Boxley v. Scott

• Decision Date: 09 January 1917
• Docket Number: Case Number: 7617
• Citation: 1917 OK 85,62 Okla. 152,162 P. 688
• Parties: BOXLEY v. SCOTT et al.
• Court: Oklahoma Supreme Court

1917 OK 85

162 P. 688

62 Okla. 152

BOXLEY v. SCOTT et al.

Case Number: 7617

Supreme Court of Oklahoma

Decided: January 9, 1917

Syllabus

¶0 1. Indians--Homestead Allotments--Lease. In August, 1913, the guardian of a half-blood Creek Indian leased his surplus and homestead allotments for four years to C., with the approval of the proper county court, but without the approval of the Secretary of the Interior. Held, that said lease was void as to the homestead portion of said allotment and valid as to the surplus portion of same.

2. Same--Conveyances. A half-blood Creek Indian minor dies in August, 1914, unmarried, without issue, and intestate, leaving as his sole heir at law his mother, P., a full-blood Creek Indian. In September, 1914, B. takes a warranty deed to the entire 160-acre allotment of her deceased son from said full-blood heir, P., and has the same duly recorded, but does not have the same approved by the proper county court. In March, 1915, S. takes a deed from said full-blood heir, P., to said allotment, and has the same duly approved by the proper county court and then duly recorded. Held, that the deed from P. to B. is void, and the deed from P. to S. is valid and conveys the entire allotment in fee simple to S., subject to the rights of C. under his lease as to the 120-acre surplus portion of same.

3. Indians--Indian Lands--Restrictions. It is within the power of Congress to continue or extend the period of restriction against alienation, or provide for other restrictions during the period of existing restrictions against alienation.

Warren & Crutcher and J. L. Skinner, for plaintiff in error.

W. T. Anglin, for defendants in error.

DAVIS, C.

¶1 Jimmie Bighead was a Creek Indian of the one-half blood. His name appears on the approved rolls of the Creek Nation opposite No. 7521. Under the Original Creek and Supplemental Treaties there was duly allotted to him the southwest quarter of section 23, township 6 north, range 8 east, 160 acres of land in what was then the Creek Nation of the Indian Territory, now Hughes county, state of Oklahoma, the northwest quarter of the southwest quarter of which was designated and allotted to him as his homestead. The proper allotment certificates and patents to said land were duly issued and delivered to him by the United States government and the Creek Nation under said treaties or agreements. Jimmie had a guardian duly appointed, qualified, and acting under authority of the county court of Hughes county, Okla., after the advent of statehood, and this guardian proceeded, amongst other things, to lease Jimmie''s entire allotment to Franklin Chaney for the term and period of four years from January 1, 1914, to December 31, 1917; said lease being in writing and dated August 30, 1913, and duly approved by the county judge of Hughes county, Okla., on August 30, 1913, but was never approved by the Secretary of the Interior. In the month of August, 1914, Bighead died, being at the time of his death unmarried, without issue, and intestate. He left surviving him, as his sole and only heir at law, Jennie Peter, a full-blood Creek Indian woman, duly enrolled. On September 24, 1914, Jennie Peter made, executed, and delivered to J. D. Boxley her warranty deed to this entire allotment which she had thus inherited from Jimmie Bighead; that J. D. Boxley caused the deed to be duly recorded in the office of the county clerk of Hughes county, Okla., on September 24, 1914, but said deed was never approved by the county court of Hughes county, Okla. On the 8th day of March, 1915, Jennie Peter made, executed, and delivered to E. M. Scott her warranty deed to the entire allotment inherited by her from the deceased, Jimmie Bighead, and the said Scott caused said deed to be duly approved by the county court of Hughes county, Okla., on March 8, 1915, and duly recorded in the office of the county clerk of Hughes county, Okla., on March 9, 1915. Scott sues Boxley and Chaney in the district court of Hughes county, Okla., on March 23, 1915, the prayer of his petition being as follows:

"Wherefore plaintiff prays that the defendants be required to set forth the nature of their claims to said premises, if any; that this court decree that plaintiff''s claim and title to said premises, to wit, the southwest quarter of section 23, township 6 north, range 8 east, is valid and perfect, and that the said defendants have no right, valid claim, or title therein, nor any interest whatsoever in said premises; that the title of plaintiff be quieted in said premises; that said defendants be perpetually barred and enjoined from setting up or asserting any title or interest in said premises adverse to the plaintiff, and for such other relief as may be equitable and proper, and for the cost of this action, and will ever pray."

¶2 With these facts before the trial court in the nature of an agreed statement of facts, the trial court rendered the following judgment or decree:

"Now on this 24th day of June, 1915, this cause came on to be heard in its regular order, plaintiff being represented by W. T. Anglin, and the defendants by J. L. Skinner and F. L. Warren, and the matter being submitted upon an agreed statement of facts, and being fully advised in the premises, finds the issues in favor of the plaintiff and against the defendants.

"And the court finds that E. M. Scott, the plaintiff, is the legal owner of the lands described in his petition, and that his title thereto is valid and perfect and superior to any right or interest claimed by the defendants, and that the defendants, or either of them, have no right, title, or interest in and to the said premises, except that the defendant, Franklin Chaney, has a valid and subsisting lease upon the surplus of Jimmie Bighead, which is described as follows: The east half of the southwest quarter and the southwest quarter of the southwest quarter of section 23, township 6 north, range 8 east--and that he is entitled to the possession of the same upon complying with the terms and conditions of the lease.

"It is further ordered, adjudged, and decreed by the court that the title and possession of the said plaintiff in said premises be, and the same is hereby, forever settled and quieted in the plaintiff as against all claims and demands of the said defendants, except as herein stated as to the defendant Franklin Chaney and those claiming or to claim under them or any of them; that the deed from Jennie Peter to J. D. Boxley, dated September 24, 1914, recorded in Book 20 at page 275, in said county, and all other deeds or documents in said chain of title claimed by defendants, be, and the same are hereby, cancelled and removed as clouds on the title of the plaintiff, E. M. Scott, in and to said described premises; that the lease contract made to Franklin Chaney, by N. F. Jacobs, guardian of Jimmie Bighead, dated August 30, 1913, and recorded in Book 6 at page 835 in the office of the register of deeds of Hughes county, Okla., be, and the same is hereby, canceled in so far as the same covers the homestead allotment of Jimmie Bighead, the allottee, and is removed as a cloud on the title of the plaintiff, E. M. Scott, in and to the same, which is described as follows: The northwest quarter of the southwest quarter of section 23, township 6 north, range 8 east.

"And it is further ordered, decreed, and adjudged that the defendant J. D. Boxley and those claiming through and under him be, and they are hereby, perpetually enjoined and forbidden to claim any right, title, interest, or estate in or to said premises by virtue of said deed, hostile or adverse to the possession and title of plaintiff herein, and the said defendant and those claiming under him are hereby perpetually forbidden and enjoined from commencing any suit to disturb said plaintiff in his said possession and title to said premises, from setting up any claim or interest adverse to the title of plaintiff herein, and from disturbing plaintiff in his peaceful and quiet enjoyment of said described land.

"And it is further ordered, decreed, and adjudged that the said defendant Franklin Chaney and those claiming through, by, or under him be, and they are hereby, perpetually enjoined and forbidden to claim any right, title, interest, or estate in and to the northwest quarter of the southwest quarter of section 23, township 6 north, range 8 east, by virtue of his lease contract hostile and adverse to the deed of the plaintiff herein, and the said Franklin Chaney and those claiming under him are hereby forbidden and enjoined from commencing any suit to disturb the said plaintiff in his said possession of the last above described lands; that the defendant Franklin Chaney is rightfully in possession of the east half of the southwest quarter and the southwest quarter of the southwest quarter of section 23, township 6 north, range 8 east, by virtue of his lease contract upon the premises and upon his complying with the conditions of the same. It is further adjudged that the plaintiff have and recover his cost from the defendants, to all of which defendants except.

"Defendants and each of them pray an appeal to the Supreme Court, which is by the court allowed, and the time for making and serving case-made is hereby by the court extended for a period of 60 days from date hereof, with ten days to suggest amendments and to be settled upon five days'' notice by either party. It is further ordered by the court that the supersedeas bond herein is fixed in the sum of $ 200 for each of the defendants, which said bond is to be executed within 30 days from date hereof. Execution is hereby stayed pending the execution of said appeal bond and pending said appeal.

"Defendants and each of them having this day filed in this cause motion for new trial, the same has been examined by the court, and the court, being fully advised in the premises, hereby overrules said motion, to which action of the court the defendants and each of them

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