Mullen v. Short

• Decision Date: 10 June 1913
• Citation: Mullen v. Short, 38 Okla. 333, 133 P. 230, 1913 OK 386 (Okla. 1913)
• Parties: MULLEN v. SHORT.
• Court: Oklahoma Supreme Court

133 P. 230

38 Okla. 333, 1913 OK 386

MULLEN v. SHORT.

Supreme Court of Oklahoma

June 10, 1913

Syllabus by the Court.

The county court of the county of which a deceased allottee of the Five Civilized Tribes was a resident at the time of his death is authorized, by section 9 of the act of Congress of May 27, 1908 (35 Stat. 315, c. 199), to approve conveyances of any interest of any full-blood Indian heir to or in lands inherited from such deceased allottee, whether a regular proceeding for the settlement of the estate of such decedent has been instituted or not.

The census card issued by the Dawes Commission showed L. T., a member of the Five Civilized Tribes, to be the father of S T., a deceased allottee. Held, that evidence tending to establish that S. T. was an illegitimate child, introduced for the purpose of changing the line of descent from the putative father to the mother was competent.

Appeal from District Court, Grady County; Frank M. Bailey, Judge.

Action by E. F. Short against J. S. Mullen. Judgment for plaintiff and defendant brings error. Affirmed.

H. A Ledbetter, of Ardmore, for plaintiff in error.

Adolphus Clark and F. E. Riddle, both of Chickasha, for defendant in error.

S. T Bledsoe, of Oklahoma City, amicus curiæ.

KANE J.

This was a statutory action for the recovery of a tract of land, situated in the Chickasaw Nation, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to the court the issues were determined in favor of the plaintiff, and judgment entered accordingly, to reverse which this proceeding in error was commenced.

The petition of the plaintiff is in statutory form. The answer of the defendant is, first, a general denial, and, second, that the land in controversy was allotted to Sophia Tushka, who subsequent to the allotment thereof died, leaving succeeding her her father, Levi Tushka, and her brothers, Sylvester Tonihka and Silas Tushka; that he purchased the land from Levi Tushka, and also procured a conveyance from Sylvester Tonihka and Silas Tushka, the next of kin on the paternal side, and therefore, if the court found the land to be an estate of inheritance, he was entitled thereto, by reason of the deed from Levi Tushka, the father of Sophia Tushka, and in the event the land was found to be a new acquisition, title passed to him by reason of the conveyances from Sylvester Tonihka and Silas Tushka. He further alleged that the census card issued by the Dawes Commission shows that Sophia Tushka was the child of Esian Nowahima and Levi Tushka, and that this constituted a conclusive adjudication as to the fact as to who was the father and mother of Sophia Tushka. The reply of the plaintiff was a denial of the legal effect of the census card issued by the Dawes Commission, and allegations to the effect that Sophia Tushka, the allottee, was the illegitimate child of Esian Nowahima, the mother of Sophia Tushka, and that the land passed to the plaintiff by conveyance from Esian Nowahima, who inherited it upon the death of her illegitimate daughter, Sophia Tushka. Assignments of error relied upon by counsel for plaintiff in error, as stated in his brief, are: "(1) That before the county court of McCurtain county had jurisdiction to approve the conveyances made to defendant in error under the act of Congress of May 27, 1908, section 9, there must have been an administration of the estate. * * * (2) That as the census card issued by the Dawes Commission shows Levi Tushka to be the father of Sophia Tushka, it ought to be considered final upon that point."

The first question raised involves the construction of section 9 of the act of Congress of May 27, 1908, which provides: "That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of such deceased allottee." Counsel contends that under the above section the court authorized to approve conveyances of inherited lands by full-blood Indian heirs is the court which has acquired jurisdiction over the settlement of the estate of the deceased allottee, in a proceeding commenced for that purpose in the county of which the decedent was a resident at the time of his death, in accordance with section 5142, Comp. Laws Okl. 1909, which provides: "Wills must be proved, and letters testamentary or of administration granted: (1) In the county of which the decedent was a resident at the time of his death, in whatever place he may have died."

It seems to be admitted that Sophia Tushka, the allottee herein, was a resident of McCurtain county at the time of her death, and that the county court of that county approved the deed executed by Esian Nowahima, and it is reasonably apparent from the record that at the time of the approval no administration proceedings for the settlement of the estate of the decedent were pending, and that the matter of the approval of the deed was a separate and independent proceeding.

It is our opinion that the actual pendency of an administration proceeding is not necessary to confer power upon the county courts of the state to approve conveyances executed by full-blood heirs of Indian allottees to their inherited lands, where it is made to appear to the court that the ancestor from whom the land was inherited resided in the county wherein the application for approval is made at the time of his death. At the time section 9, supra, became effective, there were various constitutional and statutory provisions relating to the...