Clinkenbeard v. United States, 1940.

• Decision Date: 12 February 1940
• Docket Number: No. 1940.,1940.
• Parties: CLINKENBEARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

109 F.2d 730 (1940)

CLINKENBEARD v. UNITED STATES.

No. 1940.

Circuit Court of Appeals, Tenth Circuit.

February 12, 1940.

Tom Biggers, of Wewoka, Okl. (Louis A. Ledbetter, of Wewoka, Okl., on the brief), for appellant.

Roger P. Marquis, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., C. R. Denny, Jr., and Ely Maurer, both of Washington, D. C., Attys., Department of Justice, on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Land, formerly owned by Martha Lena, an enrolled full-blood Seminole Indian, comprising the "W½ NE¼ Section 26, Twp. 7N, Range 8E of the Indian Base and Meridian, containing 80 acres, more or less, in Hughes County, Oklahoma," was purchased for her by the Department of the Interior upon a restricted form of deed. For purposes of this case, it is assumed that such restriction thereon against alienation expired on April 26, 1931.¹

This action instituted by the United States Government acting by and under the direction of the Attorney General of the United States, at request of Secretary of Interior, in its own behalf and for and on behalf of Lillie Lena, son of Martha Lena, and an enrolled full-blood Seminole Indian, is for the cancellation of a sheriff's deed thereto executed on April 25, 1938, and recorded on July 1, 1938, in the office of the County Clerk of Hughes County, purporting to convey said lands to appellant Clinkenbeard, and also a quit-claim deed executed by John T. Cooper and A. C. Kidd, and duly filed for record, purporting to convey their interest in said land to the same grantee.

Prior to February 1, 1936 Clinkenbeard obtained a judgment against Martha Lena and Lillie Lena for $4,500 on account of an automobile accident. The appellant had execution levied on said land which was then owned by Martha Lena.

The Superintendent of the Five Civilized Tribes having on February 1, 1936, recommended to the Commissioner of Indian Affairs the purchase of the land for said Lillie Lena at said execution sale, authorization on part of the Interior Department was given as follows: "Authority granted to bid not to exceed $3500.00 on Martha Lena's land which is to be sold at sheriff's sale as recommended your letter of February 1, title to be taken in name of Lillie Lena on restricted deed."

At said sale on February 11, 1936, said land was purchased in sum of $3,000, the purchase price being paid out of the restricted funds of and from Martha Lena and said sheriff's deed issued on said date to said Lillie Lena on a restricted form as required by the Secretary of the Interior, recited that the consideration for said deed was paid by the Secretary out of funds held by the United States in trust subject to disbursement under the supervision of the Secretary of the Interior, and contained the following clause: "To have and to hold, the said premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever, as fully and absolutely as he, the sheriff aforesaid can, may, or ought to by virtue of the said writ, and of the statutes in such case made and provided, grant, bargain, sell, release, convey and confirm the same, subject to the condition that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto shall be of any force and effect, unless approved by the Secretary of the Interior or the restrictions from said land are otherwise removed by operation of law."

Attached thereto was a certificate executed by the Superintendent of the Five Civilized Tribes as follows: "I hereby certify that the land described in the above deed was purchased for the said Lillie Lena with funds held in trust by the United States for his benefit as a full-blood Indian of the Seminole tribe, and that said purchase was made and said deed was executed pursuant to the Act of Congress approved March 2, 1931 (46 Stat.L. 1471 25 U.S.C.A. § 409a), and the regulations prescribed by the Secretary of the Interior."

The deed and certificate were duly recorded in the office of the county clerk of Hughes County, Oklahoma, on March 27, 1936.

Clinkenbeard having received the benefit of said $3,000.00 under the first execution sale, thereafter caused another execution to be issued and levied upon said land as...