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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

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bona fide purchaser, yet it may, under cero corder's office in Cook county, and when Mo tain 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

III. 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, ą 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 ap. that 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 de ers occupied the same position as they would livery was necessary to pass the title to Hor: have 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. Čo. 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 In this case, however, it appears from Mc- same land, the second of which is uniformly Clure's own statement that when Robinson held to be void. came to him in 1870 to sell him his right to There is nothing in the fact that the par. the land, he told him that he had already tition proceedings, under which Robinson obsold the premises, but without the approval tained title to the land in dispute, were not of the President, and that McClure sent his approved by the President. Not only were own attorneys to examine the record. He these partition proceedings set forth as a thus had not only constructive, but actual, part of the record of the case at the time he notice of the Horton deed.

approved the Horton deed, but as already
The approval of the President was no "held in the prior case (p. 316 (36: 719]), [32]
proper part of the deed. The language of such approval was retroactive, and operated
the restriction in the original patent was “but as if it had been indorsed upon the deed when
never to be leased or conveyed by him (the originally given, and inured to the benefit of
grantee), them, his or their heirs, to any Horton and his grantee, “not as a new title
person whatever, without the permission of acquired by a warrantor subsequent to his
the President of the United States." How deed inures to the benefit of the grantee, but
that perinission should be obtained or ex- as a deed, imperfect when executed, may be
pressed is left undetermined by the proviso. made perfect as of the date when it was de-
We see no reason why it might not have been livered.”
by a memorandum at the foot of the petition The judgment of the Supreme Court of
for approval, or even by a letter to that ef. Illinois is therefore affirmed.
fect. 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.
Indeed, we think it sufficiently appears

ROBERT G. WILSON, Piff. in Err.,
that at the time the deed to McClure was ap-
proved by the President, February 24, 1871,

EUREKA CITY. (31) * there was on file in Washington the approval

of the President of the prior deed to Horton. (See 8. C. Reporter's ed. 32–37.)
There was put in evidence a certificate of the
Commissioner of Indian Affairs, signed (ity ordinance, when nat unconstitutional.
March 7, 1896, to a certified copy of the Hor-

An ordinance requiring the written permission ton deed, with an affidavit as to the loss of

of the mayor or president of the city council, the original, a further affidavit that the sale

or, in his absence, of a councilor, before any was an advantageous one for Robinson, and

person shall move a building on the streets, the approval of the President, dated January is not unconstitutional as a denial of the 21, 1871. It does not directly appear when equal protection of the laws or of due process the approval of the President was put on file of law. in the office of the Commissioner, but we

[No. 142.) 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

ruary 20, 1899.

V.

I t

Y ERROR to the Supreme Court of the further showed that plaintiff in error applied that court affirming a judgment of the Fifth building along and across Main street in the Judicial District Court of the State of Utah, city, to another place within the fire limits. County of Juab, which affirmed the judgment The mayor refused the permission, stating of a Justice's Court of Eureka City, Utah, that if the desire was to move it outside of convicting plaintiff in error, Robert G. Wil the fire limits permission would be granted. son, of a violation of an ordinance of that city Notwithstanding the refusal, the plaintiff in upon which he was sentenced to pay a fine. error moved the building, using blocks and Affirmed.

tackle and rollers, and in doing so oceupied See same case below, 15 Utah, 53.

the time between eleven A. M. and three P. v.

At the place where the building stood orig. Statement by Mr. Justice McKenna:

inally the street was fifty feet from the Section 12 of ordinance number 10 of Eu- houses on one side to those on the otherreka City, Utah, provided as follows: part of the space being occupied by side

“No person shall move any building or walks, and the balance by the traveled highframe of any building, into or upon any of way. The distance of removal was two hunthe public streets, lots, or squares of the city, dred and six feet along and across Main or cause the same to be upon, or otherwise to street. Eureka City was and is a mining obstruct the free passage of the streets, with town, and had and has a population of about out the written permission of the mayor, or two thousand. It was admitted that the president of the city council, or in their ab- building was moved with reasonable dilisence a councilor. A violation of this sec.

gence. tion shall, on conviction, subject the offender The plaintiff in error was again convicted. to a fine of not to exceed twenty-five dollars.” From the judgment *of conviction he appealed (35)

The plaintiff in error was tried for a vio to the supreme court of the state, which

lation of the ordinance in the justice's court court affirmed the judgment, and to the judg. (83)of the city. He was convicted and senment of affirmance this writ of error is di

tenced to pay a fine of twenty-five dollars. rected. He appealed to the district court of the first Eureka City has no special charter, but judicial district of the territory of Utah. was incorporated under the general incorpo

On the admission of Utah into the Union ration act of March 8, 1888, and among the the case was transferred to the fifth district powers conferred by it on city councils are court of Juab county, and there tried on the the following: 24th of October, 1896, by the court without "10. To regulate the use of streets, alleys, a jury, by consent of the parties.

avenues, sidewalks, crosswalks, parks and Section 12, supra, was offered and ad public grounds. mitted in evidence. Plaintiff in error ob- “11. To prevent and remove obstructions jected to it on the ground that it was repug and encroachments upon the same.” nant to section 1 of article 14 of the Consti. The error assigned is that the ordinance is tution of the United States, in that it dele repugnant to the Fourteenth Amendment of gated an authority to the mayor of the city, the Constitution of the United States, be or in his absence to a councilor.

cause “thereby the citizen is deprived of his There was also introduced in evidence an property without due process of law," and ordinance establishing fire limits within the the citizen is thereby denied the equal procity, providing that no wooden buildings tection of the law." should be erected within such limits except by the permission of the committee on build- Mr. J. W. N. Whitecotton for plaintiff ing, and providing further for the alteration in error. and repair of wooden buildings already Mr. P. L. Williams for defendant in ererected. The ordinance is inserted in the ror.

margin.t [84] *The evidence showed that the plaintiff in *Mr. Justice McKenna delivered

the 35] error was the owner of a wooden building of opinion of the court: the dimensions of twenty by sixteen feet, Whether the provisions of the charter enwhich was used as a dwelling house. It was abled the council to delegate any power to constructed prior to the enactment of the the mayor is not within our competency to ordinances above mentioned. The evidence' decide. That is necessarily a state question,

Section 1. That the following boundaries, material, and only the following wooden buildare hereby established the fire limits of Ings shall be allowed to be erected, except Eureka City, to wit: Commencing at a point as hereinafter provided, viz.: Sheds to facil. on Main street of sald city, where said street itate the erection authorized buildings, crosses the Union Pacific Rallway track, and op- coal sheds not exceeding ten feet in height, and posite or nearly opposite the Keystone hoisting not to exceed one hundred feet in area, and works, thence running in an easterly direction privies not to exceed thirty feet in area and ten along said Main street to a point where sald feet in height, and all such sheds and priries street intersects the road or street easterly of shall be separate structures : Provided. That the site now occupied by the M. E. Church build- any person desiring to erect a building of other ing, the northerly and southerly boundaries of material than those above specified within said said fire limits to be two hundred feet on each fire limits, shall first apply to the committee on side of said Main street for sald distance. building within said fire limits of the city for

Sec. 2. Every building hereafter within the permission so to do, and if the consent of the Aire limits of said city shall be of brick, stone, committee on building within said fire limita iron, or other substantial and incombustible 'shall be given, they sball issue a permit, and it

as

of

and we are confined to the consideration of whether the power conferred does or does not violate the Constitution of the United States.

It is contended that it does, because the ordinance commits the rights of plaintiff in error to the unrestrained discretion of a single individual, and thereby, it is claimed, removes them from the domain of law. To support the contention the following cases are cited: Matter of Frazee, 63 Mich. 396; State, ex rel. Garrabad, v. Dering, 84 Wis. 585 [19 L. R. A. 858]; Anderson v. City of Wellington, 40 Kan. 173 [2 L. R. A. 110]; Mayor of Baltimore v. Radecke, 49 Md. 217 [33 Am. Rep. 239]; City of Chicago v. Trotter, 136 Ill. 430.

mittee (Commonwealth v. Davis, 140 Mass. 485); 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written per. mission of the president of the village," on any street or sidewalk (Vance v. Hadfield, [51 Hun, 620], 22 N. Y. S. R. 858, 1003, 4 N. Y. Supp. 112); giving the right to manufacturers and others to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27); prohibiting the erecting or repairing of a wooden building [37] without the permission of the board of aldermen (Hine v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to [86] *With the exception of Baltimore v. Rad- station vessels and to assign to each its ecke, these cases passed on the validity of place (Vanderbilt v. Adams, 7 Cow. 349); city ordinances prohibiting persons parading forbidding the occupancy of a place on the streets with banners, musical instruments, street for a stand without the permission of etc., without first obtaining permission of the the clerk of Faneuil Hall Market (Nightinmayor or common council or police depart-gale, Petitioner, 11 Pick.168); forbidding the ment. Funeral and military processions keeping of swine without a permit in writwere excepted, although in some respects ing from the board of health (Quincy v. Kenthey were subjected to regulation. This dis- nard, 151 Mass. 563); forbidding the ereccrimination was made the basis of the deci- tion of any kind of a building without a persion in State, ex rel. Garrabad, v. Dering, mit from the commissioners of the town but the other cases seem to have proceeded through their clerk (Easton Commissioners upon the principle that the right of persons v. Covey, 74 Md. 262); forbidding any perto assemble and parade was a well-estab- son from remaining within the limits of the lished and inherent right, which could be market more than twenty minutes unless regulated but not prohibited or made de- permitted so to do by the superintendent or pendent upon any officer or officers, and that his deputy (Commonwealth v. Brooks, 109 its regulation must be by well-defined con- Mass. 355)." ditions.

In all of these cases the discretion upon which the right depended was not that of a single individual. It was not in all of the cases cited by plaintiff in error, nor was their principle based on that. It was based on the necessity of the regulation of rights by uniform and general laws-a necessity which is no better observed by a dis cretion in a board of aldermen or council of a city than in a mayor, and the cases, therefore, are authority against the contention of plaintiff in error. Besides, it is opposed by Davis v. Massachusetts, 167 U. S. 43 [42: 71].

This view has not been entertained by other courts or has not been extended to other instances of administration. The cases were reviewed by Mr. Justice McFarland of the supreme court of California in Re Flaherty, 105 Cal. 558 [27 L. R. A. 529], in which an ordinance which prohibited the beating of drums on the streets of one of the towns of that state "without special permit in writing so to do first had and obtained from the president of the board of trustees," was passed on and sustained. Summarizing the cases the learned justice said:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray, 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common or other grounds, except by the permission of the city government and com

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shall thereupon be lawful to erect such building under such regulations and restrictions as the committee on building within said fire limits may provide.

Sec. 3. Any wooden building already within said fire limits shall only be altered or repaired In such a manner that neither area nor height be increased without the consent of the said committee on building within said fire limits.

Sec. 4. The said committee on building within said fire limits shall have the power to stop the construction of any building, or the making of alterations or repairs on any buildIng where the same is being done in violation of the provisions of this ordinance, and any owner, architect, or builder, or others who may be em

Davis was convicted of violating an ordinance of the city of Boston by making a public address on the "Common," without ob taining a permit from the mayor. The conviction was sustained by the supreme judicial court of the commonwealth (162 Mass. 510 [26 L. R. A. 712]), and then brought here for review.

The ordinance was objected to, as that in ployed, who shall assist in violation or noncompliance with the provisions of this ordinance, shall be subject to a fine for every such violation or noncompliance, of not less than ten nor more than one hundred dollars.

Sec. 5. That there shall be a committee consisting of three members of the council appointed by the mayor and confirmed by the council, to be known as the "committee on building within the fire limits of Eureka City," and that said committee be appointed immediately upon the taking effect of this ordinance.

Sec. 6. This ordinance shall take effect and be in force from and after its first publication in the Tintic Miner.

Passed and approved June 4, 1894.

the case at bar is objected to, because it was "in conflict with the Constitution of the United States, and the first section of the Fourteenth Amendment thereof." The ordinance was sustained.

It follows from these views that the judgment of the Supreme Court of Utah should be, and it is, affirmed.

[38] EDWIN A. McINTIRE et al., Appts.,

v.

MARY C. PRYOR.

(See S. C. Reporter's ed. 38-59.) Principal, when liable for fraud of agentlaches, when not sufficient defense to action for fraud-excuses for delay in bringing

action.

1. One who acquires title through an agent is chargeable with the latter's fraud in the transaction, the same as if he had committed It personally.

2. A delay of nine years and four months is

not fatal to a suit to annul a foreclosure on the ground of fraud, where the plaintiff is an ignorant colored woman, defrauded by one in whom she placed entire confidence, who assumed to act as her agent and professed that the sale was in her interest, and who obtained title for little more than a nominal sum by the false personation of a fictitious person, when he still controls and probably owns the property, the situation of which has not materially changed, and there has been no rapid rise in value, or the intervention of the rights of any bona fide purchaser.

When the fraud is clearly proved the court will look with indulgence upon any disability of the plaintiff, which excuses his delay in

bringing his action to assert his rights.

[No. 109.]

Argued January 4, 5, 1899. Decided February 20, 1899.

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owner of parts of lots twenty-one and twenty-two in square numbered 569, conveyed the same by trust deed to Edwin A. McIntire to secure the defendant Hartwell Jenison in the sum of $450 for money advanced by Jenison, which was represented by a note made by the complainant and her husband, Thomas Pryor, since deceased, payable one year after date, with interest at the rate of eight per cent, payable quarterly.

Statement by Mr. Justice Brown: This was a bill in equity filed in the supreme court of the District of Columbia by Mary C. Pryor against Edwin A. McIntire, Martha McIntire, and Hartwell Jenison to obtain the nullification and avoidance, upon the ground of fraud, of a certain foreclosure of real estate in the city of Washington.

The facts were in substance that, in May, 1880, the plaintiff Mary C. Pryor, being the

Default having been made in payment of the note, the property was regularly advertised for sale under the deed of trust, and, after a week's postponement on account of the weather, was sold on June 17, 1881, and bought in nominally by Jenison for $806, the difference between $450, the amount of the Jenison loan, and $806, the amount for which the property *was sold, being the taxes which [39] had accrued on the property, together with the expenses and commissions attending the sale, which amounted all told to $839.19. In this connection the plaintiff averred that the defendant McIntire had represented to her husband, Thomas Pryor, that the sale would be only a matter of form, and that he, Pryor, could buy in the property, and that time would be given him to pay the indebtedness; that the sale was made without the knowledge of Jenison, the holder of the note secured by the deed of trust; that as had been previously agreed, Pryor, the husband of the plaintiff, did in fact become the purchaser at the trustee's sale for the sum of $700, and the property was struck off to him; that they were not disturbed in the possession of the property for some time, when McIntire called on them and told them it would be applied to the payment of the that they might pay rent to him, and that principal of the debt, and that accordingly they paid rent until September, 1884, at the rate of $6 per month, with the understanding that this would be applied to the liquidation of the note, and that when the same was paid the property would be reconveyed to the plaintiff. On June 29, 1881, a few days after the sale, a deed was executed to

the nominal consideration of $806, and on the same day Jenison gave a new note to one Emma Taylor for the sum of $425, and secured the same by a deed of trust on the same property, the note being payable one year after date, with eight per cent interest. Subsequently, and on April 21, 1882, Jenison conveyed the property outright to Emma Taylor on receiving the $425 note.

Subsequently, and in May, 1884, Emma Taylor conveyed the property to Martha McIntire, the sister of the defendant Edwin A. McIntire. By reason of some supposed defect in the deed from Jenison to Taylor, Jenison subsequently, and on September 27, 1887, made a quitclaim deed of his interest in the property to Martha McIntire, who, in October, 1886, built four houses upon the property, two fronting on F street and two in the rear facing an alley, of which she has had the use and enjoyment ever since.

*Plaintiff's averments in this connection [40] were that the sale by McIntire under the Jenison deed of trust was made in his own

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