Billy v. Burnett
| Decision Date | 19 March 1929 |
| Docket Number | Case Number: 18815 |
| Citation | 137 Okla. 175,1929 OK 121,278 P. 635 |
| Parties | BILLY et al. v. BURNETT. |
| Court | Oklahoma Supreme Court |
¶0 Indians--Validity of Conveyances by Full-Blood Heirs Under Curative Act of Congress -- Petition Attacking Conveyances Held Demurrable.
In an action commenced since the passage of the Act of Congress of April 12, 1926, chap. 115, 44 U.S. Stat. at L. 239, sec. 9, and by reason of such act, no error is shown in the ruling and action of the trial court in sustaining a demurrer to plaintiffs' petition wherein the plaintiffs attack the validity of certain conveyances, executed by full-blood Choctaw Indian heirs of their inherited lands, and allege such conveyances to be of no force and effect upon the sole ground that such conveyances were not approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee, but approved by the county court of another county in the state.
Commissioners' Opinion, Division No. 1.
Error from District Court, Jefferson County; M. W. Pugh, Judge.
Action by Charles Billy et al. against Clabe Burnett to establish an interest in and title to real estate and for possession and partition thereof. Judgment for defendant, and plaintiffs appeal. Affirmed.
Cicero I. Murray, and Rittenhouse, Lee, Webster & Rittenhouse, for plaintiffs in error.
William G. Davisson, for defendant in error.
¶1 This action was commenced in the district court of Jefferson county on May 20, 1927, by Charles Billy, Ephram Billy, Sina Johnson, and Raymond Watson, Athersholen Watson, minors, by their guardian, against Clabe Burnett, defendant; the plaintiffs alleging in their petition that they were the owners of an undivided interest in certain described lands located in Jefferson county, such interest being: Charles Billy, a curtesy right; Ephram Billy, an undivided one-third interest; Sina Johnson, Raymond Watson, and Athersholen Watson, each, an undivided one-twenty-fourth interest; that they acquired their title to the land in the following manner, to wit: Deliliah Billy, a full-blood Choctaw Indian, died intestate July 5, 1904, leaving surviving her as her sole heirs, her husband, Charles Billy, and her children, Arabelle Johnson, nee Billy; Ephram Billy, Israel Billy, and Lucinda Billy. In 1904 the United States court at Antlers, I. T., upon petition, appointed an administrator for the estate of said deceased, and upon the advent of statehood such administration proceedings were duly transferred from the United States district court to the county court of Pushmataha county, Okla., where they are now and have been pending since statehood. That the said administrator selected for, and there was duly patented to the said Deliliah Billy the lands involved in this action, and the title thereto became vested in the children of the deceased allottee subject to the curtesy right of the surviving husband. That in 1910 Arabella Johnson, nee Billy, died intestate, leaving as her sole heirs her husband, Silas Watson, and her son, Raymond Watson, who succeeded to her interest in the lands involved; in 1918 the said Silas Watson died intestate, leaving as his sole heirs his then wife, Sina Watson, now Johnson, and Athersholen Watson and Raymond Watson, his children, who succeeded to his interest in the lands. In August, 1912, Israel Billy, a child and heir of the allottee, died intestate without issue. That the defendant, Clabe Burnett, is asserting some right, title, or interest in the lands by virtue of certain conveyances described as follows, to wit: Deed from Ephram Billy to U.S. Joines, dated June 12, 1913, approved by the county court of LeFlore county, Okla.; deed from Silas Watson to U.S. Joines, dated August 31, 1914, approved by the county court of McCurtain county, Okla., and by the county court of LeFlore county; deed from Charles Billy to U.S. Joines, approved by the county court of LeFlore county, Okla. That the grantors in said deeds were all duly enrolled full-blood Choctaw Indians, and the lands sought to be conveyed by such deeds were inherited lands, and in order to convey title thereto said conveyances must have been approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee; that at no time did the county court of LeFlore or McCurtain county have any jurisdiction to approve any conveyances of the said allotment, and the grantee named in the deeds acquired no right, title, or interest in said land by reason of such conveyances; that they constitute clouds on the title of the plaintiffs and their interest in said lands, and should be canceled and set aside. That the defendant is in adverse, exclusive possession of the described lands claiming all title thereto and denies the right of the plaintiffs to the possession and title therein. Plaintiffs prayed that their title to the lands be established and quieted, that they be awarded possession of their interest, and that the lands be partitioned.
¶2 The defendant filed a demurrer to plaintiffs' petition upon the grounds (1) that the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs or to entitle them to the relief sought; (2) that the petition and the documents therein referred to show upon their face that the plaintiffs have no cause of action against defendant and no right to the lands involved; (3) that said petition discloses that if plaintiffs ever had any cause of action, the same is barred by the statute of limitations; (4) under the facts disclosed, Charles Billy never became entitled to a curtesy estate in the lands involved.
¶3 The district court sustained the demurrer upon the first and second grounds thereof, whereupon the plaintiffs declined to further plead and elected to stand upon the petition, and the court dismissed the action, and the plaintiffs bring the cause here for review.
¶4 Plaintiffs' grounds for reversal may be discussed under their fifth and sixth assignments of error, which are:
¶5 It appears to be conceded by the defendant, or at least there arises no issue upon the allegation and contention of the plaintiffs that the conveyances in question should have been approved originally by the county court of Pushmataha county, in which court probate proceedings upon the estate of the deceased allottee were then and now pending, instead of by the county courts of LeFlore and McCurtain counties. Bailey v. Jones, 96 Okla. 56, 220 P. 345; Wolf v. Gills, 96 Okla. 6, 219 P. 350; Clement v. Brown, 103 Okla. 108, 229 P. 416.
¶6 The plaintiffs attacked the conveyances solely upon the ground that they were not approved by the proper county court as designated by the Act of Congress, May 27, 1908. The question presented by this appeal arises upon the validity and effect of the Act of Congress, April 12, 1926, chapter 115, 44 U.S. Stat. at L. 239, entitled "An act to amend section 9 of the Act of May 27, 1908 (35th Stat. at L. p. 312), and for putting in force, in reference to suits involving Indian titles, the statutes of limitation of the state of Oklahoma," etc.; that part of the act, sec. 9, which reads as follows:
"Provided, That all conveyances by full-blood Indian heirs heretofore approved by the county courts shall be deemed and held to conclusively establish the jurisdiction of such courts to approve the same except where more than one such conveyance of the same interest in the same land has been made by the said Indian to different grantees and approved by county courts of different counties prior to the passage of this act, and except that this proviso shall not affect and may not be pleaded in any suit brought before the approval of this act."
¶7 It is plaintiffs' contention that the quoted part of the act is void and unconstitutional for the reason that it attempts to deprive them and all other persons in the same class, who were owners of property inherited from a deceased allottee, of the title to their property without due process of law, in violation of the Constitution of the United States, Fifth Amendment; that such act could not operate retroactively to make valid conveyances which were absolutely void and of no effect. In support of such contention plaintiffs quote from various texts and cite cases, among such being the cases of Choate v. Trapp, 224 U.S. 665, 32 S. Ct. 565, 56 L. Ed. 941, and Chase v. U. S., 222 F. 593, 138 C. C. A. 117, wherein it is said in the latter:
"No act of Congress * * * constitutes such due process of law as may impair or destroy a vested right in or title to property."
¶8 Cases are cited from this court which hold that approval of conveyances by full-blood heirs of inherited lands by county courts other than those designated in the Act of May 27, 1908, is unauthorized and void.
¶9 However, we are unable to agree with the argument and contention of the plaintiffs to the effect that the status of the land or the title thereto is just as if no instrument had ever been executed by the heirs. The conveyances involved in the instant case were signed and acknowledged by the grantors, the plaintiffs herein, or their ancestors; the instrument recites and imports a consideration. The Act of Congress of May, 1908, provided the method, procedure, or manner under which such conveyances should or could be approved by the federal government through its designated agency, which government has the general control and guardianship...
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