Salmon v. Johnson

• Decision Date: 04 May 1920
• Docket Number: 9717.
• Citation: 189 P. 537,78 Okla. 182,1920 OK 160
• Parties: SALMON ET AL. v. JOHNSON ET AL.
• Court: Oklahoma Supreme Court

189 P. 537

78 Okla. 182, 1920 OK 160

SALMON ET AL. v. JOHNSON ET AL.

No. 9717.

Supreme Court of Oklahoma

May 4, 1920

On July 6, 1909, the district courts of this state had jurisdiction of an action to partition inherited lands of mixed-blood Indians, including minors, and were authorized to decree a sale of such lands, if found to be incapable of partition by the commissioners appointed by said court.

Subsequent congressional legislation may be considered as an aid to the interpretation of prior legislation upon the same subject.

The findings of the trial court upon a question of fact will not be disturbed by this court, where the same is not clearly against the weight of the evidence.

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge.

Action for partition for Elizabeth Deer Smith and Miley Johnson against Seth Salmon. Decree for partition between the plaintiff Deer and defendant Salmon, and against plaintiff Johnson, and defendant and his tenant, J. C. Naton, bring error, and plaintiff Johnson also brings error. Reversed with direction to render judgment for defendants.

Subsequent congressional legislation, as that of Act Cong. June 14 1918, § 2, 25 U.S.C.A. § 355, may be considered as an aid to the interpretation of prior legislation on the same subject.

Belford & Hiatt, of Okmulgee, and Chas. F. Runyan, of Muskogee, for plaintiffs in error.

James M. Hays, of Okmulgee, for defendants in error.

W. W Wood and L. L. Cowley, both of Okmulgee, amici curiæ.

RAINEY V. C.J.

August Deer, a freedman citizen of the Creek Nation, died in August, 1901, leaving as his sole and only heirs at law Sophia Deer, Elizabeth Deer, now Elizabeth Deer Smith, and Charles Deer, each of whom inherited an undivided one-third interest in his allotment. Thereafter Charles Deer, who was a minor, died intestate, leaving as his sole heirs Elizabeth Deer Smith and Miley Johnson, who jointly inherited the undivided one-third interest that he inherited from the said August Deer. Subsequent to the death of August Deer, Sophia Deer conveyed her undivided one-third interest in the land to A. E. Fish. Thereafter Fish filed in the district court of Okmulgee county an action in partition against Miley Johnson and Elizabeth Deer, who was then a minor, and her guardian. Before this case proceeded to judgment Elizabeth Deer, by her guardian, John J. Jefferson, filed a partition proceeding in said court against Fish and Miley Johnson, in which they asked the partition of said land. These two causes were consolidated, and on July 6, 1909, a decree was entered finding the interest of said parties as above set forth, and appointing commissioners to make partition. Said decree further provided that, if the lands were found to be incapable of partition, the same be appraised and sold as provided by law. The commissioners found that the land was incapable of partition, and it was sold, the sale confirmed, and the sheriff's deed executed to A. E. Fish, who became the purchaser at said sale. Thereafter Fish died and his heirs conveyed the land to Seth Salmon.

The instant action was filed by Elizabeth Deer Smith and Miley Johnson, as plaintiffs, against Seth Salmon, to partition said lands. The cause proceeded to judgment; the court holding that Elizabeth Deer Smith and Seth Salmon each owned an undivided one-half interest therein, and decreeing that said lands be partitioned accordingly. The court also held that the claim of Miley Johnson was barred by the statute of limitations. From the decree in favor of Elizabeth Deer Smith, Salmon and his tenant, J. C. Naton, have appealed, and Miley Johnson has appealed from the decree against her.

The first question presented is whether the district court of Okmulgee county had jurisdiction on July 6, 1909, to render the decree of partition in the consolidated partition action. Miley Johnson and Elizabeth Deer Smith are each Creek Indians of one-fourth Indian blood, and on the date of said decree the former was an adult and the latter was a minor. The question thus presented has already been decided by this court in Griffin v. Culp, 174 P. 495, wherein we held that the district courts of this state had jurisdiction of a partition suit where such lands descended to the heirs free of restrictions. In that case, as in this, the land was found to be incapable of partition and was sold under a decree of the court, and some of the heirs in that case were minors, as is Elizabeth Deer Smith in this. There it was also contended, as here, that the case of Coleman v Battiest, 162 P. 786, was authority for the contention that the district courts did not have jurisdiction of the partition proceedings, but the cases were distinguished, for the reason that in Coleman v. Battiest the parties were full-blood Indian heirs of a deceased full-blood Choctaw Indian. Under section 9 of the Act of Congress of May 27, 1908 (35 Stat. 312), which provided that the death of an allottee of any of the Five Civilized Tribes operated to remove all restrictions on said allottee's land, further provided that no conveyance of any interest of any full-blood Indian heir would be valid until approved by the court having jurisdiction of the settlement of the estate of the deceased allottee. The act thus specifically provided how the interest of full-blood Indian heirs might be conveyed, but there was no such qualification as to mixed-blood Indian heirs. All doubt as to the jurisdiction of the district courts of this state of a partition proceeding...