Alfrey v. Colbert

• Decision Date: 12 February 1909
• Docket Number: 2,729,2,837.
• Citation: 168 F. 231
• Parties: ALFREY et al. v. COLBERT. COLBERT v. ALFREY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 231

ALFREY et al. v. COLBERT.

COLBERT v. ALFREY et al.

Nos. 2,729, 2,837.

United States Court of Appeals, Eighth Circuit.

February 12, 1909

Robert F. Blair, for plaintiff.

Charles G. Watts, for defendants.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

HOOK Circuit Judge.

Perry Colbert, by his next friend, James Colbert, sued R. J. Alfrey and G. D. Carl for the cancellation of a deed conveying 120 acres of land in the Indian Territory which had been allotted to him as a citizen of the Creek Nation in the distribution of the tribal property by the Dawes Commission. He is a freedman without Indian blood, and the land in controversy did not embrace his homestead. The grounds for cancellation were that complainant was a minor when the deed was executed was without contractual mental capacity, and was induced by defendants to part with his land for a grossly inadequate consideration. The cause was referred to a master, who, upon hearing the evidence, reported as his conclusions that complainant was not of age when the deed was made, that he was 'very ignorant and inexperienced in all business matters,' and that the price paid for the land was grossly inadequate. He recommended a decree declaring the deed null and void and requiring a reconveyance of the property. After the report was made up, but before it was presented to the court, defendants filed a supplemental answer, setting forth a second deed, executed by complainant after the evidence had been heard by the master, and reciting as consideration the payment of the money for the first deed and the additional sum of $5.

It is conceded complainant was of age when the second deed was executed. The issues upon the validity and effect of this deed were referred to another master, who, after taking additional testimony, reported against the defendants and recommended a decree for the cancellation of both deeds and a reconveyance of the property. The reports of the masters were confirmed by the trial court, and that court also made findings that complainant was a minor when the first deed was executed and the consideration therefor was wholly inadequate; also that when both deeds were executed complainant, though not insane, was inexperienced, of limited education and training, and of a weak and feeble mind, and that his property should be placed in the hands of a curator. It was accordingly decreed that the complainant within a time fixed refund to defendants the moneys paid him, with interest, and that the deeds be canceled. The defendants appealed. The complainant also appealed from that part of the decree requiring a refunding of the moneys. The United States Court of Appeals in the Indian Territory affirmed the decree and the case was brought here.

While there is some doubt as to complainant's age when he made the first deed, we think there was sufficient evidence to support the findings of the masters and the trial court upon that issue. The findings were approved by the appellate court in the territory, and under familiar principles applying to the circumstances stated they should not be disturbed here. There is no doubt that, aside from his minority, complainant was incapable of caring for and safeguarding his property interests, or that the consideration paid him was grossly inadequate. The evidence was clear that he was a weak-minded illiterate negro boy, without ability to protect himself from being overreached and defrauded. He was regarded as lacking in mental capacity from childhood. When quite young a bell was put on him, as on a domestic animal, to give information of his whereabouts, and thenceforth, and until he attained his majority and afterwards, he was generally looked upon as being unreliable and irresponsible. His conception of amounts and values is indicated by his offer on the day the first deed was made to sell the 120 acres of land to another party for '$15 per acre, or $750,' and by his subsequent lease of the 40 acres of land set apart as his homestead for the gross sum of $10 for a term of five years, or 5 cents per acre per annum. For the first deed defendants paid him $550, or a little more than $4.50 per acre for the tract of 120 acres. They shortly afterwards asked $20 or $25 per acre for it, and within two months of their purchase they contracted to sell it for $2,700; but the bringing of the suit defeated the sale. They sought to show that when they bought the land the doubt whether the owner had a right to sell made the price paid a fair one; but that is not the test in a case like this. It is quite clear the land itself was worth four or five times as much as was paid for it.

There is another consideration which affects the validity of the first deed and the attempted ratification by the second. Act June 30, 1902, c. 1323, 32 Stat. 500, entitled 'An act to ratify and confirm a supplemental agreement with the Creek Tribe of Indians and for other purposes,' provides:

'Lands allotted to citizens shall not * * * be alienated by the allottee or his heirs before the expiration of five years from the date of

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