Eli v. Carter Oil Co.

• Decision Date: 19 April 1927
• Docket Number: Case Number: 17106
• Citation: 257 P. 761,1927 OK 116,126 Okla. 12
• Parties: ELI et al. v. CARTER OIL CO. et al.
• Court: Oklahoma Supreme Court

1927 OK 116

257 P. 761

126 Okla. 12

ELI et al. v. CARTER OIL CO. et al.

Case Number: 17106

Supreme Court of Oklahoma

Decided: April 19, 1927

Syllabus

¶0 1. States--Administration Pending in U.S. Court Upon Statehood Transferred to County Court of County Where Pending.

An administration proceeding, pending in one of the United States Courts of the Indian Territory at the time of the admission of the state into the Union, was, by virtue of section 19 of the Enabling Act (34 Stat. 277) and section 23 of the Schedule of the Constitution, transferred to the county court of the county in which was located the court in which said proceeding was pending.

2. Same--County Court's Jurisdiction not Ousted by State Statute Where Transfer to Another and Proper County not Applied for.

The Act of the Legislature of March 12, 1908 (Session Laws 1907-8, page 212), did not oust the jurisdiction of the county court in an administration proceeding, which jurisdiction had attached by virtue of the provisions of the Enabling Act and the Constitution of the state in such court as a successor to the probate jurisdiction formerly exercised by the United States Court for the Northern Judicial District of the Indian Territory, where no application for the transfer of such cause was made by any of the parties having an interest therein.

3. Same--Indians--County Having Jurisdiction to Settle Estate of Deceased Allottee--Authority to Approve Conveyance by Full-Blood Heirs.

Nancy Eli departed this life in the year 1903, a resident of the Northern Judicial District of the Indian Territory, leaving surviving as her sole heirs at law certain full-blood citizens of the Cherokee Nation. An administrator was appointed by the United States Court for the Northern Judicial District of the Indian Territory sitting at Tahlequah, which on the advent of statehood became Cherokee county, Okla., Tahlequah being the county seat. The provisions of section 19 of the Enabling Act and sections 23 and 27 of the Schedule to the Constitution of the state operated to transfer the jurisdiction of said administration to the county court of Cherokee county, with permissive authority that the same might be transferred to another county, but no transfer was ever made, as provided by the said act of the Legislature of 1908. Held, that the said county court of Cherokee county was the court having jurisdiction of the settlement of the estate of the said decedent, within the meaning of the proviso to section 9 of the Act of May 27, 1908, directing that the county court having the jurisdiction of the settlement of the estate of the deceased allottee should be the federal agency authorized to approve a conveyance of a full-blood heir to land of a deceased allottee, and that this was true whether the said county court had discharged the administrator or not before the deeds were approved. The jurisdiction, having once been determined, and no transfer thereof being made, continued for all purposes touching the estate of said allottee, and any acts required to be done in relation thereto by a court having the jurisdiction of the settlement of the estate of the allottee.

Error from District Court, Nowata County; C. H. Baskin, Judge.

Action by Taylor Eli and others against the Carter Oil Company and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Reynolds & Williams, T. C. Wilson, John Barry, and Linebaugh & Pinson, for plaintiffs in error.

J. Wood Glass, Floyd A. Calvert, Malcolm E. Rosser, James A. Veasey, L. G. Owen, and Walter Davison, for defendants in error.

BRANSON, C. J.

¶1 This action was prosecuted in the trial court and is prosecuted here by Taylor Eli, James Eli, and Charlotte Chuculate, joined by their grantees, T. C. Wilson and R. E. Tucker, against the defendants, the Carter Oil Company, J. W. Glass, F. A. Calvert, and Louella Chestnut. The action is in ejectment to recover a certain tract of land. Other relief was prayed, the granting of which was dependent upon the plaintiffs establishing their ownership to the property. The land was a Cherokee allotment, made under and by virtue of the provisions of the Cherokee Agreement of July 1, 1902 (32 Stat. L., page 716). The allotment was made in the name of Nancy Eli, who departed this life in the year 1903. The plaintiffs, Taylor Eli, James Eli, and Charlotte Chuculate, were her sole heirs at law. Both the allottee and her said heirs were citizens by blood of the Cherokee Nation, duly enrolled as such upon the final rolls of said tribes as of full Indian blood. In 1911, 1920 and 1921, respectively, instruments in form conveyances were executed by the said heirs, through which defendants claim, and same were approved by the county court of Adair county, Okla. Thereafter, conveyances were executed by the said heirs to the coplaintiffs, and this suit is to try the title to the real estate. The last-named conveyances, through which the plaintiffs Wilson and Tucker claimed, were approved by the county court of Cherokee county, Okla.

¶2 There was little, if any, dispute as to the facts, the same being deducible from record evidence. The only fact not deducible from record and material here is conceded by all parties to this litigation. That fact is that the said Nancy Eli, in whose name the said land was allotted, departed this life in the year aforesaid, a resident of the Northern Judicial District of the Indian Territory, and of that portion of said district which became Adair county Okla., on November 16, 1907 (the date Oklahoma was admitted into the Union as a state). Judgment went for the defendants, and the errors assigned are predicated upon the conclusions of law based upon this further statement of facts:

¶3 In 1904, one Andy Dick was appointed as administrator of the estate of the said Nancy Eli, by the United States Court for the Northern District of the Indian Territory, sitting in probate at Tahlequah. That the said United States court for the said political subdivision, to wit, the Northern District of the Indian Territory, had jurisdiction to make this appointment, is not by any of the parties questioned. It is not questioned that this probate case was pending at Tahlequah, in what afterwards became Cherokee county, Okla. This probate proceeding had not been closed on the advent of statehood, and on November 20, 1907, or four days after the admission of the state into the Union, the said probate cause having by operation of the provisions of the Enabling Act and the Schedule to the Constitution of the state of Oklahoma, hereinafter specifically mentioned, been lodged in the district court of Cherokee county, Okla., that court on said last-named date entered an order transferring said cause to the county court of Cherokee county, which, under the new order of things, brought about by statehood, was the court of probate jurisdiction in said county. The said cause as No. 638 continued in said county court until the 22nd day of October, 1908, when the administrator aforesaid was finally discharged by a formal order of said court.

¶4 The question here is. Which deeds are valid, those approved by the county court of Adair county, or those approved by the county court of Cherokee county?

¶5 Defendants in their brief make this statement (page 29):

"We will say to the court at the outset that we believe there is no case from any other jurisdiction which sheds any light upon the main propositions involved, and there is no Oklahoma case where the facts are exactly the same."

¶6 We concede that this statement is unfortunately correct in the main, but cannot concede that by analogy there are not cases strongly persuasive on the direct question here involved.

¶7 The defendants primarily argue that (their brief, page 44) since the proceeding originating in the United States court was finally, fully, and completely closed on October 22, 1908, thereafter the county court of Cherokee county would not have jurisdiction of the settlement of the estate, but only the Adair county court would have such jurisdiction.

¶8 We deem it not amiss to advert to statements made in cases by courts of authority on analogous questions.

¶9 In the case of Parker v. Richard, 250 U.S. 235, 63 L. Ed. 954, 39 S. Ct. 442, after quoting the proviso to section 9 of the Act of Congress of May 27, 1908 (35 Stat. L. 312), it was said:

"In the absence of the proviso it would be very plain that, on the death of the allottee, all restrictions on the alienation of the land allotted to him were removed. But the proviso is there and cannot be disregarded. It obviously limits and restrains what precedes it. In exact words, it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed, but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court's approval. Conveyances without its approval fall within the ban of the restrictions. That the agency which is to approve or not is a state court is not material. It is the agency selected by Congress, and the authority confided to it is to be exercised in giving effect to the will of Congress in respect of a matter within its control. Thus in a practical sense the court, in exercising that authority, acts as a federal agency; and this is recognized by the Supreme Court of the state. Marcy v. Seminole County, 45 Okla. 1, 144 P. 611. Plainly, the restrictions have the same force and operate in the same way as if Congress had selected another agency, exclusively federal, such as the Superintendent of the Five Civilized Tribes."

¶10 Again, commenting in a case analogous to the one at bar ( Okla. Oil Co. v. Bartlett, 236 F. 488), and in which section 9 of the Act of May 27, 1908, was involved, the Eighth Circuit Court of Appeals said in effect that there was no general...