Godfrey v. Iowa Land & Trust Co.
| Decision Date | 20 May 1908 |
| Docket Number | Case Number: 769 Ind Ter T |
| Citation | 1908 OK 107,21 Okla. 293,95 P. 792 |
| Parties | GODFREY v. IOWA LAND & TRUST CO. |
| Court | Oklahoma Supreme Court |
¶0 INDIANS--Seminole Citizens--Conveyance of Allotment--Validity. A citizen of the Seminole Nation, not of Indian blood, after selecting his allotment and receiving his certificate of allotment from the chairman of the Commission to the Five Civilized Tribes, as provided for by the agreement of the 16th day of December, A.D. 1897, on the part of the Seminole Tribe of Indians, with the United States. ratified by an act of Congress of the 1st day of July, A.D. 1898 (30 Stat. 567, c. 542), after the removal of restrictions on the alienation of allotted land by the members of said tribe, by Act Cong. April 21, 1904 (33 Stat. 204, c. 1402) when no patent has been issued or delivered to such allottee or citizen, may execute a deed or conveyance to that part of his of her allotment not designated by him or her as his or her homestead.
Error from the United States Court for the Western District of the Indian Territory, at Muskogee; Wm. R. Lawrence, Judge.
Action by T. T. Godfrey against the Iowa Land & Trust Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
On the 10th day of April, A.D. 1906, the plaintiff in error, as plaintiff in the court below, filed his first amended complaint against the defendant in error, the defendant in said court, seeking to have a certain deed declared a mortgage. Reference herein will be made to the parties as they appeared in the court below. Plaintiff, as a resident of the state of Kansas, alleged that the defendant was a corporation, organized under the laws in force in the Indian Territory, with its principal place of business at Muskogee, and for cause of action stated that, on April 29, 1905, he bought from one Robert James a certain described tract of land, situated in the Seminole Nation, Rebecca James, the wife of said grantor, joining with him in said deed, in executing and delivering a deed with covenants of general warranty conveying to plaintiff said land, which said deed was filed for record in the proper recording district wherein the land was situated, to wit, at Wewoka. A copy of said deed is attached to said complaint, and is in proper form, and contains full and complete covenants of warranty in fee simple. Said Robert James was an enrolled citizen of the Seminole Nation, not of Indian blood, and as such allottee received from the chairman of the Commission to the Five Civilized Tribes certificates of allotment, one bearing date of June 16, 1901, and the other June 28, 1902, describing the land in controversy. Said certificates were attached to said complaint, and identified as proper exhibits.
He further alleges that, prior to the execution and delivery to him of said deed by the grantor, said Robert James conveyed said land to the defendant, the Iowa Land & Trust Company, by an instrument of writing in the shape and form of a deed, for the consideration of $ 250, and that said instrument bears date of November 2, 1904, and was executed and delivered by said grantor to the said defendant for the purpose of securing a loan. Plaintiff attaches a copy of said deed to said complaint as a part thereof, and identified same as an exhibit, alleging that said deed was for the purpose of securing borrowed money, and being so understood at the time by all parties thereto, and was intended for the purpose of securing the payment of a note, evidencing a debt for such borrowed money, and that when the plaintiff became the purchaser of said land on April 29, 1905, he purchased the same from said grantor with the understanding that said instrument; in favor of the defendants, was merely a mortgage; and in the settlement between the plaintiff and the said grantor, it was so agreed at the time, and a sufficient sum was reserved by the plaintiff out of the consideration for the payment of said land, to take up the said note held by the said defendant, in order to have cancelled and set aside the deed held by it.
Plaintiff alleges that he has made an effort to settle with the defendant, and that defendant refused to settle for less than $ 400, which is in excess of the mortgage debt; that he now offers to pay into court, as a tender to defendant, the principal and interest due on the aforesaid loan made by the defendant to Robert James. Plaintiff further alleges that the said Robert James, the grantor in plaintiff's deed, is a citizen of the Seminole Nation, not of Indian blood, and it is further alleged that no patent has been issued and delivered to him by the Principal Chief last elected by the Seminole Tribe, as provided in the Seminole agreemnt of December 16, 1897; that no patents have been delivered and executed, by said Principal Chief, to any of the citizens of the Seminole Nation, whether of Indian blood or not of Indian blood. Plaintiff further alleges that said Robert James, heretofore mentioned, has selected his homestead out of the land allotted to him in the Seminole Nation, and that the land described in defendant's complaint is no part of the homestead of Robert James. Plaintiff further alleged, that said note, evidencing the debt due by said Robert James, is now and was due and payable at the time this action was instituted, wherefore plaintiff prays that said deed or instrument of writing be declared in fact and in equity a mortgage, and, as such, foreclosed by proper decree divesting the title out of the defendant, and vesting it in the plaintiff, being upon the payment of the amount of indebtedness due the defendant by said Robert James on said note, and if said relief cannot be granted, a commission be appointed to reconvey the title by deed to the plaintiff, and such other and general relief as he may be entitled to.
Thereafter, on the 24th day of April, 1906, the defendant demurred to said amended complaint, for the reason that the facts therein stated were not sufficient to constitute a cause of action; and thereafter, on the 26th day of June, 1906, said demurrer was by the court sustained, to which action at the time the plaintiff then and there excepted; and, defendant failing to plead further, a decree was therein rendered in favor of the defendant, dismissing plaintiff's amended complaint, and taxing all the costs against him, plaintiff at the time duly saving his exception to the action of the court. Thereafter the plaintiff duly prosecuted its appeal to the United States Court of Appeals of the Indian Territory, and the same is now properly before this court, by virtue of the provisions of the enabling act, for determination.
Gibson & Ramsey, for plaintiff in error.
Thomas & De Meules, for defendant in error.
¶1 (). The question to be adjudicated in this case is whether or not a citizen of the Seminole Nation, not of Indian blood, after selecting his allotment and receiving his certificate of allotment from the chairman of the Commission to the Five Civilized Tribes, as provided for by the agreement of the 16th day of December, A. D. 1897, on the part of the Seminole Nation of Indians with the United States of America, ratified by an act of Congress, approved on the 1st day of July, 1898 (30 Stat. 567, c. 542; 1 Kappler's Indian Affairs, Laws, and Treaties [2d Ed.] p. 662), can make a valid sale, deed, or conveyance to that part of his or her allotment not selected as his or her homestead, after the removal of the restrictions on the alienation by the Indian appropriation act, approved April 21, 1904, although no patent had been issued or delivered to such allottee before he undertakes to alienate the same.
¶2 That we may properly understand the provisions of the Seminole treaty of 1897, it is important that we examine the treaty made and concluded at Washington, D.C., March 21, 1866, between the United States government and the Seminole Nation, and ratified on the 19th day of July, 1866. It is by virtue of this treaty that the Seminoles acquired the title or right to the property in controversy. Article 3 of said treaty (14 Star. 72; 2 Kappler's Indian Affairs, Laws and Treaties, p. 911), provides as follows:
* * *"
¶3 Section 15 of an act of Congress, approved March 3, 1893 (27 Stat. 645, c. 209), in part is as follows:
"The consent of the United States is hereby given to the allotment of lands in severalty not exceeding one hundred and sixty acres to any one individual within the limits of the country occupied by the Cherokee, Creek, Choctaws, Chickasaws and Seminoles; and upon such allotment the individuals to whom the same may be alloted shall be deemed to be in all respects citizens of the United States."
¶4 Said act further provides for the appointment of commissioners to enter into negotiations with the Five Civilized Tribes for the purpose of extinguishing their national and tribal titles to land. Section 16 of said act is in part as follows:
"The President shall nominate, and by and with the advice and consent of the Senate, shall appoint three commissioners to enter into negotiations with the Cherokee Nation, the Choctaw Nation, the Chickasaw Nation, the Muskogee (or Creek) Nation, the Seminole Nation, for the...
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