United States v. Sands, 1575.

• Decision Date: 07 January 1938
• Docket Number: No. 1575.,1575.
• Citation: 94 F.2d 156
• Parties: UNITED STATES v. SANDS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

94 F.2d 156 (1938)

UNITED STATES v. SANDS et al.

No. 1575.

Circuit Court of Appeals, Tenth Circuit.

January 7, 1938.

Joe W. Howard, Asst. U. S. Atty., of Tulsa, Okl. (C. E. Bailey, former U. S. Atty., and Whit Y. Mauzy, U. S. Atty., both of Tulsa, Okl., on the brief), for the United States.

R. L. Davidson, of Tulsa, Okl. (A. B. Campbell, of Pawhuska, Okl., on the brief), for appellees.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Raymond Red Corn was enrolled as allottee No. 484. On April 2, 1910, the Secretary of the Interior, under provisions of paragraph 7 of section 2 of Act of Congress, approved June 28, 1906, 34 Stat. 539, 540, issued to him a certificate of competency.

On June 16, 1923, the said Red Corn entered into a verbal contract with the appellee, A. S. Sands, an attorney at law, practicing his profession at Pawhuska, Okl., where the said Red Corn then resided. On March 28, 1924, the said contract was reduced to writing. Within one year after its execution it was orally modified at the instance of the said Red Corn and with the consent of the said Sands, which was executed, to the effect that the said Sands would not look after, or transact any business for the said Red Corn, or act as his agent; the said Sands being thereafter restricted to checking and adjusting the accounts of the said Raymond Red Corn, making advances to him personally, and paying his bills, for which services the said Sands was to receive $100 per quarter, and interest on the advances so made at the rate of 10 per cent. per annum.

The oral modification of said contract was fully carried out by both the said Sands and the said Red Corn. Sands kept a book account of the advancements and expenditures made by him under the contract with the said Red Corn and the credits received by him for the said Red Corn's account, which covered a period from June 16, 1923, until July 13, 1929. This account was examined and checked by government agents three times and found to be accurate and correct; first in December, 1928, by Mr. Trowbridge, an inspector for the Interior Department, who required Sands to turn over to the said Raymond Red Corn as his property, all of the receipted bills, paid notes and vouchers then in possession of Sands; the second time — three or four years later — by Mr. Debolt, a representative of the Treasury Department; and the third time — about a year and a half before the case was tried — by Mr. Jenkins of the Department of Justice.

On May 3, 1924, one Red Corn, whose Indian name was Wy-E-Gla-In-Kah, restricted Osage allottee No. 481, the father of the said Raymond Red Corn, Osage allottee No. 484, executed and published his last will and testament which was prepared at the Osage Agency, witnessed among others by the Chief Clerk at the Agency, and approved by the Secretary of the Interior. The said A. S. Sands was designated therein as executor, he having had nothing to do with the preparation of the will, and not knowing that he had been designated as executor thereunder until after Wy-E-Gla-In-Kah's death, who died on January 9, 1927, leaving an estate of about $187,000, one-half of which was devised to his son, Raymond Red Corn, Osage allottee No. 484, and one-half to his son, Wakon Iron, subject to certain small bequests.

The said A. S. Sands was thereupon appointed executor under the said will by the county court of Osage county, Okl., and qualified as such.

Sands kept a separate account as executor of the estate of Wy-E-Gla-In-Kah, which was approved by the county court of Osage county, Okl. After Sands' qualification as executor, the Department of the Interior released and paid over to him as such executor, all of the funds and securities belonging to the said estate for administration and distribution through the county court of Osage county, Okl., under the terms of, and in accordance with, the will of Wy-E-Gla-In-Kah.

On January 28, 1928, Sands, as executor, made a partial distribution of the estate of Wy-E-Gla-In-Kah, distributing to Raymond Red Corn and to Wakon Iron cash and securities amounting to $88,000 each. Raymond Red Corn received:

                  In cash                        $54,500.00
                  Hall Note and Mortgage          18,000.00
                  Old Agency Bldg. Bonds          11,000.00
                  B. & L. Stock                    3,000.00
                  House at Camp                    1,200.00
                  Used Automobile                    300.00
                                                 __________
                  Total                          $88,000.00
                

On January 30, 1928, Sands sold and conveyed to the said Raymond Red Corn, on the latter's solicitation, a farm of 765.2 acres adjacent to the city of Pawhuska, Okl., for the agreed consideration of $47,000, the purchase price of the farm being paid by Raymond Red Corn turning over to Sands the Hall note and mortgage for $18,000, the Old Agency Building Bonds for $11,000, the Building & Loan Stock for $3,000, and executing and delivering three $5,000 notes to Sands, secured by mortgage on the said 765.2-acre tract of land. In the book account the said Raymond Red Corn was charged with the purchase price of the farm and credited with the cash and securities turned over to the said Sands by the said Red Corn, and the mortgage in the sum of $15,000.

A. E. Alred, who had lived upon said 765.2 acres before Sands sold it to Red Corn, from the date of its sale paid rent directly to Raymond Red Corn under lease made by said Raymond Red Corn without departmental supervision or control.

On September 26, 1928, Sands made final settlement of his account as executor of the estate of Wy-E-Gla-In-Kah, and distributed to Raymond Red Corn and Wakon Iron the sum of $5,713.88 each in cash, being finally discharged as such executor by the county court of Osage county, Okl. On October 24, 1928, the said Raymond Red Corn and his wife sold and conveyed to Robert Stuart 80 acres of this land (765.2 acres) for an airport site.

On December 27, 1928, Raymond Red Corn and his wife reconveyed to Sands 40 acres of the said 765.2 acres, receiving therefor credit on his account in the sum of $5,000. On December 27, 1928, Raymond Red Corn's account, after being credited with said sum, showed Raymond Red Corn owed Sands $18,710.88, including the $15,000 evidenced by the said three notes of date January 30, 1928. On the same date, Raymond Red Corn and his wife executed and delivered to Sands four notes, one for $5,000 due one year after date, one for $5,000 due two years after date, one for $5,000 due three years after date, and one for $3,710.88 due four years after date, each bearing interest from date at the rate of 7 per cent. per annum, and also executed and delivered to Sands a mortgage on the 645.2 acres of land remaining out of the 765.2 acres, after the conveyance to Stuart of the 80 acres and to Sands of the 40 acres. At the same time Sands surrendered to the said Red Corn the three $5,000 notes under date of January 30, 1928, and released of record the mortgage securing same.

On February 13, 1928, the said Red Corn and Sands each signed a statement showing the status of the account then between them on that date, on which the purchase price of the farm of $47,000 was entered in two items at the request of said Raymond Red Corn for taxation purposes, $20,000 of the purchase price being included in this statement in the item of $37,650.04, and the $27,000 item as purchase price of the farm.

On January 31, 1929, Sands pledged said four notes aggregating $18,710.88 to the Citizens National Bank of Pawhuska, Okl., to secure certain indebtedness which he owed said bank, transferring and assigning to said bank the mortgage lien securing the payment of said notes.

On February 9, 1929, the Secretary of the Interior acting under the authority of section 4 of the Act of Congress of February 27, 1925, 43 Stat. 1008, 25 U.S.C.A. § 331, revoked as of that date the certificate of competency, which had been issued to the said Raymond Red Corn under date of April 2, 1910.

Thereafter, on May 14, 1929, the Superintendent of the Osage Indian Agency, requested Sands by letter to submit for transmission to Washington the claim which he understood Sands held against said Raymond Red Corn in the form of a mortgage, and on the 31st day of May, 1929, Sands in response to said letter, submitted to said Superintendent, true and correct copies of the said four notes, with a statement that no part of the money evidenced by said notes had been paid, and that the full amount thereof with accrued and accruing interest would become due at the time of their maturity. This claim was disapproved by the Secretary of the Interior on June 11, 1934.

On April 30, 1931, the said Raymond Red Corn died intestate, leaving his widow, Bernice Red Corn, a white woman, and his three sons, Raymond Red Corn, Jr., Harold Red Corn, and Douglas Red Corn, as his sole and only heirs at law. The three sons are unallotted Osage Indians of one-half Indian blood without certificates of competency. The said Raymond Red Corn, Jr., was born August 22, 1911, Harold Red Corn on November 27, 1913, and Douglas Red Corn on February 5, 1918. The widow inherited one-third interest, and each of the sons two-ninths interest in the land involved herein. The said decedent, Raymond Red Corn, and Bernice Red Corn were married on July 13, 1923, and remained husband and wife until his death. Bernice Red Corn was appointed administratrix of the estate of the said intestate Raymond Red Corn.

On August 21, 1931, the Citizens National Bank of Pawhuska, Okl., within the time required by law, presented to Bernice Red Corn as such administratrix, a claim for $15,000 and accrued interest, based on said three $5,000 notes, and the American National Bank of Pawhuska, Okl., a claim for $3,710.88 and accrued interest based on said $3,710.88 note, and said claims so presented were allowed by said administratrix on August 21, 1931, and such allowance was thereafter approved...