Moffett v. Conley

• Decision Date: 25 July 1916
• Docket Number: 5825.
• Citation: 163 P. 118,63 Okla. 3
• Parties: MOFFETT ET AL. v. CONLEY ET AL.
• Court: Oklahoma Supreme Court

163 P. 118

63 Okla. 3

MOFFETT ET AL. v. CONLEY ET AL.

No. 5825.

Supreme Court of Oklahoma

July 25, 1916

Rehearing Denied Dec. 19, 1916.

Syllabus by the Court.

Lands allotted under section 11, Curtis Act June 28, 1898, c. 517, 30 Stat. 495, 497, in the name of a deceased Creek Indian and which allotment was confirmed by Original Creek Agreement March 1, 1901, c. 676, § 6, 31 Stat. 861, 863, as well as lands allotted in the name of said deceased Creek citizen pursuant to section 28 of said latter agreement, and where the patent thereto issued to "the heirs" of the deceased ancestor, such heirs took the title by inheritance and not by purchase.

At common law, "descent," or "hereditary succession," is the title whereby a man on the death of his ancestor acquires his estate by right of representation as his heir at law. An "heir" therefore, is he upon whom the law casts the estate immediately upon the death of the ancestor; and an estate, so descending to the heir, is in law called the "inheritance."

Section 22, Act April 26, 1906, c. 1876, 34 Stat. 137, providing "that the adult heirs of a deceased Indian of either of the Five Civilized Tribes, whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent"; but which further provides that all conveyances made by heirs who are full-blood Indians, are to be subject to the approval of the Secretary of the Interior, applies to conveyances by adult full-blood Creek heirs to an allotment selected and set apart in the right of a deceased ancestor after his death; the patent thereto being made to "the heirs" of such deceased Indian.

Congress, in pursuance of the long-established policy of the government, has the right to determine for itself when the guardianship which has been maintained of the Indians shall cease. It may, in the exercise of its constitutional authority, and while the guardianship relation over full-blood Indians continues, impose restrictions on full-blood Indian heirs, requiring that conveyances by them of inherited allotted lands be approved by the Secretary of the Interior; and this without regard to the fact that the land descended to the heirs free of all restrictions on alienation, except the disability of minority.

A conveyance by an adult full-blood Indian heir, of inherited allotted lands, made August 9, 1907, was, as to a portion of the lands attempted to be conveyed, approved by the Secretary of the Interior April 13, 1911, pursuant to the act of April 26, 1906. On September 25, 1908, said heir sold and conveyed said land to a third party, and on October 6, 1908, said sale and conveyance was approved by the county court having jurisdiction of the settlement of the estate of the deceased ancestor, as provided in section 9 of the act of May 27, 1908, c. 199, 35 Stat. 312. Held, that the rights of the second purchaser having intervened, and the first deed being without force until approved, the subsequent approval thereof was without effect upon the title of the grantee in the second deed.

The conveyances through which the intervenor claimed an equitable title to lands as against both the grantee named in the deeds, and his subsequent grantee, not being approved by the Secretary of the Interior except as to a part of the lands, and that after the rights of third parties had attached, the equitable rights of said intervener, being dependent thereon, must fall with the legal title.

Error from District Court, Tulsa County; L. M. Poe, Judge.

Action by Lilly Jackson through her guardian W. C. Horton, against J. S. Moffett and others, and Nellie B. Conley, as administratrix of the estate of H. T. Conley, deceased, intervened. From a judgment for the intervener, the defendants other than Mack McCoy, bring error. Reversed.

Hardy, J., dissenting.

C. C. Herndon and Martin, Bush & Moss, all of Tulsa, for plaintiffs in error.

Biddison & Campbell, of Tulsa, for defendants in error.

SHARP J.

Moses Coney, a full-blood adult Creek Indian, died intestate in the month of June, 1900, leaving him surviving, as his sole heirs at law, Jennie Hickory and Tom Coney, both of whom were full-blood Creek Indians. Subsequent to the death of Moses, and on different dates, there was allotted in his name the following described and numbered tracts of land: Tract No. 1, consisting of lots 1, 2, and 3 in section 13, township 19 north, range 12 east, allotted May 24, 1901; tract No. 2, consisting of the east 7.03 acres of lot 1, section 14, township 19 north, range 12 east, allotted February 25, 1904, and tract No. 3, consisting of the E. 1/2 of the N.E. 1/4 of section 27, township 19 north, range 13 east, allotted August 22, 1902. Patents to said lands thereafter issued to "the heirs of Moses Coney, deceased," by the Principal Chief of the Creek Nation. On the part of the plaintiffs in error, it is claimed that tract No. 1 was allotted to Moses Coney February 2, 1900, or some four months before his death. The record discloses that on the day last named, Moses Coney made formal application to allot said tract, though it does not appear that his selection was acted upon, or approved by the allotting commission, or that a certificate of selection issued until May 24, 1901. We will therefore consider, as the trial court found, that the entire allotment made in the name of Moses Coney was set apart in his name and right by the Commission to the Five Civilized Tribes, after his death.

As to tract No. 1, both the allotment and the death of Moses Coney occurred within the period during which section 11 of the Curtis Act (Act June 28, 1898, c. 517, 30 Stat. at L. 495, 497) was in force in the Creek Nation, by the terms of which the Commission was directed, upon the completion of the citizenship rolls and the survey of the lands of the tribe, to "proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof, as shown by said roll, giving to each, so far as possible, his fair and equal share thereof," with reservations not here involved. That part of the allotment, therefore, comes within the category of allotments confirmed by the Original Creek Agreement (Act March 1, 1901, c. 676, § 6, 31 Stat. at L. 861, 863). Tracts numbered 2 and 3 were allotted pursuant to section 28 of the Original Creek Agreement, which provided that if any enrolled citizen died on or subsequent to the 1st day of April, 1899, before receiving his allotment of land and distributive share of the funds of the tribe, "the lands and moneys to which it would be entitled, if living, shall descend to its heirs" and which act was amended by the Supplemental Agreement of June 30, 1902 (32 Stat. at L. 500, c. 1323), effective August 8, 1907, in respect to the law controlling its descent.

The title and claim of the intervener, Nellie B. Conley, as administratrix of the estate of her deceased husband, H. T. Conley, depends upon the validity of two certain deeds executed by Jennie Hickory, one of the heirs of Moses Coney, deceased, to John R. Skinner, which deeds are dated, respectively, July 24, 1907, and August 9, 1907. April 13, 1911, the Secretary of the Interior, pursuant to the act of April 26, 1906 (34 Stat. at L. 137), approved the conveyance of Jennie Hickory to tract No. 1. As to the remaining tracts, it does not appear that the approval of the Secretary of the Interior to any conveyance thereof was procured. Prior to the approval of the Secretary of the deed to tract No. 1, and on the 25th day of September, 1908, Jennie Hickory, joined by her husband, conveyed her interest in and to tract No. 1 to L. L. Lewis, which said sale and deed was, on the 6th day of October, 1908, approved by the county court of Tulsa county, as the deed of a full-blood Indian heir conveying inherited lands. July 21, 1909, Lewis conveyed his interest in said land to the plaintiff in error, Moffett, and it is under this latter chain of title that Moffett defended against the claim of the intervener.

We may here dismiss from consideration the land described as tract No. 2, as it does not appear that this tract was included in either of the deeds to Skinner. As the title of the administratrix, Nellie B. Conley, depends entirely upon the validity of the deeds of conveyance made to Skinner, and as she is seeking to impress a trust upon the lands as against both Skinner and Moffett, it was incumbent upon her, in asserting an equitable title to an interest in said lands, to first show that those against whom she sought relief acquired under their conveyances the legal title; for if the deed from Jennie Hickory to Skinner was made in contravention of a controlling statute, and hence void, neither Skinner nor his grantee, Moffett, would have any title against which a decree could be enforced, and this without regard to the nature of relations or character of the arrangement that may have existed between Conley and Skinner, in the latter's purchase of the land.

It is first urged by the defendant in error that Jennie Hickory acquired her title to the lands allotted in the name of her deceased father, not by inheritance, but by purchase, and for that reason section 22 of the act of April 26, 1906 (34 Stat. at L. 137), requiring that all conveyances to inherited lands by heirs who are full-blood Indians are subject to the approval of the Secretary of the Interior, has no application. We have already seen that section 28 of the Original Agreement authorized allotments of the character in question to be made, and that it was there provided that lands to which the enrolled citizen, if...