Harris v. Hardridge , 166 F. 109 ( 1908 )

PIOOK, Circuit Judge,

(after stating the facts as above). When the contract which appellant seeks to have specifically performed was made, the land in controversy was subject to the provision of Act June 28, 1898, c. 517, 30 Stat. 507, that it should not be transferred until after full title had been acquired by the allottee, and should not be liable for prior contract obligations. Hardridge, the allottee, who was a freedman enrolled as a citizen of the Creek Nation, did not secure full title until October 13, 1902, and in the meantime Congress had further expressed its purpose regarding the lands of the Nation, the tribal title to which was being extinguished by allotment and conveyance in-severalty to its citizens, by providing in Act March 1, 1901, c. 676, 31 Stat. 863, that the lands should not be alienable by allottees or their heirs, except with the approval of the Secretary of the Interior, at any time before the expiration of five years from the ratification of the agreement which the act tendered the Creek National Council for their action. And Act June 30, 1902, c. 1323, 32 Stat. oOfS, contained a prohibition similar to that of the act of 1901, and further provided:

"Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity.”

The appellant contends that the provisions of the acts of Congress passed alter the date of his contract are inapplicable. We do not think so. When appellant made his purchase and took possession, he did so in face of the express provision of the act of 1898 that the land should not be transferred by the allottee and should not be liable for his contract obligations. This was an attempt to evade the intent and purpose of the statute, and appellant in so doing did not succeed in fastening upon the property such a vested right as required observance and prevented Congress from making its prohibition more effectual or from imposing others. The purpose of such legislation was to prevent interference with the labors of the administrative commission engaged in the task of extinguishing tribal titles and the allotment of the tribal property in severalty, and to protect a class of persons inexperienced in individual ownership and peculiarly susceptible to imposition. The statutes evince a clear purpose to declare such contracts as that of appellant wholly void, and it certainly was not intended by the subsequent removal of the restrictions to give them vitality so they might be enforced.

The case is not like that of a valid contract to sell land of which the vendor, of contracting capacity, has not title at the time, but after-wards acquires it. Three weeks after the removal of the restrictions the Hardridges conveyed the. land in controversy to two of their co-defendants. During that time they incurred no new obligation to appellant, and there was no such ratification of the old one, even if it could have been ratified, as would entitle him to its enforcement in a court of equity. The bare averment that the parties were then performing the contract of sale meant nothing more than that possession remained as theretofore.

The decree is affirmed.