Opinion — Sage v. Hampe

SAGE ». HAMPE.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No, 82. Argued November 12, 15, 1914. —Decided November 30, 1914,

Where plaintiff in error was defendant in the state court in a suit upon

w contract to convey Indian allottee lands and relied as a defense

upon an act of Congress making the conveyance invalid, he is en-

titled to come to this court. Nutt v. Anut, 200 U.S. 12.

While one may contract that a future event shall come to pass over

which he has no, or only a limited, power, Globe Refining Co. v. Landa

Cotton Co., 190 U.S. 540, he is not liable for non-performance of, nor

can he be compelled to perform, a contract that on its face requires

an illegal act either of himself or of a third party.

A contract that invokes prohibited conduct makes the contractor &

contributor to such conduct. Kalem Co. v. Harper Bros,, 222 U.S.

DO.

A contract tending to bring to bear improper influence upon an officer

of the United States and to induce attempts to mislead him is con-

trary to public policy and non-enforceable.

The protection of the Indians in their title to allotments is the policy

of the United States and one that the States cannot regard or disre-

gard at will.

Where a contract affecting Indian lands might be held unenforceable

as a matter of common law, but this court construes a Federal statute

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100 OCTOBER TERM, 1914.

Argument for Plaintiff in Error. 235 U.S.

broadly so as to include such a contract within its prohibitions, this

court has jurisdiction to review under § 237, Judicial Code.

The United States can make its prohibitions on alienation of Indian

allotments binding upon others than Indians to the extent neces-

sary to carry out its policy of protecting the Indians in retaining

title to the land allotted to them.

87 Kansas, 536, reversed.

Tue facts, which involve the validity of a contract for

sale of allotted Indian lands during the period of re-

striction on alienation, are stated in the opinion.

Mr. Lee Monroe, with whom Mr. Edwin A. Austin, Mr.

W. S. Roark and Mr. Carr W. Taylor were on the brief,

for plaintiff in error:

A losing party to a suit who insists that the judgment

therein cannot be rendered against him consistently with

a given statute of the United States should be held, within

the meaning of § 237, Judicial Code, to claim such a

right and immunity under such statute, as to confer juris-

diction upon this court to review an adverse final judgment

of the highest state court in such suit. Nuit v. Knut, 200

U.S. 12, 19; Ill. Central R. R. Co. v. McKendree, 203 U. 8.

514, 525; Eau Claire Nat. Bank v. Jackman, 204 U. S. 522,

532; Straus v. Am. Publishers Assn., 231 U. S. 222, 233;

Anderson v. Carkins, 135 U.S. 483; Logan Bank v. Town-

send, 139 U.S. 67, 73; MeNulta v. Lockridge, 141 U.S. 327,

331: McCormick v. Market Bank, 165 U.S. 588, 546; Ham-

mond v. Whittredge, 204 U.S. 538, 547; St. L. & Tron Mt.

Ry. Co. v. Taylor, 210 U. 8. 281, 293; Kansas City Ry. v.

Albers Com’n Co., 223 U. S. 573, 591; St. L. & Tron Mt. Ry.

Co. v. McWhirter, 229 U. S. 265; Monson v. Simonson,

231 U.S. 341, 345.

A contract to convey Indian lands prior to the removal

of the statutory restrictions upon their alienation is void

and no recovery can be had thereon by either party.

Hampe v. Sage, 87 Kansas, 536, 546 (Dissenting Opinion) ;

SAGE v. HAMPE. 101

235 U.S. Argument for Defendant in Error.

Goat v. United States, 224 U. S. 458, 470, 23 Cye. 341;

Lamb v. James, 87 Texas, 485; Franklin v. Lynch, 233

U. S. 269, 273; Starr v. Long Jim, 227 U. 8. 618, 625;

Bledsoe v. Wortman, 35 Oklahoma, 261; Bowling v. United

States, 233 U. S. 528; Clark on Contracts, 2d ed., p. 134;

Bishop on Contracts, § 471; Larson v. First Nat. Nank, 62

Nebraska, 303; Williams v. Steinmetz, 16 Oklahoma, 104;

Kelly v. Harper, 7 Ind. Ter. 541; Sayer v. Brown, 7 Ind.

Ter. 675; Dupas v. Wassell, Fed. Cas. No. 4182; Mayes v.

Live Stock Assn., 58 Kansas, 712; Light v. Conover, 10

Oklahoma, 732; Muskogee Land Co. v. Mullins, 165 Fed.

Rep. 179; Beck v. Flournoy Co., 65 Fed. Rep. 30.

The restrictions upon the alienation of the Indian lands

involved herein had not been removed at the date of the

contract for the sale thereof. Monson v. Simonson, 231

U. S. 341, 346; Trist v. Child, 21 Wall. 448, 452; Meguire

vy. Corwine, 101 U.S. 108; MeNutten v. Hoffman, 174 U.S,

639, 654.

The description of the lands in question contained in

the contract sued on was insufficient to relieve it from the

operation of the statut~ of frauds, and the reception of

parol evidence to supply such description denied the ef-

feet of the Indian Allotment Act. Williams v. Morris, 95

U. S. 444; Bayne v. Wiggins, 139 U. 8. 210; Hampe v.

Sage, 82 Kansas, 728, 733; Halsell v. Renfro, 14 Oklahoma,

674; Price v. Hays, 144 Kentucky, 535; Schreck v. Moyse,

94 Mississippi, 259; Benjamin on Sales, 6th Am. ed., p.

209, note; 20 Cyc. 278; Johnson v. Buck, 35 N. J. L. 338;

Walker v. Fleming, 37 Kansas, 171.

Mr. A. M. Harvey, with whom Mr. J. B. Larimer, Mr.

J. E. Addington and Mr. W. H. Thompson were on the

brief, for defendant in error:

This court is without jurisdiction to consider or deter-

mine the questions sought to be raised by him on such

appeal, and no Federal question is presented by the tran-

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102 OCTOBER ‘TERM, 1914.

Argument for Defendant in Error. 235 U.S.

script of the record for the consideration of this court.

A decision as to the validity and application of the Federal

statute sought to be invoked was not necessary to a de-

termination of the cause. California Powder Works v.

Davis, 151 U. S. 389, 393; Schuyler Bank v. Bollong,

150 U. 8. 85; Eustis v. Bolles, 150 U. 8. 361; Gillis v.

Stinchfield, 159 U.S. 658; Mo. Pac. Ry. v. Fitzgerald, 160

U.S. 556; Seneca Nations v. Christy, 162 U.S. 283; Dibble

v. Bellingham Bay Co., 163 U. 8. 68; Harrison v. Mor-

ton, 171 U.S. 38; Pierce v. Somerset, 171 U. 8. 641; Me-

Quade v. Trenton, 172 U. 8. 636; Seeberger v. McCormick,

175 U.S. 274; Seaboard Air Line Ry. v. Duvall, 225 U.S.

477.

The opinion of the Supreme Court of Kansas shows that

the judgment appealed from was expressly rendered upon

considerations other than of the Federal statutes sought

to be invoked as the basis for this appeal. Hampe v.

Sage, 87 Kansas, 536, 543; Trust Co. v. McIntosh, 68

Kansas, 452, 462; Maddux v. Simonson, 83 Kansas, 325,

327; Krhut v. Phares, 80 Kansas, 515; Robertson v. Talley,

84 Kansas, 817; 29 Am. & Eng. Eneyc., 2d ed. 667.

The admission and declaration of plaintiff in error that

this land had been sold prior to the expiration of 25 years

from the date of the allotment, is conclusive that the

restrictions had been removed, as provided by the acts

of Congress. 28 Stat. 286, 295; 1 Kapp L. & T. 520;

Indian Land Laws, § 184, p. 239; 31 Stat. 221, 248; 1

Kapp L. & T. 701; Bledsoe on Indian Laws, § 164, p. 240.

Under the issues raised by the answer of the defendant

there was no allegation in the answer, nor any proof of-

fered, that the allottees had not acquired the right to dis-

pose of these lands under the conditions and provisions

of the later Acts of Congress, and such objection was not

entertained by the Supreme Court of Kansas, and cannot

now be entertained in this court. Gen. Stat., Kansas,

1909, par. 5724; 4 Wigmore, par. 2573; Oliver v. State,

SAGE v. HAMPE. 103

235 U.S. Opinion of the Court.

4 L. R. A. 39; State v. Herold, 9 Kansas, 194, 201; 16 Cye.

889.

The sufficiency of the terms of the contract as to the

description of the lands therein referred to, presents a

question of general commercial law which has been finally

and conclusively determined by the judgment of the

Supreme Court of Kansas in numerous decisions, and such

question is not open for consideration by this court.

Bacon v. Leslie, 50 Kansas, 494; Cummins v. Riordon, 84

Kansas, 791, 795.

This is the general rule. 20 Cyc. 271; 36 Cyc. 593;

29 Am. & Eng. Encye. 866; Hurley v. Brown, 98 Massa-

chusetts, 545; Waring v. Ayres, 40 N. Y. 357; White v.

Breen, 106 Alabama, 159; Howison v. Bartlett, 147 Ala-

bama, 408; Bates v. Harris, 144 Kentucky, 399; Wood on

Statute of Frauds, § 352; Mead v. Parker, 115 Massa-

chusetts, 413; Hayden vy. Perkins, 119 Kentucky, 188;

83 8. W. Rep. 128; 26 Law Rep. 1099; Eisleben v. Brooks,

179 Fed. Rep. 86; Gray v. Smith, 76 Fed. Rep. 517, 533;

Towle v. Coal Co., 99 California, 397; Wilcox v. Souka,

119 S. W. Rep. 445; Flegel v. Dowling (Or., 1909), 102

Pac. Rep. 178.

It must be presumed that the contract was legal. Craft

vy. Bent, 8 Kansas, 328; McBratney v. Chandler, 22 Kansas,

692.

Plaintiff in error did not offer proof sufficient to estab-

lish a defence under the acts of Congress and plaintiff in

error is not an Indian, and even if the lands in question

were not subject to sale, which was not shown and is not

a fact, he is liable to the defendant in error. 9 Cye. 551,

554, 570; 16 Cye. 889; 4 Wigmore on Evidence, par. 2573;

Oliver v. Alabama, 4 L. R. A. 33n.

Mr. Justice Houmes delivered the opinion of the court.

This is an action brought by the defendant in error

(Hampe) to recover damages for breach of a contract to

104 OCTOBER TERM, 1914.

Opinion of the Court. 235 U.S.

purchase certain land and to convey to the plaintiff cer-

tain other land of greater value. The answer alleges that

the land to be conveyed by the defendant, (Sage) was

Indian land not belonging to him but allotted and patented

to members of the Pottawatomie Tribe, under the Act

of Congress of February 8, 1887, ¢. 119. 24 Stat. 388. By

§ 5 of that act any conveyance or contract touching such

land within twenty-five years from the date of the allot-

ment and trust patent was made null and void, and it is

alleged that the period had not expired and had not been

abrogated at the date of the contract. Evidence was

offered to prove the facts alleged but was excluded sub-

ject to exception. It is unnecessary to set forth the con-

tract more particularly, because, whatever doubts might

be felt whether it was or could be shown to be a contract

for specific land, the case was tried on the footing that it

was such a contract, and the breach and the damages, so

far as we can judge, both depended on that view. The

Supreme Court of Kansas was of the same opinion and

held that notwithstanding the character of the land con-

tracted for and the statute, the defendant, being a stranger

to the allotment, was bound by his contract so far as to

be liable in damages at law. 87 Kansas, 536.

The defendant relied upon the Act of Congress as a

defence and is entitled to come to this court. Nutt v.

Knut, 200 U.S. 12. With regard to that defence no doubt

it is true that a man may contract that a future event

shall come to pass over which he has no, or only a limited

power. Globe Refining Co. v. Landa Cotton Oil Co., 190

U. S. 540, 545. And we assume in accordance with the

decision of the Kansas courts that the principle applies

to contracts for the conveyance of land that the con-

tractor does not own. But that principle is not enough

to dispose of the case, even if, subject to what we have

to say hereafter, the universality of the invalidating lan-

guage of the statute (‘any contract’) be confined to

SAGE v. HAMPE. 105

235 U.S. Opinion of the Court.

i

contracts by the owners of the land. A contract that on

its face requires an illegal act, either of the contractor or a

third person, no more imposes a liability to damages for

non-performance than it creates an equity to compel the

contractor to perform. A contract that invokes pro-

hibited conduct makes the contractor a contributor to

such conduct. Kalem Co. v. Harper Brothers, 222 U. 5.

55, 63. And more broadly it long has been recognized

that contracts that obviously and directly tend in a

marked degree to bring about results that the law seeks

to prevent cannot be made the ground of a suecessful

suit. Providence Tool Co. v. Norris, 2°Wall. 45; Trist v.

Child, 21 Wall. 441; Oscanyan v. Winchester Repeating

Arms Co., 103 U. S. 261; Fuller v. Dame, 18 Pick. 472. It

appears to us that this is a contract of that class. It called

for an act that could not be done at the time and it tended

to lead the defendant to induce the Indian owner to at-

tempt what the law for his own good forbade. Such

contracts if upheld might be made by parties nearly

connected with the Indian and strongly tend by indirec-

tion to induce him to deprive himself of rights that the

law seeks to protect.

It is true that later statutes in foree when the contract

was made allowed a conveyance with the approval of

the Secretary of the Interior. Act of August 15, IS94,

c. 290: 28 Stat. 286, 295. Act of May 31, 1900, ¢. 598,

$7; 31 Stat. 221, 247. The Kansas court laid these

statutes on one side, and in our view also they do not

affect the case. The purpose of the law still is to protect

the Indian interest and a contract that tends to bring to

bear improper influence upon the Secretary of the In-

terior and to induce attempts to mislead him as to what

the welfare of the Indian requires are as contrary to the

policy of the law as others that have been condemned by

the courts. Kelly v. Harper, 7 Ind. Terr. 541. See Larson

vy. First National Bank, 62 Nebraska, 303, 308.

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106 OCTOBER TERM, 1914.

Syllabus. 235 U. S.

The only doubt open in the present position of the case

is whether the ground upon which we hold the contract

unenforceable is not a matter of common law, which we

may think that the Kansas courts ought to apply but

which is not open to review here. The case at first sight

seems like those in which a State decides to enforce or

not to enforce a domestic contract notwithstanding or

because of its tendency to cause a breach of the law of

some other State. Graves v. Johnson, 179 Massachusetts,

53, 156 Massachusetts, 211. But the policy involved here

is the policy of the United States. It is not a matter that

the States can regard or disregard at their will. There can

be no question that the United States can make its pro-

hibitions binding upon others than Indians to the extent

necessary effectively to carry its policy out, and therefore,

as on the grounds that we have indicated the contract

contravenes the policy of the law, there is no reason why

the law should not be read, if necessary, as broad enough

to embrace it in terms.

Judgment reversed.