Crickett v. Hardin
| Decision Date | 27 June 1916 |
| Docket Number | 7478. |
| Citation | 159 P. 275,60 Okla. 57,1916 OK 744 |
| Parties | CRICKETT ET AL. v. HARDIN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The purpose and effect of the provision of section 38 of an act of Congress approved May 2, 1890 (Act May 2, 1890, c. 182, 26 Stat. 81), was to validate all prior marriages of the members of the Five Civilized Tribes, contracted in good faith according to either the express law or the customs of the tribe, which for want of formality as to solemnization registration, etc., might otherwise have been deemed invalid and to legitimize and render the issue of such marriages capable of taking property and other rights by inheritance.
In all cases involving the validity of a marriage, contracted either according to the common law, or conformably to Indian custom the courts of this state, recognizing the good of the parties, their children, and society, as the question of paramount importance, will alike indulge that presumption generally accepted as one of the strongest known to the law, favoring innocence, good faith and matrimonial intention, to sustain the marriage.
Commissioners' Opinion, Division No. 3. Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.
Action by Charles Crickett and others against Oliver C. Hardin. There was judgment for defendant, plaintiffs appeal. Reversed and remanded.
J. H. Jarman, of Sallisaw, for plaintiffs in error.
Curtis & Pitchford, of Sallisaw, for defendant in error.
This suit was commenced in the district court of Sequoyah county, on October 30, 1913, by the plaintiff in error, to cancel certain deeds as clouds upon, and to quiet the title to, the lands described therein. The parties appear, and are referred to here as in the court below. The lands in question were allotted to one Mary Gann, a full-blood member of the Cherokee Tribe of Indians, who died intestate and without issue in 1903. Both plaintiffs and defendant deraign title through the heirs of said allottee, the plaintiffs claiming under Charles Crickett and Lucy Porter, the alleged brother and sister of the half blood, and defendant through Cornelius Secondi, her maternal uncle, the only brother of her mother, Chigona. The principal, if not the sole, question involved, for a determination by the trial court, and presented here for review, is the legitimacy of the allottee. The plaintiff Jim Porter is the surviving husband of Lucy Porter, who is alleged to have been a half-sister of the allottee. However, it was admitted upon the trial that Lucy Porter was a child of Josiah Crickett and a woman called Salzey, to whom he was not married, and with whom he had never lived as his wife; and all rights claimed through Lucy Porter have been abandoned. The father of the allottee was one Josiah Crickett and her mother, Chigona. Subsequently to his alleged relations with Salzey, Josiah, for 2 years, beginning in 1881, lived and cohabited with Chigona, during which period the allottee, Mary Gann, was born to them.
In regard to the relationship between Josiah and Chigona, evidence was introduced on behalf of plaintiff, in substance, as follows:
Ellis Chuculate, 64 years old, testified that he knew Josiah Crickett and Chigona, who lived together as man and wife for about 2 years in a house on his land, within a quarter of a mile from his home, where their child, Mary Gann, was born; that he visited them and considered them man and wife, and they were so recognized in that community; that they separated some four months after the birth of the child, Chigona leaving, the cause of the separation, as stated by Josiah, being that Chigona was a poor housekeeper; that after such separation and the death of Chigona, Josiah lived with Susan Big Feather, by whom he had a child, the plaintiff, Charles Crickett.
Eliza Chuculate, wife of Ellis Chuculate, who resided some 3 miles distant at the time, testified that she knew Josiah and Chigona when they were living together, and visited at their house, and saw the child, Mary, there when she was several months old. She was asked and answered the following question:
Dan Chuculate testified that Josiah and Chigona lived together for two years on the Ellis Chuculate farm, and had one child, Mary, and were recognized in that community as husband and wife; that after Chigona's death Josiah was married at his house to Susie Big Feather, the ceremony being performed by a Cherokee preacher.
George Coldridge, who lived some 15 miles away, testified that he knew Josiah and Chigona lived together as husband and wife on the Ellis Chuculate place; that he visited in that community and went to their house; that they were living there when the child, Mary, was born; that the baby was about six months old when Chigona left.
Steve Simmons testified that he knew Josiah and Chigona, and that on one occasion, upon the invitation of Josiah to go home with him, he spent the night with them on the Ellis Chuculate farm.
Susie Scrapper, formerly Susie Big Feather, testified that she was the widow of Josiah Crickett; that after Chigona's death she was married to him by a preacher; that of said marriage there were born to her two children, the plaintiff, Charles Crickett, and another who died in infancy; that her husband, Josiah, told her that Chigona had been his wife, and that Mary was their child.
Opposed to this evidence is the testimony of a number of witnesses as to circumstances by which it was attempted to be shown that Josiah and Chigona had not lived together as man and wife, and as to rumors to the effect that the allottee was the illegitimate child of Chigona and one Newt Fry. None of these witnesses, however, lived in the immediate vicinity, and none of them could state that Josiah and Chigona did not, in fact, live together as man and wife on the Ellis Chuculate farm.
John L Strongston, 70 years old, who had been clerk of the District, Circuit, and Cherokee Courts, sheriff, interpreter, and...
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