Morris v. Sweeney

• Court: Oklahoma Supreme Court
• Writing for the Court: HARDY, J.
• Citation: Morris v. Sweeney, 155 P. 537, 53 Okla. 163, 1915 OK 988 (Okla. 1915)
• Decision Date: 30 November 1915
• Docket Number: 4748.
• Parties: MORRIS ET AL. v. SWEENEY ET AL.

155 P. 537

53 Okla. 163, 1915 OK 988

MORRIS ET AL. v. SWEENEY ET AL.

No. 4748.

Supreme Court of Oklahoma

November 30, 1915

Rehearing Denied Feb. 29, 1916.

Syllabus by the Court.

The surviving husband of a deceased full-blood Mississippi Choctaw Indian woman who was duly enrolled, but who died before receiving patent to her allotment, is entitled to curtesy in said lands, under the facts stated in the opinion.

Under section 6388, Rev. Laws 1910, where the purchaser at a guardian's sale fails to comply with the terms of the sale, the court may, after notice to the purchaser, order a resale to be made of the property.

Where the court under the terms of section 6388, Rev. Laws 1910 sets aside an order of confirmation and orders a resale of the ward's property, all persons thereafter dealing with said property are charged with notice of such orders.

Error from District Court, Carter County; Stilwell H. Russell Judge.

Action by Robert Sweeney and others against E. E. Morris and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

Sigler & Howard, of Ardmore, for plaintiffs in error.

J. B Moore, of Ardmore, for defendants in error.

HARDY J.

Defendants in error, who will hereinafter be referred to as plaintiffs began this suit in the district court of Carter county against plaintiffs in error, hereinafter designated defendants, for the possession of certain lands described in the petition, same being the allotment of Arrah Ann Sweeney, a full-blood Choctaw Indian, and praying that plaintiffs' title to said premises be decreed valid and perfect, and that defendants be decreed to have no right, claim, or interest therein. Defendants answered, setting up their respective claims, to which reply was filed, and the case was tried to the court without a jury, resulting in judgment for plaintiffs, and defendants bring error.

It appears that Arrah Ann Sweeney was a duly enrolled full-blood Mississippi Choctaw Indian, who died before receiving patent to her allotment; that during the year 1908 defendant Williams undertook to convey the lands to defendant Fanning, receiving as part payment therefor $500 in cash, and notes for the deferred payments; that afterwards, on the 18th day of January, 1909, the defendant Robert Sweeney, husband of deceased, conveyed the lands by warranty deed to Luella Williams, which deed was approved by the county court of Stephens county on the 8th day of June, 1909.

This deed would convey whatever interest said Robert Sweeney at that time had in and to said lands. His wife having died before receiving her patent, and children having been born alive of the marriage, he would be entitled to an estate by curtesy in the allotment of his deceased wife. Johnson et al. v. Simpson, 40 Okl. 413, 139 P. 129; Armstrong v. Wood (C. C.) 195 F. 137; Pierce et al. v. Ellis et al., 152 P. 340.

In Cook v. Childs, 152 P. 88, it was held:

"The surviving widow of a deceased member of the Choctaw Tribe of Indians who died after his enrollment was finally approved, and before selecting his allotment, where an allotment was afterwards selected in his name by an administrator, and patent issued therefor under the provisions of section 22 of the act of Congress of July 1, 1902, commonly known as the 'Choctaw-Chickasaw Supplemental Agreement,' is entitled to dower in the lands selected by such administrator."

In that case the husband died after his enrollment was finally approved, and before selecting his allotment, and the wife was awarded dower in the lands selected by the administrator.

By parity of reasoning in the instant case, the enrollment of the deceased, Arrah Ann Sweeney, having been finally approved, her lands would descend in the same manner as it would have descended had patent issued during her lifetime; and her surviving husband, Robert Sweeney, would be entitled to curtesy therein, and his deed, being properly executed and approved, would be effectual to convey his interest. This question was not presented nor considered by the court in Criner v. Farve et al., 146 P. 10.

As to the interest of the minors, however, a different question is presented. It is shown that Williams, the purchaser at the guardian's sale, paid no part of the sum bid, and on July 20, 1909, upon application by the guardian, and upon proper notice and a showing that the purchase price had not been paid, the court entered an order setting aside the confirmation previously made, and ordered a resale of the property, which was never consummated. The authority of the court to enter...