Bell v. Fitzpatrick

• Decision Date: 29 February 1916
• Docket Number: 4776.
• Parties: BELL v. FITZPATRICK.
• Court: Oklahoma Supreme Court

157 P. 334

53 Okla. 574, 1916 OK 229

BELL v. FITZPATRICK.

No. 4776.

Supreme Court of Oklahoma

February 29, 1916

Rehearing Denied May 9, 1916.

Syllabus by the Court.

A decree of a district court of this state purporting to confer upon an Indian minor allottee of tribal lands majority rights, including authority to execute a conveyance of her allotment, is ineffectual and void, in so far as it undertakes to authorize a conveyance of said lands in violation of the congressional restrictions thereon.

In an action to set aside a void conveyance to the lands of an Indian minor allottee, it is not necessary for plaintiff to plead a formal tender and offer to return the consideration received therefor as a condition precedent to maintaining such action.

The fact that a minor Indian allottee in her own name brought suit to set aside a void conveyance to her allotted lands executed after May 27, 1908, and thereafter permitted said suit to be dismissed with prejudice, cannot operate as a bar to a subsequent suit by her upon attaining her majority to cancel said deed and have same removed as a cloud upon her title.

Neither can the guardian of said minor, by commencing an action and thereafter entering into a compromise and settlement of such litigation, by which same was dismissed, divest the title of said minor to said lands, nor confer any rights upon the grantor in such void conveyance, nor give any validity thereto, nor create an estoppel against said allottee thereafter asserting the invalidity of such void conveyance.

The statute of limitations does not begin to run against an action to set aside a void conveyance of an Indian minor allottee to his or her allotted lands, executed after the passage and approval of Act Cong. May 27, 1908, c. 199, 35 Stat. 312, until such minor has attained his or her majority as shown by the enrollment records of the Commissioner to the Five Civilized Tribes.

Error from District Court, Nowata County; T. L. Brown, Judge.

Action by Lillie E. Fitzpatrick against John A. Bell. Judgment for plaintiff, and defendant brings error. Affirmed.

Veasey O'Meara & Owen, of Tulsa, for plaintiff in error.

C. W Kinnan and J., P. Rossiter, both of Okemah, for defendant in error.

HARDY J.

Defendant in error, as plaintiff in the court below, brought this action in the district court of Nowata county to cancel a certain deed, executed by her to defendant, conveying her allotted lands, and to have declared null and void a decree of the district court of Nowata county, conferring rights of majority upon her, and to have canceled and set aside certain stipulations and orders of dismissal entered thereon in two certain suits theretofore brought by her in her own name and in her behalf by a guardian. Plaintiff is a Cherokee Indian of less than half blood.

Defendant answered, alleging that the rights of majority had been conferred upon plaintiff, and thereafter she executed the deed in question, and that after the execution of said deed plaintiff commenced an action for the cancellation thereof, which said action was dismissed with prejudice, and, further, that said plaintiff, by her guardian, Chas. E. Tanner, commenced an action to enjoin defendant and those under him from removing any oil from the premises and for other relief; that said guardian entered into an agreement with defendant that no further claim would be set up to said land, nor cloud placed upon defendant's title, and that said action would be dismissed with prejudice, which was thereafter done; and that by reason of said alleged judgments of dismissal defendant's title to the premises was adjudicated, settled, and determined. And defendant further pleads the statute of limitations as a bar to plaintiff's right of recovery. The answer admits that the testimony taken before the Commission to the Five Civilized Tribes shows that plaintiff was seven years old on October 9, 1899, and that her age is shown by the rolls to be nine years in September, 1902.

Plaintiff filed demurrers to the separate defenses set up in the answer, which were sustained, except as to the eighth paragraph thereof, and defendant, electing to stand upon his answer, brings the case, and plaintiff brings cross-appeal.

The decree of the district court of Nowata county, rendered on the 18th day of November, 1908, purporting to confer the rights of majority upon plaintiff, did not authorize her to convey her allotment by the deed of that date. By section 1 of the act of Congress of May 27, 1908, restrictions upon the lands of minors of less than half Indian blood were removed. By section 2 of said act it was further provided:

"That the jurisdiction of the probate courts of the state of Oklahoma over lands of minors and incompetents shall be subject to the foregoing provisions, and the term minor or minors, as used in this act, shall include all males under the age of 21 years and all females under the age of 18 years."

And section 6, in part, reads as follows:

"That the persons and property of all minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma."

In the case of Jefferson v. Winkler, 26 Okl. 653, 110 P. 755, construing the foregoing provisions of the act in question, the court held that a minor, within the meaning of said sections, includes males under the age of 21 years and females under the age of 18 years, and concluded that the marriage of such a minor does not confer upon him or her the authority to sell his or her allotted lands, independent of the jurisdiction and supervision of the probate courts of the state. The doctrine announced in that case has been consistently followed and applied since the opinion therein. Kirkpatrick v. Burgess, 29 Okl. 121, 116 P. 764; Tirey v. Darneal, 37 Okl. 606, 133 P. 614; Cochran v. Teehee, 40 Okl. 388, 138 P. 563; Collins Inv. Co. v. Beard, 148 P. 846.

In Tirey v. Darneal, 37 Okl. 606, 133 P. 614,

it was said that section 6 of the act of Congress of May 27, 1908, providing that persons and property of minor allottees of the Five Civilized Tribes should, except as otherwise specifically provided by law, be subject to the control and jurisdiction of the probate courts of the state, was in the nature of a restriction on the alienation of said lands by Congress, and could only be removed by a regular proceeding as provided by statute, through the instrumentality of the county court.

In Truskett v. Closser, 198 F. 835, 117 C. C. A. 477, the Circuit Court of Appeals for the Eighth Circuit held that under the act of May 27, 1908, supra, a district court of the state could not confer majority rights on an Indian allottee under the age of 21 years, so as to qualify him to lease or otherwise convey his allotment. On appeal to the Supreme Court of the United States the Circuit Court of Appeals was affirmed, in Truskett v. Closser, 236 U.S. 223, 35 S.Ct. 385, 59 L.Ed. 549. See, also, Barbre v. Hood (D. C.) 214 F. 473; Collins Inv. Co. v. Beard, supra.

It appears to be settled conclusively by the foregoing decisions that the decree of the district court of Nowata county conferring rights of majority upon plaintiff was not effectual to remove the restrictions upon the alienation of her lands, and that title thereto could be divested only by a proceeding in accordance with the statute in the county court having jurisdiction thereof, and that the deed executed by her was absolutely void and conveyed no right or interest in the lands of said minor.

Nor was it necessary for plaintiff to plead a formal tender of the consideration received by her as a condition precedent to her right to maintain this action. In Stevens v. Elliott, 30 Okl. 41, 118 P. 407, the court said:

"In a suit in equity by a minor Creek freedman to cancel and annul a deed executed by her during her minority, it is unnecessary to formally allege and offer to do equity by returning the consideration received by her during minority."

In the second paragraph of the syllabus in Tirey v. Darneal, supra, the court said:

"Where such a void deed is executed, the grantor is not required to refund the consideration therefor before asking relief in equity."

Other opinions announcing the same rule are as follows: Blakemore v. Johnson, 24 Okl. 555, 103 P. 554; Stevens v. Elliott, 30 Okl. 41, 118 P. 407; Gill et al. v. Haggerty, 32 Okl. 407, 122 P. 641; Alfrey v. Colbert, 168 F. 231, 93 C. C. A. 517; Collins Inv. Co. v. Beard, supra.

In Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820, the Supreme Court of the United States says:

"It is said that the allottees have received the consideration, and should be made parties in order that equitable restitution may be enforced. Where, however, a conveyance has been made in violation of the restrictions, it is plain that the return of the consideration cannot be regarded as an essential prerequisite to a decree of cancellation. Otherwise, if the Indian grantor had squandered the money, he would lose the land which Congress intended he should hold, and the very incompetence and thriftlessness which were the occasion of the measures for his protection would render them of no avail. The effectiveness of the acts of Congress is not thus to be destroyed. The restrictions were set forth in public laws, and were matters of general knowledge. Those who deal with the Indians contrary to these provisions are not entitled to insist that they should keep the land if the purchase price is not repaid, and thus frustrate the policy of the statute. United States v. Trinidad Coal & Coke Co., 137 U.S. 160 [11 S.Ct. 57, 34 L.Ed. 640]."

Counsel correctly state the rule that:

"Where the court has

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