Hockett v. Alston

Decision Date30 September 1901
Docket Number1,553.
Citation110 F. 910
PartiesHOCKETT et al. v. ALSTON.
CourtU.S. Court of Appeals — Eighth Circuit

Syllabus by the Court.

Possession of land, or of the improvements upon it, is prima facie evidence of the right of possession, and it must prevail in an action of ejectment, in the absence of competent evidence of a superior countervailing right.

A sheriff's certificate of sale and conveyance of land, or of improvements thereon, unwarranted by any law or order or process of any court, is not evidence of any title or of any right of possession in its grantee in the property which it describes.

The courts do not take judicial notice of the laws of the Indian tribes in the Indian Territory, but they must be pleaded and proved before effect can be given to their provisions in judicial proceedings.

Lovick P. Miles, for plaintiffs in error.

James S. Davenport, for defendant in error.

This writ of error questions a judgment for the plaintiff in an action for the possession of certain improvements upon lands in the Indian Territory made and held by the defendants. The plaintiff below, Sarah Carlton Alston, the defendant in error here, alleged in her complaint that she was the owner and entitled to the possession of the Fred Hockett farm, a frame house, stables, and outbuildings situated on lands which were patented to the Cherokee Nation on December 31, 1838; that on August 30, 1897, these improvements were sold to her by the sheriff of Cooweescoowee district of the Cherokee Nation of the Indian Territory, under an act of the national council of that nation approved September 30, 1895; that this sheriff delivered to her a certificate of purchase in these words:

'Wagoner I.T., August 30, 1897.
'Sold to Sarah Carlton Alston the following described intruder improvements, known as 'Fred Hockett Farm,' about three and one-half miles northeast of Wagoner, I.T.: One frame house, 16x32, stables and other outer buildings about 100 acres in cultivation,-- for the sum of eight hundred and ninety-five ($895.00) dollars. First installment paid, one hundred and forty-nine 20/100 ($149.20) dollars. Sold under an act of the national council approved September 30th, 1895.

J. C. Ward, 'Sheriff Cooweescoowee District, Cherokee Nation, 'By J. W. Leach, Deputy.'

-- And that the defendants, Fred Hockett, Agnes Hockett, and Will Hockett, the plaintiffs in error here, had been since August 30, 1897, and still were, in the unlawful possession of this property. The defendants denied the plaintiff's ownership and right to the possession of the improvements, denied that there had ever been any legal sale thereof by the sheriff, and alleged that they had made them, and had been in the possession of them since 1889. At the trial the plaintiff proved by one of the defendants that the latter's wife had claimed to be a citizen of the Cherokee Nation, but that her claim had been disallowed; that he had put improvements of the value of about $1,500 upon the property, and had occupied it since September, 1889. The plaintiff then proved that she had purchased the improvements from the sheriff named in her pleading, and had obtained the certificate copied above. Objection was made to her introduction of this certificate on the grounds that there was no proof of the act of the Cherokee Nation under which the sale took place, or of any compliance with that act, but this objection was overruled. There was no other evidence of title to or right of possession of the improvements in the plaintiff, and yet the court instructed the jury that she was entitled to recover them. This instruction and the overruling of the objection to the introduction of the sheriff's certificate, together with many other rulings of the trial court, are assigned as error. These specifications were considered by the court of appeals of the Indian Territory and overruled, and it is to review the judgment of that court affirming the judgment of the trial court in favor of the plaintiff that this writ of error was sued out.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge, after stating the case as...

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8 cases
  • Johnson v. Sellers
    • United States
    • Wyoming Supreme Court
    • 5 Diciembre 1938
    ... ... Hutchings (Wis.) 53 N.W. 507; 19 C. J ... 1042; Cincinnati v. White, 8 L.Ed. 457; 19 C. J ... 1064; 19 C. J. 1074, 1075; Hockett v. Alston, 110 F ... 910; Mayhan v. Smith (Ala.) 44 So. 375. The deed ... from the Wheelwright Construction Company was obtained by ... ...
  • Walker v. Roberson
    • United States
    • Oklahoma Supreme Court
    • 10 Septiembre 1908
    ... ... No such law has been ... pleaded or proved, and this court cannot take judicial ... knowledge of such law, if it exists. Hockett et al. v ... Alston, 110 F. 910, 49 C. C. A. 180 ...          Plaintiff's ... father, therefore, had no right under the act of Congress ... ...
  • Walker v. Roberson
    • United States
    • Oklahoma Supreme Court
    • 10 Septiembre 1908
    ...law. No such law has been pleaded or proved, and this court cannot take judicial knowledge of such law, if it exists. Hockett et al. v. Alston, 110 F. 910, 49 C.C.A. 180. ¶7 Plaintiff's father, therefore, had no right under the act of Congress of June 28, 1898, to hold the land in controver......
  • Walker v. McLoud
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 23 Mayo 1905
    ... ... improvements in violation of its law, because if they are the ... plaintiff has no right to disturb them. Hockett v ... Alston, 49 C.C.A. 180, 110 F. 910. The duty of enforcing ... the Choctaw laws in this respect, and of removing intruders ... from the ... ...
  • Request a trial to view additional results

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