Baldwin v. Keith
| Decision Date | 04 March 1904 |
| Citation | 13 Okla. 624,75 P. 1124,1904 OK 13 |
| Parties | JOHN H. BALDWIN v. MARY KEITH. |
| Court | Oklahoma Supreme Court |
¶0 1. PETITION--Does not State Facts Sufficient to Constitute a Cause of Action. When. A petition in an action to declare a resulting trust, which does not allege and show upon its face that the plaintiff has a better right to the land than the patentee, such as in law should have been respected by the officers of the land department, and, being respected, would have given him the patent, does not state facts sufficient to constitute a cause of action.
2. PETITION--Defective, When. In an action to declare a resulting trust, where the plaintiff claims the land under the homestead laws, an essential averment of the petition, and one without which the petition does not state a cause of action, is that the plaintiff has resided upon, cultivated and improved the land for a period of time and to an extent that upon final proof he would be entitled to a patent thereto.
3. WHAT PETITION MUST SHOW. It is not sufficient that the patentee ought not to have received the patent. It must affirmatively appear from the allegations of the petition that the claimant was, entitled thereto, and that, in consequence of the erroneous rulings of the secretary of the interior on the facts existing, it was denied him.
4. POWER OF SECRETARY. It is within the power of the secretary of the interior to deny an application to make a homestead entry made by a person who has no equities in the land, when such land is covered by an Indian allotment, even though such Indian allotment has been erroneously made, when the equities in favor of the allottee are such that a great injustice would be done the allottee if such allotment should be canceled and set aside.
5. NO VESTED RIGHT, When. No vested right is obtained in a piece of government land by reason of the filing of a contest against an Indian allotment, where such contest does not result in the cancellation of the allotment entry.
6. SAME. No vested right is obtained in a piece of government land by reason of an application to make a homestead entry thereon, when such application to enter is denied, and the entry is never made.
Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge.
J. H. Everest, for plaintiff in error.
No appearance for defendant in error.
¶1 This was an action to declare a resulting trust brought in the district court of Canadian county.
¶2 The petition alleges, among other things, that the plaintiff was a citizen of the United States, possessing all the qualifications necessary to make entry under the homestead laws; that on April 23, 1892, the plaintiff in error instituted a contest against the defendant in error, at the local land office in Oklahoma City, Oklahoma, alleging as a matter of contest that the defendant in error was not an Indian, but was an American citizen, and was not entitled to make an allot- ment entry under the provisions of section 4 of the act of February 8, 1887, she being the daughter of a white citizen of the United States; also, that the tract of land in question, being the northeast quarter of section eleven, township twelve, north of range six, west of the Indian meridian, Canadian county, was not subject to entry as an Indian allotment, under the act of February 8, 1887, for the reason that the tract was a part and parcel of the tract purchased from the Seminole Indians, and opened to settlement under the provisions of the act of March 8, 1889, to homestead settlers.
¶3 The application for contest being rejected by the local office, an appeal was taken to the commissioner of the general land office, and from there to the secretary of the interior, the secretary in his decision sustaining the local office, and dismissing the contest.
¶4 On the 23rd day of February, 1895, plaintiff in error made application at the said United States land office to enter the quarter section of land as a homestead, which application was rejected by the local office as being in conflict with the Indian allotment of the defendant in error. An appeal was taken from the action of the local land office to the commissioner of the general land office, and from there to the secretary of the interior, whose decision thereon was adverse to the plaintiff in error, and sustained the action of the local land office. The application was dismissed.
¶5 Upon the hearing of the motion for review, before the secretary, the plaintiff in error filed affidavits showing that he had established a residence upon the land in February, 1894, had built a house and made other improvements, but was removed by the action of the defendant in error. Copies of the decision of the secretary of the interior in the contest, and application to enter, are made part of the petition by exhibits.
¶6 The petition also alleges that a patent was issued to the defendant in error in March, 1896.
¶7 A demurrer was filed to this petition, and sustained upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiff elected to stand upon his petition, and brings the case here.
¶8 It appears from the decision of the secretary attached to the petition that it was held that the defendant in error is a member of the Cheyenne and Arapahoe tribe of Indians; that under the provisions of section 4, of the treaty of October 28, 1867, defendant in error selected and was allotted a tract of land of three hundred, twenty acres, which land was supposed to be within the Cheyenne and Arapahoe reservation, and was set apart to her and her family; that buildings were placed thereon, and improvements made of a valuable character; that afterwards it was discovered that the land was not in the Cheyenne and Arapahoe reservation, but was a part of the land ceded to the United States by the Seminole and Creek Indians, and that fact being called to the attention of the department, the secretary of the interior directed that one hundred and sixty acres of the land occupied by her should be allotted to her under the provisions of section 4, of the act of 1887; that an application was made by the defendant in error and the allotment approved by the secretary; further, that by article 3, of the act of March, 1891, ceding to the United States the Cheyenne and Arapahoe Indian reservation, each member of that tribe of Indians over eighteen years of age had a right to select one hundred, sixty acres of land to be owned in severalty; that under that agreement, an allotment of one hundred and sixty acres was made to the defendant in error within said reservation, and a trust patent issued thereon; subsequently, it having been held by the department that she and others similarly situated could not be allowed to hold two allotments, she relinquished her trust patent, which action was approved...
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