Neustadt v. Coline Oil Co., Case Number: 17291

• Court: Supreme Court of Oklahoma
• Writing for the Court: TEEHEE, C.
• Citation: 284 P. 52,1929 OK 497,141 Okla. 113
• Parties: NEUSTADT et al. v. COLINE OIL CO. et al.
• Docket Number: Case Number: 17291
• Decision Date: 19 November 1929

1929 OK 497
284 P. 52
141 Okla. 113

NEUSTADT et al.
v.
COLINE OIL CO. et al.

Case Number: 17291

Supreme Court of Oklahoma

Decided: November 19, 1929

Syllabus

¶0 1. Judgment -- Res Judicata -- Effect of Judgment Against Plaintiff in Action to Cancel Conveyance of Inherited Indian Land.

Where an action is brought by the United States in its fiduciary capacity to cancel a conveyance of a Choctaw Indian deceased allotment as being violative of the federal restrictions upon the alienation of said land by the heir of the decedent allottee, and a demurrer to the sufficiency of the petition to state a cause of action is sustained, and the judgment rendered thereon becomes final, the same is a judgment upon the merits of the action and is res adjudicata only as to the party grantor in such conveyance and those in privity with him.

2. Evidence--Descent and Distribution--Proof of Pedigree by Testimony of One Intimately Acquainted With Family.

In an action to establish the ownership of property by succession, in which is involved the question of pedigree of the propositus, the testimony of a witness whose knowledge with reference to the subject was derived from an intimate acquaintance with the propositus and her family, is competent and admissible in evidence.

3. Same--Admissibility of Affidavit Relating to Pedigree Made by Deceased Person Prior to Execution of Deed Sought to Be Canceled.

In an action as is described in paragraph 2 of this syllabus, the declaration of a deceased person in reference to the pedigree of the propositus, contained in an affidavit antedating a deed of conveyance of the property involved, which deed is sought to be canceled by plaintiffs, though it is not shown that the declarant is related either by blood or marriage to the propositus, is rendered competent and admissible in evidence where it appears that the declarant is related to the plaintiff heirs.

4. Same--Admissibility of Recitals as to Pedigree Contained in Deed Which Had Been of Record 19 Years.

In an action as is described in paragraph 2 of this syllabus, where a deed of conveyance to defendants of the property involved, made by one related to the propositus, has been of record for a period of 19 years to the time of the filing of the action by plaintiffs seeking cancellation of the deed, recitals of pedigree of the propositus contained therein are competent and admissible in evidence under the principle of the rule of antiquity, though the plaintiffs are strangers to such deed, where it appears that the grantees named therein went into immediate possession of the property, and they and their privies have been in the continuous adverse possession thereof, with claim of ownership, for more than the statutory period of time requisite to ripen a prescriptive title and that during such period plaintiffs were resting under no disability with respect to their right of challenge of the title purported to have been thereby conveyed to defendants.

Commissioners' Opinion, Division No. 1.
Error from District Court, Carter County; W. F. Freeman, Judge.
Action in ejectment and to quiet title by W. Neustadt et al. against the Coline Oil Company et al. Judgment for defendants, and plaintiffs appeal. Affirmed.

Disney, Wheeler & Alcorn, for plaintiffs in error.

Frank G. Anderson, Geo. M. Green, E. E. McInnis, H. A. Ledbetter, and L. A. Ledbetter, for defendants in error.

TEEHEE, C.

¶1 On May 26, 1923, plaintiff in error, W. Neustadt, and eleven others, brought suit to recover possession of and to quiet the title to certain realty, and for damages resultant from a wrongful extraction of oil and gas therefrom to their injury in the sum of $ 2,000,000, in which premises they prayed judgment against about 250 defendants, including the defendants in error Coline Oil Company and others hereinafter named. The realty involved, in the language of real property in this state, is known as a deceased Indian allotment. The land was allotted in the name of the heirs of one Melissa Jacob, a full-blood Choctaw Indian who died about January 15, 1903, prior to the time when she may have received in her own right such moiety of the lands of the Choctaw Nation, and was selected by an administrator of her estate as was by law provided.

¶2 With the exception of Neustadt and two others, the plaintiffs were Choctaw Indians of the full-blood degree, and, including the two others, claimed to be the heirs at law of the deceased allottee, and as such brought the action for the use and benefit of Neustadt, their grantee of said lands, and who also sued in his own right as grantee of said claimants.

¶3 The suit was predicated on two causes of action. In their first cause, the claimant Indian plaintiffs in substance alleged their heirship of the estate of the decedent allottee, and as such heirs they had conveyed said property to their coplaintiff, Neustadt, by deeds duly approved by the proper county court as by law provided, and with whom they joined in the suit to establish his right of ownership and possession of said property as against the defendants, who claimed some right, title, and interest therein under certain and various instruments of record which were void and constituted clouds upon Neustadt's title. The deeds of plaintiffs referred to were executed on divers dates in the year of 1922.

¶4 In their second cause, plaintiffs in substance alleged that defendants have been in the unlawful and wrongful possession of the property since March 11, 1904, and have extracted therefrom large quantities of oil and gas to their injury and damage in the sum of $ 2,000,000.

¶5 To the suit certain of the defendants entered disclaimers, and certain of the others were dismissed therefrom, which also eliminated from the suit a certain part of the property. The other defendants, namely, the Coline Oil Company, S. T. Bledsoe, W. E. Hodges, J.

¶6 S. Cullinan, W. B. Johnson, H. W. McGill, W. A. Ledbetter, W. P. Terrell, Jr., W. F. Wolverton, W. A. Miller, Hettie Norman, individually and as administratrix of the estate of Thomas Norman, deceased, Hettie B. Norman, Hugh W. McGill as trustee for S. T. Bledsoe, W. A. Ledbetter, W. P. Terrell, Jr., Thomas Norman, Johnson & McGill, a firm composed of W. B. Johnson and Hugh W. McGill, the defendants in error here, by answer generally denied plaintiffs, claims of ownership of the property, and further pleaded ownership in themselves and adverse possession thereof since March 11, 1904, through a purchase of the property at that date from one Davis Peter as the sole heir of the estate, the statute of limitations, matter constituting equitable estoppel of plaintiffs to assert their claims of ownership of said property, and res judicata.

¶7 To all new matter contained in the several answers, plaintiffs replied by denial thereof, and further reiterated their right of ownership by virtue of proceedings in the county court of Pushmataha county in 1922, whereunder the heirship of the claimant Indians was determined and decreed, to which proceedings they alleged that defendants were parties defendant, and wherein the decree of heirship had become final and thereby said defendants were concluded in their assertions of ownership of said property.

¶8 By agreement of the parties, the question of damages was reserved from consideration in the case, leaving at issue for trial the question of ownership of the property, which was tried to a jury. At the trial, the court by instruction eliminated from consideration by the jury all evidence upon the question of res judicata pleaded by the defendants, the court holding as a matter of law that the plea was without application to the case. The trial resulted in a jury verdict and judgment thereon for defendants.

¶9 Following lodgment of the appeal in this court, defendants made their plea of res judicata the basis of a motion to dismiss the appeal, or for the affirmance of the judgment on that ground, to which motion plaintiffs filed their response, and wherein both parties by briefs submitted argument at length in support of their respective contentions in that relation. This motion was by the court denied by order pro forma entered in March, 1927. Defendants again present their plea of res judicata and urge upon us the sufficiency thereof to dispose of the case in their favor, which, in effect, is a renewal of their motion referred to. This renewal, as we take it, is based on the rule as laid down in Kessler v. Eldred, 206 U.S. 285, 27 S. Ct. 611, 51 L. Ed. 1065, to wit:

"Rights between litigants once established by the final judgment of a court of competent jurisdiction must be recognized in every way, and wherever the judgment is entitled to respect, by those who are bound thereby."

¶10 Subsequent to our denial thereof, it has been held in a case of substantially the same state of facts in respect to the question of privity of the plaintiffs here with the grantor, Davis Peter, that such a plea was without application. Ledbetter v. Wesley, 23 F.2d 81. The rule deducible from that case may be stated as follows:

¶11 Where an action is brought by the United States in its fiduciary capacity to cancel a conveyance of a Choctaw Indian deceased allotment as being violative of the federal restrictions upon the alienation thereof by the heir of the decedent allottee, and a demurrer to the sufficiency of the petition to state a cause of action is sustained, and the judgment rendered thereon becomes final, the same is a judgment upon the merits of the action and is res judicata only as to the party grantor in such conveyance and those in privity with him.

¶12 As the claimant Indian plaintiffs here do not rest their claims of interest to the property involved through the grantor, Davis Peter, or those in privity with him, by the rule of that case, therefore, our prior disposition of the point thus re-urged upon us by defendants finds full support and need not be again considered.

¶13 For a reversal of the...