Barnett v. Equitable Trust Co.

• Decision Date: 15 July 1929
• Docket Number: No. 331.,331.
• Citation: 34 F.2d 916
• Parties: BARNETT v. EQUITABLE TRUST CO. OF NEW YORK et al. (UNITED STATES, Intervener). EQUITABLE TRUST CO. OF NEW YORK v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

34 F.2d 916 (1929)

BARNETT v. EQUITABLE TRUST CO. OF NEW YORK et al. (UNITED STATES, Intervener).

EQUITABLE TRUST CO. OF NEW YORK v. UNITED STATES.

No. 331.

Circuit Court of Appeals, Second Circuit.

July 15, 1929.

COPYRIGHT MATERIAL OMITTED

Charles H. Tuttle, U. S. Atty., of New York City, and Nat M. Lacy, Sp. Asst. Atty. Gen. (O. H. Graves, of Washington, D. C., on the brief), for appellant.

Patterson, Eagle, Greenough & Day, of New York City, Hummer & Foster, of Henryetta, Okl., and Cochran & Ellison and McCrory & Monk, all of Okmulgee, Okl. (Carroll G. Walter, of New York City, of counsel), for appellees.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. Hand, Circuit Judge (after stating the facts as above).

We hold that the District Court had power to make an allowance out of the fund. Whatever the status before May 27, 1908, of the lands of allottees of the Five Civilized Tribes of whom the Creeks are one, the act of that day (35 Stat. 312), established their position from that time on. They were not to be conveyed before April 26, 1931, "except that the Secretary of the Interior may remove restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe." The property remained the Indian's, but he was restrained in its alienation, except as the Secretary might allow; when the Secretary concurred, he was free, like another owner, to transfer his rights. This applied as well to the proceeds of his land, in this instance to the royalties arising from a lawful lease, as to the realty itself. When, therefore, Barnett with the Secretary's consent gave the securities to the Mission, the funds passed to its hands unrestricted and as free funds.

Only a court could undo the transaction so taking place. This is plain, if Barnett knew enough of what he was about to intend the transfer. In that case title passed, and a court of equity must declare it void. If as the twentieth article of the bill seems to allege, he did not so intend, at least possession passed, and the Secretary could not recall it by virtue of his office; either Barnett or the United States must sue to get it. What either got might have to come back to the Secretary's custody, but his powers would revive only then, and to only so much as in fact did. We can therefore see no reason to say that the court's wings were clipped by restrictions which the Secretary had lawfully, if improvidently, removed, or that it need, or indeed should, have shared its jurisdiction with him. It could, for instance, scarcely be argued that, had the res been meanwhile cared for by a third person, he could not intervene in the suit in his own behalf and secure a determination of his claim, or that he must present it to the Secretary and abide his decision. Congress might perhaps have vested him with such power, but it did not. The res was at large; courts alone could direct its distribution. The situation, therefore, is no different from that often before a court, in which it is necessary to sacrifice part of a property to preserve or regain the rest. The District Court, not being able to decide without evidence and assistance as to the law, properly restored only so much as remained after those services were paid which had enabled it to act, Kendall v. Ewert, 259 U. S. 139, 149, 42 S. Ct. 444, 66 L. Ed. 862. The stake was the remainder, to which alone the restrictions of the statute can apply. The only question is of the proper amount.

Barnett might have sued alone, as he did (Tiger v. Western Investment Co., 221 U. S. 286, 31 S. Ct. 578, 55 L. Ed. 738), or the United States might have sued for him (Heckman v. U. S., 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820); the choice lay with the Attorney General. He did sue alone, and certainly until he procured the intervention of the United States his attorneys might claim for their services as in any other case. In January, 1926, this changed, for the United States then intervened as a party plaintiff, unlike Bailey, who was not a party at all. The Attorney General might, indeed, have imposed it as a condition that Barnett should retire, which would have left the United States in complete charge. He did not, probably for the reason that Barnett's attorneys had already gone so far; but we see no reason why there should not have been two plaintiffs, and why each should not be represented. But, if so, the appellees should not be deprived of fees which they earned under their separate retainer. They had received no intimation that their services were for the United States, which, had it been made, would certainly have provoked a definite understanding. Each plaintiff proceeded in its own behalf, and, while the appellees must in theory abate their claim for any services in fact made unnecessary by the intervention, there need be no such deduction, for they did substantially all that was done. It is too late now, after the heat of the day, to suggest that their client had been changed sub silentio.

However, we cannot agree that the Oklahoma litigation was part of this suit, or that those services should be paid for here. True, Barnett was an incompetent person, and as such the court would not leave him to his own devices, which were so meager. Bailey appeared as his prochein ami, and the court was satisfied to let him continue. It need not have done so; at any time it might have displaced him and substituted some one else. King v. McLean, etc., Hospital (C. C. A. 1) 64 F. 331, 354, 355, 26 L. R. A. 784; Street,...