Maroney v. Tannehill

Decision Date18 October 1923
Docket NumberCase Number: 10233
Citation1923 OK 799,90 Okla. 224,215 P. 938
PartiesMARONEY et al. v. TANNEHILL et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Judgment--Definition and Requisites--Findings and Opinion.

Under sections 5123 and 5143, Rev. Laws 1910, a judgment must be definite and certain, comprehending clearly the relief sought and granted, and the final determination of the rights of the parties to the action. The finding and opinion of the court are never the judgment of the court, but are only expressions as to what the court considers its judgment should be.

2. Clerks of Courts--Duties and Powers--Entry of Judgment--Alteration.

The functions of the clerk of the court are purely ministerial, and he only has power to enter upon the judgment docket of the court the sentence of the law as declared by a duly constituted judge, and has no power to change, add to, or take away therefrom.

3. Appeal and Error -- Review -- Presumption of Regularity of Court Proceedings.

This court will always indulge every reasonable intendment if favor of the regularity of the proceedings of nisi prius courts, and will uphold them if it may be done on any reasonable hypothesis.

4. Judgment--Time for Rendition--Effect of Delay.

The fact that the trial court takes a case under advisement for a period of nearly 18 months does not invalidate its judgment, neither does it militate against it, and no notice is necessary as to its entry.

5. Indians--Allotments--Descent and Distribution.

Where a minor Cherokee Indian by blood died seised of an allotment of the lands of the Cherokee Nation, unmarried and without issue, and left surviving her father, who was a white man and not a member of the tribe, her mother, who was a Cherokee Indian by blood and an allottee of the nation, and three brothers, the allotment of the deceased was not a new acquisition, but was an estate ancestral, and ascended to her mother under Mansfield's Dig., c. 49, of the Laws of Ark., put in force in the Indian Territory by act of Congress on July 1, 1902, this being the side of the house by which the estate came.

6. Same.

Where a mother dies in February, 1914, seised of an allotment of Indian land inherited from her deceased daughter and leaves surviving her husband and eight children, one-third of the said allotment descends to her husband, and the remainder to her children by virtue of subsection 1 of section 8418, Rev. Laws 1910.

7. Same.

Where minor Cherokee Indian children died since February, 1914, seized of an undivided interest of an allotment of Indian land inherited from their mother, who is an enrolled Cherokee Indian by blood, and leave surviving them their father, who is a white man and not a member of the tribe, and brothers and sisters, held, that said allotment descends to the brothers and sisters under subsection 7 of section 8418, Rev. Laws 1910.

8. Same--Sale of Minor's Inherited Lands--Requisites.

Under act of Congress of April 26, 1906, inherited allotted lands of the Indian Tribes may be sold by Indian minors by blood of less degree than full blood to be joined in the sale with the adult heir by their guardian in a regular court proceeding had therefor.

9. Same--Failure of Title--After-Acquired Title.

Where the land of minors is sold in regular court proceedings by their guardian and the title fails and the minors subsequently acquire title from an independent source, it does not inure to the benefit of the purchaser.

10. Indians--Alienation of Allotments--Effect of Restrictions.

Any contract to convey, or any conveyance of Indian allotted lands the alienation of which is restricted, is void, and is not the subject of ratification, adoption, or approval when the restrictions on alienation are removed.

11. Judicial Sales--Title of Purchaser.

The doctrine of caveat emptor is now so modified in its application that the purchaser at a judicial sale is entitled to expect and receive a sound and marketable title to the property sold.

12. Jury--Right to Jury Trial--Ejectment.

An action in ejectment is an action at law, and it is error for the trial court to refuse to submit it to the jury under proper instructions.

13.--Guardian and Ward--Sale of Land--Failure of Title--Rights of Minors--Estoppel.

Where the land of minors was sold by guardian in regular court proceedings and the title fails, such minors are not estopped by section 1150, Rev. Laws 1910, from asserting title, but can only be required to tender back the purchase price, with interest, within one year from the removal of the disability of minority, to be offset by rents and profits for the use of the land. Such minors will also be liable to the purchaser for taxes paid and permanent improvement.

P. H. Maroney and J. G. Austin, for plaintiffs in error.

A. C. Towne and E. C. Fitzgerald, for defendants in error.

JOHNSON, J.

¶1 This is an action in ejectment from the district court of Ottawa county. Defendants in error, plaintiffs below, recovered judgment, and plaintiffs in error, defendants below, have appealed to this court. Minnie Tannehill was a Cherokee Indian by blood of less degree than full blood, a citizen and allottee of the Cherokee Nation, and there was set apart to her an allotment of the lands of said nation, described as follows: E. 1/2 of the S.E. 1/4 of the N.E. 1-4; S.W. 1-4 of the S.E. 1-4; N.E. 1-4 of the N.E. 1-4 and the N.W. 1-4 of the S.E. 1-4 of section 35, T. 28 N., R. 22 east, Ottawa county, Okla. On the 27th day of October, 1902, Minnie Tannehill, at the age of two or three years, died, and left surviving her, her father, N. D. Tannehill, her mother, Lillie May Tannehill, and three brothers, Andrew P., Loyd, and Dewey Tannehill. The father was a white man and not a member of the tribe, while the mother was an Indian by blood, member of the tribe, a citizen of the nation, and on the allotment roll. N. D. Tannehill, the father, on the 30th day of November, 1906, being in possession of the allotment of his deceased daughter, Minnie Tannehill, which has been heretofore described and is now in question, entered into contract with plaintiffs in error to sell them his supposed life estate in said allotment, and that he would procure an order from the United States Court for the Northern District of the Indian Territory, authorizing him, as the guardian of his minor children, Andrew P., Loyd, and Dewey Tannehill, to sell plaintiffs in error the fee. On the 6th day of March, 1907, he conveyed to them by deed, his supposed life estate. On the 26th day of January, 1907, he procured from the court an order for the sale of what was supposed to be the fee-simple title. Appraisers were duly appointed to appraise the land, and filed their report on the 28th day of February, 1907. The land was sold to plaintiffs in error, and said sale was duly confirmed on March 7, 1907, and guardian executed deed therefor on the same day. The plaintiffs in error went into possession immediately, and, so far as the record shows, have remained in possession since. Subsequent to this sale there were born to N. D. Tannehill and his wife, Lillie May, five children, namely: Dolly May, Lillie Bell, Dewitt, Hazel, and Juanita. On the 15th day of February, 1914, Lillie May Tannehill, the mother, died, intestate and left surviving her, her husband, N. D. Tannehill, and her eight children, namely: Andrew P., Loyd, Dewey, Dollie May, Lillie Belle, Dewitt, Hazel, and Juanita. Subsequent to the death of the mother, and before bringing this action, two of the children, to wit Dolly May and Juanita, died intestate, unmarried, and without issue.

¶2 On the 11th day of February, 1916, defendants in error, by their guardian, brought this action; the substance of their petition being that their deceased sister, Minnie Tannehill, died intestate, unmarried, and without issue, and that she left surviving her, Lillie May Tannehill, her mother, as her sole heir, to whom her allotment ascended by virtue of chapter 49 of Mansfield's Digest of the Laws of Arkansas, which had been put in force by act of Congress of July 1, 1902, in the Indian Territory, and that upon the death of the mother she left surviving her, plaintiffs in this action as her sole heirs and said allotment descended to them in fee simple under the laws of succession of this state, and that they now own both the legal and equitable title. To this amended petition plaintiffs in error filed a general denial, a plea in estoppel having been filed to the original petition. The cause was tried to a jury on October 19, 1915, and at the close of the evidence, counsel for defendants in error moved the court for an instructed verdict, which was denied and the court, then directing his remarks to the jury, stated:

"The court, on his own motion, withdraws all questions in this case from the jury except the sole question of the rents and profits of this land in question, which the court tells the jury they may find and determine from the evidence. That is, should they find a verdict in this case in favor of the plaintiffs for the fair, reasonable cash rental value of one-half of the 80 acres of land in question--that is, an undivided one-half interest, the fair reasonable cash rental value of the one-half, undivided one-half of the 80 acres in question, should that be their verdict, they may assess such damages on that behalf as they may find the plaintiffs entitled to from the evidence."

¶3 The court then spoke to the jury with reference to the payment of taxes by the plaintiffs in error and said to the jury, in substance, that they should take the same into consideration in determining the question of rents and profits to be returned to defendants in error, and concluded his statement with these words:

"In other words, gentlemen, the court will reserve the questions of law, and the court has found under the law that these plaintiffs are entitled, and are the owners of an undivided half interest in and to this 80 acres of land along with these
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14 cases
  • Sullivan v. Buckhorn Ranch Partnership
    • United States
    • Oklahoma Supreme Court
    • 14 Junio 2005
    ... ... Acton, 1936 OK 827, ¶ 11, 63 P.2d 15 [Statute inapplicable to husband who was not a part of the challenged transaction.]; Moroney v. Tannehill, 1923 OK 799, ¶¶ 20-21, 215 P. 938 [Inapplicable to land of minors sold by guardian, if tender back purchase price with interest and permanent ... ...
  • Frensley v. Frensley
    • United States
    • Oklahoma Supreme Court
    • 12 Mayo 1936
  • Wyoming Building & Loan Ass'n v. Mills Const. Co.,
    • United States
    • Wyoming Supreme Court
    • 17 Julio 1928
    ... ... 336, 205 S.W. 323, and ... cases cited; Turrill v. Turrill, 7 Ont. Pr. 142; ... Craig v. Smith, 84 N.J. Eq. 593; 95 A. 194; See also ... Maroney v. Tannehill, 90 Okla. 224, 215 P. 938, 943 ... And if it does not apply in such case, it would, perhaps, ... make no difference [38 Wyo. 521] ... ...
  • Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41 (OK 6/14/2005), 100618
    • United States
    • Oklahoma Supreme Court
    • 14 Junio 2005
    ... ... Action , 1936 OK, ¶11, 63 P.2d 15 [Statute inapplicable to husband who was not a part of the challenged transaction.]; Moroney v. Tannehill , 1923 OK 799, ¶¶20-21, 215 P. 938 [Inapplicable to land of minors sold by guardian, if tender back purchase price with interest and permanent ... ...
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