Eysenbach v. Naharkey

• Decision Date: 13 April 1926
• Docket Number: Case Number: 13931
• Citation: Eysenbach v. Naharkey, 114 Okla. 217, 246 P. 603, 1926 OK 347 (Okla. 1926)
• Parties: EYSENBACH et al. v. NAHARKEY.
• Court: Oklahoma Supreme Court

1926 OK 347

246 P. 603

114 Okla. 217

EYSENBACH et al. v. NAHARKEY.

Case Number: 13931

Supreme Court of Oklahoma

Decided: April 13, 1926

Syllabus

¶0 1. Indians--Conveyances of Inherited Land by Full-Blood Creeks -- Restrictions -- Decree of Partition Among Heirs as Void "Alienation." Section 22 of the Act of Congress of April 26, 1906, made the land inherited by full-blood citizens of the Creek Nation inalienable, except as therein provided as to approval. Brader v. James (U. S.) 62 L. Ed. 591; Tally v. Burgess (U. S.) 62 L. Ed. 600. A decree in partition between full-blood heirs is such an alienation as is prohibited thereby. A decree in partition rendered by the United States Court for the Western District of the Indian Territory of such land between such heirs is void for want of jurisdiction of the subject-matter.

2. Same -- Extent of Adoption of Laws of Arkansas--Widow's Inheritance of Child's Part. The Act of Congress of May 2, 1890 (26 Stat. at L. 81), extending, among others, chapter 53 of Mansfield's Digest of the Statutes of Arkansas, placed all the provisions therein published in force in Indian Territory, except in so far as they were inapplicable or inoperative under its provisions. Section 2599 thereof, when substantially complied with, gave the widow a child's part in her deceased husband's estate. Scott v. Morris Natl. Bank, 109 Okla. 276, 235 P. 912, in so far as same conflicts herewith, is overruled.

3. Covenants--Partial Breach of Warranty--Measure of Damages. Where the breach of warranty to land is only partial, the measure of damage is the same partial part of the money paid the grantor and the value of the improvements placed thereon by grantee, with interest from eviction.

4. Same--Recovery by Grantee for Attorney's Fee. Under sections 5263 and 5264, also 5265, C. O. S. 1921, the grantee is entitled to reasonable attorney fees as an element of damages for breach of warranty, when there is a recovery for such breach.

Stuart, Cruce & Bland, E. J. Doerner, and Paul P. Pinkerton, for plaintiffs in error.

Lashley & Rambo and John D. Wakely, for defendant in error.

BRANSON, V. C. J.

¶1 The motion to modify the opinion filed December 16, 1924, in effect represents for further consideration the entire record, and the positions of the respective parties. Sammie Naharkey sued W. E. Hardesty in the district court of Tulsa county, alleging that he was the legal and equitable owner of an undivided three-fourths interest in the east half of the northeast quarter of the southwest quarter; and the east half of the southeast quarter of the southwest quarter of section twenty-six (26) township nineteen (19) north, range twelve (12) east, in said county. O. K. Eysenbach and Bessie C. Eysenbach had sold the said described land to the said defendant, W. E. Hardesty, by warranty deed. To defend their warranty, they intervened, and issues were joined between the plaintiff and defendant, as well as between the defendant and the interveners, the Eysenbachs.

¶2 Judgment was rendered in the district court in favor of the plaintiff, for the recovery of the interest in said land sued for, to wit, a three-fourths interest; in favor of Hardesty against interveners Eysenbachs, on their warranty for rentals, royalties, and profits arising from the land, and for attorney's fee for an attorney employed by the defendant Hardesty. Petition in error is filed herein by the Eysenbachs, and also a petition in error is filed by the defendant Hardesty. These petitions in error call in question the correctness of the judgment of the trial court in all its particulars. The motion now before the court, filed by attorneys for the plaintiff, Sammie Naharkey, waives the rentals, royalties, and bonuses sought and recovered by the judgment of the lower court; so the controversy is, first, as to the interest, if any, the plaintiff was entitled to recover in and to the land; second, the amount of recovery by the defendant Hardesty against the interveners, the Eysenbachs, on the warranty; and third, whether Hardesty could recover reasonable attorney fees for an attorney employed by himself.

¶3 The facts in this case are considerably involved. A succinct and brief statement is more conducive to clarity than details, and a review of the entire record convinces us that there were errors in the original opinion which are apparent under the conclusions of law reached. The original opinion must, therefore, be withdrawn and our conclusions set forth herein substituted in lieu thereof. The said land particularly described in plaintiff's petition is 40 acres. It was once the property of one Millie Naharkey. She became the owner thereof by reason of the fact that she was a citizen by blood of the Creek Nation, and it was allotted and conveyed to her during her lifetime, by a patent duly issued by the Creek Nation and the government of the United States, acting under authority of the numerous acts of Congress directing the enrollment and allotment of lands belonging to the Creek Tribe of Indians among the citizens of said tribe. She was the wife of Moses Naharkey. She died in the year 1901, and at a time when the Creek law of descent and distribution governed the devolution of her said land, placed in effect by the Original Creek Agreement of March 1, 1901. She was survived by her husband, Moses Naharkey, and her son, Sammie Naharkey (the plaintiff herein). Under said Creek law, Moses, the husband, took the fee to one-half of said land, and Sammie the fee to the other one-half. Moses thereafter married a second wife, in the person of Martha Naharkey (nee Red), also a full-blood citizen of the Creek Nation. To this latter marriage a child was born, in the year 1904, which child was named Millie. It is referred to in the briefs as "Little Millie," to distinguish this child from the first wife of Moses. In the year 1905, Moses was the owner of an undivided half of the said land so inherited as above set out, and was in said year the husband of the said Martha, his second wife, and the father of the said "Little Millie." In said last-named year, Moses died intestate, and at that time the law of descent and distribution, as well as the law governing the rights of a widow in lands of a deceased husband, as placed in force by the Act of Congress of May 2, 1890, was the law of the forum, and governed the devolution of the interest the said Moses Naharkey owned in the said 40 acres of land.

¶4 For the reasons hereinafter given, we reach the conclusion that said Martha Naharkey, the second wife, and Sammie Naharkey, the son of the first wife, Millie, and "Little Millie," the daughter of the second wife, Martha, each inherited from Moses his interest in the said 40 acres, share and share alike. That is to say, Moses having died seized of an undivided half, Martha took one-third thereof, or one-sixth, Sammie took one-third thereof, or one-sixth, and "Little "Millie" took one-third thereof, or one-sixth. Having reached this conclusion, the plaintiff, Sammie Naharkey, was the owner of one-half of the said 40 acres, which he inherited directly from his mother, Millie, and one-sixth of the said 40 acres, which he inherited from his father, Moses. That is to say, if he was entitled to recover, as we conclude he was, his recovery was limited to one-half, plus one-sixth, which is two-thirds, instead of the three-fourths prayed in his petition. The above conclusion is correct, if as a matter of law the said Martha took a child's part in the estate of her husband, Moses, upon his death in 1905. Whether or not she took this interest revolves around the contention as to whether section 2599 of Mansfield's Digest of the Statutes of Arkansas was part of the law of the forum, and whether or not the said Martha complied with the provisions of said section.

¶5 Section 2599 provides:

"The widow of any deceased person who shall file in the office of the clerk of the court of probate, or with the probate court of the proper county, a relinquishment of her right of dower in and out of the estate of her deceased husband, shall be entitled to receive of the estate, of which her said husband died seized and possessed, whether real, personal or mixed, a portion or share thereof, absolutely in her own right, equal to that of a child, which shall be set aside and delivered to her as now provided by the law of dower."

¶6 It is insisted...