Oates v. Freeman
| Decision Date | 09 November 1915 |
| Docket Number | 5790. |
| Citation | 157 P. 74,57 Okla. 449,1915 OK 898 |
| Parties | OATES ET AL. v. FREEMAN. |
| Court | Oklahoma Supreme Court |
On Rehearing, May 2, 1916.
Syllabus by the Court.
Where a defendant, who has been served with summons by publication enters a special appearance and moves to quash service by reason of alleged defects in the affidavit and publication notice, which motion is overruled, afterwards answers and asks for affirmative relief, he thereby invokes the jurisdiction of the court in a matter not necessary to his defense, and thereby waives any defect in the service by publication.
The affidavit to obtain service by summons and the notice, which are set out in full in the statement of the case, examined and held to comply with the statutory provisions for obtaining service by publication.
Where a petition contains three separate causes of action, if they are improperly joined, the proper practice is to attack it by demurrer, and if this is not done, the defect is waived, and cannot be taken advantage of by a motion to require the plaintiff to elect on which cause of action he will rely.
Where a Creek Indian dies prior to allotment, the allotment must be made under section 28 of the Creek Agreement (Act March 1 1901, c. 676, 31 Stat. 869) as amended by the Supplemental Creek Agreement (Act June 30, 1902, c. 1323, 32 Stat. 500) and it descends to his heirs, free from all restrictions both as to the homestead and surplus, but where the allottee dies after the certificate of allotment has issued, but before patent, the homestead descends free from restrictions but the surplus is restricted.
Where restricted land is sold prior to the removal of restrictions, and a deed made therefor, and at the time of making such deed only a part of the consideration is paid, and which deeds were to serve as contracts to convey as soon as the restrictions were removed, and at the time such deeds were made, the grantee agreed to have the restrictions removed, and after the restrictions were removed by the act of Congress of April 26, 1906, the grantee took new deeds in pursuance of said agreement, held such last deeds are void under the provisions of section 16 of the Creek Supplemental Agreement (Act June 30, 1902, c. 1323).
Where a conveyance has been made in violation of the restrictions imposed by section 16 of the Supplemental Creek Agreement, the return of the consideration cannot be regarded as an essential prerequisite to cancellation, for those who deal with the Indian contrary to these provisions, are not entitled to insist that they should keep the land if the purchase price is not repaid, and thus frustrate the policy of the statute.
The maxim that he who asks equity must do equity does not apply to cases where the party is not seeking relief under the general equitable jurisdiction of the court, but is seeking to avail himself of a substantial right under the express provisions of a statute passed to protect the right he is seeking to enforce.
The making of a contract or agreement to convey in violation of the terms of the provisions of section 16 of the act of June 30, 1902 (32 Stat. 503, c. 1323), and section 19 of the act of April 26, 1906 (34 Stat. 144, c. 1876), is not to be inferred alone from the fact that the heirs executed a deed for the restricted land during the period of restrictions, and the grantee caused the deed to be recorded, and after the removal of restrictions a deed was executed to the same grantee, but the making of the prohibited contract or agreement must be found from all the facts connected with the transaction.
Commissioners' Opinion, Division No. 2. Error to District Court, Okmulgee County; Wade S. Stanfield, Judge.
Action by John Freeman against Edward Oates and others. Judgment for plaintiff, and defendants bring error. Reversed in part and affirmed in part.
This was an action to quiet title to the northwest quarter of section 7, township 13 north, range 15 east. On May 4, 1899, this land was allotted to Louis Freeman, a three-quarter blood Creek Indian, and certificates of allotment were duly issued to him. Louis Freeman, the allottee, died intestate, and leaving no surviving children, or issue of children, widow or mother, and no debts, but leaving the plaintiff, his father and two brothers and one sister. On May 3, 1903, two patents were issued in the name of Louis Freeman, one for lot 1, section 7, township 13 north, range 15 east, as the homestead, containing 30.99 acres, and the other also in the name of Louis Freeman for the remainder of the quarter section for his surplus allotment, and these patents were duly approved by the Secretary of the Interior on June 11, 1903. On May 5, and April 27, 1905, the plaintiff executed two deeds for this land to the defendant Edward Oates, one for the allotment, exclusive of homestead, and the other for the homestead. These deeds recited that the plaintiff conveyed all the right, title, and interest in this land, which he inherited from his deceased son, Louis Freeman. About the same time Oates obtained deeds from the brothers and sister of the deceased allottee for any interest they had in the land as his heirs. On April 27, 1906, the plaintiff executed to Oates another deed for this land, and about the same time deeds were also executed to Oates by the brothers and sister. Oates conveyed to Mrs. Elizabeth Lowe, on May 17, 1909, and she having died during the pendency of this action, it was duly revived, and her heirs, the plaintiffs in error, James G. and Nellie Lowe, were made parties. The petition further alleges, in substance, that all of the deeds executed in 1906, after the removal of the restrictions, are null and void, because they were made pursuant to the deeds executed in 1905, which deeds were to serve and be contracts between the parties to convey this land as soon as the restrictions against alienation were removed, and were made in ratification and confirmation of the deeds of 1905, and no other consideration was agreed or stipulated to be paid on the dates of the deeds of 1905, a portion of the consideration being paid after the execution of the deeds of 1905, and the remainder after the execution of the deeds of 1906. The petition further alleged, in substance, that the deeds were given by the grantors pursuant to a verbal understanding made on or about April 24, 1905, with Oates that he would have the restrictions removed from this land, and to that end the grantors filed a petition with the Indian agency at Muskogee on or about April 26, 1905, for this purpose, but it was never acted on by the Secretary of the Interior, and that in pursuance of this agreement Oates took the deeds of 1905, so that he could obtain further deeds from the grantors as soon as the restrictions were removed, and that the deeds of 1906 were given in consummation of this agreement. The petition further alleges that the defendant Lowe was not an innocent purchaser.
The petition states three causes of action, and the above is an abbreviation of the allegations of the first cause of action, which was the only one considered by the court in rendering judgment.
The plaintiff being unable to get personal service on the defendant filed the following affidavit to obtain service by publication:
On this affidavit the following notice was published:
"In the District Court of Okmulgee County, State of Oklahoma.
John Freeman v. Edward Oates and Elizabeth Lowe.
Said defendants Edward Oates and Elizabeth Lowe, nonresidents of the state of Oklahoma, will take notice that they have been sued in the above-named court for the cancellation of certain deeds and mortgages held by them covering the northwest quarter of section 7, township 13 north, range 15 east containing 160 acres, more or less, situated in Okmulgee county, Oklahoma, given to Edward Oates by William Freeman, Mary Freeman Hughes, John Freeman, Jr., and the plaintiff, and by ...
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