Cox v. Colbert, Case Number: 18925

CourtSupreme Court of Oklahoma
Writing for the CourtBENNETT, C.
Citation1929 OK 89,275 P. 317,135 Okla. 218
PartiesCOX et al. v. COLBERT.
Docket NumberCase Number: 18925
Decision Date26 February 1929

1929 OK 89
275 P. 317
135 Okla. 218

COX et al.

Case Number: 18925

Supreme Court of Oklahoma

Decided: February 26, 1929


¶0 1. Indians--Enrollment Records as Prima Facie Evidence of Parentage of Allottee.

The enrollment record made by the Commission to the Five Civilized Tribes of Indians, under section 21, Act of Congress of June 28, 1898, is, as to that part thereof which is descriptive of the persons so enrolled, prima facie evidence as to the matters therein shown, such as parentage, etc., and if the persons so shown thereon to be parents of the allottee are contended not to have been such parents, the burden is on the party asserting the incorrectness of such enrollment record, and the same cannot be overthrown except by clear, cogent, and convincing proof.

2. Same--Evidence Supporting Finding of Court.

Where the census card and enrollment record show that Mary Colbert, a threefourths blood Indian, was the daughter of Alice Hampton and Jeff Colbert, and there is no evidence to the contrary, the finding of the trial court that Mary Colbert was the lawful child of Jeff Colbert is not error.

3. Indians--Vested Interest of Purchaser of Land Not Affected by Judgment in Subsequent Heirship Proceedings.

Action of a county court of Oklahoma in determining the heirs of a full-blood member of one of the Five Civilized Tribes of Indians is a nullity as to parties having a vested interest by virtue of a conveyance approved by the county court prior to June 14, 1918, except in ordering or decreeing a sale or partition thereof as incident to or arising under its probate jurisdiction.

4. Judgment--Res Judicata--Requisites of Plea.

In order to constitute a valid plea of res judicata, these elements should appear: (1) The parties, or their privies, must be the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same and must relate to the same subject-matter; (4) the capacities of the persons must be the same in reference to the subject-matter and the issues between them.

5. Same--Action to Recover Interest in Land Hold not Barred by Former Judgment in Heirship Proceeding.

Record examined; held, that the ruling of the court to the effect that the judgment of the county court in heirship proceeding was not res judicata and a bar to plaintiff in this action was not error.

6. Same--Judgment for Recovery of Interest in Land Sustained.

Evidence and record examined; held, the same properly supports the judgment.

Commissioners' Opinion, Division No. 2.

Error from District Court, Marshall County; Porter Newman, Judge.

Action by Mary Colbert against Edwin B. Cox et al. Judgment for plaintiff, and defendants appeal. Affirmed.

Cruce & Potter and Geo. E. Rider, for plaintiffs in error.

Don Welch and Ben Hatcher, for defendant in error.


¶1 Ben Pershica, an enrolled full-blood Chickasaw Indian, died intestate and unmarried in August, 1924, in Marshall county, Okla. He owned, at the time of his death, 280 acres of land, which constituted his surplus and homestead allotments, for which he held patents. He left surviving him three living children, Fred Pershica, McLane Pershica, and Joanna Mule, now Norton. He had another son, Jeff Colbert, who died in 1903, and Mary Colbert, the plaintiff below, defendant in error here, claims that she is the daughter and only issue of Jeff Colbert, and that upon his death she became, in his place, a prospective heir of Ben Pershica, deceased, her grandfather. After Ben's death, Mary brought this suit in district court of Marshall county, Okla., against Edwin B. Cox, Claude Chesnut, Fred Pershica, Josephine Pershica, and McLane Pershica, the plaintiffs in error, for possession of one-fourth interest in said lands and to quiet the title thereto and for partition. The parties will be referred to as plaintiff and defendants in the order in which they appeared in trial court.

¶2 The petition was in usual form, and the answers contained a general denial, and also alleged that Mary Colbert was neither the child of Jeff Colbert nor the grandchild of Ben Pershica, the allottee, and pleaded as res judicata a judgment of the county court of Johnston county, Okla., wherein the court found that Mary Colbert was not a child of Jeff Colbert. This judgment was rendered October 24, 1922, and will be hereinafter referred to. The issues as to the identity and relationship of plaintiff to Jeff Colbert and to Ben Pershica, the allottee, and res judicata, were the only vital issues presented to or tried by the court below. The evidence was documentary except an agreed statement of facts. Upon consideration of the evidence, the court found Mary Colbert was a daughter of Jeff Colbert, a granddaughter and heir of Ben Pershica, and entitled to one-fourth of the land of which Ben Pershica died seized as aforesaid, and ordered said lands partitioned, from which judgment defendants appeal. For reversal they present two propositions: (1) That the evidence is insufficient to support the judgment; (2) that the judgment of county court of Johnston county determining that Mary was neither the daughter of Jeff nor the granddaughter of Ben was conclusive.

¶3 The following facts are stipulated: That the lands in controversy lie in Marshall county, Okla., and were allotted and patented to Ben Pershica as a Chickasaw Indian, who died intestate in August, 1924, and left him surviving no wife, but left three children, Fred and McLane Pershica, and Joanna Mule, now Norton; that Jeff Colbert, who died in 1903 within the territorial limits of what is now Johnston county, Okla., was a son of Ben Pershica; that Jeff Colbert and Lizzie Conway were married November 3, 1902; they had two children before their marriage, namely, Joel Colbert and Bean Colbert; that Alice Hampton was the mother of Mary Colbert, the plaintiff; that after the death of Ben Pershica, and prior to the institution of this suit, defendant Joanna Mule, now Norton, conveyed to Edwin B. Cox all of her interest in the real estate allotted to Ben Pershica, the same being the real estate, the subject of this action. It was agreed that at the time of Ben Pershica's death there remained alive no issue of Jeff unless Mary were such.

¶4 The court made the following findings of fact:

"This is a suit on the part of Mary Colbert to establish that she is the daughter of Jeff Colbert, deceased, and entitled to inherit an interest in her grandfather's allotment.

(1) The court finds from the only evidence offered in this case, to wit, the census card and enrollment record, that Mary Colbert was the daughter of Jeff Colbert, and she is the granddaughter of Ben Pershica.

(2) That during the year 1922, in the probate court of Johnston county, Okla., one Chastaine filed a suit to determine heirship of the estate of Jeff Colbert, deceased, and that the plaintiff herein was a party to that action, and filed an answer therein; that the judgment rolls in that case consisted of the pleadings, process and journal entry showing that the paternal grandmother of the plaintiff, Mary Colbert, died in the year 1918, and that the conveyance to Chastaine, who instituted this heirship proceedings, was made long prior to the year 1918, and that the journal entry showed that at the time it was rendered and entered of record, that Chastaine had been in possession of this land for more than 17 years.

"Therefore, the court finds that the transfer to the property involved in this probate proceeding was made sometime during the year 1905, and long prior to the year 1918.

"Conclusions of Law.

"The court, therefore, concludes, as a matter of law, that Mary Colbert, the plaintiff, is a regular and lawful heir, to wit, granddaughter of Ben Pershica, and that the probate proceedings had in Johnston county to determine heirship is void, and that she is entitled to recover the property in this action, and judgment will be entered accordingly.

"To which action of the court in his findings of facts and conclusions of law, both the plaintiff and defendants may have their respective exceptions."

1. Was the evidence sufficient to support the judgment that Mary Colbert was the daughter of Jeff Colbert and the granddaughter of Ben Pershica? It is contended, first, by the plaintiff, that this question was not raised, and is not now before the court for disposition by reason of the fact that no demurrer was filed to the evidence, and no proper exception taken to the findings of fact, but we prefer to deal with the question on its merits.

¶5 Since it is admitted that Jeff Colbert was the son of Ben Pershica, the inquiry now is: Was there evidence that Mary was the daughter of Jeff? Plaintiff introduced a certified copy of the census card of Mary Colbert which shows, opposite the Dawes Roll No. 2106, the name of Mary Colbert, one year old, female, three-fourths blood, a daughter of Alice Hampton No. 2104, age 25, female, one-half blood, name of father, Jeff Colbert. This is followed by an affidavit in the following words:

¶6 Department of the Interior. Commission to the Five Civilized Tribes, United States of America, Indian Territory, Southern Judicial District.

"Alice Hampton being first duly sworn states the she is a citizen of the Chickasaw Nation of Indians. That she heretofore made application to the Commission to the Five Civilized Tribes for the enrollment of herself and family. That Jeff Colbert, the father, is enrolled by said tribe in Tishomingo county, and the mother, Alice Hampton in Tishomingo county. That there has been born to herself, to wit, on the day of January, A. D. 1898, a female child, which has been named Mary Colbert.

"Alice [her mark X] Hampton.

"Witness P. B. Hopkins.

"Subscribed and sworn to before me this 28th day of September A. D. 1898.


P. A.?


"In re Application for enrollment of Infant Child Mary Colbert as a citizen of the Chickasaw Nation.

"Approved Sept. 28, 1898.

"T. P. Needles."

¶7 It has...

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