Folk v. United States

• Decision Date: 05 June 1916
• Docket Number: 4464.
• Citation: 233 F. 177
• Parties: FOLK et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

233 F. 177

FOLK et al. v. UNITED STATES et al.

No. 4464.

United States Court of Appeals, Eighth Circuit.

June 5, 1916

Syllabus by the Court.

Interlocutory orders appointing receivers and issuing injunctions generally rest in the sound judicial discretion of the court of original jurisdiction, guided by the principles and rules of equity jurisprudence, and when the court has not departed therefrom its orders may not be reversed without clear proof of an abuse of its discretion.

But when, in the consideration and decision of the issue a court has departed from the principles and rules of equity established for the guidance of that court, the order may be reviewable on that ground without proof of abuse of discretion.

It is the general rule that a court of equity will not appoint a receiver of real estate, or of its proceeds, in the possession of defendants holding under a regular title during the pendency of the suit, although it has the power to do so in exceptional cases.

In order to bring a case within the exceptions to this general rule there must be clear proof (1) that there is imminent danger that unless a receiver is appointed the property, or its proceeds, will be materially deteriorated in value or wasted; (2) that the plaintiff will suffer irreparable loss from such deterioration or waste, and he can rarely suffer such loss when the defendants are solvent and abundantly able to respond to any damage they cause, or where they will give a good bond of indemnity against it; (3) that upon the pleadings and preliminary proofs there is a strong probability that the plaintiff will ultimately recover.

A court of equity is sedulous to prevent the successful invocation of its preliminary injunction or appointment of a receiver to perform the function of a successful action of ejectment while the plaintiff at the same time avoids the trial of titles indispensable to the success of such an action.

The United States, on behalf of the Creek Tribe of Indians, and that tribe, which owned the land in controversy before it was allotted and patented to Thomas Atkins, who was enrolled by the Dawes Commission a member of the Creek Tribe by blood brought a suit in equity to avoid the enrollment, allotment and patent under which the defendants were in possession of the land, upon the ground that there was no information or evidence before the Commission of the qualifications of Atkins to be enrolled, and especially that there was none that he was living on April 1, 1899. Upon voluminous evidence the plaintiff secured, before a trial of the suit, the appointment of a receiver of the land and of all the improvements and property placed thereon by the defendants as well as of all the oil the latter had produced at an expense of more than $125,000, while they had received in return only about $8,000, and an injunction against their interference with the property thereafter.

Held, as there was no satisfactory evidence of imminent danger of deterioration, or waste of the property by the defendants, or of probable irreparable loss to the plaintiffs, or of the fact that there was a strong probability that the plaintiffs would ultimately prevail in the suit, while there was proof that the defendants were solvent and able to respond for any loss or damage they caused, and they offered to give a good bond of indemnity for the benefit of all parties which should be ultimately adjudged to be entitled to the land, or its proceeds, the order appointing the receiver could not be sustained.

The adjudications by the Dawes Commission of the enrollment of Indians and the allotment of their lands and the patents issued thereon are conclusive and impervious to collateral attack.

In suits in equity to avoid them by direct attack the burden is on him who attacks them, and he may successfully assail neither of them by doubtful evidence, or a mere preponderance of it. He may succeed only by full proofs, clear, convincing, unambiguous, and entirely satisfactory to the court on every material issue.

The Creek rolls of 1890 and 1895 constituted substantial evidence before the Dawes Commission that those named thereon were qualified for enrollment, that they were living when the rolls were made, and, in the absence of proof that the persons enrolled were, in 1895 or subsequent, in unusual danger of earlier death, that those persons continued to live for seven years after the roll of 1895 was made.

In the absence of proof of earlier death, or of evidence of unusual danger of earlier death, the legal presumption is that a person living at a certain time continues to live for at least seven years thereafter.

Where the United States has no pecuniary interest in the litigation, but brings its suit as the representative of the real party in interest, in this case the Creek Tribe, the equities of the United States are no greater or less than those of the real party in interest. The stream may not rise higher than its source.

The equities of the Creek Tribe, or of the United States, appeal to the conscience of a chancellor with the same, but with no greater or less, force than would those of a private individual in like circumstances. The United States and the Creek Tribe are bound and estopped by their contracts, such as the Creek Agreement, to the same extent as private individuals would be.

When the United States, or the Creek Tribe, or a state, submits its rights and claims to a court of equity and prays its relief, those rights and claims, laying aside mere delay, are governed, measured, and adjudicated by legal estoppel, by equitable estoppel, and by the other rules and principles of equity jurisprudence that would be applicable to like rights and claims of individuals in similar circumstances.

In equity no one may successfully deny to the damage of another the truth of his statements or representations by which he has purposely or carelessly induced another to so change his situation that the assertion of the truth will irreparably or seriously injure him.

This is an appeal by the defendants below from the order of the District Court appointing a receiver of oil-producing land of which they were in the exclusive possession and which they were operating under these circumstances:

Thomas Atkins was listed for enrollment as a member of the Creek Tribe of Indians by the Dawes Commission on May 23, 1901, was duly enrolled as such a citizen by that Commission, was on March 1, 1902, reported to the Secretary of the Interior to have been regularly listed for enrollment and enrolled by it to have been one of the Creek citizens 'living on the 1st day of April, 1899, or born to citizens so entitled to enrollment up to and including the 1st day of July, 1900, and then living,' to have been found upon the 1895 authenticated Creek tribal roll and to have been enrolled by it as No. 7913 on its roll, and a copy of the part of that roll containing his enrollment and the enrollment of some others was submitted with the report which the Commission closed with this statement: 'The Commission, after having thoroughly examined the rolls of the Creek Nation, and such evidence as has been submitted touching the identification of the persons on roll herewith submitted, is of the opinion that all are entitled to enrollment as Creek citizens by blood and should be so enrolled. ' The part of the roll so certified to the Secretary was approved by him, the land in the defendants' possession was allotted to Thomas Atkins, a certificate of allotment thereof to him was issued on June 30, 1902, patents therefor dated April 14, 1903, approved by the Secretary on May 8, 1903, were issued to him and were recorded in the office of the Commission on May 16, 1903. The defendants, Charles Page and R. A. Josey, hold an oil and gas lease from Mr. McNab, the grantee of Minnie Folk, formerly Minnie Atkins, the alleged mother and sole heir of Thomas Atkins. Under this lease and under an order of the district court of Creek county, Okl., dated July 3, 1914, in a suit between Minnie Folk and Page and Josey and others, permitting Page and Josey to possess and operate the leased property for oil and gas, Page and Josey were in exclusive possession of the land in controversy, drilling wells and producing oil, when, on February 15, 1915, the United States, on its own behalf and on behalf of the Creek Tribe of Indians, brought this suit against them to cancel and avoid the enrollment of Thomas Atkins as a Creek citizen, the certificate of allotment and the patents of the land to him, to perpetually enjoin him and all claiming under him from asserting any interest therein, or in the proceeds thereof, and for the appointment of a receiver pending the suit to take possession of the land and to impound and preserve the oil and gas therein for the benefit of the United States and the Creek Tribe. This is a suit in equity, and the only equity pleaded in the complaint was that the Dawes Commission was charged with the duty of determining who were entitled, under the acts of Congress, to be enrolled as citizens of the Creek Nation, that no one was entitled to be so enrolled who was not living on April 1, 1899, that Thomas Atkins was not living on that day, 'that no evidence of any character was produced before, or obtained or had by, said Commission with respect to the right of the alleged Thomas Atkins under said act of Congress to be so enrolled,' and that in causing his name to be placed on the roll of Creek citizens by blood the Commission acted arbitrarily and summarily, and without any knowledge, information, or belief that he was in existence or living or dead on April 1, 1899. If the complaint had not contained these allegations it would have stated no ground for the cancellation of...