United States v. Getzelman

• Decision Date: 05 April 1937
• Docket Number: No. 1450.,1450.
• Citation: 89 F.2d 531
• Parties: UNITED STATES v. GETZELMAN et al.
• Court: U.S. Court of Appeals — Tenth Circuit

89 F.2d 531 (1937)

UNITED STATES v. GETZELMAN et al.

No. 1450.

Circuit Court of Appeals, Tenth Circuit.

April 5, 1937.

Wade H. Loofbourrow, Asst. U. S. Atty., of Oklahoma City, Okl., and Pedro Capo-Rodriguez, of Washington, D. C. (Harry W. Blair, Asst. Atty. Gen., and William C. Lewis, U. S. Atty., on the brief), for the United States.

N. A. Gibson and Summers Hardy, both of Tulsa, Okl. (Edward H. Chandler, Paul B. Mason and Wm. O. Beall, all of Tulsa, Okl., on the brief), for appellees Sinclair Prairie Oil Co. and Commonwealth Oil & Gas Co.

N. A. Gibson, of Tulsa, Okl. (Wilbur J. Holleman, of Tulsa, Okl., on the brief), for appellee Petro Royalty Corporation.

N. E. McNeill, of Tulsa, Okl., for appellees Nat Williams, B. C. Getzelman, and Wilhelmina Worley.

N. E. McNeill, of Tulsa, Okl. (Charles E. Wells, of Shawnee, Okl., and Benj. Mossman, of Tulsa, Okl., on the brief), for appellees B. C. Getzelman, Investors Royalty Co., and Sneed Royalty Co.

Roscoe E. Harper and Gentry Lee, both of Tulsa, Okl., for appellee J. H. Boyle.

R. H. Hudson, of Bartlesville, Okl., and R. B. F. Hummer, of Oklahoma City, Okl., for appellee Independent Natural Gas Co.

G. C. Spillers, of Tulsa, Okl., for appellee Imperial Royalties Co.

R. C. Gwilliam and A. G. Cochran, both of Tulsa, Okl., for appellee Mid-Kansas Oil & Gas Co.

Thos. F. Shea, of Tulsa, Okl., for appellee W. C. McBride, Inc.

A. D. Cochran and E. T. Noble, both of Okmulgee, Okl., for appellees Reynolds Oil & Royalty Co. and B. J. Badger and Central National Bank of Okmulgee, Okl., joint executors of the estate of Carl W. Wangerien.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

The United States instituted this action in its own behalf and as guardian for Mary Bruno, née Vieux, to quiet title to the south half of the northwest quarter of section 25, in township 7 north of range 4 east, in Pottawatomie county, Okl.; to remove cloud by canceling of record certain deeds, mineral leases, and assignments of leases and royalties; and for an accounting for the oil and gas extracted from such land.

The amended bill set forth these facts: John Bruno and Mary Vieux, Pottawatomie Indians in Oklahoma, were married in January, 1892; and they are still husband and wife. The Commissioner of Indian Affairs filed two schedules of allotments with the Secretary of the Interior dated September 15, 1891, and the Secretary approved the first on the following day. It contained an allotment to John of 320 acres, which included all of the northwest quarter of such section 25. A trust patent issued to him on January 19, 1892. The other schedule contained an allotment to Mary of 120 acres, which included the northwest quarter of the southeast quarter, and the southwest quarter of the northeast quarter of section 26, in township 11 north of range 2 east. A trust patent was later issued and delivered to her, but the respective dates are not shown; and it was thereafter destroyed by fire. Each patent contained a provision that the United States would hold the land in trust for a period of twenty-five years in accordance with the requirements of the General Allotment Act of February 8, 1887 (24 Stat. 389, § 5 25 U.S.C.A. § 348). The two allotments were about 40 miles apart.

Some time prior to March 19, 1903, John had with the approval of the Secretary sold and made disposition of all the land allotted to him, except the northwest quarter of section 25; and Mary had made disposition in like manner of all the land allotted to her, except the previously described 80 acres in section 26. In order that their allotments might be contiguous and that John's might be improved it was mutually agreed by all parties concerned, with the approval of the Superintendent of the Agency, that Mary should convey her 80-acre tract in section 26 to W. L. Chapman for a consideration of $625; that John should convey the south half of the northwest quarter of section 25 to Mary; and that the money to be paid by Chapman should be used to improve the remaining 80 acres belonging to John. Mary and John joined in a deed to Chapman, and John executed a deed to Mary, both conveyances being dated March 19, 1903. The one from John to Mary recited that the land conveyed was a part of the original allotment to John; that it was intended to become and be the homestead of Mary instead of her original allotment in section 26; and that John retained the adjoining north half of the quarter section as a homestead. Before the superintendent forwarded the deeds for the approval of the Secretary, he satisfied himself, through official communications relating to other transactions, that the agreement could not be effected in that manner; that under applicable provisions of law it would be necessary for John to surrender his patent, relinquish his interest in the entire northwest quarter of section 25 with request that a new patent issue to him for the north half of the tract and a patent issue to Mary for the south half. John executed such a relinquishment and request indorsed on the back of the patent, and the superintendent appended thereto his written recommendation that it be complied with. That was done on June 17, 1903, and the superintendent forwarded the patent to the Commissioner on the same day. On July 23d thereafter the Assistant Secretary canceled the patent as to the land in section 25 and transmitted it to the Commissioner of the General Office, with directions that such cancellation be noted on the official records and that new patents issue as requested. The cancellation was noted on October 13th, and on June 22, 1904, new trust patents were issued, one to John for the north half and one to Mary for the south half of the tract. Each contained a trust provision identical with that inserted in the original patents. The patents were accepted; the trust period was extended from time to time by executive order of the President; and it is still in effect.

On June 20, 1903, the superintendent forwarded the deed from Mary and John to Chapman to the Commissioner for the approval of the Secretary. After being returned to the superintendent for proper certification concerning the authority of the notary to take acknowledgments, the superintendent again forwarded it to the Commissioner on August 10, 1903, for such approval. Through inadvertence, the deed from John to Mary was also transmitted. The Commissioner returned both to the superintendent on October 29th, with request for explanation concerning certain features of the situation. On November 6th, the superintendent again forwarded them to the Commissioner with the requested explanation. The Commissioner transmitted them to the Secretary on November 19th, with a letter of explanation and request that they be approved. It was stated in the letter that John's patent had been canceled and that directions had been given to cause new patents to issue as requested. The Assistant Secretary duly and regularly approved both deeds in writing on November 21st. The deed to Chapman was delivered on December 29th; the agreed sum of $625 was paid to John; and he gave a receipt for it. The deed from John to Mary was recorded in the deed records of Pottawatomie county on March 4, 1904.

John and Mary executed a mortgage to George C. Boggs in 1904, covering the tract which John had conveyed to Mary, being the land in controversy. The mortgage was afterwards foreclosed and a sheriff's deed issued to Getzelman in 1912. The defendants deraign their respective interest from that source. Certain defendants discovered oil and gas on the land and have extracted large quantities; the extraction continues and all revenues therefrom are being withheld from the United States and its ward.

Motions were interposed to dismiss the amended pleading on the ground that it failed to state an enforceable cause of action; and that the asserted cause was barred by limitation and laches. One defendant filed an answer setting up three defenses in the nature of pleas in bar, copies of certain official correspondence in the Department of the Interior being attached. A demurrer was lodged against the answer. The court sustained the motions and dismissed the action. The appeal is from that decree.

The land was in the possession of some of the defendants at the time the suit was filed. Perhaps the exercise of the equity jurisdiction of the court below was subject to challenge on the ground that a plain, adequate, and complete remedy existed at law in ejectment. See Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873; Black v. Jackson, 177 U.S. 349, 363, 364, 20 S.Ct. 648, 44 L.Ed. 801; Lancaster v. Kathleen Oil Co., 241 U.S. 551, 36 S.Ct. 711, 60 L.Ed. 1161; Rocky Mountain Fuel Co. v. New Standard Coal Mining Co., 89 F.(2d) 147 (C.C.A.10th); Ewert v. Robinson (C.C.A.) 289 F. 740, 35 A.L.R. 219. It has been held that an action of this kind is within the jurisdiction, meaning the power, of a federal court sitting in equity, Twist v. Prairie Oil Co., 274 U.S. 684, 47 S.Ct. 755, 71 L.Ed. 1297; and that, where the court has jurisdiction of the subject matter and the parties, failure seasonably to raise the question of a plain and adequate remedy at law constitutes a waiver of it. Twist v. Prairie Oil Co., supra; Duignan v. United States, 274 U.S. 195, 47 S.Ct. 566, 71 L. Ed. 996; Lyons Milling Co. v. Goffe & Carkener (C.C.A.) 46 F.(2d) 241, 83 A.L.R. 501; City of Omaha v. Venner (C.C.A.) 243 F. 107; Fay v. Hill (C.C.A.) 249 F. 415. The parties failed to raise the question either in the court below or here. Accordingly, we refrain from deciding it, and proceed to the merits.

The decisive question presented is the source from which Mary acquired title. If it came through the deed from John, restriction against alienation was extinguished, the mortgage to Boggs was valid, and the rights of the defendants must be sustained. If it came through the patent of June 22, 1904,...