the bill was dismissed, be- wrong, it is to be expected that a parent will cause the plaintiff had failed to show that favor the child who stands by him, and give the deeds were obtained by undue influence, to him, rather than the others, his property. but, on the contrary, it appeared by the great To defeat a conveyance under those circumpreponderance of the evidence that "al- stances, something more than the natural inthough their execution may have been influence springing from such relationship duced, not unnaturally, by feelings of friend- must be shown; imposition, fraud, imporship for, and gratitude to, the defendant tunity, duress, or something of that nature, [24] Turpin, the grantor acted upon his own in- must appear; otherwise, that disposition of dependent, deliberate judgment, with full property which accords with the natural inknowledge of the nature and effect of the clinations of the human heart must be susdeeds. It was for the donor, who had suffi- tained." 135 U. S. 171-173 [34: 86, 87]. cient capacity to take a survey of his estate, and to dispose of it according to an intelligent, fixed purpose of his own, regardless of the wishes of others, to determine how far such feelings should control him when selecting the objects of his bounty." 129 U. 8. 675-677 [32: 752].

The principles established by these authorities may be summed up as follows: In the case of a child's gift of its property to a parent, the circumstances attending the transaction should be vigilantly and care fully scrutinized by the court, in order to ascertain whether there has been undue influence in procuring it; but it cannot be deemed prima facie void; the presumption is in favor of its validity; and, in order to set it aside, the court must be satisfied that it was not the voluntary act of the donor. The same rule as to the burden of proof applies with equal, if not greater, force to the case of a gift from a parent to a child, even if the effect of the gift is to confer upon a child with whom the parent makes his home and is in peculiarly close relations a larger share of the parent's estate than will be received by other children or grandchildren.

In Mackall v. Mackall, above cited, in which it was attempted to set aside a deed from a father to his son, it appeared that for twenty years the father and mother had been separated, and this son had remained with the father, taking his part, and assisting him in his affairs, and the other children had gone with the mother and taken her part in [28] the family differences. This court, in the opinion delivered by Mr. Justice Brewer, speaking of the contention that the execution of the deed was induced by undue influence, said: "In this respect, reference was

Applying these principles to the case at bar, it is beyond doubt that the relations in which Mary I. Campbell stood to her daughters and their husbands afford no ground for putting upon them the burden of disproving undue influence.

Upon the question whether undue influence was in fact exercised, the record contains a mass of conflicting testimony, which is satisfactorily considered in the opinion of the court of appeals, and which it would serve no useful purpose to discuss anew.

A series of decisions of this court has established the rule that successive and concurrent decisions of two courts in the same case, upon a mere question of fact, are not to be reversed, unless clearly shown to be erroneous. This rule, more often invoked in admiralty cases, is yet equally applicable to appeals in equity. Dravo v. Fabel, 132 U. S. 487, 490 [33: 421, 422]; Stuart v. Hayden, 169 U. S. 1, 14 [42: 639, 644]; Baker v. Cummings, 169 U. S. 189, 108 [42: 711,716].

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There is one document, however, in the record, which was the subject of so much ar[25] gument at the bar, that a brief notice of it, and of the circumstances under which it was drawn up, will not be out of place.

The defendants, at the hearing, introduced in evidence a writing signed by Mary I. Campbell, and in the following terms: D. C., October 1885. I

have to-day voluntarily, without suggestion from anyone, given to my two daughters the 4% and 4 per cent United States bonds coming to me from the estate of my husband, amounting to thirteen thousand dollars at par, thus equaling their share with the an:ount received by their brother and his family." There was evidence tending to show that this writing was drawn up and signed at the request of Mrs. Moore, and delivered to her, on the day of its date, and had since been kept by her.

AQUILA H. PICKERING.

(See S. C. Reporter's ed. 26-32.) Record of Indian's deed, when notice of title.

The record of a deed from an Indian without

the approval of the President, which is nec essary for a valid conveyance, constitutes notice of the title to subsequent purchasers, under the Illinois conveyancing act, § 30, making an unrecorded deed void as to creditors and subsequent purchasers.

Submitted

[No. 123.]

January 12, 1899.
February 20, 1899.

Decided

ERROR to the

I State of Illinois to review a judgment of Court of the that court affirming the judgment of the in favor of the plaintiff, Aquila H. Pickering, Superior Court of Cook County in that State for the recovery of lands which had origi nally been granted by the United States to certain Indians under the treaty of Prairie du Chien. Affirmed.

See same case below, 165 Ill. 431: also see same case, 145 U. S. 310, 36 L. ed. 716.

It was argued, in behalf of the plaintiffs, that the procuring of this paper, containing the unusual and suspicious declaration that the gift of the bonds was made "voluntarily, without suggestion from anyone," together with the long concealment of the paper from the plaintiffs, was strong evidence of an intent to back up a fraudulent transaction.

But this argument is fully met by evidence that the reason for the execution of this paper was that, three or four years before, Mary K. Campbell, the mother of the plaintiffs, had made an unfounded charge that Mrs. Moore had by undue influence procured the insertion of the legacies to herself and her sister in her father's will, and had only desisted from that charge upon receiving from Mary I. Campbell a written statement that it was “false in every particular." Under such circumstances, no suspicion of undue influence can arise out of the execution of the writing of October 6, 1885, or out of its not having been disclosed to the plaintiffs, which may well have been in order to prevent stirring up anew a family quarrel. In this respect, as in most others, the case wholly differs from that of Taylor v. Taylor, 'error.

Statement by Mr. Justice Brown:

This was an action of ejectment brought by Aquila H. Pickering against John A. Lomax and William Kolze to recover possession of two parcels of land in Cook county, Illinois, which had originally been granted by the United States to certain Indians under the treaty of Prairie du Chien, of July 29,

1829.

This case was before this court upon a former hearing (Pickering v. Lomax, 145 U. S. 310 [36: 716]), the report of which contains a full statement of the facts, which need not be here repeated. Upon that hearing the judgment of the supreme court of Illinois was reversed, and the case remanded for a new trial, which resulted in a judgment for Pickering, the plaintiff, and in an affirmance of that judgment by the supreme court of Illinois. Lomax v. Pickering, 165 Ill. 431. To review this judgment a second writ of error was sued out from this court.

Messrs. John M. H. Burgett, James Maher, and A. W. Browne for plaintiff in error.

Mr. John P. Ahrens for defendant in

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The common source of title in this case was Alexander Robinson, an Indiar, to whom the lands were patented by President Tyler, December 28, 1843, under the provisions of art. 4 of the treaty of Prairie du Chien (7 Stat. at L. 320), subject to the following proviso: "But never to be leased or conveyed by him" (the grantee), "them, his or their heirs, to any person whatever, without the permission of the President of the United States." The lands were subsequently allotted and set off to Joseph Robinson, one of the patentee's children. by a decree in partition of the Cook county court of common pleas.

Pickering claimed title through a deed from Joseph Robinson and wife to John F. Horton, dated August 3, 1858, recorded July 16, 1861, but without the approval of the President indorsed thereon. The deed was, however, submitted to and approved by the President, January 21, 1871, and a certified copy of the deed with such approval recorded March 12, 1873.

Lomax's title was by deed from Joseph Robinson to Alexander McClure, datei November 22, 1870, submitted to and approved by the President, February 24, 1871, and recorded March 11, 1871, in Cook county.

Upon the first trial, plaintiff's chain of title being proved, the defendant Lomax introduced no evidence,' but at the close of plaintiff's testimony moved that the case be dismissed upon the ground that the deed of August 3, 1858, from Joseph Robinson and wife to Horton was made in direct violation of the terms of the patent, which required the approval of the President to the conveyance. This motion was granted, the court being of opinion that Robinson had no authority to convey without obtaining prior permission of the President, and that the subsequent approval of the deed was invalid. Thereupon judgment was rendered for the defendant, which was affirmed by the supreme court of Illinois. 120 Ill. 293.

to McClure in the approval of the President by about a month, viz.: Horton, January 21, 1871; McClure, February 24, 1871.

The case was reversed by this court upon [28] the ground that the approval subsequently given by the President to the conveyance was retroactive, and was equivalent to permission before execution and delivery. The case went back for a new trial, when Lomax put in evidence the title above stated, relying upon a sentence in the opinion of this court to the effect that "if, after executing this deed, Robinson had given another to another person with the permission of the President, a wholly different question would have arisen." Judgment having been rendered for the plaintiff, the case was again taken to the supreme court of the state, which was of opinion that the defendant did not stand in the relation of a bona fide purchaser to the property.

Defendant, however, relies upon the fact that the McClure deed was recorded with the approval of the President indorsed thereon March 11, 1871, while plaintiff's deed with such approval was not recorded until March 12, 1873. The real question then is whether the recording of the Horton deed of July 16, 1861, without the approval of the President indorsed thereon, was notice of plaintiff's title to subsequent purchasers.

By section 30 of the conveyancing act of Illinois, it is provided that "all deeds, mortgages, and other instruments in writing which are authorized to be recorded shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until the same shall be filed for record."

The supreme court of Illinois [165 Ill. 436] was of opinion that the deed to Horton was entitled to record, although it had not received the approval of the President. In [29] delivering the opinion of the court Mr. Justice Craig observed: "As respects the approval of the President, required by the treaty and the provision in the patent to render the deed effectual, we do not think the recording laws have any bearing upon it. There was a record of the approval of the President in the Department at Washington, and that record was notice to all concerned from the time it was made, and we do not think the recording laws of the state required a copy of that record to be recorded in the recorder's office where the land is located. A record of that character is similar to a patent issued by the I'resident for lands that belong to the government, which is not required to be recorded in the county where the land is located."

Even if this be not a construction of the state statute binding upon us, and decisive of the case, we regard it as a correct exposition of the law.

The deed is an ordinary warranty deed upon its face, signed by the parties, and regularly acknowledged before a justice of the peace. There was nothing to apprise the recorder of any want of authority to convey, or to justify him in refusing to put the deed on record. Whether the grantors had authority to make the deed as between themselves and the grantees, or subsequent purchasers, is a matter which did not concern him. Though the deed might be impeached by showing that the grantor had no such authority, the record was notice to subsequent purchasers that they had at least attempted to convey their interests.

It will be observed that the deed to Horton A deed may be void by reason of the inof August 3, 1858, antedated the deed to Mc- fancy or coverture of the grantors, and yet Clure of February 22, 1870, by more than may be, under the laws of the state, entitled twelve years, and was recorded July 16, 1861, to record and notice to subsequent purchaswhile the deed to McClure was recorded ers. While the record of a void deed is of March 11, 1871, nearly ten years thereafter. no greater effect than the deed itself, and is The deed to Horton also antedated the deed not such notice as will give protection to a

bona fide purchaser, yet it may, under cer- |corder's office in Cook county, and when Motain circumstances, be a notice to intending Clure took his deed of November 22, 1870, purchasers, or third persons, that the grant- and obtained the approval of the President or has intended and undertaken to convey of February 24, 1871, he took it with the his title. Thus, in Morrison v. Brown, 83 chance that the Horton deed had already Ill. 562, a deed of trust executed by a mar- been approved and that the power of the ried woman, her husband not uniting there- President had been exhausted. The approval 30] in, to secure the purchase money of the prop by the President of his deed was doubtless an erty, though void as a conveyance, was never-inadvertence, and, in view of the fact that he theless held to be an instrument in writing had already approved the Horton deed, a relating to real estate within the statute of nullity. By his approval of the first deed Illinois, and, when recorded, constructive no- the title of Robinson was wholly devested, tice to all subsequent purchasers of the lien and there was nothing left upon which a of the original vendor upon the same for the subsequent approval could operate, unless unpaid price. The court took the ground we are to assume that such subsequent apthat while married women had no force or proval in some way revested the title in Robpower to create a lien, subsequent purchas-inson and passed it to McClure. No new deers occupied the same position as they would livery was necessary to pass the title to Horhave done had the instrument been read to ton. United States v. Schurtz, 102 U. S. them before they became interested in the 378 [26: 107]; Bicknell v. Comstock, 113 U. question. S. 149 [28: 962]; Gilmore v. Sapp, 100 Ill. So, in Tefft v. Munson, 57 N. Y. 97, the 297; Gallipot, Bruner, v. Manlove, 2 Ill. 156. record of a mortgage prior to the acquisition No injustice was done to McClure, since he of title by the grantor was held to be con- already had notice, both by the record and structive notice to a subsequent purchaser in by Robinson's statement, that he had congood faith, and, under the recording act, giv-veyed the land, and an examination of the ing it priority to the title. See also United record in Washington would doubtless have States Ins. Co. v. Shriver, 3 Md. Ch. 381; shown that the prior deed had received the Alderson v. Ames, 6 Md. 52; Stevens v. approval of the President. The two deeds Hampton, 46 Mo. 404. stand in the relation of two patents for the same land, the second of which is uniformly held to be void.

In this case, however, it appears from McClure's own statement that when Robinson came to him in 1870 to sell him his right to the land, he told him that he had already sold the premises, but without the approval of the President, and that McClure sent his own attorneys to examine the record. He thus had not only constructive, but actual, notice of the Horton deed.

The approval of the President was no proper part of the deed. The language of the restriction in the original patent was "but never to be leased or conveyed by him [the grantee], them, his or their heirs, to any person whatever, without the permission of the President of the United States." How that permission should be obtained or expressed is left undetermined by the proviso. We see no reason why it might not have been by a memorandum at the foot of the petition for approval, or even by a letter to that effect. The essential fact was that permission should be obtained and expressed in some form, of which, in all probability, a record was kept in the Department.

There is nothing in the fact that the par
tition proceedings, under which Robinson ob-
tained title to the land in dispute, were not
approved by the President. Not only were
these partition proceedings set forth as a
part of the record of the case at the time he
approved the Horton deed, but as already
held in the prior case (p. 316 [36: 719]), [32]
such approval was retroactive, and operated
as if it had been indorsed upon the deed when
originally given, and inured to the benefit of
Horton and his grantee, "not as a new title
acquired by a warrantor subsequent to his
deed inures to the benefit of the grantee, but
as a deed, imperfect when executed, may be
made perfect as of the date when it was de-
livered."

The judgment of the Supreme Court of
Illinois is therefore affirmed.

ROBERT G. WILSON, Piff. in Err.,

v.

EUREKA CITY.

(See 8. C. Reporter's ed. 32-37.)

Indeed, we think it sufficiently appears that at the time the deed to McClure was approved by the President, February 24, 1871, *there was on file in Washington the approval of the President of the prior deed to Horton. There was put in evidence a certificate of the Commissioner of Indian Affairs, signed March 7, 1896, to a certified copy of the Horton deed, with an affidavit as to the loss of the original, a further affidavit that the sale was an advantageous one for Robinson, and the approval of the President, dated January 21, 1871. It does not directly appear when the approval of the President was put on file in the office of the Commissioner, but we think the presumption is that it was filed as of its date. There was nothing requiring | Submitted January 17, 1899. Decided Feb

that this approval should be filed in the re

City ordinance, when not unconstitutional.
An ordinance requiring the written permission
of the mayor or president of the city council,
or, in his absence, of a councilor, before any
person shall move a building on the streets,
is not unconstitutional as a denial of the
equal protection of the laws or of due process
of law.
[No. 142.]

ruary 20, 1899.

603

174

N ERROR to the Supreme Court of the | further showed that plaintiff in error applied

that court affirming a judgment of the Fifth Judicial District Court of the State of Utah, County of Juab, which affirmed the judgment of a Justice's Court of Eureka City, Utah, convicting plaintiff in error, Robert G. Wilson, of a violation of an ordinance of that city upon which he was sentenced to pay a fine. Affirmed.

See same case below, 15 Utah, 53.

building along and across Main street in the city, to another place within the fire limits. The mayor refused the permission, stating that if the desire was to move it outside of the fire limits permission would be granted. Notwithstanding the refusal, the plaintiff in error moved the building, using blocks and tackle and rollers, and in doing so occupied the time between eleven A. M. and three P. M. At the place where the building stood originally the street was fifty feet from the houses on one side to those on the otherpart of the space being occupied by sidewalks, and the balance by the traveled highway. The distance of removal was two hundred and six feet along and across Main street. Eureka City was and is a mining town, and had and has a population of about two thousand. It was admitted that the building was moved with reasonable diligence.

[34]

Statement by Mr. Justice McKenna: Section 12 of ordinance number 10 of Eureka City, Utah, provided as follows:

"No person shall move any building or frame of any building, into or upon any of the public streets, lots, or squares of the city, or cause the same to be upon, or otherwise to obstruct the free passage of the streets, without the written permission of the mayor, or president of the city council, or in their absence a councilor. A violation of this section shall, on conviction, subject the offender to a fine of not to exceed twenty-five dollars."

The plaintiff in error was tried for a vio lation of the ordinance in the justice's court [33] of the city. He was convicted and *sentenced to pay a fine of twenty-five dollars. He appealed to the district court of the first judicial district of the territory of Utah.

On the admission of Utah into the Union the case was transferred to the fifth district court of Juab county, and there tried on the 24th of October, 1896, by the court without a jury, by consent of the parties.

Section 12, supra, was offered and admitted in evidence. Plaintiff in error objected to it on the ground that it was repugnant to section 1 of article 14 of the Constitution of the United States, in that it delegated an authority to the mayor of the city, or in his absence to a councilor.

There was also introduced in evidence an ordinance establishing fire limits within the city, providing that no wooden buildings should be erected within such limits except by the permission of the committee on building, and providing further for the alteration and repair of wooden buildings already erected. The ordinance is inserted in the margin.t

*The evidence showed that the plaintiff in error was the owner of a wooden building of the dimensions of twenty by sixteen feet, which was used as a dwelling house. It was constructed prior to the enactment of the ordinances above mentioned. The evidence

† Section 1. That the following boundaries | are hereby established as the fire limits of Eureka City, to wit: Commencing at a point on Main street of sald city, where said street crosses the Union Pacific Railway track, and opposite or nearly opposite the Keystone hoisting works, thence running in an easterly direction along said Main street to a point where said street intersects the road or street easterly of the site now occupied by the M. E. Church building the northerly and southerly boundaries of said fire limits to be two hundred feet on each side of said Main street for said distance.

Sec. 2. Every building hereafter within the fire limits of said city shall be of brick, stone, iron, or other substantial and incombustible

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*Mr. Justice McKenna delivered the [35] opinion of the court:

Whether the provisions of the charter enabled the council to delegate any power to the mayor is not within our competency to decide. That is necessarily a state question, material, and only the following wooden buildings shall be allowed to be erected, except as hereinafter provided, viz.: Sheds to facilitate the erection of authorized buildings, coal sheds not exceeding ten feet in height, and not to exceed one hundred feet in area, and privies not to exceed thirty feet in area and ten feet in height, and all such sheds and privies shall be separate structures: Provided, That any person desiring to erect a building of other material than those above specified within said fire limits, shall first apply to the committee on building within said fire limits of the city for permission so to do, and if the consent of the committee on building within said fire limits shall be given, they shall issue a permit, and it

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