Iowa Land & Trust Co. v. United States

• Decision Date: 29 July 1914
• Docket Number: 4077.,4001
• Citation: 217 F. 11
• Parties: IOWA LAND & TRUST CO. et al. v. UNITED STATES et al. UNITED STATES v. HAWKINS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F. 11

IOWA LAND & TRUST CO. et al. v. UNITED STATES et al.

UNITED STATES v. HAWKINS et al.

Nos. 4001, 4077.

United States Court of Appeals, Eighth Circuit.

July 29, 1914

In No 4001:

Charles F. Runyan, of Muskogee, Okl., for appellants.

C. C Herndon, Asst. U.S. Atty., of Muskogee, Okl. (John B. Meserve and D. H. Linebaugh, both of Muskogee, Okl., on the brief) for the United States.

In No 4077:

C. C. Herndon, Asst. U.S. Atty., of Muskogee, Okl. (D. H. Linebaugh, of Muskogee, Okl., on the brief), for the United States.

N. A. Gibson, of Muskogee, Okl., for appellees Hivick and others.

Before HOOK and CARLAND, Circuit Judges, and REED, District Judge.

CARLAND Circuit Judge.

Chester Hawkins was born January 1, 1897, and died May 27, 1898. He was the son of James and Ella Hawkins. On or about the 19th day of January, 1904, James Hawkins appeared before the Commission to the Five Civilized Tribes and filed therewith proof tending to show that the said Chester Hawkins was a freedman member of the Creek Nation or Tribe of Indians, and was in fact living and entitled to enrollment on the 1st day of April, 1899, as provided in the act of June 28, 1898 (30 Stat. 495), and the act of March 1, 1901 (31 Stat. 861), and the Supplemental Agreement of the Creek Nation of June 30, 1902 (32 Stat. 500). The Commission, accepting as true the proof offered by said James Hawkins, admitted to enrollment said Chester Hawkins as a freedman citizen of the Creek Nation, entitled to an allotment of land under the several acts of Congress above referred to. On or about June 6, 1904, said James Hawkins made application to the Commission to have allotted to Chester Hawkins the northwest quarter of section 14, township 12 north, range 13 east. On the same day certificates of allotment were issued to the said Chester Hawkins and delivered to James Hawkins, allotting forty (40) acres of said land as a homestead and 120 acres as surplus land. On August 20, 1904, a homestead deed or patent was issued to Chester Hawkins by P. Porter, Principal Chief of the Muskogee (Creek) Nation, conveying to said Chester Hawkins the southeast quarter of the northwest quarter of section 14, township 12 north, range 13 east. On the 30th day of August, 1904, an allotment deed was issued by the Muskogee or Creek Nation, signed by P. Porter, Principal Chief, as aforesaid, conveying to Chester Hawkins the west half of the northwest quarter and the northeast quarter of the northwest quarter, section 14, township 12 north, range 13, which deeds were approved by the honorable Secretary of the Interior October 26, 1904, and were filed for record November 4, 1904. James Hawkins and Ella Hawkins conveyed the land in question to the Iowa Land & Trust Company for the consideration of $300. On the 17th day of March, 1909, James Hawkins and Ella Hawkins conveyed the same property for the consideration of $1 to E. S. Warner, who was the president of the Iowa Land & Trust Company. June 3, 1910, the Iowa Land & Trust Company executed and delivered an oil and gas lease on said land to L. C. Hivick and M. I. Seifried.

The evidence submitted by James Hawkins, upon which Chester Hawkins was admitted to enrollment by the Commission to the Five Civilized Tribes, was false and perjured; Chester Hawkins having died as hereinbefore stated. The United States brought this action in the court below in its own behalf and in behalf of the Creek Tribe or Nation of Indians, for the purpose of having the patents issued to Chester Hawkins declared void and canceled. The trial court granted the relief prayed for except as to the lessees of the Iowa Land & Trust Company, holding that the patents were void as against the other defendants, and that the Iowa Land & Trust Company had actual notice that Chester Hawkins was not living on April 1, 1899. It decided that the lessees of the Iowa Land & Trust Company were innocent purchasers, so to speak. The United States has appealed from so much of the decree as was in favor of the lessees of the Iowa Land & Trust Company-- No. 4077. The Iowa Land & Trust Company and E. S. Warner have appealed from the decree against them-- No. 4001. All other defendants either filed a disclaimer or defaulted.

As we view the case, we do not think that it is one where the defense of innocent purchaser may be applied. Chester Hawkins, having died before April 1, 1899, must be considered as having had no existence, so far as being a citizen of the Creek Nation entitled to an allotment of land under any law of Congress. The patents issued by the Creek Nation ran to a person not in being, and therefore conveyed no title whatever. There being no ancestor entitled to an allotment of land, there was no land to which the heirs of Chester Hawkins were entitled. As we understand the Creek Agreement, in cases where the ancestor dies before allotment, but after enrollment, the lands were to be conveyed directly to the heirs; therefore there was no pretense in this case that the heirs were seeking an allotment as representatives of a deceased ancestor. There can be no question but that the patents were void. The only question is as to whether a case is presented where under any circumstance an innocent purchaser of the land can be protected. If no title passed from the Creek Nation, then the vendees of James and Ella Hawkins obtained no title, nor did the lessees of the Iowa Land & Trust Company.

We do not see how there can be any escape from this conclusion. The equitable doctrine of a bona fide purchaser without notice does not apply where there is a total absence of title in the vendor. The good faith of a purchaser cannot create a title where none exists. Tiffany's Real Property, Sec. 380 (Ed. 1903); Jones' Law of Real Property, Sec. 223; Hunter v. Watson, 12 Cal. 363, 73 Am.Dec. 543. See, also, Boone v. Chiles, 10 Pet. 177, 9 L.Ed. 388; Vattier v. Hine, 7 Pet. 252, 8 L.Ed. 675; Sampeyreac v. United States, 7 Pet. 222, 8 L.Ed. 665; Lindblom v. Rocks, 146 F. 660, 77 C.C.A. 86; Texas Lumber Mfg. Co. v. Branch, 60 F. 201, 8 C.C.A. 562; Dodge v. Briggs (C.C.) 27 F. 160; Oakley v. Ballard, Fed. Cas. No. 10,393.

We are of the opinion that, as Chester Hawkins never had any existence so far as being entitled to an allotment of land is concerned, and having died before April 1, 1899, he was, so far as being an applicant for a patent to the land in controversy, a myth, and that the language used by the Supreme Court in Moffatt v. United States, 112 U.S. 31, 5 Sup.Ct. 14, 28 L.Ed. 623, is pertinent. We quote from the opinion in the case as follows:

'The patents, being issued to fictitious parties, could not transfer the title, and no one could derive any right under a conveyance in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent bona fide purchaser is protected. A subsequent purchaser is bound to know whether there was, in fact, a patentee, a person once in being, and not a mere myth, and he will always be presumed to take his conveyance upon the knowledge of the truth in this respect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument having a legal existence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument, or one executed to fictitious parties; that is, to no parties at all, however much deceived thereby the purchaser may be. Even in the case of negotiable instruments, where the doctrine is carried farthest for the protection of subsequent parties acquiring title to the paper, it cannot be invoked if the instrument be not genuine, or if it be

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