Hass v. United States

• Decision Date: 28 February 1927
• Docket Number: No. 7499.,7499.
• Citation: 17 F.2d 894
• Parties: HASS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

17 F.2d 894 (1927)

HASS et al. v. UNITED STATES.

No. 7499.

Circuit Court of Appeals, Eighth Circuit.

February 28, 1927.

Tom D. McKeown and C. F. Green, both of Ada, Okl., for appellants.

Philos S. Jones, Asst. U. S. Atty., of Wilburton, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge.

This is an action by the United States, on behalf of Lee Perry, a five-eighths blood Chickasaw Indian, against Mattie Hass. F. D. Hass, her husband, was made a party defendant on motion of Mattie Hass (and others, who defaulted, evidently not considering themselves affected by the decree), to cancel and declare void certain deeds of conveyance, mortgages, and leases to 40 acres of land, and to cancel and set aside a decree of the District Court of Pontotoc county, Oklahoma, rendered in pursuance of the mandate of the Supreme Court of Oklahoma between the defendants, F. D. and Mattie Hass and Lee Perry, for whose benefit this action was instituted. The material allegations in the complaint are:

That this suit is instituted by the United States by direction of the Attorney General of the United States, and at the request of the Secretary of the Interior, in its own behalf, and for and on behalf of Lee Perry, a five-eighths Chickasaw Indian, against Mattie Hass, and later, on motion of Mattie Hass, her husband, F. D. Hass, was also made a defendant.

It is alleged that Lee Perry is a five-eighths citizen of the Chickasaw Indian Nation, and is enrolled as such opposite No. 81 on the approved rolls of the citizens of blood of that Nation, and that as such there was allotted and patented to him certain lands; that pursuant to and under the rules and regulations of the Secretary of the Interior certain restricted funds, the same being derived from the sale of his restricted homestead allotment, were used in the purchase of the lands in controversy, on behalf of said Lee Perry, upon a special deed form, from the defendant F. D. Hass and Mattie Hass, his wife. They conveyed the same to said Lee Perry by warranty deed, dated November 29, 1911, for the consideration of $800, which said deed was properly recorded in the office of the register of deeds of Pontotoc county, Oklahoma, the county in which said lands were situated; that pursuant to the rules and regulations of the Secretary of the Interior, and the power vested in him by law, there was incorporated in the habendum clause of above described warranty deed, at the special instance of the Secretary of the Interior, the following restriction against alienation:

"To have and to hold said described premises unto the said party of the second part, his heirs and assigns forever, * * * except that no conveyance or assignment by the grantee herein of any interest in the land herein described shall operate to convey title thereto unless said conveyance or assignment is approved by the Secretary of the Interior, and the grantee hereby accepts this conveyance subject to said restrictions. * * *"

That on May 2, 1912, there was filed for record in the proper recorder's office of Pontotoc county, Oklahoma, executed by Lee Perry, what purported to be a warranty deed, conveying to the defendant Mattie Hass the land in controversy; that on the 1st day of May, 1912, a deed was executed by Lee Perry for the same land to A. M. Gregg. It then sets out conveyances made by Mattie Hass and her husband to another party, and that party again conveyed the same lands to others, but the others did not appeal from the decree by default rendered against them.

The prayer of the complaint is that the court enter a decree declaring null and void the instruments executed by Lee Perry after the conveyance to him of the lands in controversy by the defendants F. D. Hass and his wife, Mattie Hass, and that Lee Perry be declared to be the owner in fee of said lands, subject to said restrictions imposed by law and the guardianship on the part of the plaintiff, and that the defendants be enjoined from asserting any right, title, and interest in and to said lands.

The answer of appellants contains: (1) A general denial; (2) that the defendant Mattie Hass is the legal and equitable owner of the land; (3) that the restrictions in their deed to Lee Perry were placed therein without their authority by some party unknown, without their knowledge and consent, nor by authority of the Secretary of the Interior or his consent.

It is insisted on behalf of appellants that, although it is alleged in the complaint that Perry is a five-eighths blood citizen of the Chickasaw Indian Nation, and is enrolled as such opposite No. 81 on the approved rolls of citizens by blood of that Nation, the enrollment record, or a certified copy thereof, was not introduced in evidence, therefore there can be no recovery by the government. A certified copy of the census card, showing that Lee Perry was a five-eighths blood Indian and citizen...