Armstrong v. Maple Leaf Apartments, Ltd.

• Decision Date: 02 August 1977
• Docket Number: No. 74-C-119.,74-C-119.
• Citation: 436 F. Supp. 1125
• Parties: Nellie Atkins ARMSTRONG, Plaintiff, v. MAPLE LEAF APARTMENTS, LTD., a limited partnership, Broken Arrow's Mall, Inc., a corporation, Owen D. Young and Robert L. Latch, d/b/a Young & Latch Investments, a general partnership, Firstul Mortgage Company, a corporation, Sackman-Gilliand Corporation, a corporation, First National Bank & Trust Company of Tulsa, Oklahoma, a Banking Association, Hamilton Investment Trust, a Massachusetts Business Trust, and, H. Harold Becko, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

436 F. Supp. 1125

Nellie Atkins ARMSTRONG, Plaintiff, v. MAPLE LEAF APARTMENTS, LTD., a limited partnership, Broken Arrow's Mall, Inc., a corporation, Owen D. Young and Robert L. Latch, d/b/a Young & Latch Investments, a general partnership, Firstul Mortgage Company, a corporation, Sackman-Gilliand Corporation, a corporation, First National Bank & Trust Company of Tulsa, Oklahoma, a Banking Association, Hamilton Investment Trust, a Massachusetts Business Trust, and, H. Harold Becko, Defendants.

No. 74-C-119.

United States District Court, N. D. Oklahoma.

August 2, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jay C. Baker, C. Rabon Martin, Baker, Baker & Martin, Tulsa, Okl., for Nellie Atkins Armstrong, plaintiff.

William Jones and Philip J. Eller, Jones, Givens, Brett, Gotcher, Doyle & Bogan, Inc., Tulsa, Okl., William H. Mattoon, Norman, Okl., James D. Groves, James R. Ryan, James L. Kincaid, Douglas L. Inhofe, Royce H. Savage, Dan A. Rogers and Charles A. Whitebook, Tulsa, Okl., for Maple Leaf Apartments et al., defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BARROW, Chief Judge.

On February 22, 1974, the plaintiff instituted the subject action in this Court seeking to quiet title to real property situated in Tulsa County, Oklahoma, to cancel a deed thereto given by her under date of December 3, 1965, to cancel all instruments of conveyance and encumbrance executed and recorded since her deed of December 3, 1965, and for ejectment of the defendants in possession of the subject real property. The plaintiff predicated her right to the relief sought upon the Act of Congress of August 4, 1947, 61 Stat. 731, wherein a conveyance by a member of the Five Civilized Tribes of one-half (½) blood or more covering real property inherited or devised to such member by one in whose hands such real property was restricted against alienation is required to be approved by the County Court of the County in which the real property is situated as a condition precedent to the validity of such conveyance. Subsequent to the filing of this action and prior to the joinder of issues on the merits between the parties herein, the defendant Becko instituted proceedings in the Probate Division of the District Court of Tulsa County, Oklahoma (formerly the County Court of Tulsa County, Oklahoma) in which he sought to have the plaintiff's deed of December 3, 1965 approved. Following institution of such approval proceedings, the plaintiff filed in this cause her motion for a preliminary injunction seeking to enjoin the defendants from continuation of the approval proceedings in State Court. Thereafter and before the issues were joined by the parties on the merits of this cause, hearings were held on plaintiff's Motion for Preliminary Injunction and evidence introduced by plaintiff in support thereof. The defendants introduced no evidence at such hearings. Thereafter, on April 19, 1974, this Court entered its Order herein denying plaintiff's Motion for Preliminary Injunction. The plaintiff thereupon appealed the Order denying preliminary injunction to the United States Court of Appeals, Tenth Circuit (Case No. 74-1286). On December 12, 1974, the Court of Appeals, in a divided opinion, found that the evidence introduced by the plaintiff at the preliminary injunction hearing was sufficient to show a probable right in the plaintiff to the relief sought in this cause and a probable danger that irreparable injury would result to the plaintiff if the preliminary injunction was not granted. Accordingly, the judgment of this Court on the matter of the preliminary injunction was reversed and the cause remanded. Armstrong v. Maple Leaf Apartments, Ltd., et al., 508 F.2d 518 (10th Cir. 1974). This Court thereupon issued its Preliminary Injunction in accordance with such Circuit Court opinion. Thereafter, the defendants filed their respective answers and counterclaims seeking to quiet their respective titles in and to the subject real property as against the plaintiff and her husband and the issues were joined upon the merits of this cause.

On the 1st day of June, 1977, the above styled and numbered cause came on for trial before the undersigned Chief United States District Judge for the Northern District of Oklahoma. The plaintiff introduced her evidence and rested. The defendants introduced their evidence and, at the conclusion thereof, moved this Court to amend their pleadings to conform to the evidence, which motion was granted. The defendants thereupon rested. At the conclusion of the trial, on June 6, 1977, and following arguments of counsel for the parties, the Court took this case under advisement. The Court, having examined all pleadings on file herein, having given due consideration to the testimony of witnesses and litigants sworn and examined in open court, their demeanor, intelligence, knowledge and credibility, and due consideration to all other evidence introduced in this cause by the parties hereto, having given due consideration to the arguments of counsel and the authorities submitted by the parties herein, makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. It is significant to note that the evidence presented and the issues raised in the trial on the merits of this cause materially and substantially differ from the evidence and issues that were before this Court and the Circuit Court of Appeals in connection with the preliminary injunction proceedings heretofore conducted in this cause.

2. This is an action in which the plaintiff seeks to quiet title against the defendants to the following described real property situated in Tulsa County, State of Oklahoma, to-wit:

Lots One (1), Two (2) and Three (3), Block One (1), and Lots One (1) and Two (2), Block Two (2), Maple Leaf Addition, an Addition to the City of Broken Arrow, Tulsa County, State of Oklahoma, according to the recorded plat thereof,

together with all improvements thereon and rights and appurtenances thereunto belonging. In this action, the plaintiff seeks further to void and cancel that certain General Warranty Deed dated December 3, 1965, made, executed and delivered by the plaintiff and her husband, Ruskin Armstrong, to the defendant H. Harold Becko covering the above described real property and premises. The plaintiff likewise seeks in this action to recover possession of the above described real property together with all improvements thereon. The defendant Maple Leaf Apartments, Ltd., by Counterclaim, seeks to quiet its title in and to Lot One (1), Block Two (2) of said Maple Leaf Addition as against the plaintiff and her said husband, said defendant having acquired its title thereto by mesne conveyances from the defendant H. Harold Becko. The defendants Owen D. Young and Robert L. Latch, d/b/a Young & Latch Investments, a general partnership, by Counterclaim, seek to quiet their title to the remainder of the said Maple Leaf Addition against the plaintiff and her husband, the latter defendants having likewise acquired their title by mesne conveyances from the defendant H. Harold Becko. At the time of the conveyance of December 3, 1965 by plaintiff and her husband to the defendant H. Harold Becko, the above described real property was not platted and was, in fact, conveyed by metes and bounds. (Defendants' Exhibit No. 6)

3. The plaintiff predicates her right to quiet title to the subject real property and to possession thereof and to cancellation of the deed of December 3, 1965 upon the Act of Congress of August 4, 1947. It is the contention of the plaintiff that under the terms of the Act of August 4, 1947, the subject real property became restricted against alienation by the plaintiff; that any deed of conveyance thereto by her must be approved by the County Court of Tulsa County, Oklahoma, which approval has not been obtained; that accordingly, the deed of conveyance of December 3, 1965 to the defendant H. Harold Becko is invalid and vested no title in him in and to the subject real property. It is the contention of the defendants that the Act of August 4, 1947 as applied to the facts and circumstances of this case is unconstitutional and that, in any event, such Act creates no more than a rebuttable presumption of incompetency and overreaching, which presumption defendants contend has been clearly rebutted by the evidence introduced in this cause. The defendants further contend that the plaintiff is guilty of laches in asserting her claim to title and possession of the subject property and that the plaintiff comes into equity seeking quiet title and cancellation of deed with unclean hands and is therefore not entitled to such equitable relief.

4. The subject real property is a part of the surplus allotment of one Billy Atkins who was duly enrolled March 13, 1902 on the rolls of the Creek Nation, Five Civilized Tribes, opposite Roll No. 826, as a full-blood Creek Indian. (Plaintiff's Exhibit No. 2) On May 6, 1903, the said Billy Atkins was allotted as his surplus allotment, by deed issued by the Muskogee Creek Nation, the following described real property, to-wit:

The East Half of the Northwest Quarter (E/2 NW/4) and the Southwest Quarter of the Northwest Quarter (SW/4 NW/4) of Section 14, Township 18 North, Range 14 East of the Indian Base & Meridian, in Indian Territory, containing one hundred twenty (120) acres, more or less, according to the United States survey thereof. (Plaintiff's Exhibit No. 1)

That upon admission of Oklahoma to statehood, such real property became a part of Tulsa County, State of Oklahoma.

5. On April 24, 1929, the said Billy Atkins died intestate in Wagoner County, Oklahoma, seized and possessed of his above described surplus allotment. (TR. 112 and Plaintiff's Exhibit No. 6) The Estate of Billy Atkins was probated in Wagoner County, Oklahoma. (TR. 25 and Plaintiff's Exhibit No. 6) At the time of his death, Billy Atkins was a resident of Wagoner County, Oklahoma, which county...