Schock v. Sweet

• Court: Oklahoma Supreme Court
• Writing for the Court: RIDDLE, J.
• Citation: Schock v. Sweet, 45 Okla. 51, 145 P. 388, 1914 OK 635 (Okla. 1914)
• Decision Date: 15 December 1914
• Docket Number: 6410.
• Parties: SCHOCK, OKMULGEE COUNTY TREASURER, ET AL. v. SWEET ET AL.

145 P. 388

45 Okla. 51, 1914 OK 635

SCHOCK, OKMULGEE COUNTY TREASURER, ET AL. v. SWEET ET AL.

No. 6410.

Supreme Court of Oklahoma

December 15, 1914

Syllabus by the Court.

The town lots involved were a part of the homestead allotment of a Creek freedman, which allotment, under section 16 of the Allotment Act (32 Stat. L. 503, c. 1323), was to be inalienable and nontaxable for a period of 21 years from date of issuance of patent. The act of Congress of March 3, 1903 (32 Stat. L. p. 996, c. 992), provides: "And provided further, that nothing herein contained shall prevent the survey and platting, at their own expense, of town sites by private parties where stations are located along the lines of railroads, nor the unrestricted alienation of lands for such purposes, when recommended by the Commission to the Five Civilized Tribes and approved by the Secretary of the Interior." Under this law, the allottee made application to the Secretary of the Interior and caused the restrictions upon alienation of said land to be removed. At the date of the removal of said restrictions, section 19 of the act of Congress of April 26, 1906 (34 Stat. 144, c. 1876), was in force, which section provides: "That all lands upon which restrictions are removed shall be subject to taxation and the other lands shall be exempt from taxation as long as the title remains in the allottee." The land was platted into lots and blocks, and plaintiffs thereafter purchased said lots. Defendants placed same on the tax rolls, and assessed said property for taxation against plaintiffs. Plaintiffs filed their petition with the county commissioners, demanding that said lots be stricken from the tax rolls. Said petition was denied. Upon appeal to the district court, judgment was rendered for plaintiffs restraining the collection of taxes on said property. Held error, for the reason said property was not exempt from taxation after title passed from the allottee to plaintiffs.

Plaintiffs obtained title to the property involved through and by virtue of the provisions of the act of Congress of March 3, 1903 supra. They now seek to have exempted from taxation said property. Held, that except by virtue of the provision of the act of Congress of March 3, 1903, supra plaintiffs could not have secured title to said property; that said act nowhere attempts to exempt said property from taxation; that the use to which said property has been appropriated is inconsistent with continuing the exemption from taxation. Therefore said property is subject to taxes.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge.

Action by Cornelia Sweet and others against Elmer E. Schock, Treasurer of Okmulgee County, and the board of County Commissioners of Okmulgee County. Judgment for plaintiffs, and defendants bring error. Reversed, with directions to render judgment for defendants.

Orlando Swain and J. W. Childers, both of Okmulgee, for plaintiffs in error.

Merwine, Newhouse & Albertson, of Okmulgee, for defendants in error.

RIDDLE J.

Defendants in error will be denominated the plaintiffs, and the plaintiffs in error the defendants. Plaintiffs are owners of certain lots in what is known as the Capital Heights addition, Nos. 1 and 2, in the city of Okmulgee, being the same lots referred to in the agreed statement. These lots were part of the homestead allotment of Sarah Smith, a Creek freedwoman. The lots were assessed and placed on the tax rolls by the authorities of Okmulgee county for the year 1912. Plaintiffs filed their petition with the board of county commissioners in November, 1912, praying that said property be stricken from the tax list. Upon hearing said petition, the prayer was denied, and plaintiffs appealed to the district court. In the district court the cause was heard upon an agreed statement of facts. That part of said agreed statement material here is as follows:

"(1) That on the 23d day of April, 1904, the Creek Nation of Indians, by P. Porter, its principal chief, by deed of conveyance or patent, conveyed unto one Sarah Smith, a freedman citizen of said nation, who had been placed on the final rolls of the citizens and freedmen of said nation, the following described real estate, situated in the city of Okmulgee, Okmulgee county, state of Oklahoma, to wit: Lot three (3) of section seven (7), township thirteen (13) north, range thirteen (13) east, containing 41.82 acres, more or less. * * *

(2) That said real estate was conveyed to the said Sarah Smith as and for her homestead, and was so designated in said conveyance, and said conveyance, at the time of its execution and delivery, contained the express provision that said real estate described in said deed should be nontaxable for 21 years from the date of said deed.

(3) That thereafter, on the 28th day of February, 1907, the restrictions on the alienation of said real estate having been removed by the Secretary of the Interior, upon the application and petition of Sarah Smith (as alleged in the defendant's answer, and set forth in the second cause of defense, contained in the amended answer of the defendant), the said Sarah Smith, by deed of general warranty, conveyed fee-simple title to one Nathan Boyd of the following of the above-described real estate: * * * And that said deed was filed for record with the register of deeds of Okmulgee county, Okl., and was

by him duly recorded in the proper records of his office. It is further agreed that, at the time of said conveyance to the said Nathan D. Boyd of the lands above described, there were no improvements thereon, and that said deed contained no stipulation, reservation, or agreement that said land should be exempt from taxation.

(4) That on the 1st day of May, 1907, the said Nathan Boyd, being the owner of said real estate last described, caused said lands to be surveyed, platted, and laid out into lots, blocks, streets, and alleys, all according to law, and filed said plat for record, designating the same as the Capital Heights addition to the city of Okmulgee, Okl., which said plat was duly accepted by the proper authorities for said city of Okmulgee, Okl., and said addition is now a part of and within the incorporated boundaries of said city of Okmulgee, Okl., and the same lies entirely within the lands so conveyed by the Creek Nation to the said Sarah Smith, as and for her homestead.

(5) That the said Sarah Smith, after July 26, 1908, having conveyed a portion of her homestead to the said Nathan Boyd, as above set out, caused the remaining portions of said real estate in her said homestead, as aforesaid, to be surveyed, platted, and laid out into lots, blocks, streets, and alleys, all according to law, and the same was duly filed for record with the register of deeds of Okmulgee county, Okl., and said addition was designated as Capital Heights addition to the city of Okmulgee, Okl., and said Capital Heights second addition to said city of Okmulgee, Okl., is now a part of said city, and lies entirely within the incorporated limits of said city.

(6) That each of the lots in each of said additions, numbered, designated, and tabulated below in this paragraph set out, have been placed by the assessor for said Okmulgee county, Okl., upon the tax duplicate of said Okmulgee county, Okl., and upon the tax duplicates of said city of Okmulgee, Okl., for taxation for the year 1912, for the valuations hereafter set forth, and a tax levied on each of said lots, as is set forth below, with the names of the owners, the valuation for taxation, the amount of the taxes charged for the year 1912, in Capital Heights addition No. 2 to said city. * * *"

The court, on the 2d day of February, 1914, rendered judgment reversing the order of the county commissioners and directing that the property be stricken from the tax rolls, and enjoined defendant Schock, treasurer of said county, his successors in office, from taking any steps toward the collection of any taxes, and from selling any of said property described in said proceeding. From this judgment, defendants prosecute this appeal by filing their petition in error with original case-made attached.

The assignments of error necessary to be considered are: (1) The court erred in not rendering judgment for plaintiffs in error upon the agreed statement of facts submitted to the court as the evidence in the case. (2) The judgment and decree is not sustained by the evidence and is contrary to the evidence. (3) Said judgment and decree is contrary to law.

This record presents but one question for our determination, which is: Were the lots belonging to plaintiffs, which were originally parts of the homestead allotment of Sarah Smith, a Creek freedman, exempt from taxation in the hands of plaintiffs? This question involves the consideration of section 16 of the Supplemental Creek Agreement (32 Stat. L. 503), commonly known as the Allotment Act, under which said lands were allotted to Sarah Smith, together with the provision of the Indian Appropriation Act, herein referred to, and the act of April 26, 1906. Section 16 of the Creek Supplemental Agreement reads:

"Lands allotted to citizens shall not in any manner whatever or at any time be incumbered, taken, or sold to secure or satisfy any debt or obligation nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee

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