Grayson v. Durant

• Decision Date: 24 November 1914
• Docket Number: Case Number: 3328
• Parties: GRAYSON et al. v. DURANT et al.
• Court: Oklahoma Supreme Court

1914 OK 581

144 P. 592

43 Okla. 799

GRAYSON et al. v. DURANT et al.

Case Number: 3328

Supreme Court of Oklahoma

Decided: November 24, 1914

Syllabus

¶0 1. INDIANS -- Allotment -- Enrollment Records--Hearsay Evidence. In cases involving the validity of conveyances of lands allotted to members of the Five Civilized Tribes, made prior to the taking effect of Act Cong. May 27, 1908, c. 199, 35 St. at L. 312, where there are living witnesses in court who testify to the age of the allottee, the enrollment records of the Commission to the Five Civilized Tribes as to the age of such allottee are purely hearsay and inadmissible in evidence.

2. APPEAL AND ERROR--Necessary Parties. A judgment affecting distinct and independent parcels of land, and adjudging the title thereof to be in two different persons wholly disconnected in interest, is divisible; and one of such persons is not a necessary party to an appeal involving only the rights of the other in a particular parcel of such land.

Merwine & Newhouse, for plaintiffs in error.

Owen & Stone, Mark L. Bozarth, and C. W. Holbrook, for defendants in error.

BLEAKMORE, J.

¶1 This action was commenced in the court below by one of the plaintiffs in error, Alice V. Grayson, to recover certain lands alleged to have been allotted to her deceased husband, Israel Grayson, as a freedman of the Creek Nation. She alleged that on the 9th day of May, 1910, Israel Grayson died, a minor without issue, and left surviving him as his only heirs at law the plaintiff, Alice V. Grayson, his widow, and Dinah Bruner, his mother, who inherited said lands. It is further alleged that on the 9th day of March, 1906, and on the 25th day of March, 1907, Israel Grayson executed deeds attempting to convey a portion of his allotment, exclusive of his homestead, to one Scott Yeatman, who thereafter executed warranty deed to the same to Thomas J. Durant; that on the 8th day of September, 1908, Israel Grayson and Alice V. Grayson executed a warranty deed to the same land to one Thomas F. Crosby, who in turn executed a deed thereto to the said Durant; that on the 16th day of November, 1907, Israel Grayson and his wife executed a warranty deed to the same lands to Standford and Evans, who thereafter executed a deed therefor to the said Durant; that on the 17th day of November, 1908, the said Israel Grayson executed a warranty deed to the same land to the said Durant; that on the 28th day of July, 1910, said Dinah Bruner, by power of attorney, attempted to convey to W. N. Martin and P. H. Stein certain interests in the allotment of said Israel Grayson; that on the 27th of July, 1908, and the 17th day of August, 1908, said Israel Grayson executed a warranty deed to one Walton C. Frank, attempting to convey that portion of his lands allotted as a homestead; that at the date of the execution of all of said instruments the said Israel Grayson was a minor, and that all of said conveyances were void, and clouds upon the title of the plaintiff. One J. W. Foster, administrator of the estate of the said Israel Grayson, filed a cross-petition in said action, alleging that it was necessary to sell said lands to pay the debts of the deceased allottee, and praying that title to said land be quieted and the same sold for such purpose. Thomas J. Durant answered, alleging that Israel Grayson, at the time of the execution of said deeds under which he claimed, conveying the surplus allotment, had arrived at his majority. Dinah Bruner answered, denying that Alice V. Grayson was the widow of deceased, or entitled to any part of the lands involved, and, alleging that she was the sole heir of Israel Grayson, prayed for a cancellation of the deeds referred to in the petition, and alleged that the power of attorney to Martin and Stein had been revoked. Martin and Stein replied, alleging that they had an undivided one-half interest in whatever interest the said Dinah Bruner inherited in said lands. Trial was had to a jury, and judgment rendered for defendants Thomas J. Durant and Walton C. Frank, adjudging said Durant to be the owner of the surplus allotment of 120 acres and Frank the owner of the homestead allotment of 40 acres. The sole question at issue was the age of the said Israel Grayson at the time of the execution of the deeds referred to. The jury found that at the date of execution of each of said deeds Israel Grayson was of full age. It is conceded that under the provisions of Act Cong. April 21, 1904, c. 1402, 33 St. at L. 189, providing that:

"And all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed" --the deeds in question under which Durant claims are valid, if at the time of the execution thereof the grantor had arrived at his majority. Walton C. Frank is named in the proceeding as a defendant in error, but there has been no service of summons in error upon him or waiver thereof.

¶2 While the entire allotment of Israel Grayson is involved, yet removal of cloud upon the title and recovery of distinct parcels of land is sought against different individuals, disconnected in interest, claiming under separate conveyances, and the judgment adjudging the title of 120 acres thereof to be in defendant in error Durant, and the remaining 40 acres thereof to be in the defendant Walton C. Frank, is a judgment for distinct portions thereof, independent of each other, described in separate and individual conveyances and is in its nature severable. The errors assigned for a reversal of the cause are: (1) The trial court erred in refusing to charge the jury that the enrollment records of the Commissioner to the Five Civilized Tribes are conclusive evidence of the age of the deceased allottee; (2) in instructing the jury that the census card offered as such enrollment record was prima facie and not conclusive evidence of such age; and (3) in instructing the jury that if they found from the "testimony," as distinguished from the "evidence," that the allottee was not of age, they would so indicate in their verdict. It is the contention of the plaintiffs in error that the census card offered in evidence as constituting the enrollment records of the Commissioner to the Five Civilized Tribes is, under the terms of an act of Congress approved May 27, 1908 (35 St. at L. 312, c. 199), providing:

"That the rolls of citizenship and of freedmen of the Five Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this act and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman" --conclusive evidence of the age of the allottee Israel Grayson, and, it being shown by said card that at the time of the execution of the deeds in question the allottee was under the age of 21 years, that the court should have instructed the jury to return a verdict in favor of the plaintiff.

¶3 It will be remembered that the conveyances under which the defendant in error Thomas J. Durant claimed that portion of the allotment exclusive of the homestead were executed prior to the taking effect of said act of Congress. The question as to whether the provisions of said act of Congress are applicable to transactions concluded prior to the date it became effective was determined by the United States Circuit Court of Appeals for the Eighth Circuit in Malone v. Alderdice, 212 F. 668, the court using the following language:

"The Commission to the Five Civilized Tribes which made the enrollment of their citizens and freedmen was a quasi judicial tribunal empowered to determine who should be enrolled and what lands should be allotted and in what way it should be allotted to every citizen and freedman, and its adjudication of these questions, and of every issue of law and fact that it was necessary for it to determine in order to decide these questions, is conclusive and impervious to collateral attack. But its determination, recital, or report regarding issues not material to its answers to the questions who should be enrolled, and what lands should be allotted to them, and how, is, in the absence of special legislation, such as the Act of May 27, 1908, without judicial or other conclusive effect. Kimberlin v. Commission to Five Civilized Tribes, 104 F. 653, 662, 44 C.C.A. 109, 112. * * * The result is that in the determination of rights which accrued, and of the effect of proceedings which were concluded, prior to May 27, 1908, the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman. Hegler v. Faulkner, 153 U.S. 109, 117, 118, 14 S. Ct. 779, 38 L. Ed. 653; Williams v. Joins, 34 Okla. 733, 126 P. 1013, 1015; Perkins v. Baker, 137 P. 661, 663."

¶4 The same question was also before this court in the case of Scott v. Brakel et al., ante, 143 P. 510, in which it was held:

"In the determination of rights which accrued, and of the effect of transactions concluded, prior to May 27, 1908, the enrollment records of the Commission are not conclusive of the age of any Indian citizen or freedman enrolled thereon."

¶5 The same question was again before this court in the case of Phillips et al. v. Byrd, ante, 143 P. 684, in which it was held:

"The Act of Congress of May 27, 1908 (35 St. at L. 313), in part provides: '* * * The enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizens or freedmen.' Held, that such act is not, nor was it intended to be, a rule of evidence; but the purpose of said act is to prescribe terms and conditions upon which members of the Five Civilized Tribes of Indians may alienate their lands, and to prescribe a

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