Mudd v. Perry
| Decision Date | 21 February 1928 |
| Docket Number | No. 7637.,7637. |
| Parties | MUDD v. PERRY et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
O. L. Rider, of Vinita, Okl. (John Barry and W. R. Bleakmore, both of Oklahoma City, Okl., on the brief), for appellant.
N. E. McNeill and Charles B. Rogers, both of Tulsa, Okl., for appellees.
Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.
Appellant and appellees were plaintiff and defendants, respectively, in the trial court, and will be so styled in this opinion.
Plaintiff filed a bill in equity for the removal of a cloud upon the title to certain real estate claimed by him in the state of Oklahoma. For special relief pending the suit, he asked that the defendants be restrained from asserting title to said property.
There are no facts in controversy. When the issues were joined upon motion of the defendants, the trial court entered a decree upon the pleadings for them. The pleadings disclose that plaintiff belonged to the Osage Tribe of Indians, and that he was a brother of Lucy Lotson Perry, also a member of said tribe. Lucy Lotson Perry died about May 30, 1922, without issue and the only surviving blood relatives of said defendant were plaintiff and a niece, who was the daughter of a deceased brother.
The law of the state of Oklahoma controls the descent and distribution of the estates of deceased Osage Indians. Moreover, the Congress had provided "that the property of deceased * * * allottees of the Osage Tribe, * * * shall in probate matters, be subject to the jurisdiction of the county courts of the state of Oklahoma." 37 Stat. 86.
The plaintiff and his niece, Maude Lee Mudd, on March 23, 1923, filed their petition in the county court of Craig county, Okl., wherein they prayed for distribution of the estate to them as the "sole legal heirs of the said decedent." Each claimed an undivided one-half interest therein.
On April 19, 1923, the defendant Samuel A. Perry appeared in court with a cross-petition, wherein he asked for distribution of an undivided one-half of said estate to him, upon the ground that he was the common-law husband of the deceased.
The county court disallowed the claim of Perry, whereupon he prosecuted an appeal to the district court. In the district court, Perry secured a reversal of the judgment of the county court, and obtained a recognition of his rights as the common-law husband of the said Lucy Lotson Perry. From the judgment of the district court, plaintiff and his niece prosecuted an appeal to the Supreme Court of Oklahoma. 108 Okl. 168, 235 P. 479. After the appeal was lodged in the Supreme Court, Maude Lee Mudd, the niece, procured an order from the court dismissing her appeal.
Upon a review of the case, the judgment of the district court was affirmed. The contention of the defendant Perry being sustained, he was awarded an undivided one-half interest in the estate of the decedent, including the real estate here involved. The court, however, awarded to plaintiff and his niece each an undivided one-fourth interest. The county court obeyed the mandate of the Supreme Court, and made distribution in accordance therewith.
The plaintiff has accepted and receipted for the part awarded to him by the final judgment of the Supreme Court. He still asserts, however, that instead of a one-fourth interest he is entitled to a one-half interest. The primary and main contention in this court is that the district court and Supreme Court never acquired jurisdiction of said cause on appeal, and in consequence the final judgment is a nullity and beclouds plaintiff's title.
The defendant Charles B. Rogers is an assignee of an interest in the estate from the defendant Perry.
The defendants challenge the jurisdiction of the federal court, but, even conceding such jurisdiction, they maintain the validity of the final state court judgment. These contentions will be noted and discussed.
1. At the threshold, it becomes the duty of the court to determine the question of jurisdiction. Concededly, there was not a diversity of citizenship. Plaintiff, however, asserts a federal question. The construction and application of section 3 of the Act of Congress, approved April 18, 1912 (37 Stat. 86), relating to the Osage Tribe of Indians, is brought in question. By this provision the county courts of the state of Oklahoma were granted jurisdiction "in probate matters" over the estates of deceased allottees of the Osage Tribe of Indians. In construing and applying the act, plaintiff contends the county courts became mere ministerial federal agents, and that their decisions became conclusive and final. This construction and application is challenged by the defendants. Therefore the decision of the case depends upon the construction and application of said statute. It becomes in that view a case arising under the laws of the United States (South Covington Ry. Co. v. Newport, 259 U. S. 97, 42 S. Ct. 418, 66 L. Ed. 842), and confers jurisdiction upon the federal court.
2. The defendants asserted in the trial court that the plaintiff had no right to maintain in the federal court an action to quiet title to land not in his possession. Such a right, it was admitted, is vouchsafed to the plaintiff under the laws of Oklahoma. An examination of the pleadings shows that it is not in fact an action to quiet title. This is conceded by the appellees. Moreover, the objection urged in the trial court is not pressed here, though noticed and discussed in the briefs. Both parties are out of possession as it appears from the pleadings, and the relief sought is injunctive, involving, among other things, the cancellation of the judgment affirmed by the Supreme Court of Oklahoma.
The rule of the federal court against the maintenance of an action to quiet title or for possession of real estate by a complainant out of possession against a defendant in possession is not applicable nor is it invoked.
The proceeding in the instant case, as stated, is not to quiet title or obtain possession, but...
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