Sandlin v. Barker

• Decision Date: 05 June 1923
• Docket Number: 11630,11631.
• Parties: SANDLIN ET AL. v. BARKER ET AL. (TWO CASES).
• Court: Oklahoma Supreme Court

218 P. 519

95 Okla. 113, 1923 OK 347

SANDLIN ET AL. v. BARKER ET AL. (TWO CASES).

Nos. 11630, 11631.

Supreme Court of Oklahoma

June 5, 1923

Rehearing Denied Sept. 18, 1923.

Syllabus by the Court.

Probate courts do not have jurisdiction to authorize an administrator to sell lands that are not assets of decedent's estate for the payment of decedent's debts, or for any other purpose.

Assets as applied to decedent's estates means property, real or personal, tangible or intangible, legal or equitable, which can be made available for or may be appropriated to the payment of debts.

Since under section 4 of the act of Congress of May 27, 1908 allotted lands cannot be subject to or held liable for any form of personal claims or demands against the allottee arising or existing prior to removal of restrictions, such allotted lands, upon which restrictions had not been removed at the time of the death of the allottee, are not assets of the deceased allottee's estate, and are not subject to sale by the administrator to pay debts of the estate.

The minority of a Creek freedman is a restriction upon alienation under the act of May 27, 1908, and allotted lands of such minor Creek freedman are not subject to, or to be held liable for, any form of personal claim or demand against the allottee arising or existing prior to his majority, and upon the death of such atlottee, his lands are not assets of the estate, and a sale made by the administrator to pay debts of the estate is void.

The statute of limitations does not begin to run in favor of one holding under a conveyance executed in violation of federal restrictions during the existence of the federal restriction but, upon the removal of such restriction, the statute of limitations begins to run.

Where suit is brought to recover lands sold by an administrator upon the order of the county court, the same must be brought within the time specified in subdivision 2 of section 183, Comp. Stat. 1921, even though the administrator's sale is absolutely void.

Appeal from District Court, Creek County.

Two actions by G. L. Sandlin and others against Willie Barker and others. From judgments in each case for plaintiffs defendants appeal. Judgment in each case reversed and remanded with directions.

H. M. Tate, of Wewoka, Lafayette Walker, of Okmulgee, J. C. Wright and S. A. Duling, both of Okemah, and Stone, Moon & Stewart, of Muskogee, for plaintiffs in error.

West, Sherman, Davidson & Moore, of Tulsa, Foreman & Simms, of Muskogee, J. C. Denton and R. H. Wills, both of Tulsa, G. W. P. Brown, of Chicago, Ill., and R. Emmett Stewart, of Muskogee, for defendants in error.

COCHRAN J.

The two cases which have been consolidated here involve the allotments of Louis Barker and Emma Barker, newborn Creek freedmen. These allottees died on January 6 and 7, 1911, respectively, and were minors at the time of their death. George W. Davis was thereafter appointed administrator of the estates of Louis Barker and Emma Barker, in separate proceedings in Okmulgee county, and, as administrator of said estates, sold the aforesaid allotments for the purpose of paying debts due by the estates of the allottees. These suits were filed by the heirs of the allottees to recover the lands so sold, on the ground that the sales were void.

It is contended by the plaintiffs in error that the probate court of Okmulgee county was without jurisdiction to sell the lands in controversy. These lands were allotted to newborn Creek freedman minors, who died while minors. The sales were made through the probate court of Okmulgee county on petitions filed by the administrator wherein it was stated that it was necessary that said lands be sold for the purpose of paying the debts of the estates. The plaintiffs in error contend that the county court had no jurisdiction of the subject-matter as the lands never became assets in the hands of the administrator. In Barnard v. Bilby, 68 Okl. 63, 171 P. 444, this court said:

"It is well settled that probate courts do not have jurisdiction to authorize an administrator to sell lands that are not assets of the decedent's estate for the payment of the decedent's debts, or for any other purpose. Was the land sold assets of the deceased's estate? In Mutual Life Insurance Company of New York v. Farmers' and Mechanics' Nat. Bank of Cadiz, Ohio (C. C.) 173 F. 390-397, it is held that the term 'assets,' as applied to decedents' estates, means property, real or personal, tangible or intangible, legal or equitable, which can be made available for or may be appropriated to the payment of debts."

Section 4 of the Act of Congress of May 27, 1908, provided:

"That allotted lands shall not be subjected or held liable, to any form of personal claim, or demand, against the allottees arising or existing prior to the removal of restrictions, other than contracts heretofore expressly permitted by law." 35 Stat. 313.

And this court has repeatedly held that lands which were not subject to the payment of debts of the deceased under the above act of Congress did not become assets of the estate in the hands of the administrator. Barnard v. Bilby, supra; In re French's Estate, 45 Okl. 819, 147 P. 319; In re Davis's Estate, 32 Okl. 209, 122 P. 547; Roth v. Union National Bank, 58 Okl. 604, 160 P. 505.

It is contended by defendants in error, however, that section 4 of the act of May 27, 1908, has no application to the instant case; that under section 1 of said act the restrictions were removed from these lands, and any debt arising after this act became effective was an indebtedness arising after the removal of restrictions; that the act of 1908 was a complete removal of restrictions on this land, except the disability of minority; that during the life of the minor the land could be sold upon proper order of the probate court to pay debts or obligations created after the passage of the act of Congress of 1908, and therefore section 4, as applied to the lands in controversy, only prevented such lands from being subjected to debts arising before the removal of restrictions which were removed under section 1 of the act. It is also insisted that the county court of Okmulgee county, being a court of general probate jurisdiction having rendered its judgment holding that the lands were assets and subject to sale, the same cannot be attacked in a collateral proceeding. This last contention has been disposed of contrary to this contention provided the lands were in fact restricted lands, and not assets in the hands of the administrator. In Barnard v. Bilby, supra, the holding of the court is as follows:

"Since, under the acts of Congress above cited, which control in these matters, the land was not subject to the payment of the debts of the deceased, it did not become assets of the estate in the hands of the administrator, and therefore the county court of Wagoner county did not obtain jurisdiction to hear and determine whether or not said land was subject to sale for the payment of the debts of the deceased, or the expenses of administration."

The holding in that case is to be distinguished from the case of Doran v. Kennedy, 237 U.S. 362, 35 S.Ct. 615, 59 L.Ed. 996, for as said in that case:

"That court had the unquestioned power to authorize a sale of it to pay certain classes of obligations. * * * Whether there were facts to warrant a sale in any given case was a question which the probate court was obliged to determine, and which that court and no other had jurisdiction to determine."

But in a case where the property cannot be sold to pay any class of obligation, the county court has no jurisdiction whatever of the subject-matter.

It next remains to be determined whether the lands in controversy were restricted lands so as to come within section 4 of the act of Congress; or, putting it in another form, whether the restrictions on this land were removed by the act of May 27, 1908. Section 6 of the act of 1908 provides:

"That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma. * * *"

In the First State Bank of Hewitt v. Lowery, 178 P. 983, this court said:

"It is contended by counsel that under section 1 of that act this land was free from any restrictions within the meaning of the act. With this we do not agree. Section 6 of the act provides that property of minor allottees shall be subject to the jurisdiction of the probate courts of the state, and no provision is made for the sale of lands held by minors except through probate proceedings. It has been repeatedly held in effect that minority is a restriction upon alienation of such lands within the meaning of this act, and that such lands can only be conveyed by a guardian authorized in a proper proceeding in the county court."

The syllabus in the above case is as follows:

"The minority of a Choctaw Indian of one-eighth blood is a restriction against alienation of lands allotted to him in any manner except by a guardian duly authorized by proper proceedings in the county court.

Lands allotted to a Choctaw Indian of one-eighth blood are not subject to sale on execution after he becomes of age, to satisfy a judgment rendered against him during his minority."

In Egan v. Ingram, 58 Okl. 766, 161 P. 225, this court used the following language:

"If, on February 21, 1909, these allotted lands were subject to any federal restriction upon Chilli Henson's right to alienate, which was violated by the deed of that date, that deed was 'absolutely null and void' under the act of Congress of May 27, 1908, which took effect on July 27, 1908, and, being therefore subject to this attack, the judgment of

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