Fast v. Walcott

• Decision Date: 10 September 1913
• Citation: 134 P. 848,38 Okla. 715,1913 OK 545
• Parties: FAST v. WALCOTT ET AL.
• Court: Oklahoma Supreme Court

134 P. 848

38 Okla. 715, 1913 OK 545

FAST v. WALCOTT ET AL.

Supreme Court of Oklahoma

September 10, 1913

Syllabus by the Court.

The town-site commissions of the Creek Nation were tribunals having exclusive original jurisdiction over the ascertainment of what lots were held under possessory claims and of who in each instance was the rightful claimant, and the action of such commissions, as between rival claimants, in granting the claim of one, resulting in the issuance of a patent, and rejecting the claim of the other, will not be inquired into in the courts unless it clearly appears that the commissioners committed some material error of law, or that misrepresentation and fraud were practiced upon them, or that they themselves were chargeable with fraudulent practices and that as a result the patent was issued to the wrong party.

Error from District Court, Muskogee County; John H. King, Judge.

Action by Lulu Walcott and others against J. C. Fast. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

N. A Gibson, H. C. Thurman, and T. L. Gibson, all of Muskogee, for plaintiff in error.

Owen & Stone and Bailey & Wyand, all of Muskogee, for defendants in error.

KANE J.

This was a suit in equity commenced by the defendant in error plaintiff below, against the plaintiff in error, defendant below, for the purpose of declaring a resulting trust. Upon trial the court found that the plaintiff was the owner of the lots in controversy and that she was entitled to receive from the defendant a sufficient deed thereto. To reverse this decree this proceeding in error was commenced.

The lots involved are situated in the city of Muskogee in the Creek Nation. It seems that the town-site commission of the town of Muskogee scheduled the lots to one Jane Doleman, to whom a patent was issued; that thereafter Jane Doleman conveyed the lots to J. C. Fast, the defendant. Whilst it appears that the plaintiff, Lulu Walcott, made application to the town-site board to have the lots scheduled to her, which application was denied for the reason that they had been scheduled to Jane Doleman, it does not appear that she ever filed a contest before the commission for the purpose of establishing her preference right or made any further effort to acquire title to the lots until she commenced this proceeding. The claim of Lulu Walcott is based upon prior settlement and improvements made by her mother, who transferred the lots to her at her marriage some time prior to the scheduling of the same to Jane Doleman. Lulu Walcott's own statement of the situation is probably as strong in her favor as the facts will justify. She testified "Q. When do you remember seeing that lot the first time? A. The first time in my life? Q. Yes, sir. A. I was quite a small child. Q. Isn't it a fact that there was a road across that lot from the north to the south for a great many years before it was sold by you to Mr. Hirschman? A. Yes sir; they commenced a trail there, and to get around the lot they tore the fence down. Q. Did you ever build any fence around it? A. No, sir; my mother has had the repairing done. Q. Ever have any fence built around it? A. No, sir; my mother has had the repairing done. Q. For a long time it is a fact that there was a road from the top of the hill to the bottom? A. Yes, sir. Q. Wasn't any house or any other improvements on it? A. No, sir. Q. You haven't any interest in it now, have you? A. Yes, sir; it belongs to me. Q. What did you give Mr. Hirschman this deed for? A. Because at the time I came to sell the lot I found that it was tied up, with the understanding that when I get the lot back I am to let him have the lot. Q. You have sold him all your interest in the lot? A. Yes, sir. Q. So you really don't own it at all? A. No, sir; I don't own it now; it belongs to Mr. Hirschman. Q. Did you ever go to the Muskogee town-site commission or to the Creek town-site commission to ask to have this lot scheduled to you? A. I went to the town-site commission. Q. And asked to have this lot scheduled to you? A. Yes, sir; and they scheduled another lot to me instead. Q. You got...