Springer v. Townsend

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 336 F.2d 397
• Docket Number: No. 7597.,7597.
• Parties: Florence SPRINGER, Appellant, v. G. L. TOWNSEND, Appellee.
• Decision Date: 06 October 1964

336 F.2d 397 (1964)

Florence SPRINGER, Appellant,
v.
G. L. TOWNSEND, Appellee.

No. 7597.

United States Court of Appeals Tenth Circuit.

September 9, 1964.

Rehearing Denied October 6, 1964.

336 F.2d 398

W. F. Semple, Tulsa, Okl., for appellant.

Robert D. Hudson, Tulsa, Okl., for appellee.

Before PICKETT, LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

This diversity action was brought in the court below by the appellant, Florence Springer, against the appellee, G. L. Townsend, to quiet title to certain real estate located in Creek County, Oklahoma. The appeal is from an order and judgment quieting title to the real estate in appellee and from the court's order denying appellant's motion for a new trial.

The real estate in question was originally the allotment of Jennetta Richard, a fullblood and enrolled Creek Indian. By subsequent marriages, she became Jennetta Barnett and then Jennetta Byrd. She died, intestate, on September 14, 1932, leaving as heirs at law the following persons: Her husband, Yadeka Byrd; her son, George Barnett, Jr.; and a daughter, Florence Barnett (afterwards Florence Townsend and now Florence Springer), the appellant. Under the laws of intestate succession, each of the heirs inherited an undivided one-third interest in the real estate. George Barnett and the appellant are both fullblood and unenrolled Creek Indians.

In November of 1951, George entered into an agreement with appellant, under the terms of which he agreed to sell to her his one-third mineral interest in the land. Since the sale involved restricted Indian land and since George and Florence were fullblood Indians, it was necessary that the deed conveying the mineral interest in the land be approved by the County Court of the county in which the land was located. Accordingly, George filed a petition in the County Court of Creek County, Oklahoma, on November 20, 1951, seeking the necessary approval for the conveyance. Appraisers were appointed to appraise the interest being conveyed and notice of the hearing on the petition was published in a local newspaper. In addition, notice of the hearing was served upon the then Acting Area Director of the Five Civilized Tribes and a copy of this notice showing such service was filed in the County Court. Among other things, the notice recited a bid of $3,600 by appellant and set December 4, 1951, at 2:00 p. m., as the time for hearing on the petition.

The record indicates that the hearing was not completed on December 4 and no formal order of continuance of that hearing was entered by the County Court on that date. However, on January 8, 1952, the County Court entered an order which recites that the matter "* * * came on to be heard on the 4th day of December, 1951, and for good cause shown the same was continued until the 8th day of January, 1952 * * *" and in which the deed from George to appellant was approved by the court. The record shows that a hearing on the petition was held in open court on January 8 and that the Probate Attorney appeared and participated in such hearing. No new notices of the January 8 hearing were ever published or served upon the Area Director.

The deed from George was delivered to appellant and, on March 12, 1952, she executed an instrument entitled "Quite-Claim Deed", by which she transferred title to the mineral interest in question to the appellee. This deed was duly recorded on the same day. Thereafter and on May 5, 1960, an order was entered by the Area Director removing the restrictions of George, and, on November 25, 1960, he purported to convey the same mineral interest to his sister, Florence Springer. Having acquired what she believed to be a better title than she had conveyed to appellee, the appellant commenced this

336 F.2d 399

action to quiet title and to cancel the "Quite-Claim Deed" to appellee alleging that she had no title to the mineral interest covered by that deed at the time she executed it and that the deed from George to her was void because of numerous defects in the County Court proceedings. Appellee's motion for summary judgment was sustained by the lower court¹ on all issues in the case, except for the fact question as to when notice of the County Court hearing was served upon the Area Director. A hearing was held on that issue and the trial court found and held: Notice of the hearing was served upon the Area Director on November 23, 1951, within the time provided by law; the approval proceedings in the County Court were regular and proper; the deed from George to appellant was a good and proper conveyance and transferred all of his interest to appellant; and the "Quite-Claim Deed" from appellant to appellee conveyed the mineral interest involved herein to appellee. The title thereto was then quieted in the appellee. Appellant's motion for a new trial was overruled and this appeal resulted

Appellant contends that title to the mineral interest in question was not transferred to appellee by her quit-claim deed of March 12, 1952, since she did not have title to the mineral interest at that time and therefore could not convey it. This contention is based upon her argument that the deed from George to her is void and did not effectuate a transfer of title to the mineral interest because the approval proceedings in the County Court were defective in the following respects: There was no order entered continuing the hearing on the petition for approval from December 4, 1951, to January 8, 1952, and no further notices of the January 8 hearing were ever given as required by law; there was no valid and timely notice of the hearing on the petition given for either December 4 or January 8 inasmuch as the notice served upon the Area Director...