Lewis v. Moore

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: PHILLIPS, , and HUXMAN and PICKETT, Circuit
• Citation: Lewis v. Moore, 199 F.2d 745 (10th Cir. 1952)
• Decision Date: 22 October 1952
• Docket Number: No. 4480.,4480.
• Parties: LEWIS et al. v. MOORE.

199 F.2d 745 (1952)

LEWIS et al. v. MOORE.

No. 4480.

United States Court of Appeals Tenth Circuit.

October 22, 1952.

W. F. Semple, Tulsa, Okl., for appellants.

Merrick A. Whipple, Tulsa, Okl., for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

Sallie Beaver Moore brought this action against Lewis, Prather, and J. M. Frates, Jr., and certain other defendants whose interests are not involved in this appeal, to quiet her title to Lots 5, 6, 7 and 8¹ of Mingo Valley Subdivision No. 1, Tulsa County, Oklahoma. The lots were a part of a 57½ acre tract of land.

On March 10, 1928, the title to the 57½ acre tract was vested in Cyrus S. Avery and Essie M. Avery, subject to a mortgage running to the Exchange Trust Company of Tulsa, Oklahoma, for the benefit of Mollie Davis, nee Jones. On that date the Averys, with the consent of the Exchange Trust Company as trustee, caused a plat and deed of dedication to be made whereby the lots were made a part of Mingo Valley Subdivision No. 1.

The trustee instituted an action to foreclose the mortgage against the Averys and thereafter, on August 16, 1937, a sheriff's deed was issued conveying the 57½ acre tract to Mollie Davis, nee Jones. That deed contained a clause restricting alienation in the terms found in what is commonly called the Carney-Lacher form of deed.² That deed was recorded August 24, 1937. On September 27, 1939, Davis conveyed the 57½ acre tract by deed to John Beaver. That deed contained the Carney-Lacher form of deed provision restricting alienation by the Indian owner and was approved by the Secretary of the Interior. On May 24, 1943, John Beaver conveyed the 57½ acre tract to the United States in trust for Sallie Beaver Moore. On January 9, 1951, the United States conveyed the 57½ acre tract to Sallie Beaver Moore, by fee simple patent which contained no restrictions against alienation.

In the year 1929 and annually thereafter, except during the period of time when Tulsa County claimed title to the lots by virtue of a resale tax deed dated June 7, 1938, referred to hereinafter, the taxing authorities of Tulsa County levied and assessed ad valorem taxes against the lots as part of a platted subdivision in such county. During the period from 1929 to 1943, inclusive, the taxing authorities of Tulsa County assessed and levied ad valorem taxes against the 57½ acre tract, embracing the lots, and the United States, acting in behalf of Mollie Davis, nee Jones, and John Beaver, in due course, paid all of the taxes so assessed and levied. During the years subsequent to 1943, no assessment of ad valorem tax was levied upon the 57½ acre tract because of the provisions of the Act of June 26, 1936, 49 Stat. 1967, 25 U.S.C.A. § 501 et seq.

The taxes levied and assessed against the lots as part of a platted subdivision were not paid and, based upon such assessment, they were sold to Tulsa County at a tax resale held by the County Treasurer of Tulsa County in April, 1938, and on June 7, 1938, a resale tax deed was issued to Tulsa County purporting to convey the lots to such county.

On September 30, 1940, the Board of County Commissioners of Tulsa County executed, acknowledged, and delivered a county deed purporting to convey the lots to Frates, Jr. That deed was recorded January 29, 1941.

On May 23, 1941, Frates, Jr. executed a deed of the lots to the Chandler-Frates Company, which was recorded May 26, 1941. On April 20, 1942, the Chandler-Frates Company executed a deed of the lots to O. Dean Lewis. On May 26, 1942, Lewis executed a deed of the lots to Hugh M. Prather. The last two mentioned deeds were recorded June 2, 1942.

As a defense to the action the defendants set up the Oklahoma Statute of Limitations.³

Section 2 of the Act of Congress of April 12, 1926, 44 Stat. 239, provided that:

"The statutes of limitations of the State of Oklahoma" should "be applicable to and * * * have full force and effect against all restricted Indians of the Five Civilized Tribes, * * * the heirs or grantees of any such Indians, and * * * 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" might "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".

Section 2 of the Act of June 20, 1936, Public Law 716 of the 74th Congress, 49 Stat. 1542, 25 U.S.C.A. § 412a, reads as follows:

"Sec. 2. All lands the title to which is now held by an Indian subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased out of trust or restricted funds of said Indian, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress."

Section 1 of the Act of June 26, 1936 (The Oklahoma Welfare Act), Public Law No. 816 of the 74th Congress, 49 Stat. 1967, authorized the Secretary of the Interior in his discretion to acquire by purchase, relinquishment, gift, exchange or assignment any interest in lands, including trust or otherwise restricted lands in Indian ownership, taking the title thereto in the name of the United States in trust for the tribe, band, group, or individual Indian for whose benefit such lands were acquired. It provided that such lands should be agricultural and grazing lands of good character and quality and should be in proportion to the respective needs of the particular Indian or Indians for whom such purchases should be made, and that while the title thereto was held by the United States, such lands should be free from any and all taxes, except an Oklahoma gross production tax upon oil and gas produced from such lands.

The Act of May 19, 1937, Public Law No. 96 of the 75th Congress, 50 Stat. 188, 25 U.S.C.A. § 412a, specifically amended Section 2 of Public Law No. 716 of the 74th Congress to read as follows:

"Sec. 2. All homesteads, heretofore purchased out of the trust or restricted funds of individual Indians, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress: Provided, That the title to such homesteads shall be held subject to restrictions against alienation or encumbrance except with the approval of the Secretary of the Interior: And provided further, That the Indian owner or owners shall select, with the approval of the Secretary of the Interior, either the agricultural and grazing lands, not exceeding a total of one hundred and sixty acres, or the village, town, or city property, not exceeding in cost $5,000, to be designated as a homestead."

The trial court held that Public Law 816, supra, was not amended by Public Law 96, supra; that the 57½ acre tract of land was exempt from taxation during the period the title thereto was held in trust by the United States for the benefit of Sallie Beaver Moore; that the provisions of Public Law 96, supra, requiring a selection by the Indian owner or owners was inapplicable to the 57½ acre tract of land; that the duplicate assessment of the lots was unlawful; that the payment of the taxes assessed against the 57½ acre tract of land, including the lots, released and discharged the lots from all liens and claims for taxes; that the resale of the lots and the resale tax deed were void; that the conveyances to persons who claimed title through such resale tax deed were void; and that the time during which the title to the 57½ acre tract was held in trust by the United States for the benefit of Sallie Beaver Moore should not be included in computing the period of limitation under the Oklahoma Statute of Limitations, and hence the period of limitation had not run against Sallie Beaver Moore. This is an appeal from a judgment in favor of Sallie Beaver Moore.

It seems clear to us that Public Law 716 and Public Law 816 deal with different subject matters. The former applies to lands held by an Indian, subject to restrictions against alienation, theretofore purchased out of trust or restricted funds of such Indian, and the latter applies to lands acquired by the Secretary of the Interior, the title to which is taken in the name of the United States in trust for the benefit of a tribe, band, group or individual Indian. The acquisition of the lots by the United States through the conveyance by John Beaver to the United States in trust for Sallie Beaver Moore was pursuant to Public Law 816. We think it equally clear that Public Law 96 amended Public Law 716 and had no application to Public Law 816. This, because the amendatory act specifically amends Section 2 of Public Law 716 and deals with a subject matter different from that dealt with by Public Law 816.

The period of limitation of the Oklahoma statute did not run in favor of the defendants below unless the time during which such lots were held in trust by the United States for the benefit of Sallie Beaver Moore...