Neal v. Travelers Ins. Co.

• Decision Date: 18 June 1940
• Docket Number: 27264.
• Citation: 106 P.2d 811,188 Okla. 131,1940 OK 314
• Parties: NEAL v. TRAVELERS INS. CO.
• Court: Oklahoma Supreme Court

106 P.2d 811

188 Okla. 131, 1940 OK 314

NEAL v. TRAVELERS INS. CO.

No. 27264.

Supreme Court of Oklahoma

June 18, 1940

Rehearing Denied Sept. 10, 1940.

Application for Leave to File Second Petition for Rehearing Denied Oct 29, 1940.

Syllabus by the Court.

1. A district court of this State is without judicial power to enter a valid judgment foreclosing a real estate mortgage upon the inherited, allotted restricted lands of a full-blood citizen of the Choctaw Tribe of Indians, which mortgage was not approved by the county court as required by section 9 Act of Congress of May 27, 1908, 35 Stat. 312, 315.

2. The fact that the foreclosure proceedings, void for want of judicial power for the reasons stated in syllabus 1, supra fail to reflect upon the face of the judgment roll the quantum of Indian blood of a full-blood heir and fail to show whether or not the mortgage was approved as required by the Act of Congress, does not make the decree therein rendered immune from successful collateral attack.

Appeal from District Court, Pittsburg County; Ben W. Belew, Judge.

Action by Minnie Neal against the Travelers Insurance Company and others to recover possession of and to quiet title to the allotment of the plaintiff's deceased child, of whom the plaintiff was the only heir. From a judgment sustaining a demurrer to the plaintiff's evidence, the plaintiff appeals.

Judgment reversed, and cause remanded with directions.

DAVISON and GIBSON, JJ., dissenting.

Tom G. Haile, of McAlester, for plaintiff in error.

Eugene S. Wells, of Oklahoma City, and Allen Wright, of McAlester, for defendants in error.

Cornish & Cornish, of McAlester, amici curiae.

OSBORN Justice.

This action was commenced in the district court of Pittsburg county by Minnie Neal, a full-blood Choctaw Indian, against the Travelers Insurance Company and others to recover possession and to quiet title to the allotment of her deceased child of whom she is the only heir. A demurrer was sustained to her evidence and she has appealed. The parties will be referred to as they appeared in the trial court.

There is no dispute as to the facts. Calvin Hicks Neal, a minor half-blood Choctaw Indian, died in 1901 without issue. Subsequent to his death there was selected for him and allotted to his heirs the land involved in this action. Under the laws of descent and distribution of the State of Arkansas, then in force, Minnie Neal, his mother, a full-blood Choctaw Indian, plaintiff herein, was his sole heir. On September 26, 1923, plaintiff and her husband executed a real estate mortgage to defendant. On April 16, 1931, in a foreclosure proceeding in the district court of Pittsburg county, a judgment was entered foreclosing said mortgage. On December 23, 1931, a sheriff's deed was executed and delivered to the purchaser, defendant herein, and duly recorded. On April 5, 1935, plaintiff commenced this action to quiet title and determine heirs of Calvin Hicks Neal, deceased. On July 23, 1935, defendant filed its answer to the plaintiff's petition asserting its title by reason of the mortgage foreclosure proceedings and the sheriff's deed, and specifically pleaded the judgment of foreclosure as res judicata of the issues presented herein.

The first contention of plaintiff in error is stated as follows: "Did the trial court have jurisdiction to declare the unapproved mortgage of Minnie Neal, a full-blood Indian, valid? Would the foreclosure proceedings be subject to collateral attack?"

Section 9 of the Act of May 27, 1908, 35 Stat. 312, 315, in part, provides: "*** 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 said deceased allottee: ***."

The record before us relating to approval or lack of approval of said mortgage is substantially as follows: It is stipulated that the lands in controversy were allotted to Calvin Hicks Neal, a half-blood Indian, whose mother was Minnie Neal, enrolled as a full-blood, her husband, W. A. Neal, not being enrolled; that Minnie Neal made two deeds to her husband prior to the mortgage in controversy and then executed said mortgage to the Travelers Insurance Company, and that no order of the county court or of any court approving either of said deeds or said mortgage is of record in the office of the county clerk of Pittsburg county. Both Minnie Neal and W. A. Neal testified that none of said instruments were approved, to their knowledge, and that they never made application to have same approved and never appeared before any county court for the purpose of having the same approved. Floyd Neal testified that with an attorney he checked the records in the office of the court clerk of Atoka county where proceedings were pending on the estate of Calvin Hicks Neal, deceased, and that no order approving either the deeds or the mortgage appeared of record; that he learned that some of the general records of the court and county had been destroyed by fire. All of this evidence was introduced over the objection of defendant in error and no affirmative evidence was introduced by defendant in error to show the approval of any of said instruments. Indeed, it is not affirmatively contended that any of said instruments were approved but defendant in error contends that by reason of the judgment of foreclosure above mentioned, evidence aliunde the record constituting the judgment roll is inadmissible to show the lack of approval of said instruments, the presumption being from the rendition of judgment in the foreclosure case that the court found all the essentials to maintain its jurisdiction to render the judgment relied upon. The court in rendering judgment herein recited the following: "*** that this action was commenced more than three years subsequent to the rendition of said judgment and is a collateral attack thereon. The court further finds that the judgment roll supporting said judgment as introduced in evidence is regular upon its face upholding the matters and things decided therein and that no extrinsic evidence can be considered by the court in support of the petition of the plaintiff in attacking said judgment and that same has become res adjudicata as to the matters therein decided, among which is the validity of the mortgage therein foreclosed."

In the case of Brink v. Canfield, 78 Okl. 189, 187 P. 223, 226, certiorari denied, 253 U.S. 493, 40 S.Ct. 586, 64 L.Ed. 1029, it was sought to set up a former adjudication against a deceased full-blood Indian heir during his lifetime as a bar to a claim of inheritance by his full-blood heirs of lands allotted to a full-blood member of the Creek Tribe of Indians. In that case there was involved only the right of Lusanna Brink, mother of one Wallace Jack, deceased, to recover a portion of certain lands which had been allotted to Susie Crow, deceased, half-sister of Wallace Jack. It was contended that Wallace Jack during his lifetime had conveyed his portion of the inheritance. It appears that on January 24, 1913, Wallace Jack had instituted a suit against some of the defendants in error, in ejectment, to quiet title, and for damages for unlawful detention of the premises. On February 17, 1913, Jack filed in the suit his dismissal thereof with prejudice, and executed a deed of conveyance to one of the defendants. On May 3, 1913, he filed a motion to vacate his dismissal and to reinstate his cause of action on the ground that he was intoxicated at the time of the filing of the dismissal. On May 31, 1913, a motion to set aside his dismissal and to reinstate his cause of action was overruled and no appeal therefrom was ever prosecuted. The dismissal of the suit and the order overruling the application to reinstate were set up in bar of the claim of the heir, Lusanna Brink. In determining the legal effect of the judgment it was said: "*** At the time Jack's suit was instituted, there was but one way in which he could alienate his title to the lands which he had inherited, and that was by a deed of conveyance, approved by the court having jurisdiction of the settlement of the estate of the deceased allottee. 35 Stat. at. L. 312, c. 199. While the restrictions had been removed from the lands in the sense that Jack had the power of alienation, it could only be consummated and made effectual when approved as pointed out in the foregoing Act of Congress. Without the making of a deed, and its approval, no judgment could be rendered, regardless of the character of the suit or the issues joined, whereby Jack's title could be divested, he being a full-blood Creek Indian, and the lands being lands allotted to his kinsman, through whom, upon the death of succeeding heirs, his title was derived. Not could the judgment be given effect in a subsequent legal proceeding, either as an estoppel or as constituting a former adjudication of his title. In other words, in so far as the title to such lands was concerned the judgment was a nullity, because of a want of power in the court to make it. Any other view would mean the circumvention of the statute prescribing the manner in which such lands may be alienated, and make nugatory the acts of Congress prescribing the manner and terms of conveyance of allotted lands inherited by full-blood Indians."

In the case of Tidal Oil Co. et al. v. Flanagan, 87 Okl. 231, 209 P. 729, writ of error dismissed, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382, 383, it was held:

"A conveyance of allotted restricted Indian lands made in violation of a federal statute authorizing the alienation of such lands is against public policy and absolutely void and in no manner can any right, title, or interest in such lands be acquired under such a conveyance.

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