Johnson v. Johnson
| Decision Date | 11 March 1919 |
| Docket Number | Case Number: 9588 |
| Citation | 72 Okla. 155,179 P. 595,1919 OK 82 |
| Parties | JOHNSON v. JOHNSON. |
| Court | Oklahoma Supreme Court |
¶0 1. Indians -- Allotment -- Restriction on Alienation -- Disposition in Divorce Suit.
Where an Indian of the Wyandotte tribe of Indians had been allotted 40 acres of land and a trust patent for the same had been issued under act of Congress approved February 8. 1887, § 5 (U.S. Comp. St. § 4201), which contained a restriction against alienation of the land for a period of 25 years, held that in a suit brought against him by his wife for a divorce and for the care and custody of their minor children, and for permanent alimony, and for the settlement of their property rights, and that upon the trial the undisputed evidence showed that the period of restriction had expired, but the allottee had not received his final patent for the land from the government, that he held the equitable title thereto in fee, and that the decree of the trial court awarding the land to the wife as permanent alimony, and in settlement of the property rights of the parties, and for her use in supporting herself and minor children, was valid, and authorized under section 4969, Rev. Laws 1910.
2. Divorce -- Conflicting Evidence--Appeal.
In a contested divorce case, where the evidence is conflicting, and there is sufficient competent evidence to support the findings of the court and the decree based thereon, the same will not be disturbed on appeal.
3. Appeal and Error--Rulings on Evidence--Reversal.
A case will not be reversed for error in the admission or rejection of evidence unless it appears upon an examination of the entire record that such error has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
Error from District Court, Oklahoma County; Edward Dewes Old field, Judge.
Action for divorce by Wilber Johnson against Dollie Johnson, with cross-petition by defendant. Decree of divorce granted to defendant, with the custody of minor children and permanent alimony, etc., and from the overruling of his motion for a new trial plaintiff brings error. Affirmed.
Carlisle & Edwards, for plaintiff in error.
L. A. Maris, for defendant in error.
¶1 The plaintiff in error, hereinafter styled plaintiff, brought action against the defendant for divorce on the ground of abandonment.
¶2 To this defendant in error, hereinafter styled defendant, filed answer and cross-petition, and on trial of the case the defendant was granted a decree of divorce and the care and custody of their four minor children, and was awarded as permanent alimony the 40-acre tract of land in Ottawa county described in her answer and cross-petition, the title to which was in the plaintiff. From the judgment of the court overruling the motion for new trial the plaintiff appeals and assigns error.
¶3 The evidence discloses that the parties were Indians, the plaintiff being a Wyandotte and the defendant a Chinook.
¶4 It is clearly shown and not disputed in the evidence, that the 40 acres of land in con- troversy was the allotment of the plaintiff, and that a trust patent thereafter was issued to him on the 19th day of April, 1902, and recites that the same was issued under the act of Congress approved February 8, 1887, which trust patent recites that it was issued by virtue of section 5 of said act, subject to the restrictions and conditions contained in the said fifth section, and that the same will be held for the period of 25 years in trust for the sole use and benefit of the allottee, and at the expiration of said period the United States will convey the same by patent to said allottee or his heirs, in fee, discharged from said trust and free of all charge or incumbrances whatsoever; provided, that the President of the United States may, in his discretion, extend the said period. Also shows upon its face that said restricted period of 25 years expired on the 19th day of April, 1917.
¶5 The judgment from which this appeal was taken bears date of the 7th day of May, 1917.
¶6 The judgment of the court below, after decreeing to the defendant a divorce, the care, custody, and control of the minor children, describes the tract of land in controversy, and "decreed and ordered the same to the defendant as permanent alimony, and in settlement of the property rights of the parties to this action, and for her use in supporting herself and the above-named children."
¶7 The plaintiff's principal ground of complaint is that the court erred in decreeing the land to the wife as permanent alimony, his contention being that the court was without jurisdiction to so decree, inasmuch as the plaintiff had not received the patent for the land at the time of the trial, and the greater part of the argument and the authorities cited in his brief go to that proposition.
¶8 The question presented here for determination is, was the land in controversy, at the time of the rendition of the judgment complained of, restricted Indian land? If it were, then under all the authorities, including numerous decisions of this court, the trial court was without authority to make the award.
¶9 We have examined the authorities cited by the plaintiff, and find that they all great the question of alienation of restricted Indian lands; that question is not involved, and hence the authorities are not in point unless we assume the question at issue to be as stated by the plaintiff.
¶10 The tract of land involved was, under the evidence, the allotment of the plaintiff made to him by the government of the United States on the 19th day of April, 1887. The trust parent issued to the plaintiff on that date was introduced in evidence, and, omitting the formal parts, is as follows:
¶11 This instrument recites that a schedule of allotments of land dated January 11, 1892, had been deposited in the General Land Office of the United States, and approved by the Secretary of the Interior January 14, 1892, and that by virtue of which the trust patent was issued on April 19, 1892, and that the land thus allotted would be held (subject to all the restrictions and conditions con- tained in said fifth section) for the period of 25 years in trust for the sole use and benefit of the allottee, or, in case of his death, for the sole use of his heirs, and at the expiration of said period the United States will convey the same by patent to said allottee in fee, discharged of said trust and free of all charge or incumbrance whatsoever.
¶12 Section 5 of the act of Congress approved February 8, 1887, c. 119, 24 Statutes at Large, 389 (U. S. Comp. St. § 4201), in so far as the same is pertinent, is as follows:
¶13 The Supreme Court of the United States, in the case of United States v. Rickert, 188 U.S. 432, 23 S. Ct. 478, 47 L. Ed. 532, in an opinion by Mr. Justice Harlan construing this act, said:
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