Kendall v. Ewert

• Decision Date: 15 May 1922
• Docket Number: No. 157,157
• Citation: 42 S.Ct. 444,66 L.Ed. 862,259 U.S. 139
• Parties: KENDALL et al. v. EWERT
• Court: U.S. Supreme Court

259 U.S. 139

42 S.Ct. 444

66 L.Ed. 862

KENDALL et al.

v EWERT.

No. 157.

Argued March 13, 1922.

Decided May 15, 1922.

Mr. A. Scott Thompson, of Miami, Okl., for appellants.

Messrs. Paul A. Ewert, of Joplin, Mo., and Henry C. Lewis, of Washington, D. C., for appellee.

Mr. Justice CLARKE delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court of Appeals, dismissing an appeal from a decree by the District Court which dismissed the petition, in a suit in which it was prayed that appellee, Paul A. Ewert, should be decreed to hold in trust for George Redeagle the title to 100 acres of restricted and very valuable Indian lands, which Redeagle, a full-blood Quapaw Indian, had, in form, deeded, in 1909, to Franklin A. Smith, who a year later, conveyed the same to Ewert. It was alleged that Smith, in bidding upon the land, acted as the agent of Ewert, who, it was averred, was legally incapable of purchasing it, because he was employed at the time by the government in Indian affairs.

Ewert is the same person who was appellant and appellee in Nos. 173 and 186, respectively (the Bluejacket Case, 259 U. S. 129, 42 Sup. Ct. 442, 66 L. Ed. ——) this day decided, and the validity of the deed in this case is assailed, as was the one involved in those appeals, on the ground that Ewert was not competent to make such a purchase under R. S. § 2078 (Comp. St. § 4026), which reads:

'No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office.'

The facts in the two cases are very similar, except that in this case the evidence is clear that, regarding himself as prohibited from making the purchase and desiring to conceal his relation to it, Ewert procured Smith to bid on the land, to take the deed for it in his own name, and then, a year later, to deed it to him. The deed to Smith was for the consideration of $1,300, but the quitclaim deed from Smith to Ewert was for the recited consideration of $2,000. Ewert admitted in his answer that he purchased the land through Smith, as his agent; but, when pressed for a reason for the difference in the considerations, his reply was evasive and indefinite. The restriction on the land expressed in the patent and required by 28 Stat. 907, did not expire until September 26, 1921.

Here, as in the other case, Ewert, appointed special assistant to the Attorney General in October, 1908, 'to assist in the institution and prosecution of suits to set aside deeds to certain allotments in the Quapaw Agency,' is found in the following February bidding upon and purchasing this Quapaw Indian land.

In the Bluejacket Case, 259 U. S. 129, 42 Sup. Ct. 442, 66 L. Ed. ——, we have held that, assuming the sale to have been made in the public manner required by the rules of the department, all required action to have been, in form, properly taken, and the deed therein to have been approved by the Secretary of the Interior, nevertheless it was void, because Ewert was prohibited by R. S. § 2078, from then becoming the purchaser of such Indian lands, and the construction therein given to the statute must rule this case, and render void the deeds herein relied upon to give him title.

But this case presents several additional features.

After the District Court decided in favor of Ewert and dismissed the petition, he paid $700, on July 5, 1918, to procure from Redeagle a stipulation to dismiss the action with prejudice, and for the same consideration and at the same time took from him a quitclaim deed for the land. Before hearing on appeal, by Redeagle, in the Circuit Court of Appeals, Ewert filed a motion to dismiss the appeal, based on this stipulation to dismiss the case, and the appellant, in turn, moved the court to cancel the stipulation and strike it from the files because, as he averred, it was procured by fraud and without notice to his counsel.

When these motions to dismiss were presented to the Circuit Court of Appeals that court ordered that——

'this cause be * * * referred back to the District Court, * * * with directions to investigate the circumstances of the stipulation for dismissal of the suit * * * and to report to the court its findings and evidence whether, in fact and law, said stipulation is a final settlement of the case. This cause and motion to dismiss will stand continued in this court pending receipt of report from the District Court.'

Both the Circuit Court of Appeals and the District Judge treated this order as one of reference, merely, to the District Judge (not to the District Court), to take testimony and report his findings of fact as to the validity of the stipulation, and pursuant thereto the District Judge took testimony and transmitted the same to the Circuit Court of Appeals, with his finding that the stipulation was a final settlement of the issues involved in the case, and thereafter that court dismissed the appeal, reciting in its decree that its conclusion was based on the finding of the District Judge, and upon the reading and consideration of the evidence on which that finding was based.

While the appeal to this court is thus only from this decree of dismissal by the Circuit Court of Appeals, it is plain that, if given effect, that decree would make an end of the entire controversy, and would confirm title in Ewert to restricted Indian land, such as we have held in the Bluejacket Case he was not competent to acquire, and it therefore is a final decree, the appeal from which brings, not only the validity of the stipulation for dismissal, but the entire cause, here for such disposition as the justice of the case may require. R. S. § 701 (Comp. St. § 1669); Ballew v. United States, 160 U. S. 187, 199, 200, 16 Sup. Ct. 263, 40 L. Ed. 388; Chappell v. United States, 160 U. S. 499, 509, 16 Sup. Ct. 397, 40 L. Ed. 510; Camp v. Gress, 250 U. S. 308, 318, 39 Sup. Ct. 478, 63 L. Ed. 997; Cole et al. v. Ralph, 252 U. S. 286, 290, 40 Sup. Ct. 321, 64 L. Ed. 567.

On the reference by the Circuit Court of Appeals to the District Judge, various letters by Ewert to Redeagle were introduced which are of great significance.

The decree dismissing the petition was not entered by the District Court until March 4, 1918, but two months before that, on January 3, 1918, Ewert wrote to his adversary, Redeagle, sending a copy 'of the opinion rendered by the court' (which was really only a short letter by the judge to counsel, stating that the case would be dismissed and directing that a decree be drawn), saying that he did so thinking that perhaps his (Redeagle's) counsel might keep him in ignorance of the holding that 'you have no case.'

On July 1, 1918, Ewert wrote Redeagle: That the decree of the District Court had not been appealed from; that the time for appeal, if not already past, soon would be (although two months remained for appeal); and that he wished him to 'thoroughly understand his rights.' And then, showing that he had been in treaty for settlement with him, he adds: If you sign the stipulation for dismissal, 'that ends the case forever,' and I am paying you this $700 with the distinct understanding that it does 'end the case forever,' and he suggests that, in order that it may do him some good, Redeagle should deposit the money in a bank. He adds:

'If you cash it and get all the money, you probably will get drunk and lose it, and come back and say that somebody has been trying to cheat you. * * * I have instructed my clerk that under no circumstances should she have any dealings with you when intoxicated. I just now met you down in the corridor of this building in an intoxicated condition; you wanted to come to my office, and I told you I would have nothing to do with you while intoxicated I have advised my clerk to the same effect, and if you are intoxicated when you come into this office I want you to state it, if it cannot be observed; If you have been drinking any, when you come into this office I want you to tell my clerk that fact, and she will have no business relations with you.'

On the next day, July 2, 1918, Ewert again writes Redeagle that he had met him in the corridor on the day before; that, when he (Redeagle) wished to talk settlement of the case, he told him he would not talk business with him when he had been drinking. He tells him that he is leaving home to be gone six weeks, and that he has left a check for $700 in his office, with proper papers for him to sign, if he will come to the office 'sober and in your right mind.' He again suggested that, 'instead of getting this check cashed and getting drunk and losing all his money,' he should deposit the money in some bank, for 'in that way you will not be liable to lose the money.' He concludes the letter by urging Redeagle to come to his office at an early day, that he bring with him whomsoever he pleases, if they are reliable and 'sober' persons, that he will not settle this case with his attorneys, and that he must make settlement soon or the offer would be withdrawn.

Three days later, on July 5th, Redeagle went to Ewert's office with a neighbor, and there executed the stipulation for dismissal, and also a quitclaim deed for the land, and received $700....