Skelton v. Dill

• Decision Date: 18 November 1911
• Docket Number: Case Number: 1227
• Citation: 119 P. 267,30 Okla. 278,1911 OK 477
• Parties: SKELTON v. DILL.
• Court: Oklahoma Supreme Court

1911 OK 477

119 P. 267

30 Okla. 278

SKELTON v. DILL.

Case Number: 1227

Supreme Court of Oklahoma

Decided: November 18, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Questions of Fact. Where the Creek rolls show that a woman and her deceased child are of Creek blood, and she and her husband testify to the same effect, a finding of the trial court that they are of Creek blood will not be disturbed, though a number of persons, including some relatives, testify they were adopted Creeks, and not of Creek blood.

2. ACKNOWLEDGMENT--Sufficiency. A certificate of acknowledgment, taken in another state, which stated that the maker of the instrument came before a notary public, and which was attested by the person making the certificate as chancery clerk and ex officio notary public, was sufficient to admit the instrument to record under the law in force in the Indian Territory prior to statehood.

Error from District Court, Okfuskee County; John B. Patterson, Special Judge.

Action by William H. Dill against L. S. Skelton and W. E. Whitman. Judgment for plaintiff, and defendant Skelton brings error. Affirmed.

Stanford & Cochran, for plaintiff in error

Martin L. Frerich, for defendant in error

ROSSER, C.

¶1 This is a suit by William H. Dill, defendant in error, hereinafter called plaintiff, against L. S. Skelton, plaintiff in error, hereinafter called defendant, and W. E. Whitman, to recover certain lands described in plaintiff's petition. The lands were the allotment of Archie Hamby, de-deceased, who was the son of Archie H. Hamby, a noncitizen, and Dora Hamby, a member of the Creek Tribe of Indians. Archie Hamby died on the 26th of July, A. D. 1901, leaving surviving him his father, mother, three brothers, and a sister. The record is silent as to when this land was selected as his allotment, but the enrollment card shows that his enrollment was approved July 3l, 1905. The deeds from the Creek Tribe to both his homestead and surplus allotments are dated May 24, 1907.

¶2 Plaintiff claims title as follows: On the 20th of July, A. D. 1906, Dora Hamby, joined by her husband, A. H. Hamby, executed a warranty deed to the lands to S. M. Wilson. On the 28th of July, A. D. 1906, S. M. Wilson and wife conveyed by warranty deed an undivided one-half interest in the lands to the plaintiff. On the 31st of December, A. D. 1906, Samuel M. Wilson and wife conveyed their remaining interest in the lands to Ada Smith by warranty deed. On the 18th of February, A. D. 1907, Ada Smith conveyed her interest in the lands to the plaintiff, William H. Dill, by warranty deed. The defendant W. E. Whitman filed a disclaimer as to any interest or title to the lands, and alleged that he was holding merely as tenant of the defendant L. S. Skelton.

¶3 The defendant L. S. Skelton claims title to the lands as follows: On the 2d day of September, A. D. 1905, A. H. Hamby, the father of the allottee, Archie Hamby, deceased, executed a power of attorney to H. E. P. Stanford, the first paragraph of which is as follows:

"To make, execute and deliver warranty deeds, mortgages, and releases upon my interest in the allotment of my deceased child, Archie Hamby, set aside as his approximate share of the lands of the Creek Nation of Indians in the Indian Territory."

¶4 On the same day Dora Hamby, the mother of the deceased allottee, executed and delivered to H. E. P. Stanford a power of attorney, the third paragraph of which is as follows:

"To make, execute and deliver warranty deeds, mortgages, and releases upon my interest in the allotment of my deceased, Archie Hamby, set aside as his approximate share of the lands of the Creek Nation of Indians in the Indian Territory."

¶5 On the 13th of September, A. D. 1905, H. E. P. Stanford, acting under the powers as above set out, in the name of A. H. Hamby and Dora Hamby, executed a warranty deed to the lands to L. S. Skelton, describing A. H. Hamby as a noncitizen of the Creek Nation of Indians, and Dora Hamby as an adopted citizen of the Creek Nation of Indians, and the two as sole heirs at law of Archie Hamby, deceased. On the 1st of July, A. D. 1907, H. E. P. Stanford, as attorney in fact for A. H. Hamby and Dora Hamby, executed a warranty deed to the same lands to the defendant L. S. Skelton, upon the same consideration mentioned in the first deed. On the 12th of August, A. D. 1907, H. E. P. Stanford, acting under the power given him by A. H. Hamby, executed another general warranty deed in the name of A. H. Hamby, for the same consideration, to the defendant L. S. Skelton.

¶6 A. H. Hamby and Dora Hamby testified that Dora Hamby was of thirty-second Creek blood, and that the deceased son was one-sixty-fourth Creek. The enrollment card, which was introduced in evidence, also showed that Dora Hamby was one thirty-second Creek, and that the deceased, Archie Hamby, was one sixty-fourth.

¶7 The defendant offered in evidence the testimony of several witnesses, taken before the Commission to the Five Civilized Tribes, upon the hearing of the application of Mary E. Bowen et al. for enrollment as citizens by blood of the Creek Tribe, including that of several relatives, for the purpose of showing that Mary E. Bowen, who was Dora Hamby's grandmother, was never a member of the Creek Tribe, and that Mrs. Bowen's father's family were citizens by adoption, and not by blood. He also offered in evidence the testimony of Mary E. Bowen, who testified that her father was a quadroon Indian, but admitted that she had never drawn any money as a member of the tribe. In the course of her examination, the Commission seems to have examined various records, and to have found that her name was not on any authenticated tribal roll of the Creek Nation, and also to have found that on July 10, 1895, the Creek Citizenship Commission rendered a judgment, rejecting her application for enrollment, because she had no Creek blood, and because she was not living with her father, Jim Gentry, at the time he and his family were adopted into the Creek Tribe. All of this testimony was objected to by plaintiff at the time it was offered.

¶8 The parties waived a jury, and submitted the issues to the court to find the law and the facts. The court found the facts as to the conveyances as stated above, and also found that the deceased, Archie Hamby, was one sixty-fourth Creek Indian, and that Dora Hamby was one thirty-second Creek, and upon these facts found that the plaintiff was entitled to recover.

¶9 Several questions are raised in the briefs of counsel in the case, and to cover all points that are or might be raised in the case would be to write a treatise upon the land laws in the Creek Nation, and also upon the rights of married women. A principal question raised in the brief of plaintiff in error is as to the blood of Dora Hamby and Archie Hamby. It is contended by the plaintiff in error that Dora Hamby and Archie Hamby, though enrolled as one thirty-second Creek Indian and one sixty-fourth Creek Indian, respectively, were, in fact, white people, and therefore, at the time of the execution of the power of attorney by Dora Hamby to H. E. P. Stanford, that their lands were not restricted, and that she had a right to convey them, and that therefore the deeds executed by H. E. P. Stanford, in the exercise of the power, were valid, and conveyed title to the defendant (plaintiff in error).

¶10 The second contention of defendant is that the allotment not having been selected, and the patents not having been issued until after the supplemental treaty took effect, that the land descended as provided in chapter 49 of Mansf. Dig. of Ark. (Ind. T. Ann. St. 1899, c. 21), and the mother, Dora Hamby, not being a Creek by blood, was postponed to the father, A. H. Hamby, and that he took either an estate in fee simple, or, if the land was a new acquisition in Archie Hamby, deceased, a life estate in the lands; and that the power given by him to Stanford was valid, and that the conveyance from him gave either a fee simple or a life estate to defendant, depending on whether the estate of the allottee was an inheritance or a new acquisition.

¶11 Another contention of the defendant is that the deed from A. H. and Dora Hamby to S. M. Wilson was not properly acknowledged, and was therefore not entitled to record, and was not admissible as evidence in the case.

¶12 In order to clearly understand these questions it is necessary to refer to some of the Creek agreements and the statutes bearing upon the right to dispose of Creek Indian lands.

¶13 Section 16, Supplemental Creek Agreement, ratified by act of Congress, approved June 30, 1902, c. 1323, 32 Stat. 500, is as follows:

"Lands allotted to citizens shall not, in any manner whatever, or at any time, be encumbered, 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. * * *"

¶14 The Indian Appropriation Bill of April 21, 1904, c. 1402, 33 Stat. 189, among other things, provides as follows:

"And all the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed, and all restrictions upon the alienation of all other allottees of said tribes, except minors, and except as to homesteads, may with the approval of the Secretary of the Interior, be removed under such rules and regulations as the Secretary of the Interior may prescribe. * * *"

¶15 Section 22 of the act of Congress of April 26, 1906 (34 Stat. 137, c. 1876) entitled "An act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian...