Ledbetter v. Wesley

• Decision Date: 09 November 1927
• Docket Number: 7766.,No. 7765,7765
• Citation: 23 F.2d 81
• Parties: LEDBETTER et al. v. WESLEY et al. McGEE et al. v. LEDBETTER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 81 (1927)

LEDBETTER et al. v. WESLEY et al.^*

McGEE et al. v. LEDBETTER et al.

Nos. 7765, 7766.

Circuit Court of Appeals, Eighth Circuit.

November 9, 1927.

W. A. Ledbetter, of Oklahoma City, Okl. (H. L. Stuart, R. R. Bell, and E. P. Ledbetter, all of Oklahoma City, Okl., H. A. Ledbetter, of Ardmore, Okl., and L. A. Ledbetter, of Idabel, Okl., on the brief), for appellants in No. 7765.

J. D. Lydick, Charles E. McPherren, Kittie C. Sturdevant, Irvin L. Wilson, and M. E. Jordan, all of Oklahoma City, Okl., for appellees in No. 7765.

Philos S. Jones, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

M. E. Jordan and Charles E. McPherren, both of Oklahoma City, Okl. (J. D. Lydick, Irvin L. Wilson, and Kittie C. Sturdevant, all of Oklahoma City, Okl., on the brief), for appellants in No. 7766.

W. A. Ledbetter, of Oklahoma City, Okl. (H. L. Stuart, R. R. Bell, and E. P. Ledbetter, all of Oklahoma City, Okl., H. A. Ledbetter, of Ardmore, Okl., and L. A. Ledbetter, of Idabel, Okl., on the brief), for appellees in No. 7766.

Before KENYON, Circuit Judge and MOLYNEAUX, and JOHN B. SANBORN, District Judges.

KENYON, Circuit Judge.

Two appeals are here involved. We consider both in this opinion. The facts are somewhat complicated, and relate to the allotment of Betty Wesley, a full-blood Choctaw Indian, roll No. 3391, who died October 10, 1903. On the 18th day of December, 1903, Elias Wesley, Austin McGee, Jesse McGee, and Lizzie Thomas, purporting to be all the heirs of Betty Wesley, deceased, executed conveyances to W. A. Ledbetter and J. F. McClatchy and their heirs of the southeast quarter of section 32, township 4 south, range 2 west, in Carter county, Oklahoma, the same being a portion of the land selected and filed on by J. C. Smith, administrator of the estate of Betty Wesley, as her allotment. Selin McGee, who it is claimed was a niece of Betty Wesley, did not sign said deed. She intermarried with Quitman Jones, and is known in this record as Selin Jones. She died on the 16th day of February, 1918, leaving as her heirs Quitman Jones (her husband), Preman Jones, Lucy Jones, and Levy Jones, her minor children.

In July, 1908, the United States commenced an action in the then Circuit Court of the United States for the Eastern District of Oklahoma against E. B. Henshaw and others, which was entitled, "In Equity, No. 327." This action by the government was in a general way for the purpose of canceling a large number of conveyances by members of the Five Civilized Tribes of lands allotted to them; it being the theory of the government that the lands involved were restricted against alienation by the acts of Congress, and that the conveyances attacked had been executed in violation of said restrictions. The deed by Elias Wesley, Austin McGee, Jesse McGee, and Lizzie Thomas to Ledbetter and McClatchy was one of the transactions involved in the government's suit. A demurrer was filed to the government's complaint by Ledbetter, McClatchy et al., defendants, challenging the jurisdiction of the court, alleging that the bill failed to show such interest in the complainant as would entitle it to maintain the suit, that complainant had no capacity to maintain the same, that it was wholly devoid of equity, that there was a defect of parties and misjoinder, that the bill was multifarious, and that it did not disclose such a state of facts as would entitle complainant to recover. September 13, 1909, the United States Circuit Court for the Eastern District of Oklahoma sustained said demurrer. United States v. Allen et al., 171 F. 907. That court entered a decree as follows:

"On this 13th day of September, 1909, on consideration of the demurrers to this bill filed by the various defendants hereto, which were heretofore argued and submitted and by the court taken under advisement, the court now finds that the complainant has not such an interest in the matters involved in this cause as entitled it to maintain this action; that the various allottees and patentees of the lands involved in this action are necessary parties thereto, and that there is, therefore, a defect of parties; and that the bill is multifarious. It is the judgment of the court that for the foregoing reasons the demurrers should be sustained. It is therefore ordered that the demurrers herein, now being considered, be sustained, and the bill dismissed, at the complainant's costs."

An appeal was taken to this court, where the action of the trial court was reversed, and the case was remanded, with directions to proceed in accordance with the views expressed by this court. United States v. Allen et al., 179 F. 13. Appeal was taken to the Supreme Court of the United States by some of the parties interested to test the correctness of the decision of this court. That court grouped in a number of decisions the questions as to the various tribes — Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820, dealing with the conveyances of allotted lands made by members of the Cherokee Nation; Mullen v. United States, 224 U. S. 448, 32 S. Ct. 494, 56 L. Ed. 834, with the questions as to conveyances by the Choctaw Indians; Goat v. United States, 224 U. S. 458, 32 S. Ct. 544, 56 L. Ed. 841, with questions as to the Seminole Indians.

In the Mullen Case the Supreme Court, after reviewing the treaties and statutes with regard to the allotment of land to the Choctaws and the restrictions of alienation, announced its conclusion as follows: "We are therefore of the opinion that the bill is without equity as against the appellants for the reason that the conveyances were not executed in violation of any restrictions imposed by Congress, and that the demurrer should have been sustained upon this ground. It follows that, with respect to the appellants, the decree of the Circuit Court of Appeals must be reversed and that of the Circuit Court affirmed." The government's case remained in the Circuit or District Court after the reversal by this court, without any action thereon until after the decision in the Mullen Case. Some months thereafter the District Court of the United States for the Eastern District of Oklahoma, successor to the Circuit Court, sustained the demurrer and entered an order of dismissal as follows:

"On this, the 9th day of December 1912, came on to be heard the demurrer of the defendants, W. A. Ledbetter, J. F. McClatchy, W. B. Jansen, L. Fountain, W. L. Reed, Arthur Sinclair, Chas. F. Burden, C. S. Maupin, George Terry, H. R. Adams, Chas. P. Lynch, V. Bronough, Betsy Folota, James and Eliza Alexander, Albert Click, The Roff Development Co., W. E. Caldwell, D. B. Lester, C. M. Joiner and J. B. Moore, W. H. Rickey, C. J. Ralston, and J. W. Hoffman to the bill of complaint herein, and after having heard the same, and being fully advised, it is considered, adjudged, and decreed that the demurrer be sustained and the bill dismissed as to said defendants at pages listed above."

On March 5, 1926, Jesse McGee, Sallie McGee, Quitman Jones, Preman Jones, Levi Jones, and Lucy Jones, full-blood Indians, commenced an action in ejectment in the District Court of the United States for the Eastern District of Oklahoma against the Continental Supply Company of St. Louis, Mo., for the purpose of recovering lot 14 of block 23 in the town of Wilson, Oklahoma, being a part of the southeast quarter of section 32, township 4 south, range 2 west, Carter county, Oklahoma. Plaintiffs in that action were represented by their attorneys, J. D. Lydick, Charles E. McPherren, Irvin L. Wilson, and M. E. Jordan. On April 1, 1926, the same plaintiffs, represented by the same attorneys, commenced an action in ejectment in the district court of Carter county, Oklahoma, against several hundred defendants, for the purpose of recovering all the southeast quarter of section 32, township 4 south, range 2 west, Carter county, Oklahoma, with the exception of said lot 14 of block 23 in the town of Wilson, which town had grown up and developed upon said land; this land being part of the allotment to Betty Wesley.

March 10, 1926, Elias Wesley, Jesse McGee, Sallie McGee, and Quitman Jones et al., made a deed of said southeast quarter of section 32, township 4 south, range 2 west, to Charles E. McPherren, one of the parties here, and also counsel, for the sum of $500 and other good and valuable consideration. Some arrangement as to the consideration, approved by the county judge of Pushmataha county, Oklahoma, was made with relation to McPherren's interest in the real estate for the use and benefit of Lydick, McPherren, and Wilson.

The present action was commenced April 7, 1926, in the United States District Court for the Eastern District of Oklahoma, by W. A. Ledbetter et al., complainants, against J. D. Lydick, Charles E. McPherren, Irvin L. Wilson et al. (a supplemental bill also being later filed, viz. April 15, 1926), seeking injunctive relief against the prosecution of the two ejectment actions before referred to. An answer and cross-bill were filed by defendants, and the United States intervened and filed plea on behalf of the heirs of Selin Jones. The United States District Court held the action could be maintained as ancillary to equity cause No. 327, before referred to, styled "United States of America, Complainant, v. E. B. Henshaw et al., Defendants," which had theretofore been determined upon demurrer in the District Court of the United States for the Eastern District of Oklahoma, the general theory of the action brought April 7, 1926, being that in said equity cause No. 327 the United States represented all the heirs of Betty Wesley and all members of the Choctaw Tribe, and not merely those who signed the deed; that the purpose of the action of the government was the cancellation of the deed to Ledbetter and McClatchy of December 18, 1903, and to oust Ledbetter and McClatchy and their grantees from...