Palmer v. Cully

• Decision Date: 16 November 1915
• Docket Number: Case Number: 5332
• Citation: 1915 OK 945,52 Okla. 454,153 P. 154
• Parties: PALMER v. CULLY et al.
• Court: Oklahoma Supreme Court

1915 OK 945

153 P. 154

52 Okla. 454

PALMER v. CULLY et al.

Case Number: 5332

Supreme Court of Oklahoma

Decided: November 16, 1915

Syllabus

¶0 1. INDIANS--Statutes--Operation. Act Cong. April 28, 1904, c. 1824, 33 Stat. 573, providing that "all the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation so as to embrace all persons and estates in said territory, whether Indian, freedman, or otherwise," was not intended to supplant or supersede any special enactment of Congress with regard to Indians, but the purpose and effect thereof were to abolish all general existing tribal laws of the Seminoles, and to substitute therefor the laws in force and which had for years governed all persons in Indian Territory, save Indians in their intercourse with one another.

2. INDIANS--Marriage Contract--What Law Governs. Upon the erection of the state, members of the tribes became citizens of Oklahoma, subject to the general state laws relative to marriage and divorce, since which time the validity of their marriage contracts and all rights consequent thereon have been dependent upon such laws.

3. MARRIAGE--Common-Law Marriage--Validity. A common-law marriage is valid in this state.

4. CONTRACTS--"Mistake of Law." A "mistake of law" happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference arising from an imperfect or incorrect exercise of the judgment upon the facts as they really are.

5. CANCELLATION OF INSTRUMENTS--Deed-- Mistake of Law. "A mere mistake of law, not accompanied with other circumstances demanding equitable relief, constitutes no grounds for rescission, cancellation, or reformation of a deed to lands based upon such mistake"--following Campbell v. Newman, 51 Okla. 121, 151 P. 602.

John W. Willmott, for plaintiff in error.

F. H. Reed and J. A. Baker, for defendants in error.

BLEAKMORE, C.

¶1 This action was commenced in the district court of Seminole county on September 27, 1912, by plaintiff in error, to cancel certain deeds as a cloud upon and to quiet title to the land described therein. The parties will be referred to as they appeared below. The allegations of the petition necessary to the determination of the questions presented for review are, in substance, that plaintiff is a full-blood Seminole Indian, illiterate, and ignorant of the law; that she is the widow of one Kintah Palmer, a Seminole Indian, who died intestate and without issue, in March 1912, seised and possessed of certain lands, an undivided one- half interest in and to which passed to plaintiff as his widow; that in June, 1912, she executed and delivered to one Thomas Palmer, the brother and heir at law of her deceased husband, a warranty deed purporting to convey her interest in said land, and that thereafter on June 18, 1912, said Thomas Palmer executed and delivered to defendants Hyde and Mathis a purported conveyance thereof; that Thomas Palmer was her brother-in-law, in whom she reposed the utmost faith and confidence; that at the time of the execution of said deed of June 3, 1912, he falsely and fraudulently represented to her that she was not the widow of Kintah Palmer, in that she had not been lawfully married to him, and therefore did not take any interest in said land, but inasmuch as she had lived with Kintah for many years as his wife, offered to pay her $ 50 then and a like sum when she vacated said land; that believing said false representations to be true, and relying thereon, she was induced thereby to execute said deed, which she understood and believed at the time to be a mere acknowledgment of the receipt by her of said $ 50 and his agreement to pay the same amount when she removed from the land; that the defendants Hyde and Mathis had full knowledge of the facts and circumstances under which said deed was executed at the time of the pretended conveyance of the land to them by said Thomas Palmer. Upon the trial, plaintiff amended her petition as follows:

"The plaintiff further alleges that the said pretended deed executed by herself to the defendant Thomas Palmer was obtained and secured from her by reason of a mutual mistake of fact as to her true relationship with the deceased allottee, Kintah Palmer, and that, had it not been for the mutual mistake, the plaintiff would not have executed said deed. That said mistake of fact occurred and was brought about in the following manner, to- wit: That the defendant Thomas Palmer and Attorneys Johnson and Patterson, lawyers appointed by the government to represent the Seminole allottees, informed this plaintiff that she was not the lawful wife of Kintah Palmer, deceased, and caused and induced her to believe that as a matter of fact she possessed no interest, title, or estate in or to the said tract of land, and because of such mistake, and because of the alleged fraudulent and false representations of fact of Thomas Palmer, as hereinabove set out, this plaintiff was induced to sign her name to the papers at the time and date mentioned."

¶2 It is disclosed by the evidence that plaintiff had been married in accordance with the Seminole laws to one John Bowlegs, but that she was separated and divorced from him under the tribal laws. She was married to Kintah Palmer according to the Seminole custom some time in the spring of 1905. Prior to such marriage Kintah Palmer had also been married under the tribal law to Lowina Palmer, and had lived with her until about a year before he so married plaintiff. On May 1, 1911, Lowina Palmer obtained a divorce from Kintah by decree of the district court of Seminole county. Being interrogated by counsel for defendants with reference to living with Kintah Palmer after his divorce from Lowina, plaintiff testified as to a conversation had with one Patterson, an attorney representing the Seminole Indians and employed in the office of a special assistant to the federal Attorney General, whom she consulted as to the validity of her marriage to Kintah Palmer and her rights thereunder, as follows:

"Q. Then didn't Mr. Patterson ask you why you and Kintah didn't marry by license after Kintah's divorce, and you said Kintah refused to do it? A. I told Mr. Patterson that Kintah said that the Seminole laws were in operation, and that we had married according to the Seminole law, and that it was not necessary to get another ceremony performed; that is what Kintah told me, and that is what I told Mr. Patterson."

¶3 The testimony of other witnesses is that plaintiff was recognized as the wife of Kintah Palmer both before and after the divorce from Lowina, obtained in the state court, by all those who knew her. The laws of the Seminole Tribe were introduced in evidence as follows:

"LAW GOVERNING MARRIAGES IN THE SEMINOLE TRIBE OF INDIANS.

"Be it further enacted that our laws shall be as follows:

"First. Hereafter, if any man desires to marry a woman in the Seminole Nation, he shall first notify the parents, if living, or the nearest relatives of the woman, of his intention of so marrying her.

"On the other hand, if it appears that they did not secure the consent of the father or mother, or the nearest relatives of the woman to this marriage, and that the contract has been between the man and the woman only, it shall be the duty to examine them carefully, and ascertain if it is their intention to live together as man and wife, and if upon examination it is found that it is their intention to live together as man and wife, they shall not be disturbed."

"LAWS OF MARRIAGE AND DIVORCE OF THE SEMINOLE TRIBE OF INDIANS.

"Be it enacted that our laws shall be as follows:

"Article One. Any persons having been married according to the laws, and are living together, taking care of each other as man and wife in their own house, and one should leave the other without the fault of the other, shall pay the party so left the sum of $ 50.00.

"Article Two. But it shall not be lawful for either party to allege a complaint at law against the other immediately on separation, and no action shall be taken according to law until two months have elapsed after separation.

"Article Three. After the legal proceedings have been had, either party shall be entitled to take their individual property or goods away with them.

"Article Four. Providing, however, that if they have any property in common, or that is, if they have accomplished any work of value together, or their property is so mixed that it cannot be easily determined by the parties, then it shall be the duty of the council to award to each their individual share.

"Article Five. But in the event that if either party shall not complain upon the separation of the other, according to law, for a period of six months, they shall be deemed to have been legally divorced."

¶4 By Act Cong. May 2, 1890, 26 Stat. 81, c. 182, jurisdiction in all civil cases (except those over which the tribal courts had exclusive jurisdiction) was conferred upon the United States Court established in the Indian Territory by Act March 1, 1889, c. 333, 25 Stat. 783, the clerk of which court was authorized to issue marriage licenses and certificates to solemnize marriages, and certain general laws of the State of Arkansas contained in Mansfield's Digest were extended over and put in force in said Indian Territory, among which were chapters 52 and 103 of said digest, relating respectively, to divorce and marriage. Said act of Congress also provided that:

"Wherever in said laws of Arkansas the courts of record of said state are mentioned the said court in the Indian Territory shall be substituted therefor." (26 Stat. 95, sec. 31.)

¶5 By said act it was also provided:

"Provided, that all marriages heretofore contracted under the laws or tribal customs of any Indian nation now located in the Indian Territory are hereby declared valid, and the issue of such marriages shall be deemed legitimate and

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