Jordan v. O’Brien

• Decision Date: 14 March 1945
• Docket Number: 8751
• Citation: 18 N.W.2d 30,70 S.D. 393
• Parties: CHARLES D. JORDAN, et al., Appellants, v. CORA O’BRIEN and George E. O’Brien, Respondents.
• Court: South Dakota Supreme Court

70 SD 393, 18 NW2d 30 (1945)

CHARLES D. JORDAN, et al.,

Appellants,

v. CORA O’BRIEN and George E. O’Brien,

Respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Todd County, SD

(attached to Tripp County for judicial purposes)

Hon. J. R. Cash, Judge

#8751—Affirmed

W. J. Hooper, Gregory, SD

Attorney for Appellants.

Byron S. Payne, Pierre, SD

Roscoe Knodell, Winner, SD

Attorneys for Respondent.

Opinion Filed Mar 14, 1945; Rehearing Denied Apr 9, 1945

SICKEL, Judge.

This is an action brought to quiet title to a quarter section of land in Todd County. The land was a part of the Rosebud Sioux Reservation belonging to the Rosebud Sioux Tribe, and the title was held by the United States Government. On April 25, 1917, the land was allotted to Alice Good Voice, a Rosebud Sioux Indian. The allottee died, and on January 9, 1930, the Secretary of the Interior sold the land to the defendant George E. O’Brien for $1,000 on contract, payable $250 down and the balance in equal annual payments of $250 each. On September 16, 1932, the plaintiff Charles D. Jordan brought an action against the defendant George E. O’Brien to recover judgment on a promissory note. The debtor was a resident of the State of Nebraska, and levy was made on this land under a warrant of attachment. Judgment was entered in the action, and the land was sold to plaintiff at execution sale. On September 5, 1933, George E. O’Brien assigned his interest in the land to Cora O’Brien.

On February 10, 1934, sheriff’s deed was issued to plaintiff Charles D. Jordan. In the meantime, the defendant George E. O’Brien had assigned the contract to defendant Cora O’Brien and this assignment was approved by the Secretary of the Interior. The assignee then completed the payments on the contract and the government patent was issued to her on March 28, 1935. Plaintiff then brought this action against the defendants for the purpose of quieting title to the interest of defendant George E. O’Brien in the land, based on the amount he had paid on the contract at the time of the execution sale. The defendant Cora O’Brien filed a counterclaim asking that the title be quieted in her: The action was tried and a decree entered quieting the title in defendant Cora O’Brien. Appeal was taken to this court and the judgment was reversed. Thereafter a petition for rehearing was filed, and denied. On the return of the remittitur to the circuit court attorneys for plaintiffs moved for a decision in conformity with the opinion of this court as reported in 9 NW2d 146. The motion was heard April 27, 1944. The case was submitted on the previous record, except that the stipulation was amended by adding that the allotment was Indian land, part of the Rosebud Sioux Reservation and that title was held by the United States and allotted to Alice Good Voice, a Rosebud Sioux Indian who died before January 9, 1930, and that the assignment of the contract to Cora O’Brien was approved by the Secretary of the Interior, and that she paid $500, the balance of the purchase price on January 14, 1935. On June 16, 1944, the court made and filed new findings of fact, conclusions of law and judgment, again quieting the title in the defendant Cora O’Brien.

Appellant contends that the questions of law and fact involved in this action and on this appeal are the same as those presented to the court at the first trial and on the first appeal; that the former opinion of this court is the law of the case, and that on the second trial the circuit court erred in refusing to follow it.

It is a general rule, long recognized in this state, that a question of law decided by the supreme court on a former appeal becomes the law of the case, in all its subsequent stages, and will not ordinarily be considered or reversed on a second appeal when the facts and the question of law presented are substantially the same. St. Croix Lumber Co. v. Mitchell et al., 4 SD 487, 57 NW 236 (1894); Gamble v. Keyes, 49 SD 39, 206 NW 477.

On the former appeal it was contended by appellant that the interest of George E. O’Brien in the land, under his contract, was subject to sale on execution, notwithstanding the provisions of the Act of Congress of February 8, 1887, as amended by the Act of June 21st, 1906, 34 Stat. 327, 25 USCA § 354. In the former opinion this court said :

“We are of the view that this provision found its way into the law for the protection of the Indians, who were wards of the government, and not for the protection of the man who purchased Indian land. 16 NW2d 914.

That decision is adhered to on this appeal.

On the second trial the defendant Cora O’Brien made a motion for a decision on the following ground:

“1. At all the times from the commencement of said action in the Gregory County Circuit Court until the issuing of the sheriff’s deed therein, the said land was an Indian allotment, the title to which was held by the United States, and the United States had parted with neither the legal nor equitable title thereto, and by virtue of the sovereignty of the United States and Section 3 of Article 4 of the Constitution of the United States providing that ‘Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States’, said land was subject to the sole jurisdiction of the United States, and was not subject to the jurisdiction of the said state court of Gregory County, and the suit of the plaintiff therein gave him no interest in the said land.”

By this motion the defendant raised the question of jurisdiction of the circuit court of Gregory County over allotted Indian lands while they remain the property of the United States.

The general rule was stated in Johnson v. Towsley, 80 US 72, 83, 13 Wall. 72, 20 LEd 485:

“... When the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others. That the action of the land office in issuing a patent for any of the public land, subject to sale by preemption or otherwise, is conclusive of the legal title, must be admitted under the principle above stated, and in all courts, and in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court, or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained.”

The court then stated, as an exception, the judicial authority of a court of equity to inquire whether the patent had been issued through fraud, false swearing or mistake, or in violation of law, and to give an appropriate remedy. That exception, however, is not involved in this action.

In the case of Bockfinger v. Foster, 190 US 116, 23 SCt 836, 840, 47 LEd 975, title was held by trustees of the United States. Plaintiff brought an action in one of the state courts of Oklahoma asking a decree that the, trustees held title in trust for his use and to compel a conveyance to him. The Supreme Court cited and analyzed numerous cases previously decided by it, and concluded:

“After the title to public lands has passed from the United States, that is, after the Land Department has performed the last act in the series necessary to pass the title of the government, the courts will, as between parties asserting conflicting rights in such lands, determine, by appropriate judicial proceedings, which of the parties has the better right. But those cases equally recognize the principle that the courts will not interfere with the Land Department in its control and disposal of the public lands, under the legislation of Congress, so long as the title in any essential sense remains in the United States.”

In the case of McKay v. Kalyton, 204 US 458, 27 SCt 346, 347, 51 LEd 566, the Supreme Court considered the jurisdiction of the state courts of Oregon over an action involving the right of possession of “public land held in trust by the United States for the benefit of Indians,” and makes the following statement of the rule:

“Prior to the act of Congress of 1894, controversies necessarily involving a determination of the title, and, incidentally, of the right to the possession, of Indian allotments while the same were held in trust by the United States, were not primarily cognizable by any court, either state of Federal. It results, therefore, that the act of Congress of 1894, which delegated to the courts of the United States the power to determine such questions, cannot be construed as having conferred upon the state courts the authority to pass upon Federal questions over which, prior to the act of 1894, no court had any authority.”

The Act of 1894, referred to in the above quotation, is 28 Stat. Ch. 290, Title 28 USCA § 41(24). That statute conferred jurisdiction on the district courts of the United States “Of all actions, suits, or...