United States v. Bellm

• Decision Date: 26 September 1910
• Docket Number: Eq. 884.
• Citation: 182 F. 161
• Parties: UNITED STATES v. BELLM.
• Court: U.S. District Court — Eastern District of Oklahoma

182 F. 161

UNITED STATES v. BELLM.

No. Eq. 884.

United States Circuit Court, E.D. Oklahoma.

September 26, 1910

Paul A Ewert, for the United States.

S. C Fullerton, for defendant.

CAMPBELL District Judge.

This is a suit by the United States to cancel a certain instrument purporting to be a deed from the United States marshal for the Northern District of Indian Territory, to the defendant conveying to him the land in controversy. The land involved was originally allotted to one Pa-lo-sah, or Lucy Doherty, an Indian of the Eastern Shawnee Tribe, under the provisions of the general allotment act (Act Feb. 8, 1887, c. 119, Sec. 5, 24 Stat. 389), as amended by Act Feb. 28, 1891, c. 383, 26 Stat. The allottee afterwards died, and in February, 1902, it 794. appears that her heirs or a part of them filed a bill in the United States Court for the Northern District of Indian Territory, praying a determination as to heirship, and that the land be partitioned among the heirs of the deceased allottee, and as provided by the laws of Kansas. In due time, the matter was heard, and the court by its decree established the lawful heirs of the allottee, but further found that the land could not be partitioned among the heirs without a manifest injury to the estate, and, following a provision of the Kansas law relating to partition, which provides that in such cases the land may be ordered sold and the proceeds divided among the heirs according to their respective interests, directed that this land should be sold and the proceeds so distributed. Pursuant to this order, the land was offered at public sale by the marshal, and, the defendant being the highest and best bidder therefor, the land was sold to him. Thereafter the court confirmed the sale, and directed the marshal to execute a deed therefor to the defendant, which was done. It is this deed which the government now seeks to set aside and cancel, as a cloud on the title to the land. The defendant has demurred to the bill, and it is this demurrer that is now being considered.

The several grounds of the demurrer, I think, may be reduced to but two questions: The capacity of the United States to maintain the suit, and the contention that there is no equity in the bill. If the government may maintain this action in its own name, then the fact that the amount in controversy does not appear to exceed $2,000, exclusive of interest and costs, is immaterial. United States v. Sayward, 160 U.S. 493, 16 Sup.Ct. 371, 40 L.Ed. 508. If the attempted sale of this land, even though by order of court, was in violation of the acts of Congress relating to its alienability, and under the law as it then existed it was unlawful, even though it might appear that it was impracticable to divide it among the heirs, then the government may maintain the action. United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532; United States v. Flournoy, etc., Co. (C.C.) 71 F. 576; United States v. Allen (C.C.A.) 179 F. 13. This brings us to a consideration of the acts under which this allotment was made and held. The general allotment act of February 8, 1887 (24 Stat. 388), as amended February 28, 1891 (26 Stat. 794), contained the following provisions:

'Sec. 5. That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, that the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, that the law of descent and partition in force in the state or territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided; and the laws of the state of Kansas, regulating the descent and partition of real estate shall, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act.'

Under date of March 5, 1891, pursuant to the foregoing acts, a trust patent was issued from the government to the allottee for the allotment in controversy, the habendum clause of which is as follows:

'Know ye that the United States of America, in consideration of the premises and in accordance with the provisions of the fifth section of said act of Congress of February 8, 1887, hereby declares that it does and will hold the land thus allotted (subject to all the restrictions and conditions contained in said fifth section) for the period of twenty-five years, in trust for the sole use and benefit of the said Pa-lo-sah or Lucy Doherty, or in case of her decease, for the sole use of her heirs, according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or her heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, that the President of the United States may, in his discretion, extend the said period.'

Did Congress by the proviso to section 5 of the general allotment act applying the laws of descent and distribution to these Indian allotments intend that in cases where it might appear to the court to be of manifest injury to the interests of the heirs to divide the same the lands might be sold under order of court? The general provision is that the laws of descent and partition of the state in which any allotment is situated shall apply thereto, except as in the act otherwise provided. In applying this general provision, however, it became necessary to designate the particular laws of descent and partition which should govern in Indian Territory, for the reason that there was then no organized state or territorial government in Indian Territory; and hence the laws of Kansas on these subjects were adopted 'so far as practicable.' It is not questioned that the laws of descent applicable in any such case determined who should be the heirs to the allotment of any deceased allottee, and that such heirs have the same rights as were enjoyed by the allottee under his trust patent, subject to the same restrictions; nor is it questioned that the allotment might be divided among the heirs as provided in the particular jurisdiction for partition of land among persons not Indians. But it is contended by the defendant, and denied by the complainant, that as provided in the Kansas law, if partition cannot be made without manifest injury, the commissioners appointed by the...