Kanuebbe v. McCuistion

• Decision Date: 01 May 1934
• Docket Number: 22118.
• Parties: KANUEBBE v. McCUISTION et al.
• Court: Oklahoma Supreme Court

33 P.2d 1088

168 Okla. 165, 1934 OK 266

KANUEBBE v. McCUISTION et al.

No. 22118.

Supreme Court of Oklahoma

May 1, 1934

Syllabus by the Court.

1. The act of Congress, chapter 115, vol. 44, U.S. Stat. L. 239 240, § 2, of the 69th Congress, passed and approved April 12 1926, placed in operation the statutes of limitation of Oklahoma against restricted Indians.

2. "Where a party takes actual possession of an Indian allotment under properly executed deeds purporting to convey all the title from the heirs of the deceased allottee, who died intestate the owner of the property, and retains the actual, open, notorious, adverse, and exclusive possession of all the land, claiming to own all the title, and collects and appropriates the rents and profits thereupon, and continues in such possession without interruption for the statutory time, such possession creates in his favor a title by limitation against a prior grantee of any one or more of the heirs of the allottee, and amounts to an ouster of his cotenant, if such cotenancy was ever created by such prior conveyance." Connor et al. v. Thornburgh et al., 140 Okl. 16, 282 P. 122.

3. "Section 188, C. O. S. 1921 [O. S. 1931, § 104] suspending the statute of limitation during absence of the defendant from the state, is not applicable in a case where relief may be given without personal service of process upon the defendant." Graves et al. v. Foster, 158 Okl. 36, 12 P.2d 502.

4. Held, the judgment of the trial court is affirmed.

Appeal from District Court, Choctaw County; George T. Arnett, Judge.

Suit by Hampton Kanuebbe against L. P. McCuistion and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Choice D. Holden, of Oklahoma City, and Hal Welch, of Hugo, for plaintiff in error.

Burke & Trice and Barrett & Dickson, all of Hugo, for defendant in error L. P. McCuistion.

CULLISON Vice Chief Justice.

Hampton Kanuebbe, as plaintiff, instituted suit against L. P. McCuistion and others, defendants, seeking to recover an undivided one-third interest in and to certain real property located in Choctaw county, Okl.

The record discloses that Lymon Roberson, a full-blood Choctaw Indian, died in 1907, but prior to statehood, leaving surviving his wife and two children, Tobias Roberson and Aurelia Roberson, by said wife. The surviving wife and two children sold the allotment of Lymon Roberson to Hawk on March 29, 1909, and conveyance was made through the proper court, conveying all of their right, title, and interest in and to said land.

Hawk immediately went into possession, and he and his grantees have been in actual, open, notorious, adverse, and exclusive possession of the land since said date. McCuistion, principal defendant in the case at bar, acquired title by deed on April 5, 1926. Plaintiff commenced this suit on April 3, 1929, seeking to recover an undivided one-third interest in said land which he claims was inherited by his mother, Betsy Kanuebbe, a daughter of Lymon Roberson, the original allottee.

The trial court found that Betsy Kaneubbe was the legitimate child of Lymon Roberson and Eliz Hotema, and that she inherited one-third interest in the land of said Lymon Roberson, subject to the dower of Sophia Roberson, the widow. Betsy Kanuebbe was a full-blood Choctaw Indian, who died intestate in 1920, leaving surviving as her sole and only heirs four children, one of whom is the plaintiff. Plaintiff had procured the interest of each of the other three children in and to such interest as they possessed in said land prior to the institution of this suit.

The court held that plaintiff's right to an interest in and to said land under consideration was barred by the statutes of limitation, from which judgment plaintiff appeals, and contends that: "Since the trial court definitely determined that the plaintiff and his grantors inherited a one-third interest in this land, there is but one question for this Court to determine: That is, under the facts established by the defendant, and found by the trial court, is plaintiff's action barred by the statute of limitations of Oklahoma?"

On April 12, 1926, Congress passed an act, section 2 of which is as follows (Act of Congress, c. 115, vol. 44, U.S. Stat. L. 240, of the 69th Congress, passed and approved April 12, 1926, § 2): "The statutes of limitations of the State of Oklahoma are hereby made and declared to be applicable to and shall have full force and effect against all restricted Indians of the Five Civilized Tribes, and against the heirs or grantees of any such Indians, and against all rights and causes of action heretofore accrued or hereafter accruing to any such Indians or their heirs or grantees, to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma, and may be pleaded in bar of any action brought by or on behalf of any such Indian, his or her heirs or grantees, either in his own behalf or by the Government of the United States, or by any other party for his or her benefit, to the same extent as though such action were brought by or on behalf of any other citizen of said State: Provided, That no cause of action which heretofore shall have accrued to any such Indian shall be barred prior to the expiration of a period of two years from and after the approval of this Act, even though the full statutory period of limitation shall already have run or shall expire during said two years' period, and any such restricted Indian, if competent to sue, or his guardian, or the United States in his behalf, may sue upon any such cause of action during such two years' period free from any bar of the statutes of limitations."

Said section was construed by this court in the case of Tomlin v. Roberts et al., 126 Okl. 165, 258 P. 1041, and Deere v. Gypsy Oil Co., 160 Okl. 237, 15 P.2d 1086, 1091. In the latter case this court held:

"In connection with the above state of facts, we have carefully considered said act and the purpose and intent of Congress in passing the same, and interpret and construe said act to mean that an Indian to whom had accrued a cause of action, but upon which said cause the statute of limitations had not run-that said person could bring a suit thereon within two years from the date of the passage of said act, provided said cause of action was a valid cause of action against which no limitation existed at the time of the passage of said act.

We further hold that said act intended that, where a cause of action had accrued to an Indian long prior to the passage of said act and the various statutes of limitation of the state of Oklahoma had run against said cause of action, and that the same was barred under the said statutes of limitation under such circumstances said cause of action was not revived by said act of Congress; that it was not the intention of Congress to revive dead causes of action by the proviso in said act, but it was the legislative intent to preserve to said persons for a period of two years such causes of action as would mature within the two year period of time. Thus, where an Indian had a cause...