Barnett v. Kunkel

• Decision Date: 12 April 1919
• Docket Number: 5208.
• Citation: 259 F. 394
• Parties: BARNETT et al. v. KUNKEL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

259 F. 394

BARNETT et al. v. KUNKEL et al.

No. 5208.

United States Court of Appeals, Eighth Circuit.

April 12, 1919

[Copyrighted Material Omitted]

Malcolm E. Rosser, of Muskogee, Okl., and Lewis C. Lawson, of Holdenville, Okl. (Charles A. Moon and Francis Stewart, both of Muskogee, Okl., on the brief), for appellants.

Alexander A. Davidson, of Tulsa, Okl. (P. C. West, R. S. Sherman, Grey Moore, and James A. Veasey, all of Tulsa, Okl., and John B Patterson, of Okemah, Okl., on the brief), for appellees.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

This is a suit in equity by Kunkel and the Prairie Oil & Gas Company against Hannah Barnett and others, to quiet title to a parcel of land which was formerly the allotment of Mahaley Watson, a full-blood Creek, who died while a minor. Hannah Barnett was her mother and sole heir. Defendants answered, and also filed a cross-bill. In these pleadings they denied the equity of the original bill, and asked as affirmative relief that plaintiff's title be canceled and annulled, and that title be quieted and confirmed in Hannah Barnett. The trial court received the plaintiff's proof. When defendants offered evidence in support of their answer and cross-bill objection was made upon the ground that the same did not state facts sufficient either to constitute a defense, or to entitle defendants to affirmative relief. The court required defendants to make an offer of their proof. This was done, and objection to the same by plaintiffs was sustained, and an exception saved. The court then entered a decree in favor of the plaintiffs and dismissed the cross-bill upon the merits. The present appeal seeks a review of that decree.

We will summarize the cross-bill and defendants' offer of proof. It will, of course be understood that what we say is not proven facts, but defendants' claim, with reasonable inferences such as we are required to indulge in determining whether the trial court's summary disposition of defendants' case was proper.

All parties agree that title to the allotment passed to Hannah Barnett upon the death of Mahaley Watson. March 22, 1909, Hannah executed a deed of the property to one Simms. This deed was presented to the county court of Hughes county and approved. That court, however, was not the one which had jurisdiction, as the minor was a resident of and died in Okfuskee county, so the approval was void, and the deed of no effect. Okla. Oil Co. v. Bartlett, 236 F. 488, 149 C.C.A. 540.

Four years later, in March, 1913, Hannah, by a written contract, employed an attorney by the name of Crump to take proper proceedings to have the Simms deed set aside as a cloud upon her title. She also gave Crump a lease of 80 acres of land for 99 years. The contract forbids any settlement or compromise of the suit, except with the approval of the county court of Okfuskee county. It also requires that a copy be filed with that court. This contract is likewise made a part of the lease. The lease itself forbids its assignment or any right thereunder 'until the title to the allotment of Mahaley Watson, deceased, shall have been quieted, as per the terms of the written contract hereinabove referred to. ' Both instruments are expressly made binding upon successors and assigns. They were filed and approved by the county court. March 27, 1913, the lease was also filed in the office of the register of deeds of Creek county, where the land is located.

Hannah had frequently been solicited to give a new deed of the property, which she had consistently refused to do. In March, 1913, Crump brought the suit required by his contract with her, making Simms, Litchfield (who had succeeded by deed to Simms' rights), and others defendants. The contract with Crump, and the lease to him, were attached as exhibits to the complaint. Simms disclaimed. Litchfield answered.

May 26, 1913, Crump, in violation of the express provisions of the lease, assigned the same to Litchfield. This assignment refers to the lease and the contract, so Litchfield had notice of their restrictions. On the same day Crump also gave Litchfield a quitclaim deed of the land. Neither the deed nor the assignment of the lease was ever approved by the county court. In June, 1913, Crump, while acting as attorney for Hannah, entered into a corrupt agreement with Litchfield, in consideration of $5,000 paid to him personally, and upon a new consideration of $2,000 for himself and Hannah. By the terms of this agreement he was to induce Hannah to execute a new petition for the approval of the Simms deed, which was to be presented to the judge of the county court of Okfuskee county, and an approval of the deed secured. As a part of the same corrupt agreement, the suit then pending against Litchfield to cancel the deed was to be dismissed with prejudice against the bringing of any other suit. In the execution of this contract it is charged that Crump represented to Hannah that the suit to cancel the Simms deed would require a long litigation, and that he desired to be released from his obligation, and in order to secure such release the consent of the county court would have to be obtained. The $2,000 was stated to be a consideration for this release, and for royalties due her on the property. Upon such representations she was induced to sign a petition for the approval of the Simms deed. She was unable to read or speak English, and relied wholly upon the advice of her attorney, and never knew that the petition was for the approval of the deed. This petition was presented to the judge of the county court at his home at a time when he was seriously ill, and also at a time when the term of the county court of Okfuskee county had been adjourned. He signed an order approving the deed, which was afterwards filed with the clerk of his court, not by the judge himself, but presumably by Crump, or somebody acting on behalf of Litchfield. The judge later died without ever again returning to the courthouse, or performing any judicial act there. In performance of the agreement between Litchfield and Crump, a written stipulation, signed by Crump as attorney for Hannah, and by counsel purporting to act on behalf of Simms, Litchfield, and the other defendants, was filed in the state court, where the suit had been brought for the cancellation of the Simms deed, and also in the federal court, to which the suit had been removed, and a decree was entered in each of those courts upon the stipulation, adjudging that Hannah had no right, title, or interest in the land, perpetually enjoining her from asserting any claim or right to it, and establishing the title in Litchfield.

The case has been involved in many immaterial issues, which have added greatly to the difficulties of its trial in the lower court and its argument here. We will first dispose of the most meritorious of these issues.

1. It is argued that Hannah's deed to Simms was void. This contention rests upon the fact that the deed was executed two days before the patent for the land was issued, though the selection of the allotment had been legally made and approved long before. Section 19 of the Act of April 26, 1906 (34 Stat. 144, c. 1876), and section 5 of the Act of May 27, 1908 (35 Stat. 313, c. 199) render a deed of lands of the Five Civilized Tribes void, if made 'before the removal of restrictions therefrom. ' It is argued through many pages that the land here was subject to restriction within the meaning of these laws, because the patent had not been issued, and the land was therefore subject to the jurisdiction of the Land Department, and it was within the power of that department to cancel the selection for cause. This position is untenable, because the term 'restrictions,' as used in the acts of 1906 and 1908, refers to prohibitions against alienation. The power of the Land Office to cancel a selection does not constitute a restriction within the meaning of these statutes. Section 22 of the act of 1906 expressly provided:

'That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe, * * * may sell and convey the lands inherited from such decedent.'

Section 9 of the act of 1908 also provides:

'That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land.'

It has been the uniform holding that an allottee may convey the equitable title under a certificate of allotment, before patent, if the lands are not otherwise subject to restraint against...