Walker v. McKemie
| Decision Date | 22 December 1914 |
| Docket Number | 3525. |
| Citation | 145 P. 359,44 Okla. 468,1914 OK 666 |
| Parties | WALKER ET AL. v. MCKEMIE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Act Cong. March 3, 1905, c. 1479, 33 Stat. 1060, making appropriations for the expenses of the Indian Department, and for fulfilling treaty stipulations with the Indian Tribes required the approval of all guardian's leases to allotted lands of minor members of the Five Civilized Tribes such approval to be by the United States court having jurisdiction of the guardianship proceedings, and without which no guardian's lease should be valid or enforceable.
That part of Act Cong. June 28, 1898, c. 517, § 29, 30 Stat. 507 providing that "* * * every lease * * * which is not recorded in the clerk's office of the United States Court for the district in which the land is located, within three months after the date of its execution, shall be void * * *" in the case of a lease to allotted lands made by guardian, should be construed to mean three months from the date of approval by the court having jurisdiction of the proceedings.
The approval of a guardian's lease being necessary to its validity or enforceability, such lease was not fully executed within the meaning of the act of June 28, 1898, until its approval by the court as provided by the act of March 3 1905.
The recitals contained in an order approving a guardian's lease to allotted lands, made by the United States Court in the Indian Territory, together with the recitals in the lease, and the court's approval indorsed thereon, and which recitals appear to have been regularly made in a pending proceeding, and recite the fact of the guardianship, and direct the entering into of the lease, are, in the absence of the entire record, admissible as prima facie evidence that the lessor was the duly appointed guardian.
Commissioners' Opinion, Division No. 1. Error from County Court, Marshall County; J. W. Falkner, Judge.
Two landlord attachment actions brought by Will McKemie in justice court; one against Joe Walker, the other against D. A. Woods. From judgment for defendants, plaintiff appealed to the county court, wherein S. G. Wood was made a party defendant and the actions consolidated. Judgment for plaintiff in the county court, and defendants bring error. Reversed and remanded.
James E. Humphrey, of Ardmore, and Richard M. Lester, of Savannah, Ga., for plaintiffs in error.
H. A. Ledbetter, of Ardmore, for defendant in error.
The real parties in interest in this controversy are the defendant in error McKemie, and plaintiff in error Wood. Both McKemie and Wood claimed the right to the lease on the allotment of John Hepson, a minor, through different leases, made by different guardians of said minor. The leases to McKemie were made by Joseph Fulsom, who was appointed guardian of said John Hepson, December 24, 1907, by the county court of Haskell county, and bear date during the month of October, 1909. The lease on the surplus allotment was for five years, that on the homestead for one year, each beginning January 1, 1910. These leases were each approved by the county judge of Haskell county on November 29, 1909. The lands included therein were cultivated during the year 1910 by Woods and Walker as tenants of Wood. Wood claimed title through a lease made by I. C. Cole, who also claimed to be the guardian of John Hepson, to one John R. Edwards, and which lease was by Edwards assigned to Wood, on August 18, 1908. This lease was entered into in the month of August, 1905, for a period of five years beginning January 1, 1906.
As a part of their case, the defendants offered in evidence the lease made by the guardian, Cole, to Edwards, and the order of the United States Court for the Central District of the Indian Territory, approving the same. The court's action in excluding as evidence the documents and records mentioned is the principal error urged in this court. The questions involved are: (1) Whether a lease made by the guardian of a minor Choctaw allottee, otherwise valid, is rendered void because of a failure to record the same in the clerk's office of the United States court for the district in which the land was located, within three months after the date the lease was signed and acknowledged, where such lease was recorded within three months from the date of approval by the court. (2) Are the recitals in a lease executed by one claiming to be a guardian, and which lease purports to have been approved by the judge of the court having jurisdiction of the guardianship proceedings, both by indorsement on the lease itself, and by journal entry of order of approval made in open court, competent evidence that the lessor was in fact such guardian?
Turning to the first question presented, we find that section 29 of the Act of Congress of June 28, 1898 (30 Stat. at L. 495), provides:
* * *"
It is necessary therefore to determine what is meant by that part of the foregoing act providing that the lease shall be recorded "within three months after the date of its execution." By defendant in error it is insisted that the date of execution refers to the date of signing, or, at furthest, the date of acknowledgment of the lease. On the part of plaintiffs in error it is urged that the date of execution includes the date of approval by the court having jurisdiction of the proceedings. By the act of March 3, 1905 (33 Stat. at L. 1060), making appropriations for the expenses of the Indian Department, and for fulfilling treaty stipulations with the Indian Tribes, the Secretary of the Interior and the Attorney General were empowered to investigate leases of allotted lands in the Indian Territory, and to bring suits to cancel them for fraud. The act, however, expressly provided that:
"No lease made by any administrator, executor, guardian or curator, which has been investigated by and has received the approval of the United States court having jurisdiction of the proceedings shall be subject to suit or proceedings by the Secretary of the Interior or Attorney General."
And that:
"No lease made by any administrator, executor, guardian, or curator shall be valid or enforceable without the approval of the court having jurisdiction of the proceeding."
It will be remembered that the United States courts in the Indian Territory had the powers of probate. Act May 2, 1890, c. 182 par. 31, 26 Stat. at L. 94; Act April 28, 1904, c. 1824, par. 2, 33 Stat. at L. 573. It is unnecessary to here discuss the procedure in force in the United States courts in the Indian Territory, in the matter of the appointment of guardians or curators, except to note that the appointment of all guardians or curators was made either by the court, or, if by the clerk, subject to confirmation by the court. According to the plain letter of the statute, no lease of allotted lands, made by a guardian, had any force without the approval of the United States court having jurisdiction of the guardianship proceedings. Morrison v. Burnette, 154 F. 617, 83 C. C. A. 391; Indian Land & Trust Co....
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