Mudd v. Perry

• Decision Date: 26 July 1926
• Docket Number: No. 108.,108.
• Citation: 14 F.2d 430
• Parties: MUDD v. PERRY et al.
• Court: U.S. District Court — Northern District of Oklahoma

14 F.2d 430 (1926)

MUDD v. PERRY et al.

No. 108.

District Court, N. D. Oklahoma.

July 26, 1926.

W. R. Bleakmore and John Barry, both of El Reno, Okl., and O. L. Rider, of Vinita, Okl., for plaintiff.

Chas. B. Rogers and N. E. McNeill, both of Tulsa, Okl., for defendants.

KENNAMER, District Judge.

This is an action in equity by Alex Mudd against Samuel A. Perry and others, to remove a cloud from title to certain property and for an injunction. Briefly stated, the facts appear as follows:

Lucy Lotson Perry died in 1920, in Craig county, Okl., and J. S. Martin was appointed administrator of her estate. On the date of the death of Lucy Lotson Perry, she was a member of the Osage Tribe of Indians and the owner of certain Osage headrights and lands in Osage and Craig counties. She left surviving her Alex Mudd, brother, Maud Lee Mudd, niece, and Samuel A. Perry, who claimed to be her surviving common-law husband. Alex Mudd and Maud Lee Mudd, in April, 1923, filed in the county court of Craig county an application asking for a distribution of the estate of Lucy Lotson Perry, deceased. A trial was had upon said application, and the county court entered an order finding Alex Mudd and Maud Lee Mudd to be the sole heirs, and that Samuel A. Perry had no lawful interest in said estate, and ordered the administrator to make distribution to the Mudds of the whole estate. Samuel Perry appealed to the district court of Craig county, where the issues joined between the Mudds and Perry were tried de novo. The district court entered a decree in favor of Perry, and awarded him a one-half interest in the estate and the other half to the Mudds. Alex Mudd appealed to the Supreme Court of Oklahoma where the decree of the District Court was affirmed. 108 Okl. 168, 235 P. 479. A mandate from the Supreme Court was forwarded to the district court, which in turn forwarded the mandate to the county court.

The plaintiff by this action seeks to remove as a cloud upon his title the judgments of the district and Supreme Courts of Oklahoma, and to enjoin the parties decreed to be the heirs from causing distribution to be made by the county court of the estate in accordance with these judgments. It is agreed by counsel for plaintiff and defendants that, by the allegations in plaintiff's petition and the answer of defendants, but a single issue is presented, namely, the right of the district court of Craig county and the Supreme Court of Oklahoma to review on appeal a judgment of the county court of Craig county decreeing the heirs of a deceased Osage allottee and distributing that portion of the estate consisting of certain lands, moneys, and mineral interests, in the Osage Nation, which belonged to her as a member of the Osage Tribe. This question involves a construction of the Act of Congress of April 18, 1912 (37 Stat. 86), particularly section 3 thereof, which reads as follows:

"That the property of deceased and of orphan minor, insane, or other incompetent allottees of the Osage Tribe, such incompetency being determined by the laws of the state of Oklahoma, which are hereby extended for such purpose to the allottees of said tribe, shall, in probate matters, be subject to the jurisdiction of the county courts of the state of Oklahoma, but a copy of all papers filed in the county court shall be served on the superintendent of the Osage Agency at the time of filing, and said superintendent is authorized, whenever the interests of the allottee require, to appear in the county court for the protection of the interests of the allottee.

"The superintendent of the Osage Agency or the Secretary of the Interior, whenever he deems the same necessary, may investigate the conduct of executors, administrators, and guardians or other persons having in charge the estate of any deceased allottee or of minors or persons incompetent under the laws of Oklahoma, and whenever he shall be of opinion that the estate is in any manner being dissipated or wasted or is being permitted to deteriorate in...