Hancock v. Mut. Trust Co.

• Decision Date: 13 July 1909
• Docket Number: Case Number: 631
• Citation: 24 Okla. 391,103 P. 566,1909 OK 170
• Parties: HANCOCK et al v. MUTUAL TRUST CO. et al.
• Court: Oklahoma Supreme Court

1909 OK 170

103 P. 566

24 Okla. 391

HANCOCK et al v. MUTUAL TRUST CO. et al.

Case Number: 631

Supreme Court of Oklahoma

Decided: July 13, 1909

Syllabus

¶0 1. INDIANS--Allotment--Conveyance by Heirs. Lands allotted (homestead and surplus) under the provisions of section 22, c. 1362, 32 Stat. 641, approved July 1, 1902, in the name of a deceased member of the Croctaw Tribe of Indians, are alienable by his heirs after lawful selection, prior to the lapse of one, three, or five years, and prior to the issuance of certificate or patent.

Thos. Norman and W. N. Redwine, for plaintiff in error, citing: Wallace v. Adams, 74 C. C. A. 540; Stevens v. Smith, 77 U.S. 321; Taylor v. Brown, 147 U.S. 641; Goodrum v. Buffalo, 162 F. 817.

W. D. Gibbs and Ledbetter & Bledsoe, for defendants in error, citing: Godfrey v. Iowa Land & Trust Co., 21 Okla. 293, 95 P. 792; McWilliams Inv. Co. v. Livingston, 22 Okla. 884, 98 P. 814; Western Inv. Co. v. Tiger, 21 Okla. 630, 96 P. 602; Indian Land & Trust Co. v. Fears, 22 Okla. 681, 98 P. 904; Statutes of Arkansas, secs. 2522, 2531, 2543; Barnett v. Bank, 98 U.S. 555; Shultis v. McDougal, 162 F. 332; Jones v. Meehan, 175 U.S. 1; Clark v. Lord, 20 Kan. 390; Farrington v. Wilson, 29 Wis. 383; Love v. Pamplin, 21 F. 755; Briggs v. McClain, 23 Kan. 1045.

Error from District Court, Carter County; S. H. Russell, Judge.

Action by Francis Hancock and Bertie Ebonowatubbee against the Mutual Trust Company and J. E. Hamilton. Judgment for defendants, and plaintiffs bring error. Affirmed.

Thos. Norman and W. N. Redwine, for plaintiff in error

W. D. Gibbs and Ledbetter & Bledsoe, for defendants in error

DUNN, J.

¶1 October 1, 1905, Simon Ebonowatubbee, a full-blood Choctaw Indian, died. He was duly enrolled as a member of that tribe of Indians at the time of his death, and entitled to an allotment in accordance with the provisions relative thereto contained in what is commonly known as the "supplementary treaty," chapter 1362, 32 Stat. 641, approved July 1, 1902. At the time of his death he had not selected his allotment, and hence there had not been issued to him either a certificate or patent therefor. A few days after his death an administrator was appointed over his estate, who, in due course, selected, filed upon, and had allotted to the said deceased in his name, a tract of land as and for his allotment. He left surviving him Bertie Ebonowatubbee, his wife, and Francis Hancock, the plaintiffs in the court below, and also one John King, who inherited his property under the terms of section 22 of the treaty aforesaid. King promptly sold his interest in the land, and Bertie Ebonowatubbee and Francis Hancock, parties hereto, also in the latter part of October, 1905, made, executed, and delivered a deed to the land, but on the 22d day of November, 1906, filed their complaint in equity to have the same set aside, alleging, among other grounds, that the said land was not alienable by them at the time the deed was executed; there being at that time neither certificate nor patent issued for said allotment. To this part of the complaint the defendants filed a demurrer, which was on the 22d day of June, 1908, by the court sustained, holding:

"That the demurrer should be sustained as to all that part of plaintiff's amended complaint which alleges that the lands in controversy were inalienable at the time of the execution of the deed, which deed was executed before the issuance of the allotment certificate and patent to said lands, but subsequent to the selection of same as the allotment of Simon Ebonowatubbee."

¶2 Whereupon complainants, electing to stand upon the allegations of their complaint, and refusing to plead further in the cause, gave notice of appeal to the Supreme Court, which in due course was had, and the case is now before us on petition in error and case made.

¶3 Two questions are raised by counsel for plaintiff in error: First, did the lower court err in holding that the land allotted in the name of the deceased allottee of the Choctaw Nation was alienable by the heirs of such allottee after lawful selection but prior to the issuance of a certificate of allotment or of patent to the land? Second, did the lower court err in holding that the surplus land lawfully allotted a member of the Choctaw Nation was alienable immediately on the death of the allottee and before the expiration of one, three, and five years, and without reference to whether a certificate or patent had theretofore been issued?

¶4 These questions require consideration at our hands of the following sections of the treaty referred to:

"Sec. 11. There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allottable land of the Choctaw and Chickasaw Nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forty acres of the average allottable land of the Choctaw and Chickasaw Nations; to conform, as nearly as may be, to the areas and boundaries established by the government survey, which land may be selected by each allottee so as to include his improvements. For the purpose of mak-making allotments and designating homesteads hereunder, the forty-acre or quarter-quarter subdivisions established by the government survey may be dealt with as if further subdivided into four equal parts in the usual manner, thus making the smallest legal subdivision ten acres, or a quarter of a quarter of a quarter of a section.

"Sec. 12. Each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred and sixty acres of the average allottable land of the Choctaw and Chickasaw Nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.

"Sec. 13. The allotment of each Choctaw and Chickasaw freedman shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment.

"Sec. 14. When allotments as herein provided have been made to all citizens and freedmen the residue of lands not herein reserved or otherwise disposed of, if any there be, shall be sold at public auction under rules and regulations and on terms to be prescribed by the Secretary of the Interior, and so much of the proceeds as may be necessary for equalizing allotments shall be used for that purpose, and the balance shall be paid into the Treasury of the United States to the credit of the Choctaws and Chickasaws and distributed per capita as other funds of the tribes.

"Sec. 15. Lands allotted to members and freedmen shall not be affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided.

"Sec. 16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent, provided, that such land shall be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value."

¶5 It is the claim of plaintiffs under the foregoing sections that, prior to the issuance of either a certificate of allotment or of a patent, or both, the allottee has no title, and that, under the plain terms of the enactment, he is not permitted to alienate any of his lands prior to the date of the patent, and the argument is made that the limitation contained in the foregoing sections not only applies to the living members of the tribe, but that it is equally applicable to the heirs of the deceased members; that is, those whose names appeared upon the rolls and who died subsequent to the ratification of the agreement and before receiving their allotments. Section 22 of the same treaty provides as follows:

"If any person whose name appears upon the rolls, prepared as herein provided, shall have died, subsequent to the ratification of this agreement and before receiving his allotment of land, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansffeld's Digest of the Statutes of Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and practicable time, the commission to the Five Civilized Tribes shall designate the lands thus to be allotted."

¶6 To our minds the sections of the treaty which touch upon the subject naturally fall into three divisions, to wit, the provisions included in the sections which we have first above noted, being sections from 11 to 16, inclusive, which particular sections relate to the living people who would personally participate in the disposition of the lands and properties of the tribes; and, second, those subdivisions embraced in the three sections 19, 20, and 21, which relate to criminal offenses carved out of violations of the different portions of the treaty, and which fix the...