Bailey v. Banister, 4513.

• Decision Date: 30 December 1952
• Docket Number: No. 4513.,4513.
• Citation: 200 F.2d 683
• Parties: BAILEY v. BANISTER et al.
• Court: U.S. Court of Appeals — Tenth Circuit

200 F.2d 683 (1952)

BAILEY v. BANISTER et al.

No. 4513.

United States Court of Appeals Tenth Circuit.

December 30, 1952.

G. C. Spillers, Jr., Tulsa, Okl. (G. C. Spillers, Tulsa, Okl., was with him on the brief), for appellant.

Ben Franklin, Oklahoma City, Okl. (Satterfield, Franklin & Harmon, Oklahoma City, Okl., E. G. Nahler, St. Louis, Mo., and Doerner, Rinehart & Stuart, Tulsa, Okl., were with him on the brief), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Northern District of Oklahoma dismissing plaintiff's amended complaint for the reason that it failed to state a claim upon which relief could be granted.

In substance, the amended complaint alleged that Ben Nicholas Beaver, a restricted Indian, was the owner of approximately 105.5 acres of land in Tulsa County, Oklahoma; that on March 25, 1949, the United States Department of Interior removed a restriction on the sale of the land and authorized the same to be sold by Beaver in accordance with the terms and conditions of the order;¹ that thereafter, on May 4, 1950, Beaver agreed to sell the land to the plaintiff for $16,000; and that the Assistant Area Director of Indian Affairs for the Five Civilized Tribes in Oklahoma accepted the $16,000 from the plaintiff and prepared a general warranty deed to be executed by Beaver and his wife for the purpose of conveying the land to the plaintiff. It was alleged that the Area Director or the Secretary of Interior would have authorized the sale and approved the deed, and that the same was not approved promptly because of the delay in obtaining the signature of Beaver's wife to the deed.

The complaint further alleged that prior to the final approval of the deed the defendant, Banister, as agent for the defendant, St. Louis-San Francisco Railway Company, stated to the plaintiff that if he would agree to sell the railroad company five acres of the land to be selected by it for a consideration of $2,500, that the defendants would not interfere with plaintiff's purchase of the land for $16,000, otherwise defendants would block plaintiff's purchase and the price for the whole tract would be "run up"; that upon plaintiff's refusal to submit to the demand, the defendants notified the Department of the Interior that the railroad company was willing to bid not less than $20,000 for the entire tract if it were offered for sale on bids; that the Department of the Interior then notified the plaintiff that the sale to him was being deferred and that the property would be advertised for sale to the highest bidder provided the railroad company posted a certified check for $20,000 to guarantee a bid of at least that amount, otherwise the deed to the plaintiff would be approved unless plaintiff's offer was withdrawn; and that the railroad company posted a bond guaranteeing a minimum bid of $20,000, and bids for the property were called for. It was alleged that the action of the defendants was willful and malicious and for the purpose of preventing plaintiff's purchase of the land for $16,000; that thereafter the land was offered for sale to the highest bidder at which sale the plaintiff purchased the land for $25,025; and that as a result of the willful and malicious misconduct of the defendants "in interfering with and blocking the purchase of the above described real estate" the plaintiff was damaged in the sum of $9,025, and $100,000 as punitive damages.

The plaintiff does not question the power of Congress to impose, continue, remove, qualify or reimpose restrictions on the sale or conveyance of lands belonging to individual Indians, nor is it contended that a purchaser of restricted Indian lands could obtain a good title without the approval of the Secretary of Interior or other authorized governmental officer. McElroy v. Pegg, 10 Cir., 167 F.2d 668, certiorari denied 335 U.S. 817, 69 S.Ct. 36, 93 L.Ed. 371; State of Oklahoma v. United States, 10 Cir., 155 F.2d 496; United States v. Getzelman, 10 Cir., 89 F.2d 531, certiorari denied 302 U.S. 708, 58 S.Ct. 27, 82 L.Ed. 547. Plaintiff's claim for damages apparently is based upon his right to contract with another without unlawful interference by a third party.

Where an Indian holds legal title to lands with a restriction against alienation, the title may be transferred only under rules and regulations prescribed by the Secretary of Interior, and with his consent and approval or that of his duly authorized representative. 25 U.S.C.A. §§ 348, 405, 483; 25 C.F.R. Sec. 241.36; McElroy v. Pegg, supra; United States v. Williams, 10 Cir., 139 F.2d 83, certiorari denied 322 U.S. 727, 64 S.Ct. 943, 88 L.Ed. 1563; United States v. Watashe, 10 Cir., 102 F.2d 428; Johnson v. United States, 10 Cir., 64 F.2d 674, certiorari denied 290 U.S. 651, 54 S.Ct. 68, 78 L.Ed. 565; United States v. Brown, 8 Cir., 8 F.2d 564, certiorari denied 270 U.S. 644, 46 S.Ct. 210, 70 L.Ed. 777. Beaver's title to the land in question contained a restriction against its alienation. This restriction was removed by the March 25, 1949 order, but the removal was conditional. It was to become effective only and simultaneously with the execution of a deed to a purchaser after the land had been sold in compliance with direction from the Secretary of Interior. It is obvious that the Secretary intended to retain supervision over the disposition of the land and that the title remained restricted until the approval of the Secretary of Interior or his duly authorized agent was obtained and a sale was completed. Until the sale was approved, the plaintiff had acquired no legal right to demand the delivery of the deed, and the defendants or anyone else had the right to compete with the plaintiff for the purchase of the land regardless of their motives. 25 C.F.R. 241.36-241.38; Western Electric Co. Inc., v. Hammond, 1 Cir., 135 F.2d 283; Fairbanks, Morse & Co. v. Texas Electric Service Co., 5 Cir., 63 F.2d 702, certiorari denied 290 U.S. 655, 54 S.Ct. 71, 78 L.Ed. 567; Conway v. Skelly Oil Co., 10 Cir., 54 F.2d 11; Colorado Paving Co. v. Murphy, 8 Cir., 78 F. 28, 37 L.R.A. 630; National Life & Accident Ins. Co. v. Wallace, 162 Okl. 174, 21 P.2d 492; Union Car Advertising Co. v. Collier, 263 N.Y. 386, 189 N.E. 463; Goldman v. Harford Road Bldg....