Page v. Atkins
| Decision Date | 25 April 1922 |
| Docket Number | 12769. |
| Citation | 208 P. 807,86 Okla. 290,1922 OK 144 |
| Parties | PAGE ET AL. v. ATKINS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 11, 1922.
Syllabus by the Court.
Under Act Cong. June 28, 1898, c. 517, § 21, 30 Stat. 502, the Commission to the Five Civilized Tribes was authorized and directed to make correct rolls of the citizens by blood of the tribes, and, in making such rolls, to make them descriptive of the parties thereon, so that they may be thereby identified. The Commission was given access to the rolls and records of the several tribes in preparing the rolls of the citizens of the tribes. Held, the enrollment record of the Commission made pursuant to the act of the Congress, considered as a whole, which discloses the identity of an enrolled citizen, is conclusive evidence as to the identity of such citizen in the absence of clear unambiguous, and convincing countervailing evidence clearly establishing error or mistake.
The Commission to the Five Civilized Tribes was a quasi judicial tribunal, on which the Congress, by Act June 28, 1898, c 517, 30 Stat. 495, and the Creek Agreement of March 1, 1901 c. 676, 31 Stat. 861, imposed the duty of making investigation and determining the names of those entitled to be enrolled as citizens, and entitled to participate in the division of the tribal lands, and a decree of the Commission denying an applicant the right of citizenship as a member of a tribe, which decision was affirmed by the Secretary of the Interior, is conclusive against such applicant to citizenship as a member of one of the tribes. United States v Wildcat et al., 244 U.S. 111, 37 S.Ct. 561, 61 L.Ed. 1024.
In an ejectment action, the plaintiff must recover on the strength of his own title, and not upon the weakness of the title of his adversary.
Where, from a consideration of all the evidence in the record, it is apparent that the plaintiff is precluded from recovering in the action on the reversal of the judgment rendered by the trial court, this court will direct that judgment be entered in favor of the defendants against whom the action is prosecuted.
Appeal from District Court, Creek County; Lucien B. Wright, Judge.
Action by Sallie Atkins in ejectment, against Charles Page and others, defendants. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
Stuart, Sharp & Cruce, of Oklahoma City, West, Sherman, Davidson & Moore, of Tulsa, Ellinghausen & Ellinghausen, of Sapulpa, H. O. Bland, of Tulsa, Paul P. Pinkerton, of Sand Springs, and Rice & Lyons, of Tulsa, for plaintiffs in error.
McDougal, Lytle, Allen & Pryor, of Sapulpa, and Harry G. Davis, J. D. Simms, and Gibson & Hull, all of Muskogee, for defendant in error.
The plaintiff, Sallie Atkins, commenced this action against the defendants Charles Page and others, in the district court of Creek county on the 19th day of May, 1920. The cause of action pleaded by plaintiff in her petition was an action in ejectment. In the first paragraph of the plaintiff's petition it is alleged she is the owner of the fee-simple title, legal and equitable estate in and to the lands described in the petition; that Thomas Atkins, as a citizen of the Creek Nation or Tribe of Indians, enrolled opposite roll number 7913, was by the Commission to the Five Civilized Tribes on or about May 23, 1901, allotted the lands described in the petition as his share of the lands belonging to the Creek Tribe of Indians; that on the 14th day of April, 1903, patents or allotment deeds were issued, and approved May 8, 1903, by the Secretary of the Interior, and recorded in the office of the Commission to the Five Civilized Tribes on the 16th day of May, 1903; that the allottee, Thomas Atkins, died intestate, unmarried, without issue, and without surviving father, on the ______ day of ______, 190--, leaving as his sole and only heir at law his mother, the plaintiff, and the plaintiff, as sole and only heir of the said Thomas Atkins, deceased, acquired the legal and equitable title in fee in the lands allotted to Thomas Atkins; that the defendants had been in the wrongful possession of the lands allotted to Thomas Atkins, deceased, since some time in the year 1913, claiming an interest and estate in said lands adverse to the plaintiff; that neither of the defendants has any interest in the lands; that the defendants, while in the wrongful possession of the land, have operated, and are operating, said land for oil and gas, and have extracted and removed from the land wrongfully, illegally, and unlawfully oil and gas to the value of $2,500,000. Plaintiff prayed the judgment of the court for possession of the land and damages.
The defendants, Charles Page and others, filed an answer denying all the material allegations of the plaintiff's petition. In the second paragraph of the defendants' answer they specially plead the judgment of the United States Commission to the Five Civilized Tribes, approved and confirmed by the Secretary of the Interior, adjudging the person through whom the plaintiff claims title, and who is referred to in the plaintiff's petition by the name of Thomas Atkins, and alleged to have been a son of the plaintiff, died prior to the 1st day of April, 1899, was not, and could not have been, enrolled as a citizen of the Creek Nation or Tribe of Indians, or allotted the lands sued for in plaintiff's petition, or any of the lands of the Creek Nation, and attached a copy of the order of the Commission as an exhibit to their answer.
In paragraph 3 of the defendants' answer they specially plead a judgment and decree of the District Court of the United States for the Eastern District of Oklahoma, entered in an action wherein the United States of America was plaintiff and Minnie Folk, née Atkins, Charles Page, and others were defendants, whereby it was adjudged and decreed that the lands involved in the action were allotted to Thomas Atkins, the son of Minnie Atkins, otherwise Minnie Folk, and alleged that said judgment forever bars and estops the plaintiff herein from any recovery.
The fifth paragraph of the defendants' answer admitted that the defendants had possession of the lands in controversy, and alleged that the lands were allotted to Thomas Atkins, enrolled opposite No. 7913, who died intestate on or about the ______ day of ______ 190--, leaving as his only heir at law his mother, Minnie Atkins, or Minnie Folk, and deraigned their title under conveyances executed by Minnie Atkins as the only heir of Thomas Atkins, the deceased allottee; that the defendants had been in the uninterrupted and peaceable possession of the lands since July, 1914, and they had expended in good faith in the development, operation, and improvement of said property the sum of $566,507.59, and had expended in good faith for the purchase of the asserted claim of the Gypsy Oil Company the sum of $20,000; that the plaintiff had with full knowledge and notice, or full and ample opportunity to have notice thereof, stood mute, and gave no intimation, notice, or warning of any claim, or the assertion of any claim on her part, that she had any interest in the property, and that, by reason thereof, she is estopped by her neglect and laches to any relief.
The plaintiff filed a reply denying the material allegations of the answer, denying that the judgment of the Commission to the Five Civilized Tribes pleaded in the second paragraph of the defendants' answer is a bar to the recovery in the action, for the reason, previous to the attempted consideration of the right of Thomas Atkins to enrollment as a citizen of the Creek Nation of Indians, the Commission had already, on the 23d day of May, 1901, entered a judgment enrolling the said Thomas Atkins.
Upon the issues made by the pleadings, the trial of the case was commenced on the 24th day of March, 1921. The parties having stipulated in open court that they waived a jury trial, all of the issues of law and facts were submitted to the court. The court, on the 31st day of March, 1921, having heard the evidence and argument of counsel, found the issues in favor of Sallie Atkins, the plaintiff, that she was the mother of Thomas Atkins, enrolled by the Dawes Commission May 23, 1901, opposite roll No. 7913, on the approved rolls as a Creek citizen, the deceased allottee of the lands, and as the sole and only heir is the owner of the legal and equitable title to the land in controversy; decreed that the plaintiff take judgment against the defendants and each of them to quiet her title to the lands, and for possession thereof; ordered the defendants to render an accounting of the proceeds from all the oil, gas, and casing head gas extracted from the premises within 10 days. The defendants each excepted to the findings and conclusions of law entered by the court in his decree.
Thereafter, upon the defendants filing an accounting of oil, gas, and casing head gas extracted from the premises, and upon the exceptions filed by the plaintiff, the court entered judgment in favor of the plaintiff and against the defendants for the sum of $1,960,000. The motion of the defendants for a new trial was overruled, and from the judgment and order denying the defendants a new trial, this appeal is prosecuted by defendants to reverse the judgment of the trial court. Numerous errors are assigned as grounds for a reversal of the judgment.
The record in this cause is voluminous, and the controverted questions have been extensively and thoroughly briefed by counsel for the respective parties. The cause was orally argued at length. The issue to be determined by this court is conceded by both parties to involve but one single question that is, the identity of Thomas Atkins,...
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