Butterfield v. Butler

• Decision Date: 27 July 1915
• Docket Number: 5074.
• Parties: BUTTERFIELD v. BUTLER ET AL.
• Court: Oklahoma Supreme Court

150 P. 1078

50 Okla. 381

BUTTERFIELD v. BUTLER ET AL.

No. 5074.

Supreme Court of Oklahoma

July 27, 1915

Syllabus by the Court.

Held, that the allotment of a Choctaw freedman, on December 26, 1905, was inalienable, and a mortgage given by such freedman on that date is void.

Commissioners' Opinion, Division No. 2. Error from District Court, Bryan County; Summers Hardy, Judge.

Action by Edward S. Butterfield against Roland H. Butler and others. Judgment for defendants, and plaintiff brings error Affirmed.

Hatchett & Ferguson, of Durant, and Chas. R. Bostic, of Oklahoma City for plaintiff in error.

V. B. Hayes and W. E. Utterback, both of Durant, for defendants in error.

BRETT C.

This action was commenced in the district court of Bryan county by Edward S. Butterfield, plaintiff in error, plaintiff below, against Roland H. Butler and Artie Butler, defendants in error, defendants below, to recover on certain notes and to foreclose a mortgage executed by defendants December 26, 1905, on 40 acres of land described in the petition. The defendants answered, and, among other things, pleaded that the land covered by the mortgage sought to be foreclosed was the individual allotment of the defendant Roland H. Butler, and that he is a Choctaw freedman and enrolled as such, and that said lands were allotted to him as such. And that allegation was admitted by the plaintiff to be true. The cause was tried to the court, and the court allowed judgment for plaintiff in the sum of $382.82, but entered a decree declaring the mortgage to be void, and removing all cloud from the title to said land by reason of mortgage. And the plaintiff complains that this decree invalidating the mortgage was error, and brings the cause here for review.

It is stated by counsel that:

"The only proposition involved in this appeal is whether on the 26th day of December, 1905, which is the date of plaintiff's mortgage, the lands included in said mortgage, which were the individual allotment of Roland H. Butler, a Choctaw freedman, were alienable."

We think they were not. And that the judgment appealed from is correct.

In re Davis Estate, 32 Okl. 209, 122 P. 547, we think is decisive of the question presented by the case at bar. In that opinion the court says:

"The right of Choctaw freedmen to participate to a limited extent in the allotment of lands, in both the Choctaw and Chickasaw Nations, was recognized in Act June 28, 1898 c. 517, 30 St. at L. 495. In section 29 of the foregoing act, it was provided that Choctaw freedmen should be entitled to an allotment of land equal in value to 40 acres of the average land of the two nations, which should be nontaxable and inalienable while the title remained in the original allottee, but not to exceed 21 years from the date of patent.

In the Supplemental Agreement, approved July 1, 1902, and ratified by the Choctaw and Chickasaw Nations September 25, 1902 (32 St. at L. 642), in section 11 thereof it was provided that each Choctaw freedman, as soon as practicable

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