Chapman v. Tiger

• Decision Date: 02 August 1960
• Docket Number: No. 38127,38127
• Parties: Earl CHAPMAN and Milton W. Hardy, Plaintiffs in Error, v. Eliza TIGER, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 571

356 P.2d 571

1960 OK 181

Earl CHAPMAN and Milton W. Hardy, Plaintiffs in Error, v. Eliza TIGER, et al., Defendants in Error.

No. 38127.

Supreme Court of Oklahoma.

Aug. 2, 1960.

Rehearing Denied Nov. 9, 1960.

SYLLABUS BY THE COURT.

1. The term 'restrictions upon the alienation,' as used in the Act of Congress of May 27, 1908, c. 199, 35 Stat. 312, means those restraints or limitations imposed by law upon the power of allottees of the Five Civilized Tribes and their heirs to voluntarily convey allotted lands free from supervision or control of any federal agency, or county court acting as a federal agency.

2. The language of the proviso to section 9 of Act of Congress of May 27, 1908, c. 199, 35 Stat. 315, 'that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee' excepts lands inherited by full-blood heirs from the general terms of the statute making the death of an allottee operate to remove all restrictions upon the alienation of said allottee's land.

3. The restriction upon conveyance by the 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 share of the land of the tribe to which he belongs, made by the provisions of section 22 of the Act of Congress of April 26, 1906, 34 Stat. 137, chap. 1876, apply as well in a case where selection has been made by the duly appointed executor or administrator of an Indian who died before receiving his allotment, as to a case where the land was selected by the ancestor in his lifetime.

4. Under provisions of Act of Congress of May 27, 1908, 35 Stat. 315, chapter 199, the power to tax inherited Indian land was coincident with and dependent upon the removal of restrictions upon alienation, and prior to the approval of conveyances of full-blood Indian heirs by the court having jurisdiction of the settlement of the estate of the deceased allottee or enrollee the power to tax said land did not exist.

5. Prior to the 1949 amendment of 12 O.S. § 93, no statute of limitation was applicable to action attacking void tax resale deed, and title of holder of such deed or his successors would ripen into a good title only after actual, notorious, exclusive and continuous possession of land covered by deed for period of fifteen years.

6. Action of trial court in granting new trial will not be disturbed on appeal where record shows that original judgment in action tried to the court without a jury was based on an erroneous finding which was contrary to law and the evidence.

Appeal from District Court of Tulsa County; W. Lee Johnson, Judge.

Action to quiet title. Plaintiff appeals from order sustaining defendants' motion for new trial. Affirmed.

Milton W. Hardy, of Hardy & Hardy, Tulsa, Okl., for plaintiffs in error.

W. F. Semple, Tulsa, Okl., for defendants in error.

Billie W. Crain, Field Sol., D. Luster Cook, Trial Atty., Harold M. Shultz, Jr., Trial Atty., Office of the Solicitor, U. S. Department of Interior, Muskogee, Okl., amici curiae.

JACKSON, Justice.

This is an appeal by plaintiff from order of the trial court granting new trial to defendants in a quiet title action tried to the court. Plaintiff's title is based on a deed from the County Commissioners of Tulsa County, Oklahoma, dated May 20, 1935, and filed of record June 8, 1935, and actual possession by plaintiff since that date. The land in question had been acquired by the county in 1927 by resale tax deed covering allegedly delinquent ad valorem taxes for the years 1912-1926, inclusive.

Plaintiff's action was commenced on January 28, 1950.

A cross-petition was filed on March 24, 1950, by certain defendants, as sole surviving full-blood Creek Indian heirs of Eliza Tiger, a full-blood Creek Indian allottee who died before receiving the allotment covering the land in question. The position of these defendants is that the land was restricted and non-taxable, during the years 1912-26, and that, therefore, the aforementioned tax resale deed and the County Commissioner's deed under which plaintiff claims title are void, and should be cancelled.

The trial court rendered judgment for plaintiff in 1955, and in 1957 granted defendants a new trial, from which order plaintiff appeals. In the order granting new trial appears the following:

'* * * the court announced that its judgment had been rendered upon a question of fact as to the statute of limitations, but since said judgment the court in the interim had reviewed the record upon the point and had concluded the court was in error upon such point as a question of fact, and for such reason desired to hear argument first from counsel for plaintiff and intervenor, and having heard argument of counsel for the parties present and being fully advised in the premises concludes and determines as a question of fact that statute of limitations applicable had not run, * * *.'

The questions presented on this appeal are:

1. Was the land in question restricted Indian land and non-taxable during the years 1912-26?

2. Did the trial court err in holding that defendants' cross-petition attacking plaintiff's deed and the tax resale deed was not barred by limitations?

The determination of the first question hinges upon the interpretation of two Congressional enactments, the Act of April 26, 1906, 34 Stat. 137, and the Act of May 27, 1908, 35 Stat. 312.

Section 22, Act of April 26, 1906, 34 Stat. 137, 145, provides:

'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 to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in the case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.' (Emphasis added.)

Section 9, Act of May 27, 1908, 35 Stat. 312, 315, 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; Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: * * *.' (Emphasis added.)

The United States Supreme Court, in considering the Act of May 27, 1908, in Parker v. Richard, 250 U.S. 235, at pages 238-239, 39 S.Ct. 442, at page 443, 63 L.Ed. 954, said:

'By the act of 1908, which imposed the restrictions on alienation and contained the leading provision, Congress further declared, in section 9, 'that the death of any allottee * * * shall operate to remove all restrictions upon the alienation of (the) allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.'

'In the absence of the proviso it would be very plain that, on the death of the allottee all restrictions on the alienation of the land allotted to him were removed. But the proviso is there and cannot be disregarded. It obviously limits and restrains what precedes it. In exact words, it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court's approval. Conveyances without its approval fall within the ban of the restrictions. * * *.

'In cases presenting the question whether lands inherited from allottees by full-blood Indian heirs are freed from restrictions by section 9, and thus brought within another provision in the same act declaring that land 'from which restrictions have been or shall be removed' shall be taxable and subject to other civil burdens, the Supreme Court of the state and the federal court of that district have both held that under the proviso such land remains restricted in the hands of the full-blood heirs, and so is not within the taxing provision. Marcy v. Seminole County, supra; United States v. Shock, 10 Cir., 187 F. 870.

'Entertaining a like view of the proviso, we conclude that the land covered by the lease is still restricted land.'

We held, in Tiger v. Lozier, 124 Okl. 260, 256 P. 727, that the County Court, in approving such alienation, acts as a Federal instrumentality.

In United States v. Shock, 10 Cir., 187 F. 870, 872, the court said:

' * * * the question as to whether, on March 1, 1909, the lands referred to by the demurrer were taxable, depends upon whether they were alienable without restriction. By section 19 of the Act of April 26, 1906, c. 1876, 34 Stat. 144, all lands from which restrictions were removed were made subject to taxation. By the same act, section 22, the adult heirs of any deceased Indian of either of the Five Civilized Tribes, were permitted to sell lands inherited from such decedent. Full-blood heirs were permitted to sell with the approval of the Secretary of the Interior. This amounted to a removal of restrictions from lands inherited...