Groom v. Dyer

• Decision Date: 25 February 1919
• Docket Number: 9097.
• Citation: 179 P. 12,72 Okla. 99,1919 OK 66
• Parties: GROOM v. DYER.
• Court: Oklahoma Supreme Court

179 P. 12

72 Okla. 99, 1919 OK 66

GROOM v. DYER.

No. 9097.

Supreme Court of Oklahoma

February 25, 1919

Syllabus by the Court.

Under section 22, Act Cong. April 26, 1906, c. 1876, 34 Stat. L 137, the authority was vested exclusively in the Secretary of the Interior to approve a conveyance of any interest of a full-blood heir of a deceased allottee.

The approval by the county court on April 3, 1914, of a deed executed after Act April 26, 1906, c. 1876, 34 Stat. 137, and prior to Act May 27, 1908, c. 199, 35 Stat. 312, by a full-blood heir of an interest in inherited land, is unauthorized and void.

Under section 9 of Act Cong. May 27, 1908, c. 199, 35 Stat. L. 312 the only court having authority to approve a conveyance of any interest of a full-blood heirs of a deceased allottee is the court having jurisdiction of the settlement of the estate of said allottee.

The approval by a county court of a conveyance by a full-blood heir not having jurisdiction of the settlement of the estate of a deceased allottee is unauthorized and void, and may be collaterally attacked.

Section 2260, Rev. Laws 1910, has no application to restricted Indian lands; Act Cong. May 27, 1908, c. 199, 35 Stat. L. 312 controls; and where a purchaser comes into possession of land by virtue of a conveyance made by a restricted Indian, such possession in no manner affects the right of the Indian to convey to another after restrictions are removed.

Error from District Court, Creek County; Ernest B. Hughes, Judge.

Action by Walter W. Groom (William L. Cheatham, substituted plaintiff) against Joseph E. Dyer. Judgment for defendant, motion for new trial overruled, and plaintiff brings error. Reversed and remanded.

Cheatham & Beaver, of Bristow, and Thrift & Davenport, of Sapulpa, for plaintiff in error.

McDougal, Lytle, Allen & Hodges, of Sapulpa, for defendant in error.

PITCHFORD J.

Minnie Barnhill, née Sawyer, a full-blood Creek Indian, enrolled opposite No. 8421, died February 14, 1907, leaving surviving her Albert Barnhill, her husband, Hepsey Bear, her mother, and her half-sisters, Susie Johnson, Hattie Bush, and her half-brother, Thomas Lewis. All of the above named were full-blood Indians except the husband, Albert Barnhill. The plaintiff claims title to the allotment by virtue of the deed executed by Hepsey Bear on the 11th day of September, 1911, to A. J. Combs, said deed being approved by the county judge of McIntosh county on the same date.

This action was commenced in the district court of Creek county by the plaintiff in error against the defendant in error for the purpose of quieting the title of plaintiff to the lands in controversy. The defendant claims title by virtue of certain deeds executed by Hepsey Bear, Susie Johnson, Hattie Bush, and Thomas Lewis to Albert Barnhill in 1907, and a deed from Albert Barnhill in 1907 to the defendant. On April 3, 1914, Hepsey Bear and others filed in the county court of Pittsburg county an amended petition for the approval of conveyance of inherited land by full-blood heirs. The petition, among other things, stated that heretofore the petitioners had sold said lands to Albert Barnhill of Pittsburg county, state of Oklahoma, for the sum of $500; that said sum was a fair consideration for the sale of said land at the time same was sold; that said consideration has been fully paid in cash to the said Hepsey Bear, Susie Johnson, Hattie Bush, and Thomas Lewis; that since said date, and on the 23d of November, 1907, Albert Barnhill sold said land to the petitioner, J. E. Dyer, and the said J. E. Dyer paid the said Albert Barnhill $1,000 in cash for said land; and further, that J. E. Dyer agreed to pay Hepsey Bear the sum of $500 at the termination of the litigation in case the title to the land was upheld in the defendant, J. E. Dyer; and, further, that on the 3d day of April, 1914, Hepsey Bear had executed a deed to the land in dispute to the defendant, Dyer, conveying all her right and title to the same for the consideration of $500, $50 being paid and $450 to be paid when the title to the lands was quieted in the defendant, Dyer. On the same day, to wit, the 3d day of April, 1914, the county judge of Pittsburg county signed an order reciting:

"There came on for hearing the petition of Hepsey Bear for the approval of the warranty deed executed by said Hepsey Bear, Susie Johnson, and Hattie Bush on the 30th day of September, 1907, and conveying the property hereinafter described to Albert Barnhill for the sum of $375; and that Hepsey Bear, appearing in open court in person, and the court having heard the evidence of witnesses duly sworn in open court, in support of said petition, finds that Minnie Barnhill, née Sawyer, died in what is now Pittsburg county, state of Oklahoma, on the 14th day of February, 1907, seized and possessed of said land; that the petitioners are full-blood Creek Indians, as shown by the rolls of the Five Civilized Tribes, and it is therefore ordered, adjudged and decreed by the court that the said conveyance be and the same is hereby confirmed and approved."

After hearing the evidence and argument of counsel, the court announced the following findings:

"I rather think that the residence or domicile of the allottee at the time of her death is always an open question in a case wherein the validity of the action of the court approving the deed is a question. In this case, there can be no other conclusion reached from the testimony than the allottee was a resident of and domiciled in Pittsburg county at the time of her death. The affidavit offered in evidence by the plaintiff as impeaching the testimony of Albert Barnhill does not say that the allottee resided in McIntosh county at the time of her death, but says she died in McIntosh county, while of course he now testifies that she died in Pittsburg county, but it occurs to me that this is the only conclusion that the court can come to. Having reached that conclusion, it follows, of course, that the county court of McIntosh county had no jurisdiction to approve the deeds upon which the plaintiff relies, and if the county court of McIntosh county had no jurisdiction, the deed is void and the plaintiff's title thereto fails. The only remaining question is, whether or not the plaintiff has been in possession of these lands, and whether or not that possession is sufficient upon which to base a finding that the plaintiff would be entitled to recover; that is, on possession alone, and I think not. The court is of the opinion that in a case of this kind, where it involves the validity of a deed of a full-blood Indian in an ejectment suit, that possession of the plaintiff cannot be pleaded and proved and relied upon to defeat the title acquired from a full-blood Indian through the approval of the proper court. It is true that there may be some question as to the validity of the contract approved by the county court of Pittsburg county. As I stated a while ago, to approve that deed with the condition that the consideration is to be paid in the event the defendant is successful in this case, whether or not the contract should have been approved by the court was entirely with that court. The court is rather of the opinion that that court had a right to approve such contract if it so desired, and having approved it, this court is bound by it. Under those statements and conclusions, it seems that there can be no other judgment than for the defendant, the plaintiff's title having been shown by the testimony to have entirely failed; that is, the testimony having failed to show any title whatever in the plaintiff. Judgment therefore for the defendant.

Mr. Rogers: That is not a judgment on their cross-petition.

By the Court: My opinion is that the plaintiff has failed to establish his case, and therefore judgment for the defendant. It is not necessary, it seems to me, to pass upon the validity of the title of the defendant, having decided plaintiff's title has failed or that the evidence has failed to show any title in the plaintiff upon which a judgment may be based."

The journal entry is as follows:

"Now, on the 10th day of April, A. D. 1916, the above matter comes on to be heard before the court, Wm. L. Cheatham having heretofore by order of this court been substituted as plaintiff in lieu of and for the said W. W. Groom and the said Wm. L. Cheatham appearing in person and by his attorney, H. H. Rogers, the defendants appearing in person and by their attorneys, McDougal & Lytle. Thereupon said cause proceeded to trial by the court without the intervention of a jury. Thereupon plaintiff offered his evidence and rested; thereupon defendant, Jos. E. Dyer, offered his evidence and rested; thereupon, after full argument and the court having been fully advised in the premises, finds from all the evidence offered, the issue herein in favor of the defendant, Jos. E. Dyer, and against the plaintiff, Wm. L. Cheatham, and that the title of the said Jos. E. Dyer in and to the described lots and lands in Creek county, state of Oklahoma, should be quieted as against the said Wm. L. Cheatham, and those by, through and under whom he claims, to all of which findings by the court plaintiff excepts. Wherefore, it is considered, ordered and adjudged by the court that the defendant Jos. E. Dyer, do have and recover judgment; that plaintiff take nothing by reason of the matters and facts and things alleged in this petition, but that as thereto defendants go hence without day and with their costs; that the defendant Jos. E. Dyer, have judgment quieting his title in and to the lands in controversy herein against any claim of the plaintiff, or of any other person by, through or under whom plaintiff claims, and that the said Jos. E. Dyer have judgment for the immediate

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