Wolfe v. Phillips

• Decision Date: 23 February 1949
• Docket Number: No. 3740.,3740.
• Citation: 172 F.2d 481
• Parties: WOLFE et al. v. PHILLIPS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

172 F.2d 481 (1949)

WOLFE et al. v. PHILLIPS et al.

No. 3740.

United States Court of Appeals Tenth Circuit.

January 27, 1949.

Rehearing Denied February 23, 1949.

Carloss Wadlington, of Ada, Okl. (Turner M. King, of Ada, Okl., on the brief), for appellants.

Jack T. Conn, of Ada, Okl. (Kerr, Lambert, Conn & Roberts, of Ada, Okl., on the brief), for Oren Phillips and Janie Phillips.

Thompson & Braly, of Ada, Okl., for Walter Mayer and Bruno Mayer.

Roff & Roberts, of Wewoka, Okl., for Harry H. Diamond, Inc.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

PHILLIPS, Chief Judge.

Eula Wolfe, nee Perry, Salina Scott, Lena McLane, now Clark, and Mary Walker, nee Scott,¹ brought this action against Oren and Janie Phillips, Harry H. Diamond, Inc., and Walter and Bruno Mayer to recover possession of a tract of land situated in Pontotoc County, Oklahoma, to quiet title thereto, and for an accounting of rents and profits.

The action was originally commenced in the district court of Pontotoc County. Notice of the pendency of the action was served upon the Superintendent for the Five Civilized Tribes and it was removed by the United States to the United States District Court for the Eastern District of Oklahoma, in accordance with the Act of Congress of April 12, 1926.² Thereafter, the United States filed a complaint in intervention. Before the case came on for hearing, the United States, with leave of court, withdrew its complaint in intervention.

The tract of land embraces 130 acres allotted and patented to Mollie McLane, nee Henderson, a full-blood Chickasaw Indian, enrolled opposite Roll No. 1061, as her homestead allotment.

The parties stipulated the following facts, in addition to those above stated:

A tax exemption certificate was duly executed and approved by the Secretary of the Interior and filed for record in the office of the county clerk of Pontotoc County, November 21, 1930. It was filed also in the office of the Superintendent for the Five Civilized Tribes. Such land remained tax exempt and restricted during the life of the allottee, Mollie McLane.

Mollie McLane died testate, while a resident of Pontotoc County, on February 9, 1935. Her will was duly admitted to probate by the county court of Pontotoc County, on August 31, 1935. By her will, such land was devised to her husband, Ainusiah McLane, and to her sons, George and King McLane, in equal shares. Each of the devisees was a Chickasaw Indian of full-blood.

Ainusiah McLane died testate, while a resident of Pontotoc County, on April 22, 1935. His will was duly admitted to probate by the county court of Pontotoc County, February 11, 1936. By such will, he devised his undivided one-third interest in such land to Mary Walker, nee Scott, a Chickasaw Indian of three-fourths blood, enrolled opposite Roll No. 1062.

On January 6, 1936, Mary Walker executed a mineral deed purporting to convey to the Mayers an undivided one-sixth interest in the minerals lying in and under such land. That deed was not approved by any county court nor by the Secretary of the Interior.

On May 8, 1936, the district court of Pontotoc County in a cause in which Mary Walker and King McLane were plaintiffs, and George McLane, a minor, was defendant, entered judgment for the partition of such land. The Mayers were not parties to the partition action. Notice of the pendency of the partition suit was not served upon the Superintendent for the Five Civilized Tribes and the United States was not made a party thereto. Pursuant to the order of the district court of Pontotoc County, entered in such partition proceeding, such land was sold at partition sale and a sheriff's deed executed in favor of C. Rounsavall, on November 25, 1936. Such deed was filed for record in the office of the county clerk of Pontotoc County, on November 25, 1936, and recorded in Book 220, at page 203.

On August 6, 1942, Rounsavall executed and delivered to Oren and Janie Phillips a warranty deed purporting to convey to them the entire estate in such land.

On September 26, 1940, King McLane died intestate, leaving as his surviving heirs-at-law, Lena McLane, George McLane, Mary Walker, Salina Scott, and Beulah Scott. On January 25, 1941, George McLane died intestate, leaving surviving as his heirs-at-law, Mary Walker, Salina Scott, and Beulah Scott. On October 3, 1942, Beulah Scott died intestate, leaving surviving as her sole heir-at-law, Eula Wolfe, nee Perry.

Eula Wolfe, nee Perry, is a Chickasaw Indian of the full-blood, enrolled opposite Roll No. 316. Salina Scott is an unenrolled Chickasaw Indian of seven-eighths blood. Beulah Scott was an unenrolled Chickasaw Indian of seven-eighths blood. Lena McLane is an unenrolled Chickasaw Indian of three-fourths blood.

In addition to the facts stipulated, the trial court found the following facts:

That J. M. Sallee was duly appointed guardian of the person and estate of George McLane, a minor, the defendant in the partition suit, by order of the county court of Pontotoc County, November 14, 1935, and at all times during the pendency of the partition suit, Sallee was the duly qualified and acting guardian of the person and estate of such minor.

That Rounsavall, to whom the sheriff's deed was executed pursuant to the order of the district court in the partition suit, on December 7, 1936, executed a mortgage on such land to Sallee to secure a note in the principal sum of $1000, the amount paid for such land at such partition sale, and that such mortgage was filed for record in the office of the county clerk of Pontotoc County, December 8, 1936, and released August 6, 1942, when Rounsavall executed his warranty deed to Oren and Janie Phillips.

That on November 26, 1936, the district court of Pontotoc County made an order in the partition proceedings approving the sheriff's sale and directing the execution of a sheriff's deed to Rounsavall and the distribution of the proceeds of such sale. That it directed one-third thereof be distributed to Sallee as guardian of George McLane.

That Rounsavall was the bidder at the sheriff's partition sale; that pursuant to his bid, the sheriff's deed was issued to him; that he took possession of the land and continued in possession thereof until his conveyance to Oren and Janie Phillips on August 6, 1942.

That Harry H. Diamond, Inc., is the holder of valid and subsisting oil and gas leases on such land, one running from Oren and Janie Phillips and one running from the Mayers.

That Oren and Janie Phillips, without admitting the validity of the deed from Mary Walker to the Mayers, were willing to concede that the Mayers owned an undivided one-sixth interest in the minerals in such land.

That Oren and Janie Phillips, after acquiring the deed dated August 6, 1942, went into possession of such land and have been in possession thereof at all times since that date and were in possession of such land at the time of the trial.

The trial court concluded that 12 Okl.St. Ann. § 93, as amended by the Session Laws of Oklahoma, 1945, p. 37, § 1, was applicable to the plaintiffs in the instant case by virtue of § 2 of the Act of April 12, 1926,³ and barred them from asserting any right, title, or interest in or to such land adverse to the claims of the defendants.

By its judgment, the trial court adjudged that Oren and Janie Phillips were the owners of the surface rights in such land and of an undivided five-sixths interest in the minerals therein; that the Mayers were the owners of an undivided one-sixth interest in the minerals in such land; quieted the title of such owners against the plaintiffs; and adjudged that such land was subject to valid oil and gas mining leases in favor of Harry H. Diamond, Inc. The plaintiffs have appealed.

It will be observed that § 2 of the Act of April 12, 1926, set out in Note 3, provides that the statutes of limitations of the State of Oklahoma shall be applicable to and shall have full force and effect against all restricted Indians of the Five Civilized Tribes and against their heirs or grantees, to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma, and may be pleaded in bar of any action brought by any such Indian, his heirs or grantees, or by the United States or any other party for the benefit of such Indian, his heirs or grantees, to the same extent as though such action were brought by or on behalf of any other citizen of such state.

It seems to us that the manifest intent and purpose of such § 2 was to make the statutes of limitations of the State of Oklahoma applicable to Indians of the Five Civilized Tribes, their heirs or grantees, in such a way that when a plea of limitations should be set up against an action brought by any such Indian, his heirs or grantees, or brought by the United States or any other party in his or their behalf, the result would be the same as it would be if such Indian, heir, or grantee were a non-Indian citizen of Oklahoma. Such intent and purpose would not be accomplished if such § 2 were construed to make applicable to such Indians, their heirs or grantees, only the statutes of limitations of the State of Oklahoma in force at the time of the enactment by Congress of such § 2 and not to make applicable the statutes of limitations of the State of Oklahoma as thereafter amended, modified, or supplemented by future legislative enactments.

By such § 2, Congress did not by reference adopt the statutes of limitations of the State of Oklahoma as Federal law. What it did was to consent and provide that restricted Indians of the Five Civilized Tribes, their heirs or grantees, should be subject to the statutes of limitations of the State of Oklahoma as state law.⁴ Congress did not intend that such state law should be static. Rather, it intended to consent and provide that the statutes of limitations of the State of Oklahoma as then in force and as they should thereafter be amended,...