Scott v. First Nat. Bank of Morris

• Decision Date: 23 December 1922
• Docket Number: 5765.
• Citation: 285 F. 832
• Parties: SCOTT v. FIRST NAT. BANK OF MORRIS.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F. 832

SCOTT v. FIRST NAT. BANK OF MORRIS.

No. 5765.

United States Court of Appeals, Eighth Circuit.

December 23, 1922

R. C Allen, of Okmulgee, Okl. (Lewis C. Lawson, of Holdenville Okl., and Allen & Rose, of Okmulgee, Okl., on the brief), for appellant.

William M. Matthews, of Kansas City, Mo. (Charles A. Dickson, of Okmulgee, Okl., on the brief), for appellee.

Before SANBORN and LEWIS, Circuit Judges, and VAN VALKENBURGH district judge.

SANBORN Circuit Judge.

This is an appeal from an order whereby, upon the complaint, the court below, on the motion of the defendant, the First National Bank of Morris, dismissed the suit of the plaintiff James Scott, on the grounds that this suit could not be maintained as a suit in equity because the defendant was in possession and the plaintiff was out of possession, and that it could not be maintained as an action at law because there was no diversity of citizenship between the parties to it and no statement of any federal question was necessary in setting forth the plaintiff's cause of action.

The complaint states separately a first and second cause of action. For his first cause of action the plaintiff avers that he and the defendant are citizens, residents, and have their domiciles and places of abode and business in the state of Oklahoma; that he is the owner of the north 25 feet of lots 7, 8, 9, 10, 11, and 12, in block 26, which is a part of the north half of the northeast quarter of section 13 north, of range 14 east of the Indian base meridian, in Okmulgee county, Okl.; that the United States conveyed this 80 acres by its patent of May 6, 1903, to Phillip Scott; that in 1905 Phillip Scott died intestate, the owner of this land, and the plaintiff was and is his sole heir at law; that on October 31, 1903, Scott made a power of attorney to S. J. Checote to sell and to lease this 80 acres; that under this power of attorney Checote, as attorney in fact of Phillip Scott, on May 26, 1904, conveyed the 80 acres to T. F. Randall; that the interest in that part of this 80 acres here in controversy thus conveyed to Randall, if any, was by mesne conveyances, which are specifically set forth, vested in the bank on June 16, 1909; that the bank took possession of the land that is the subject of this suit about January, 1909, and has since retained such possession; that Phillip Scott was a full-blood Creek Indian, and the land in controversy was a part of his allotment as such; that, when his power of attorney to Checote was made, he was, by the acts of Congress cited in the complaint, prohibited from selling or conveying this land, so that the power of attorney, the deed under it to Randall, and all the conveyances under that power of attorney and deed were void; that the power of attorney and the deeds under it have been recorded; that the defendant has no claim or title, except under this power of attorney; and that the bank is now, and ever since January, 1909, has been, wrongfully in possession of this land, and has received the rents and profits thereof, which have been worth $1,200 per annum.

For his second cause of action the plaintiff avers that he is the owner of this land in controversy and entitled to the immediate possession thereof, and to the rents and profits thereof, since January, 1909, which were worth $1,200 per annum; that Phillip Scott was a full-blood Creek Indian, as is the plaintiff; that Phillip Scott died intestate, the owner of this land, and the plaintiff is his sole heir; and that the title to the land is derived from the allotment and patent thereof to Phillip Scott as such Creek Indian.

The prayer of the complaint is that the court appoint a receiver of the property; that it render a decree that the plaintiff is the owner of the land in controversy; that the defendant has no right, title, or interest therein or in the possession thereof; that the power of attorney to Checote, the deed to Randall, and the other deeds in the defendant's claimed chain of title are null and void; and that judgment be entered in favor of the plaintiff and against the defendant for the rents and profits of the land at the rate of $1,200 per annum from January 6, 1909.

The statement of the material averments of the complaint which has been made discloses the fact that it sets forth a cause of action to quiet the title to a piece of land by a plaintiff out of possession against a defendant in possession, to remove the cloud of the power of attorney and the conveyances in the claimed chain of title of the defendant by a decree that they are void, and to recover of the defendant the rents and profits during its possession. A suit of this nature may be maintained in the state of Oklahoma under the express provisions of its statutes. Revised Laws Okl. 1910-11, c. 10.

But where the defendant is in possession and the plaintiff is out of possession, the latter can test the title and right to the possession and to the profits or damages by an action at law, the defendant, under the Seventh Amendment to the Constitution of the United States, which provides that 'in suits at common law, where the value of the controversy shall exceed $20, the right of trial by jury shall be preserved,' and under section 1244, Comp. Stat. 1918, section 267, Judicial Code, Rev. Stat. Sec. 723, which provides that 'suits in...