Hyde v. Ishmael

• Decision Date: 09 June 1914
• Docket Number: 3643.
• Citation: 143 P. 1044,42 Okla. 279,1914 OK 259
• Parties: HYDE ET AL. v. ISHMAEL ET AL.
• Court: Oklahoma Supreme Court

143 P. 1044

42 Okla. 279, 1914 OK 259

HYDE ET AL. v. ISHMAEL ET AL.

No. 3643.

Supreme Court of Oklahoma

June 9, 1914

Syllabus by the Court.

The homestead of a married man cannot be sold without the consent of his spouse given in the manner provided by law (section 2 art. 12, Williams' Const. Okl.), and the deed of the husband in which the spouse does not join is ineffective to convey the homestead.

The homestead character may be impressed upon a tract of land without actual occupancy, provided the claimant has a fixed intention to make a home thereon, and such intention is evidenced by overt acts of preparation in the erection of permanent improvements, and in the preparation of the land for a home.

The actual occupancy of the land, or an attempt in good faith to do so, must follow the overt acts of preparation without unreasonable delay.

Additional Syllabus by Editorial Staff.

That lands were designated as a homestead in an allotment deed created no presumption that they constituted a homestead within Williams' Const. art. 12, §§ 1 and 2, defining the homestead and exempting same; the word "homestead" as used in the laws of the United States in referring to Indian allotments not having the same meaning as when it is used in the Constitution and statutes of the state.

Commissioners' Opinion, Division No. 2. Error from District Court, Seminole County; Tom D. McKowen, Judge.

Ejectment by Dean Ishmael and another against C. B. Hyde and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Crump & Fowler and Mann, Rogers & Harris, all of Holdenville, for plaintiffs in error.

J. A Baker, of Wewoka, for defendants in error.

GALBRAITH C.

This was an action in ejectment to recover the possession of the land described in the petition. The petition was in the statutory form, and the answer a general denial. A jury was waived, and the cause was tried to the court. The court made the following findings of fact:

"That Dean Ishmael was a Seminole freedman, duly enrolled as a member of the Seminole Tribe or Nation of Indians, and as such was allotted the land in controversy as a portion of his allotment of the tribal lands, and the same being designated by the Commission of the Five Civilized Tribes as a 'homestead.'

Second. That at the time of the allotment of the said lands by the Commission of the Five Civilized Tribes the land was in a raw state and unimproved, and that subsequent to the allotment Dean Ishmael, the allottee, made an improvement lease on the lands, and that under the improvement lease there was built a house and orchard, etc., on the place, and the land was put in a state of cultivation, and that after the lease expired Dean Ishmael rented the land for a period of one year.

Third. That Dean Ishmael is a resident and citizen of the state of Oklahoma, and is a married man, and is the head of a family consisting of his wife and three minor children, and that he has been married and living with his wife for 12 years.

Fourth. That on the 26th day of July, 1908, in the city of Ft. Smith, Ark., Dean Ishmael executed a warranty deed covering the land in controversy to Rosa D. Rodman, and that Minerva Ishmael, his wife, did not join in said conveyance, and has never conveyed or consented to the conveyance of said land.

Fifth. That on or about the 1st of January, after the rental contract expired, Dean Ishmael went to take possession of said land in controversy for the purpose of living upon it, and possession of the land was denied him, and he was ejected from the premises.

Sixth. That Dean Ishmael does not own any other land except the land in controversy.

Seventh. That it was the intention of Dean Ishmael to reside upon and occupy the land in controversy at the expiration of the rent contract.

Eighth. That Dean Ishmael has never resided upon the land in controversy himself, nor his family."

The court, from these findings, concluded as a matter of law, that the land in controversy was the homestead of Dean Ishmael, and, since the defendants were claiming under a warranty deed executed by Dean Ishmael, in which his wife did not join, that said deed was void and conveyed no title, and rendered judgment in favor of the plaintiffs. To reverse this judgment, the defendants have perfected an appeal to this court.

But one proposition is argued and one question raised on the record, and that is: Were the premises in controversy the homestead of Dean Ishmael? No importance is attached to the fact that the lands were designated as a "homestead" in the allotment deed to Dean Ishmael, since the word "homestead" as used in the laws of the United States in referring to Indian allotments has not the same meaning as the word "homestead" as used in the Constitution and statutes of Oklahoma. It was said by the Indian Territory Court of Appeals in the case of Hayes v. Barringer, 7 Ind. T. 697, 704, 104 S.W. 937, 940:

"The homestead of Indian lands, as provided for by the statute of the United States, is not the same as and was not established for the purpose that controlled the Legislatures of the states generally in the establishment of ordinary homesteads. A 'homestead,' as the word is usually used in the statute, is established to secure a home free from the debts of the head of the family, and inalienable by him, and for the benefit of the family. Here the homestead right is not vested in the head of the family as its head, or created for its benefit, for every member of the family, from the father to the babe in its mother's arms, is vested with a homestead, and all

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