Combs v. Johnson

• Decision Date: 25 September 1923
• Docket Number: Case Number: 11270
• Citation: 1923 OK 678,92 Okla. 189,218 P. 1098
• Parties: COMBS v. JOHNSON et al.
• Court: Oklahoma Supreme Court

1923 OK 678

218 P. 1098

92 Okla. 189

COMBS v. JOHNSON et al.

Case Number: 11270

Supreme Court of Oklahoma

Decided: September 25, 1923

Syllabus

¶0 1. Appeal and Error--questions Presented--Admission in Brief.

Where counsel for the respective parties in their briefs in this court agree that there is but one question to be presented to this court for consideration and decision, this court will decide the case on the proposition so submitted, regardless of the other question that might be raised in the case.

2. Taxation--Indian Land--Power to Tax.

The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation, and prior to the approval of conveyances of full-blood Indian heirs under the provisions of the act of May 27, 1908, by the proper court, the power to tax said lands does not exist.

Commissioners' Opinion, Division No. 1.

Error from District Court. Creek County; Lucien B. Wright, Judge.

Action by A. J. Combs against B. Johnson and B. B. Jones. Judgment for defendants, and plaintiff appeals. Affirmed.

Defendants in error have stated in their brief:

"That the brief of counsel for plaintiff in error contains a full and clear statement of facts and pleadings so far as material for consideration of the question under review, we will content ourselves with a very brief statement of salient facts for convenient consideration of the argument."

We will, therefore, adopt the statement contained in plaintiff in error's brief as a statement of facts in this case.

Plaintiff in error, as plaintiff below, on December 14, 1919, commenced this action by filing in the district court of Creek county, Okla., his petition in ejectment against one B. Johnson alleged to be in possession of the lands in controversy claimed to be owned by plaintiff. Attracted to the petition as exhibit "A", and as a part thereof, is a copy of a tax deed executed by the county treasurer of Creek county. Okla., to A. H. Purdy and A. J. Combs, April 3, 1914, conveying to grantees the land in controversy for the unpaid taxes for the year 1909, for which the land had been sold at a tax sale November 24, 1911. And attached to said petition as exhibit "B" and made a part thereof is a copy of a deed from A. H. Purdy, executed April 6, 1914, conveying all his right, title, and interest in the land in controversy to the plaintiff, A. J. Combs.

The defendant, Johnson, answered that he was in possession of said premises as the tenant of one B. B. Jones. On application of B. B. Jones to be made a party defendant and an order of the court sustaining his application, B. B. Jones was made a party defendant, and filed his answer and cross-petition, averring, among other allegations therein contained: First, this defendant admits that B. Johnson, defendant in this case, was, and is, in the possession of the land described in the petition in this case, but avers that said Johnson occupies said land as lessee of this defendant as landlord, and that the possession thereof, by said Johnson, is in law and in fact the possession of this defendant, who is, and claims to be, the sole owner of the legal and equitable estate in and to said land.

This defendant denies that the plaintiff has any right, title, or interest in and to said lands, or is entitled to the possession thereof, and denies each and every allegation of said petition therein contained, not hereinbefore expressly admitted.

And further answering, this defendant ways: It appears from the exhibits filed with the petition of the plaintiff that said plaintiff claims title to, and the right to possession of, the west half (1/2) of the southeast quarter (1/4) of section twenty-one (21), township fifteen (15) north, range nine (9) east, situated in Creek county, Okla., by virtue of a tax deed executed on the day of by treasurer of said county.

The defendant says that said plaintiff ought not to maintain this action for the reason that said decal is void, and of no effect, and could not, and did not, operate to convey to plaintiff and his grantor, the said land for the following reasons: The said property sought to be deeded as aforesaid was not subject to taxation for the year 1909, as stated therein.

In support of this allegation, defendant says that said land was a portion of the allotment of one Willie Thomas, deceased, who was duly enrolled as a full-blood member of the Creek Tribe of Indians, opposite number 9527 of the rolls compiled by the Commissioner to the Five Civilized Tribes.

That said Willie Thomas died during infancy, without issue, previous to receiving his allotment, and that said land was selected and set apart to said Willie Thomas, deceased, on September 3, 1902, and thereafter conveyed by patent to his heirs, dated and duly executed on March 26, 1904, by Porter, principal chief of the Creek Nation, under approval of the Secretary of the Interior Department of the United States Government.

That said Willie Thomas, who was born out of wedlock, at the time of his death and at the time of the selection and the issuing of the patent, was survived by Waitie Thomas and Polly Wesley, father and mother, respectively, as his sole heirs at law, if the said Wattle Thomas be an heir, if not, by his mother, as his sole heir, both of whom were citizens of said Creek Tribe of Indians, and duly enrolled as full-blood members thereof.

That on the 3rd day of September, 1902, the date of the selection of said lands, the said Waitie Thomas and Polly Wesley became seized and possessed of the equitable title to said lands, and thereafter on the 26th day of March, 1904, became seized of the legal estate in fee simple as such heirs at law, and that neither the said Waitie Thomas nor Polly Wesley ever conveyed or attempted to convey said lands or any part thereof until the 3rd day of August, 1907, subsequent in time to the passage and approval of the Act of April 26, 1906, after which, August 3, 1907, Polly Wesley, mother of said deceased allottee, undertook to convey said land to Manford Land Company of Muskogee, Indian Territory, and on the 28th day of said August, the said Waitie Thomas undertook to convey the said land to Wetumka Oil Mine Development Company of Wetumka, Indian Territory.

That neither of said deeds were approved by the Secretary of the Interior, nor by the county court having jurisdiction of the estate of Willie Thomas, deceased.

That subsequent to said conveyances, no conveyances were made by said Polly Wesley or Wattle Thomas covering the said lands until the 15th day of June, 1912, when the said Polly Wesley, together with one John Wesley, her husband, conveyed the same to this defendant by deed duly executed and delivered of that date wherein the name of this defendant as grantor appears as Bernard B. Jones, which said deed was duly approved by the county court of McIntosh county, which said court had jurisdiction of the, estate of said Willie Thomas, deceased, and until the 20th day of June, 1912, when the said Wattle Thomas, by his deed of that date, made and executed under the approval of said county court, conveying to this defendant as Bernard B. Jones, all his right, title, and interest in and to said described land.

This defendant avers and charges that the deed executed on August , 1907, by Polly Wesley, as aforesaid, and the deed executed August 28, 1907, by Waitie Thomas, as aforesaid, did not operate to convey any estate in and to said lands for the reason that same were executed after the passage and approval of said Act of Congress of April 26, 1906, requiring the approval of the Secretary of the Interior as a condition to the alienation, and that the title to said lands remained in said Polly Wesley and Wattle Thomas until the date of said last mentioned deeds executed to this defendant as Bernard B. Jones, and that the title to said lands was vested with restrictions upon the alienation, and were not subject to taxation for the year 1909. To this cross-petition plaintiff filed an answer substantially as follows:

"First. The plaintiff denies each and every allegation of said cross-petition except such as is hereinafter admitted.

"Second. It is admitted that plaintiff has a tax deed, but denies that the same is void on any of the grounds set forth in the cross-petition.

"Third. It is admitted that the lands in controversy in this action were allotted to Willie Thomas, a full-blood Indian, whose roll number is 9527, and that the said Willie Thomas died without issue, and unmarried previous to receiving his allotment, and in this connection plaintiff avers that the said Willie Thomas died on the 25th day of July, 1901, or thereabouts, and it is admitted that selection of the above allotment was made on September 3, 1902, and patent issued to the heirs of Willie Thomas on March 26, 1904; and it is admitted that the father and mother of Willie Thomas, to wit, Waitie Thomas and Polly Wesley, are the sole heirs at law of the said Willie Thomas and were full-blood Creek Indians and are so enrolled.

"It is further admitted that the said Waitie Thomas and Polly Wesley did not convey or attempt to convey said land prior to the 3rd day of August, 1907, and in this connection allege that on the 3rd day of August, 1907, that said lands were unrestricted, and that on said date the said Waitie Thomas and Polly Wesley conveyed said lands to the Manford Land Company who thereafter conveyed the same to the cross-petitioner herein B. B. Jones.

"And it is alleged that said heirs conveyed said land while same was unrestricted to Wetumka Oil Mine Development Co. on August 28, 1907, who thereafter, in 1916, conveyed to B. B. Jones; and it is admitted that said deeds were not approved by the Secretary of the Interior, nor by any county court of the state of Oklahoma.

"Fourth. It is admitted that Polly Wesley, together with one John Wesley, on the 15th day of June, 1912, made a deed covering the said lands in controversy in...