Walker v. McLoud

after making the foregoing statement; delivered the opinion of the. court.

The Circuit Court of Appeals decided but one question in. this case, and that one related to the validity of the sale of, the. property by the sheriff on credit instead of for cash. In our opinion that.question was rightly decided by the court when it held such sale absolutely void, and it'is unnecessary for us to refer to or decide any other.

The son of the deputy sheriff, who conducted the sale', bid off property worth $60,000 for $270, and gave his note for that amount, payable when possession was given him, ór he,'by some means,, had" otherwise obtained.it. He has not-yet obtained it, and the note has never been paid.'

The Court'of Appeals held the sale void, as in violation of the statute under which .the sheriff assumed to sell. The -proceedings of the sheriff were under the'act of the Choctaw legislature, approved October 30, 1888, referred to in the foregoing statement. .'By that act it was’provided' that the sheriffs of the counties in which the improvements'were located should advertise the-improvements for sale for thirty, days, "and should , “sell the-same at the appointed time to the highest Choctaw^ .citizen bidder for cash.”

The sale was a clear violation of the provisions of the statute,, under which alone there was authority to sell at all.

The appellant answers this .objection by stating' that the parties consented to the sale for credit instead of 'cash. We' find no evidence of such consent, so • far as the coal' company was concerned or its receivers.’ • The buildings were, as alleged by appellant, erected' by the company or jits receivers, although outside the right of way, and, therefore, as-is claimed by appellant, they became forfeited to the Choctaw Nation. It is unnecessary to decide this question at present. But if the *309 property'were tobe taken away from'the .company or its receivers; on the ground of the alleged forfeiture, they certainly had the right to demand that it should be taken from them pursuant to- law, -and not in open violation .thereof. When„a party’-whose only title• to• property depends upon its sale 'to him under a statute, demands possession of such property from one who is in possession under a bona fide claim of right, 'the party making s_uch: demand'must show some right to it, and this obligation he does not meet, by showing that he purchased it under a sale, which was in plain violation' of-the very statute under which the sale took place. Hockett v. Alston, 110 Fed. Rep. 910. The coal company ór the receivers, therefore, had great interest in this property, as owners, until, at least, their title was divested upon a valid-sale.' They never consented-to any sale on credit.-

The Appellant asserts that the railroad or the receivers had forfeited, the property by building-- putsidé the fight of -way, and hence' they had no right to bé heard .as to the manner of ,-sale, whether in-violation of the' statute or not.'. But, assuming . the validity and applicability, of the Indian statute, the title to the property did not become, forfeited by the mere act of building.' Theré must be at least some valid action looking towards the enforcement of thfe forfeiture. To assert that those- . who áre, in possession are intruders upon the land, and have forfeited their property, and therefore- are not entitled .to be heard upon, the’question whether those who claim the property have complied’ with the law, is to say -that one in 'possession and claiming to be the. owner- may. be deprived of his property without due process^of. law.-. On the contrary, he is entitled to insist-.upon obedience to law by those'who assume to take his property-b.y -reason of an alleged forfeiture. To insist upon a forfeiture the person who claims it must show some legal right to insist upon i't. - In case of. a sovereign State or nation, its conclusion to insist-upon a forfeitúre for breach of a, condition subsequent may be by legislation, Atl. & Pac. R. R. Co. v. Mingus, 165 U. S. 413, 431, and that legislation must be. *310 followed -in asserting and enforcing .the forfeiture by" those acting for the State. So the owners of this property, even if it be liable to forfeiture, may nevertheless insist upon obedience to the statute..by those assuming to act under'it. Their consent to its violation is most essential. They-did not become outlaws by building outside of the right of way.

- Itds alsb urged on the part of the appellant "that the act Of the sheriff was ratified both by the prihcipál chief and also -by the-Council of the Nation: The only- proof of the ratification by the principal chief (even if he had power to ratify, which' cannot be assumed) is given in the deposition of the appellant’s intestate, referred to in the foregoing statement of facts. - Therein the,sheriff said.that the chief ratified his action as to the sale and payments oh the property, and instructed him to proceed at once to employ attorneys to assist him in getting possession of the property for the purchaser. The statement that the chief ratified his action was a mere conclusion of law. I£ gave no facts upon which such alleged ratification' was based, and was-clearly inadmissible as proof of ratification. The samé witness had already testified that before the sale he was directed by the Chief of the Choctaw Nation' “to proceed according to law to dispose 'of the buildings which had been built by' the Choctaw Coal' and Railway Company off of its right of w^y.” • It would hardly be supposed that he would at once ratify- a violation of law in the conduct of the sale. But the proof of ratification by the principal chief is totally insufficient and is, as. already said) a mere- conclusion of law by the witness. And, as a separate and distinct reason, we find no.proof of any power of the chief to ratify a violation of this act.

Nor is the alleged ratification by the -General Council of. the Choctaw Nation of any greater effect'. This ratification consists in the passage by‘the General Cóimcil-Of the act approved October 30) 1895,' and already referred to. . It appropriates the" sum of |2,000, to be used by the-principal chief in the employment’ of. counsel for the purpose of defending the..' interest of. the Nation in all suits. pending or- that may thereafter come *311 before the United States courts, “in any manner relative to., the. full, and complete'execution of the laws of the Choctaw) Nation by'the sheriffs of each and every county in the confiscation of property of non-citizens who are now occupying lands or buildings or who may hereafter occupy, not in conformity with the laws of the Choctaw Nation.”

Certainly. there is nothing in that act which in any, way ratifies or purports to ratify an illegal sale by a sheriff assuming ' to act under the law providing for sales by sheriffs of búildings erected on land outside the right of Way of the railroad company. It appropriates money to defend the Nation in suits' relative to the full and complete execution of the laws and nothing else; not a suspicion of any ratification of an illegal sale under those'laws.

The record shows a gross violation of the act under which the sale Was made, and an entire absence of any evidence showr ' ing a ratification of such act either by the principal chief, assuming he could ratify, or by the council of the Nation. The' case is not one in which any'court would strive to find a way to uphold such a proceeding.

Without going into the othér- questions which arise, it ' is sufficient to say that upon the ground .above discussed the decree qf the Circuit Court of Appeals is right.

Decree affirmed.