Johnson v. Simpson

• Court: Oklahoma Supreme Court
• Writing for the Court: KANE, J.
• Citation: Johnson v. Simpson, 139 P. 129, 40 Okla. 413, 1914 OK 73 (Okla. 1914)
• Decision Date: 24 February 1914
• Docket Number: Case Number: 4406
• Parties: JOHNSON et al. v. SIMPSON.

1914 OK 73

139 P. 129

40 Okla. 413

JOHNSON et al. v. SIMPSON.

Case Number: 4406

Supreme Court of Oklahoma

Decided: February 24, 1914

Syllabus

¶0 1. CURTESY-- Existence of Estate. Upon the passage and approval of Act of May 2, 1890, c. 182, 26 St. at L. 94, which extended over and put in force in the Indian Territory the common law of England as adopted by the state of Arkansas, with the proviso excepting Indians and their estates, and Act of June 7, 1897, c. 3, 30 St. at L. 83, which provided that such laws should apply to all persons of the Indian Territory, irrespective of race, and the Curtis Act of June 28, 1898, c. 517, 30 St. at L. 495, which provided that the laws of Indian tribes should no longer be enforced, title by curtesy consummate, as it existed in the state of Arkansas, attached, in favor of the husband, to all lands of which the wife became seised during coverture.

2. SAME--Conveyance by Wife--Effect. Under curtesy consummate, as it existed in the state of Arkansas, whatever interest the husband acquired in the lands of his wife by marriage could be swept away by her subsequent conveyance or devise of them.

Error from District Court, Seminole County; Tom D. McKeown, Judge.

Action between Thomas Johnson and others and J. R. Simpson. From the judgment, the parties first named bring error. Affirmed.

J. A. Baker, for plaintiffs in error

Owen & Stone, for defendant in error

KANE, J.

¶1 The subject-matter of this action is an Indian allotment situated in the Seminole Nation. As stated by counsel for plaintiffs in error in his brief, "There is only one question in this case, and that is whether or not there is in the Indian Territory now, or was prior to statehood, under the law such a thing as an estate by the curtesy." The court below gave an affirmative answer to the question, and it is to reverse the decree entered upon that conclusion of law that this proceeding in error was commenced.

¶2 Subsequent to the time counsel for plaintiffs in error filed his brief in this cause, the United States Circuit Court for the Eastern District of Oklahoma had occasion to pass upon a similar question, and decided it in harmony with the conclusion reached by the court below. Armstrong v. Wood et al. (C. C.) 195 F. 137. The substance of Judge Campbell's opinion is that upon the passage and approval of the Act of May 2, 1890 (26 Stat. 81, Mansf. Dig., c. 20), which extended and put in force in the Indian Territory the common law, as adopted by the state of Arkansas, with a proviso excepting Indians and their estates, and Act of June 7, 1897, c. 3, sec. 1, 30 Stat. 83, which provided that such laws shall apply to all persons of the Indian Territory, irrespective of race; and by the Curtis Act of June 28, 1898, which provided that the laws of Indian tribes should no longer be enforced, the common law as theretofore conditionally extended over the Indian Territory was made applicable to all persons, irrespective of race, and that the estate by the curtesy attached in favor of the husband to all lands of which the wife became seised during coverture upon the arising of the conditions upon which that estate is based at common law. Section 566, c. 20, Mansf. Dig., reads as follows:

"The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the first (that are applicable to our own form of government), of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state."

¶3 In Neelly v. Lancaster, 47 Ark. 175, 1 S.W. 66, 58 Am. Rep. 752, the question was: Has curtesy been abolished by the married woman's enabling provisions contained in the Constitution and statutes of Arkansas? The statutes and constitutional provisions under consideration (...