Swift v. Parmenter

• Decision Date: 15 October 1927
• Docket Number: 341.,No. 340,340
• Citation: Swift v. Parmenter, 22 F.2d 142 (8th Cir. 1927)
• Parties: SWIFT v. PARMENTER et al. MOORE v. WORK, SECRETARY OF THE INTERIOR, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 142 (1927)

SWIFT v. PARMENTER et al.

MOORE v. WORK, SECRETARY OF THE INTERIOR, et al.

Nos. 340, 341.

Circuit Court of Appeals, Eighth Circuit.

October 15, 1927.

Chester I. Long, of Wichita, Kan. (Peter Q. Nyce, of Washington, D. C., Austin M. Cowan, of Wichita, Kan., J. B. Campbell, of Holdenville, Okl., J. D. Houston and W. E. Stanley, both of Wichita, Kan., George E. Chamberlain, of Washington, D. C., and W. W. Pryor, of Holdenville, Okl., on the brief), for petitioner Swift.

Sid White, of Okemah, Okl. (R. S. Cate, of Muskogee, Okl., on the brief), for petitioner Moore.

O. H. Graves, Asst. Sol. Interior Department, of Washington, D. C. (E. O. Patterson, Sol. Interior Department, of Washington, D. C., on the brief), for respondent Work.

Webster Ballinger, of Washington, D. C., for respondent Davis.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

LEWIS, Circuit Judge.

Each of the petitioners, George M. Swift and Hill Moore, asks leave to file a bill of review, for the purpose of opening and modifying a decree entered in Cause No. 2017, entitled United States of America v. Bessie Wildcat et al., heretofore pending in the United States District Court for the Eastern District of Oklahoma, which decree was entered on June 17, 1919, and thereafter modified on September 27, 1922, pursuant to mandate of this court. That suit was brought against Bessie Wildcat, Martha Jackson, other named full blood Creek Indians, Black Panther Oil & Gas Company, and others, to cancel an allotment made to Barney Thlocco, a full blood Creek Indian, out of Creek tribal lands. Early in the progress of that case it was held that the ground on which the United States sought to impeach the validity of the allotment was not maintainable (United States v. Wildcat, 244 U. S. 111, 37 S. Ct. 561, 61 L. Ed. 1024); and thereafter the issues that remained in the case, Thlocco having died, were between 200 or more intervening Creek Indians who claimed to be his heirs, as well as Martha Jackson and other original defendants who set up heirship. The allotted quarter section of land proved to be of great value in oil deposits, and this was doubtless the incentive that brought on so many interventions. In behalf of Martha it was asserted that Barney Thlocco and all of his children, except Martha's mother, had died in an epidemic of smallpox, that afterward her mother married Saber Jackson, that Martha was the only issue of that marriage and her mother was deceased. Saber Jackson, the father of Martha, claimed a curtesy consummate. As the guardian of Martha he gave an oil lease to one Johnson, which by assignment passed to the Black Panther Oil & Gas Company. For the purpose of protecting those who might ultimately be found to be entitled to the royalties on the oil produced, the court in 1914, pending the litigation, appointed a receiver to hold 25 per cent. of the production or its value, and that fund had accumulated to more than $1,000,000 at the time of final decree. Saber Jackson had been removed as Martha's guardian and R. W. Parmenter appointed. He employed counsel to represent his ward's interest throughout the litigation, and they rendered the necessary services. On May 9, 1919, the day before Martha Jackson reached the age of 18, the county court of Seminole County, Oklahoma, which had appointed Parmenter her guardian while she was a minor, found that she was an incompetent adult, and on that day appointed Parmenter guardian of her person and property because of her incompetency. On the 19th day of May, 1919, the county court of Okfuskee County, Oklahoma, entered an order finding Martha Jackson an incompetent adult and appointed W. E. McKinney as her guardian, and that appointment is the real cause for both of these petitions.

On May 19, 1919, the day on which Mc- Kinney was appointed guardian by the county court of Okfuskee County, he made a contract with petitioner Swift, by which he undertook to employ Swift as his attorney, and in consideration of the services to be performed by Swift McKinney agreed that Swift "shall have and receive one-half of all property or money which may be recovered by him in any suit or suits filed by him, whether received upon any settlement or compromise or upon judgment. In consideration of the fee hereby agreed to be paid, the said Swift hereby undertakes and agrees to diligently and carefully prosecute, or cause to be prosecuted, such suit or suits as may be necessary for the recovery of the above described property and royalties, and if said suit or suits are defeated, to claim no further compensation, but in the event said second party shall recover, or cause to be recovered, either upon settlement and compromise or judgment, any part of said property or royalties, he shall be entitled to and shall receive one-half of such recovery as full compensation; and the party of the first part hereby appoints and designates the said second party (Swift) his true, sole and lawful attorney in said matter with full power to settle, compromise and receipt for all money or property and hereby assigns, conveys and sets over to said second party an undivided one-half interest in all sums of money or property recovered by him, and that the services so rendered shall be a first lien upon the subject of said controversy in favor of second party and associate counsel."

The contract further recited that Swift was employed as attorney at law to take all necessary and proper steps to avoid and cause to be cancelled and held for naught all deeds, assignments, contracts of settlement or instruments of any character which had been made by R. W. Parmenter, guardian of Martha Jackson, affecting her title to the quarter section and the royalties arising therefrom.

Considering the circumstances under which this contract was made we have no doubt that a chancellor with due regard to the interest of the ward would have cancelled it as improvident and grossly unfair. Assuming that McKinney and Swift knew the real facts in connection with the litigation then pending, the steps that had been taken to establish Martha's interest, the cost of that litigation and the provisions made to safeguard her interest, we cannot regard the authority given Swift to bring suit or suits to recover Martha's interest otherwise than as a mere pretense. Contracts had theretofore been made under which Martha was assured of getting $123,000, plus one-eighth of 25 per cent. of the proceeds to be derived from the sale of oil and gas under the lease during a stated time. Pursuant to these contracts the Black Panther Company had spent more than $400,000 of its money in the litigation to establish Martha's claim to the land. True, in doing so it protected itself as her lessee and grantee, but that does not lessen the fact that she was the beneficiary; and most likely would have gotten nothing if that assistance had not been given. And so we say there could have been no reasonable expectation of instituting litigation to undo everything that had been done, as McKinney pretended he would do when he asked to intervene in the original cause. But that cause was near its close, a large sum was to shortly be paid over to Martha, and under the terms of the contract half of it would be Swift's money. It is sufficient to say, this is a court of equity and its plain and unavoidable duty is the protection of estates of incompetents when their interests are not being safeguarded in litigation here.

On June 17, 1919, the day on which the court rendered its decree in said Cause No. 2017, McKinney tendered to the court his petition of intervention as guardian of Martha Jackson. He recited therein much, if not all, that had been done in relation to Martha Jackson's claimed interest in the quarter section by her guardians, beginning with the lease made to Johnson by her father as her guardian, in June, 1913, charged that all of them were contrary to the interests of Martha, that some of them were fraudulent, asked that they be adjudged void and attacked the appointment of Parmenter as guardian of Martha on May 9, 1919, as having been illegally made and alleged that it was void. His intervention was opposed and the court denied him the right to intervene, for the reason that his claimed right to intervene was based on a collateral attack on the action of the county court of Seminole County in appointing Parmenter. He was then granted an appeal to this court. We affirmed the action of the district court in denying McKinney the right to intervene, in an opinion found in 280 F. 486, where a review of the steps taken in protection of the interests of the ward in the litigation may be found. We expressed our reasons for affirming the action of the district court, and they need not be repeated here. Pending that appeal a new situation arose by mutual agreement of all parties in interest, which substantially affected the interests of Martha Jackson and which required a modification of the decree that had been rendered by the district court. By stipulation of the parties it was agreed that the decree should be so modified. By motion of the interested parties it was requested that this court make the modification or remand the case to the...