Sanders v. Sanders

• Court: Oklahoma Supreme Court
• Writing for the Court: TURNER, J.
• Citation: Sanders v. Sanders, 28 Okla. 59, 117 P. 338, 1909 OK 64 (Okla. 1909)
• Decision Date: 09 March 1909
• Docket Number: Case Number: 909
• Parties: SANDERS v. SANDERS et al.

1909 OK 64

117 P. 338

28 Okla. 59

SANDERS v. SANDERS et al.

Case Number: 909

Supreme Court of Oklahoma

Decided: March 9, 1909

Syllabus

¶0 1. INDIANS--Allotments--Descent and Distribution. A citizen of the Creek Nation in possession of lands in said Nation who files thereon before the Commission to the Five Civilized Tribes under an Act of Congress approved June 28, 1898, and dies April 28, 1900, without receiving her certificate of allotment therefor is seized of no estate of inheritance and courtesy therein does not attach.

2. SAME. The allotment of a citizen of the Creek Nation set apart to her under an Act of Congress approved June 28, 1898, who dies in possession, thereof prior to an act of Congress approved March 1, 1901, without receiving her certificate of allotment therefor, is distributable to her heirs under patent therefor to them subsequently issued according to the laws of descent and distribution of the Creek Nation as provided in sections 6 and 7 of the act last aforesaid.

3. SAME--Rights of Surviving Non-Citizen Husband. The surviving non-citizen husband of a citizen of the Creek Nation who dies in possession of her allotment, set apart to her under an Act of Congress approved June 28, 1898, prior to her certificate of allotment therefor, under the laws of descent and distribution of the Creek Nation, is an heir to his deceased wife and as such entitled to a "child's part" and to share and share alike therein with the children of his said wife her surviving whether they take by descent or by purchase.

4. INDIANS--Allotments--Deeds--Validity. A deed to an undivided interest in the allotment of a citizen of the Creek Nation, set apart to her under an Act of Congress approved June 28, 1898, who died in possession thereof prior to an Act of Congress approved March 1, 1901, made, executed and delivered by heirs of said allottee before the expiration of five years from the ratification of the agreement with the Creek Nation contained in said Act of March 1, 1901, and prior to an Act of Congress approved April 26, 1906, is void.

5. SAME. A deed to an undivided interest in the allotment of a citizen of the Creek Nation, set apart to her under an Act of Congress approved June 28, 1898, who died in possession thereof prior to an Act of Congress approved March 1, 1901, made executed and delivered by heirs of said allottee after the expiration of five years from the ratification of the agreement with the Creek Nation contained in said Act of March 1, 1901, and after an Act of Congress approved April 26, 1906, is valid.

Error from the United States Court for the Western District of the Indian Territory, at Tulsa; William R. Lawrence, Judge.

Action by Judson C. Fast against John W. Sanders and others. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

On August 26, 1907, Judson C. Fast, one of defendants in error, plaintiff below, sued John W. Sanders, plaintiff in error, one of defendants below, individually and as guardian of Elizabeth Sanders, Maud Sanders and Millard Sanders, minors, and Warren Mooney, defendants in error, defendants below, in the United States Court for the Indian Territory, Western District, at Muskogee, in ejectment, for an undivided 1/3 interest in "the east half of the northwest quarter and lots one and two in section 19, township 15 north of range 19, east," containing 159.56 acres, and stated his cause of action, in substance, to be that on April 28, 1900, one Sarah E. Sanders, a citizen of the Creek Nation of less than full blood and duly enrolled as such, died intestate in said nation leaving her surviving as her only heirs at law her adult children, Edward B. Porter and Ben E. Porter, by a former husband, and Edna Sanders, an adult child, and Elizabeth Sanders, Maude Sanders and Millard Sanders, minor children by said John W. Sanders, all of whom are citizens by blood of the Creek Nation and duly enrolled as such, except said John W. Sanders, her non-citizen husband; that after her death and after an Act of Congress approved March 1, 1901, and after the ratification on May 25, 1901, by the Creek Tribe of the agreement therein contained, the Commission to the Five Civilized Tribes, to wit, on April 21, 1905, caused patents to issue distributing and allotting said land to which said Sarah E. Sanders would have been entitled, if living, to her heirs, one of which said patents conveyed that part of said land described as the "east half of the northwest quarter and lot one of section 19, township 15, north of range 19, east"--the other, that part of said land described as "lot 2, in said section 19, township 15, north of range 19, east," which were on April 21, 1905, duly signed by P. Porter, Principal Chief of the Creek Nation, for and on behalf of said nation, and on May 23, 1905, duly approved by the Secretary of the Interior and subsequently duly delivered to said heirs; that under and by virtue of the terms of said agreement it was provided that the lands to which such citizens would be entitled, if living, should descend to the heirs of such citizens according to the laws of descent and distribution of the Creek Nation and be allotted and distributed to them accordingly; that the laws of said nation referred to in said treaty were as follows: (Setting them out); that they were all the laws of inheritance of said nation in force at the time of descent cast, and thereunder, on descent cast by said Sarah E. Sanders, each of her said children thereby became the owner of an undivided 1/6 interest in her said allotment; that on May 29, 1906, said Ben E. Porter made, executed and delivered, and on May 31, 1906, said Edward B. Porter made, executed and delivered their respective quitclaim deeds to plaintiff conveying to him their respective interests in said land, which said deeds were duly recorded; that said Edna Sanders conveyed her interest therein to defendant Warren Mooney; that defendant John W. Sanders, for himself and as guardian for said minor children and as agent for said Mooney, has ousted plaintiff from possession thereof and refuses to recognize his interest therein--and prays judgment for an undivided 1/3 interest therein and for general relief.

On January 19, 1907, John W. Sanders filed separate answer, in effect admitting the allegations of the complaint, except that the complaint sets forth all the Creek law of descent and distribution at the time of descent cast and that the said children of Sarah E. Sanders were her sole heirs and were entitled each to a 1/6 interest in her said allotment, but alleged the fact to be that said law was as by him therein set forth; that under said law he at that time, as her non-citizen husband, was and is entitled to an heir's part or 1/7 of her said allotment for which to her a certificate had issued, by the Commission to the Five Civilized Tribes, on her application, made while in possession of said lands prior to her death, dated May 24, 1901; that prior to the execution and delivery to plaintiff of the deeds from Edward B. Porter and Ben E. Porter, set forth in the complaint, they, to wit, on December 15, 1904, sold and by their deed conveyed to him all their interest in said land, by virtue of which he says he is its owner; that prior to the conveyance of the interest of said Edna Sanders Mooney to Warren Mooney, as set forth in said complaint, she had conveyed all her said interest to him by quitclaim deed; that he is in possession of said land by virtue of the title thus acquired and his right of courtesy and as guardian for the said Elizabeth Sanders, Maud Sanders, and Millard Sanders, and asks that plaintiff take nothing by his suit.

On January 29, 1907, to this answer there was a general demurrer filed which was by the court sustained and, defendant electing to stand on his answer, judgment was rendered in favor of plaintiff and against defendant for the land sued for, whereupon defendant took a writ of error to the Court of Appeals for the Indian Territory and the same is now before us for review as successor to that court.

DeRoos Bailey, for plaintiff in error.

Irwin Donovan and Eward C. Griesel, for defendant in error, Judson C. Fast.

TURNER, J.

¶1 By Judson C. Fast, hereinafter called plaintiff, it is urged, in substance, that as the pleadings disclose that Sarah E. Sanders was a duly enrolled citizen of the Creek Nation of less than full blood; that on September 19, 1898, she, before the Commission to the Five Civilized Tribes, filed on the land in controversy and died in possession thereof before certificate of allotment issued and before the passage of the Act of Congress approved March 1, 1901; that therefore she acquired no estate of inheritance in said allotment, that her heirs under the patent subsequently issued took the same by purchase from the Creek Nation and not by descent from her, and that as John W. Sanders is the non-citizen husband her surviving and, as such, not entitled to "final participation" in the lands of said nation, his answer setting up a claim to 1/7 of her allotment in defense of this suit was properly sustained.

¶2 That she died seized of no estate of inheritance we think is clear.

¶3 On September 27, 1897, the Commission to the Five Civilized Tribes, pursuant to authority vested in them by certain acts of Congress, made an agreement with certain commissioners representing the Creek Nation providing for the enrollment of its citizens and the allotment to them of their lands in severalty. This agreement was afterwards submitted to and rejected by the Creek council.

¶4 Pending the ratification of this and certain agreements with other tribes, Congress on June 28, 1898, passed an act known as the Curtis Bill, designed to transfer the property rights of the Five Civilized Tribes from their control to that of the United States.

¶5 Section 11 of that act, in effect, provides for the surface allotment of the land of the Creek Nation without the consent of the...