Crowe v. Warnarkee

• Decision Date: 08 December 1925
• Docket Number: Case Number: 14184
• Citation: 114 Okla. 153,1925 OK 981,244 P. 744
• Parties: CROWE et al. v. WARNARKEE et al.
• Court: Oklahoma Supreme Court

1925 OK 981

244 P. 744

114 Okla. 153

CROWE et al. v. WARNARKEE et al.

Case Number: 14184

Supreme Court of Oklahoma

Decided: December 8, 1925

Syllabus

¶0 1. Indians--Inherited Allotment -- Validity of Conveyance by Full-Blood Heirs--Effect of Deed Approved by County Court After Disapproval by Secretary of the Interior Under Earlier Statute.

Where, in 1907, full-blood Creek Indian heirs, duly enrolled as such, executed a deed to an inherited allotment and submitted the deed to the Secretary of the Interior as provided by section 22 of the Act of Congress of April 26, 1906, and the deed was disapproved by him and returned to the grantors, and in the year 1913, the same heirs, by the use of the same deed as muniment of title, for a valuable consideration, secured the approval of the deed for the original grantees by the county court as provided by the Act of Congress of May 27, 1908, held, the scroll or deed written in 1907 served as muniment to pass title, and title to the allotment was thereby conveyed to the grantees.

2. Judgment--"Res Judicata." In order to make a matter "res judicata" there must be the concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and the parties to the action or their privies; (4) identity of the quality in the person for or against whom the claim is made.

3. Same--Matters Concluded--Matters not in Issue. Where the second suit is upon a different cause of action, but between the same parties as the first, the judgment in the first suit operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the first suit, and the first judgment is not conclusive as to other matters that might have been litigated or decided.

Thompson & Smith and Lydick, McPherren & Wilson, for plaintiffs in error.

McDougal, Allen & Pryor, for defendants in error.

RILEY, J.

¶1 This action was commenced in the district court of Creek county by defendants in error, as plaintiffs, against W. R. Crowe and W. J. Miller for the recovery of an undivided one-half interest in the allotment in Creek county of William Eufaula by reason of defendants in error being legal heirs of the said Eufaula.

¶2 The parties will be mentioned as they appeared below.

¶3 The plaintiffs alleged in their petition that William Eufaula was a full-blood Creek Indian, duly enrolled as such; his death on or about December 7, 1899; selection of his allotment on or about October 17, 1901; his survival by the sole and only heirs, Eliza Eufaula, his wife, and Belcher and Jacob Ispocogee, his nephews; the death of Eliza Eufaula on June 7, 1907, and survival of her sole and only heirs, being Phillip Jack, Euchee Tom, Silla Warnarkee, and Wicey Warnarkee, all full-blood enrolled Indians of the Creek Nation; the death of Phillip Jack in 1918, leaving as his sole heirs Fannie, Susie, Anne, Sam, and Wiley Jack, his minor children, and Dillie Jack, his wife.

¶4 Defendants answered, admitting all the material allegations in the petition contained; that title to lands in controversy, the allotment of William Eufaula, passed to them by reason of a deed of plaintiffs, executed and approved as required by law.

¶5 The facts concerning the execution of the deed are not in dispute. The facts, as disclosed by the pleadings, are that on August 14, 1907, Phillip Jack, Euchee Tom, Silla Warnarkee, and Wicey Warnarkee, full-blood heirs of William Eufaula and Eliza Eufaula, executed a deed to Timmie Fife and Joseph Bruner for an undivided one-half interest in the allotments of William and Eliza Eufaula, containing 160 acres each, for a consideration of $ 300, -- $ 50 paid and the balance to be paid when said deed was approved. This deed was forwarded to the Secretary of the Interior for approval. On May 26, 1913, the Secretary of the Interior refused approval. On July 15, 1911, Fife and Bruner quitclaimed their interest in said lands to James Dunlap. On September 30, 1913, Dunlap conveyed by warranty deed his interest in said lands to Clint S. Harper, and on April 10, 1918, Harper, by warranty deed, conveyed the land to W. R. Crowe. On January 2, 1909, the United States brought suit in federal court at Muskogee on behalf of the full-blood Indian grantors to cancel said deed against the grantees, Fife and Bruner, the litigation being a part of what is known as the 30,000 lawsuit. Fife and Bruner filed a disclaimer in said action, and judgment canceling said deed of 1907 was entered in said federal court on June 7, 1919.

¶6 On September 26, 1913, the plaintiffs having renewed negotiations with Bruner and Fife for the sale of the lands, and Bruner and Fife having retained possession of the lands notwithstanding their disclaimer filed in the federal court, and Phillip Jack having filed a petition in the county court of Creek county seeking approval of the deed of conveyance to the lands in controversy, and plaintiffs appearing in person in said court, likewise appearing in person were Fife and Bruner, and the Act of Congress of May 27, 1908, removing restrictions upon the lands of the Five Civilized Tribes, having transferred the right and jurisdiction to approve deeds conveying the allotments of deceased Indians executed by full-blood heirs from the Secretary of the Interior to the proper county court, the said county court approved a deed of conveyance as aforesaid; the deed approved being the instrument written in 1907, the same being returned by the Secretary of the Interior to the grantors and a new consideration having passed.

¶7 The plaintiffs filed their motion for judgment on the pleadings, and judgment was accordingly rendered, and defendants have perfected an appeal to this court.

¶8 It is admitted by defendants that the written conveyance dated August 14, 1907, having been disapproved by the Secretary of the Interior, was, as a conveyance, a nullity, but it is contended that the sale and conveyance on September 26, 1913, as approved by the county court, was not void for the reason that the parties used as evidence of such sale and conveyance the instrument of the date of August 14, 1907, theretofore returned by the Secretary of the Interior to the possession of the vendors.

¶9 It is further contended that the decree of the United States court of June, 1919, in Equity Case No. 485, being one of the 30,000 lawsuits, is not conclusive upon the rights of the parties to this action.

¶10 As to the first contention, we think the real issue is whether the sale and conveyance approved by the county court September 26, 1913, was a sale of that particular date or as of the date of August, 1907. Approval of a sale as of the date of August, 1907, is exclusively within the jurisdiction of the Secretary of the Interior, but if the sale and conveyance is of the date of September, 1913, the county court had exclusive authority to approve the same.

¶11 Considering the answer of defendants in the judgment on the pleadings, we find a sale as of the date of September 26, 1913, sufficiently pleaded, yet the pleadings as a whole lead us back to the proposition as to whether or not a prior void instrument may be used as the evidence, the token, the deed of conveyance of the lands at the latter sale.

¶12 The date of the delivery rather than the date recorded in the instrument is controlling, in our judgment. In 8 R. C. L. 1013, it is said:

"Primarily, a deed takes effect from its delivery, which, to most intents and purposes, is merely the converse statement of the rule that a deed does not become effective until delivery, and which is aptly illustrated by the holding that a deed executed and acknowledged on Sunday is valid when delivered on a secular day. * * * The rule is also stated that the presumption of contemporaneity of date and delivery arises when there are no indications of fraud or falsity, on the face of the deed. * * * In any event the presumption is indulged only in the absence of proof as to the actual time of delivery, and if such proof is presented and the presumption is rebutted, and the execution of the deed must then be referred to the time when the testimony shows that the grantor parted with its possession for the purpose of giving effect to it, and in such a manner as to deprive him of the right to recall it, from which it follows that the grantor is not estopped to show that the deed was executed at a time different from the date, and the real time of execution may be shown by parol testimony of either party."

¶13 In McCuan et al. v. Gordon et al., 44 Okla. 254, 144 P. 348, it is said:

"A deed does not take effect or operate to pass title until it is delivered. Powers v. Rude, 14 Okla. 381, 79 P. 89."

¶14 It is uncontroverted that until September 26, 1913, there was no valid delivery of the deed in question sufficient to pass title because of the incapacity of the grantors without the approval of the Secretary of the Interior.

¶15 8 R. C. L. 989, states the rule as follows:

"Technically there cannot be two deliveries of the same deed, for if the first is valid, nothing passes by the second; but if a deed is invalid when delivered, there is in effect no delivery and no deed, and if the cause of the invalidity be removed, a redelivery will be effectual. Thus, if a deed, invalid because of the grantor's disability, has been delivered, it can be made effectual by redelivery after the disability is removed." Jourden v. Jourden (Pa.) 11 Am. Dec. 724; Pursley v. Hayes, 22 Iowa 11, 92 Am. Dec. 350; Newlin v. Osborne (N. C.) 67 Am. Dec. 269.

¶16 In the case of Carey et al. v. Bewley et al., 101 Okla. 235, 224 P. 990, it was held that where full-blood Indian heirs executed a deed in 1906, which was void because not approved by the Secretary of the Interior in accordance with Act of Congress of April 26, 1906, and where such heirs...