Kiefer Oil & Gas Co. v. McDougal

• Decision Date: 15 December 1915
• Docket Number: 4227.
• Citation: 229 F. 933
• Parties: KIEFER OIL & GAS CO. v. McDOUGAL.
• Court: U.S. Court of Appeals — Eighth Circuit

229 F. 933

KIEFER OIL & GAS CO. v. McDOUGAL.

No. 4227.

United States Court of Appeals, Eighth Circuit.

December 15, 1915

Rehearing Denied March 27, 1916.

N. A Gibson and Franklin P. Schaffer, both of Muskogee, Okl., for appellant.

A. J Biddison, of Tulsa, Okl. (Gray Carroll and Harry Campbell both of Tulsa, Okl., on the brief), for appellee.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

George Franklin Berryhill was a part Creek Indian. He was married; his wife's name being Clementine Berryhill. She was not of Indian blood at all. They had a son, Andrew J. Berryhill, who was born prior to May 25, 1901, and died in November of the same year. By 'An act to ratify and confirm a Supplemental Agreement with the Creek Tribe of Indians, and for other purposes,' passed June 30, 1902 (32 Stat. 500), it was provided:

'Rolls of Citizenship.

'7. All children born to those citizens who are entitled to enrollment as provided by the act of Congress approved March 1, 1901 (31 Stat. 861), subsequent to July 1, 1900, and up to and including May 25, 1901, and living upon the latter date, shall be placed on the rolls made by said commission. And if any such child has died since May 25, 1901, or may hereafter die before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living shall descend to his heirs as herein provided and be allotted and distributed to them accordingly.'

It thus appears that Andrew J. Berryhill was never entitled to an allotment in his lifetime, but under the statute quoted an allotment was made to Andrew J. Berryhill, deceased. Among the lands thus allotted was the N.E. 1/4 of the N.W. 1/4 of section 18, township 17 N., range 12 E. of the Indian principal meridian. On October 10, 1904, the Principal Chief of the Creek Nation issued a deed or patent of said land to the heirs of Andrew J. Berryhill which was approved by the Secretary of the Interior on October 31, 1904. On March 24, 1906, George F. Berryhill and wife, reciting that they were father and mother and sole and only heirs at law of Andrew J. Berryhill, deceased, executed and acknowledged an oil and gas mining lease of the land above specifically described to Albert W. Shulthis for a period of 15 years. April 19, 1907, this lease was approved by the Secretary of the Interior. On June 5, 1906, George F. Berryhill and wife deeded the land to Edmond McKay and Perry McKay, again reciting in the instrument that the grantors were the sole and only heirs of said Andrew J. Berryhill. On October 12, 1906, the two McKays and their wives executed, and on the next day acknowledged, an oil and gas lease of the premises to Arthur B. Reese for 15 years. This lease, by various assignments, became the property of the Kiefer Oil & Gas Company. It entered upon the premises and bored a well for oil and gas, striking oil about the latter part of August, 1907. From the middle of August, 1907, on, seven uncles and aunts, and their wives and husbands, of Andrew J. Berryhill on his paternal side, conveyed the land in question to D. A. McDougal. On October 21, 1907, McDougal and wife executed an oil and gas lease to the Kiefer Oil & Gas Company, and the same day the parties to this lease signed a collateral contract.

About December 24, 1907, Mr. Shulthis brought this action in equity against D. A. McDougal, Edmond McKay, Perry McKay, and the Kiefer Oil & Gas Company, to determine the title to the oil and gas rights, to enjoin the defendants, for the appointment of a receiver, for a discovery, and for other relief. The defendants filed their joint and several answer. In this answer they deny that George Franklin Berryhill and wife were the owners in fee of the land in question, or any part thereof, at any time, and in answer to the prayer for a discovery the defendants answered that at the time of the deed from George Franklin Berryhill and wife to Edmond and Perry McKay they firmly and honestly believed that the devolution of the land in controversy was fixed and controlled by the Creek law of descent and distribution, and that they were advised and informed that the Creek law controlled the inheritance of the allotment of said Andrew J. Berryhill, and that under the Creek law the father, or the father and mother, inherited the fee-simple title in and to all the allotment of the said Andrew J. Berryhill, deceased, and defendants aver and plead that the defendants Edmond and Perry McKay, acting and relying upon their advice and belief that the Creek law controlled, purchased as they thought the fee-simple title in and to said land from George Franklin Berryhill and Clementine Berryhill, and they allege substantially the same facts with reference to the taking of a lease by Arthur B. Reese, but that defendants are now advised, and therefore aver and plead, that the devolution of the allotment of Andrew J. Berryhill, deceased, was fixed and controlled by chapter 49 of Mansfield's Digest of the Laws of the State of Arkansas. They then alleged that the uncles and aunts of said Andrew J. Berryhill claimed to have inherited the fee to the land in controversy subject to a life estate of the father; that D. A. McDougal had purchased from all of the uncles and aunts and collateral kindred of said Andrew J. Berryhill all their right, title, and interest in and to the land in controversy for a valuable consideration.

'In further response to complainant's prayer for discovery, and as a muniment of title in the defendant Kiefer Oil & Gas Company to the oil and gas rights to the land in controversy, defendants state that on October 21, 1907, defendant D. A. McDougal, with his wife, Myrtle A. McDougal, joining therein, entered into a lease contract with the defendant Kiefer Oil & Gas Company, whereby said D. A. McDougal, for a valuable consideration, and a one-fifth part of all oil produced and saved from the premises by said Kiefer Oil & Gas Company, its successors and assigns, did grant, demise, lease, and let unto said Kiefer Oil & Gas Company, its successor and assigns, for the sole and only purpose of mining and operating for oil and gas, the said N.E. 1/4 of the N.W. 1/4 of section 18, township 17 N., range 12 E., containing 40 acres, being the land in controversy, for and during the term of 15 years from and after October 12, 1906, and so long after the expiration of the 15 years as oil or gas, or either of them, is produced from the land by defendant Kiefer Oil & Gas Company, its successors or assigns, in paying quantities.'

In the same document the defendants aver and plead that the Kiefer Oil & Gas Company is rightfully and lawfully entitled to operate the land in controversy for oil and gas purposes and extract said minerals therefrom under and by virtue of the McKay lease, 'in connection and conjunction with the lease contract executed to it, Kiefer Oil & Gas Company, by D. A. McDougal and wife, on October 21, 1907, and accepted by said Kiefer Oil & Gas Company on October 26, 1907.'

'defendants further aver and plead that, if they be mistaken as to the quantum of title taken by George Franklin Berryhill, or George Franklin Berryhill and wife, Clementine Berryhill, and it should be held and decided by the court that George Franklin Berryhill, or George Franklin Berryhill and wife, Clementine Berryhill, was or were vested with the fee-simple title in and to the land in controversy under the laws of descent and distribution in force at the time, then defendants rely upon their superior rights to the oil and gas in the land in controversy under the deed from George Franklin Berryhill and Clementine Berryhill to Edmond and Perry McKay, heretofore set up, and the lease made by them to Arthur B. Reese on October 12, 1906, now owned by Kiefer Oil & Gas Company.'

On March 4, 1908, George Franklin Berryhill with leave of court filed a bill of intervention, in which he claimed that the complainant's lease was valid and that the deed to the McKays was invalid, because he was then under restrictions, and asked that the title be quieted to the land and for other relief. To this bill of intervention the Kiefer Oil & Gas Company and D. A. McDougal made an answer in which they said:

'Defendants aver and plead that the uncles and aunts and grandmother of Andrew J. Berryhill, from the father's side, took the entire title to said land, and that the title in fee is now in defendant D. A. McDougal, under and by virtue of deeds executed to him by the uncles and aunts of Andrew J. Berryhill, deceased, to wit, the brothers and sisters of intervener, George Franklin Berryhill, named and specified in the answer of defendants and in the intervening petition of intervener, and in addition thereto defendant D. A. McDougal is the owner and holder of whatever right, title, and interest the grandmother, Airy Anne Berryhill, acquired in said land by virtue of the deed executed and delivered by her to said D. A. McDougal on October 18, 1907.'

The case was tried in the District Court, and resulted in a finding and decree that George Franklin Berryhill took a life estate only in the lands in question, and the uncles and aunts of Berryhill took the remainder; that George Franklin Berryhill was under no restrictions as to conveying his life estate, but that as a tenant for life could not grant the right to mine for oil and gas, and dismissed the bill and the petition of intervention. Shulthis v. Mcdougal, 162 F. 331. This case was appealed to this court, where it was held that George Franklin Berryhill took the land in fee, and therefore had the right to grant an oil and gas lease thereto, but that the complainant, having failed to record his lease until May 18, 1907, and long after the deed...