Donohoo v. Howard , 4 Indian Terr. 433 ( 1902 )

Clayton, J.

The appellants, with their brief, file the following specifications of error: “(1) The court erred in sustaining the demurrer to the complaint. (2) The court erred in dismissing the suit. (3) The court erred in striking out the plea-of intervention. (4) The court erred in dismissing the intervention. (5) The court erred in ordering the money for the installments delivered to plaintiff. (6) The court erred in ordering the money derived from the receivership paid to defendant.”

The first and second specifications of error raise the single question as to whether the court erred in sustaining the demurrer to the complaint, and dismissing the suit of plaintiff Donohoo. The complaint, with its exhibits, which are a part.of it, in substance alleges that the premises in controversy were purchased by the grantor of the plaintiff at a sale made by the sheriff of Delaware district of the Cherokee Nation under and by virtue of the power vested in him by the act of the council of the Cherokee Nation, approved September 30, 1895, and amended December 21, 1895, which are exhibited with the complaint, and made a part thereof. The said act, as amended, provided that improvements erected on Cherokee lands by “intruders,” which have been voluntarily relinquished'by them, or from which the United States shall have expelled them in compliance with the stipulations of treaty, shall, under the conditions of said act be sold at public auction to Cherokee bidders/ It further provides that the payments shall be made in six equal annual installments, and that a failure to pay either of them within three months after becoming due shall work a forfeiture to the nation of the improvements and all previous payments. It also provides that “a like forfeiture shall follow from any transfer of the improvements by the purchaser under this act before the last installment is paid. And no commutation of payment is permitted.” The purchaser at the sheriff’s sale, who was the grantor of the plaintiff, without having been put in possession, sold the premises to the plaintiff, and executed to him a bill of sale therefor, when only one annual installment of the purchase money had been paid, and this suit was brought after two other of the annual installments were more than three months past due. One of the questions, and the controlling one, raised by the demurrer, is, did this transaction, conceding the regularity of the sheriff’s sale, pass such title to the plaintiff as would support an action of ejectment? It is argued that inasmuch as the law simply provided for a forfeiture, it is a matter that concerns the Cherokee Nation alone, and, if it sees fit to condone the offense and stand upon the contract, it can do so, and that the nation by its intervention is making no demand for the forfeiture, but, standing upon the contract, is demanding only the purchase price. And this would probably be true if the purchaser at the sale were the party plaintiff in this suit. But he is not. The plaintiff purchased from a man who was bound by the-terms of his grant; not to transfer; and was. forbidden by public law to sell; and the question is, not did his grantor forfeit his title by his act, but did he convey title by his deed? The plaintiff’s grantor at the will of the Cherokee Nation, may still have title, but the plaintiff has none. One of the terms of the grant, as expressed by the statute from which the sheriff got his power to Sell, and the plaintiff’s grantor his right to buy, was that the premises should be inalienable for five years, at least. It provides, in effect, that the lands shall not be transferred by the purchaser at the sale until the last annual installment shall have been paid, and there were six of them, and there was-' to be no commutation. Each annual installment was to be paid when it fell due, and not before, — the first immediately, and the last at the begianing of the sixth year. We think that no other construction can be placed on this statute, but that it is a limitation on the right of alienation for the time mentioned. It is, true that the statute does not state in so many words that the purchaser should not have the right to transfer the premises until the payment of the last annual installment, but it unquestionably does so in effect. The language is: “A forfeiture shall follow, from any transfer of the improvements by the purchaser under this act before the last installment is paid; and no commutation of payment is permitted.” The evident intention of the Cherokee legislature was that title should be retained in the purchaser until the last installment should be paid. It was a declaration of -the public policy of the Cherokee Nation, ingrafted in a public law, that the land should be inalienable until that time. And therefore the attempted sale of the purchaser to the plaintiff was void, the sale and deed conveyed no title, "and the plaintiff has no standing in this action of ejectment. We hold, therefore, that the court below did not err in sustaining the demurrer to the complaint, and dismissing the suit as to the plaintiff.

The third and fourth specificatoins of error relate to the action of the court in striking out and dismissing the intervention; The defendant filed no answer to the plea of intervnetion, but moved the court to strike out the plea and dismiss the intervention on the following grounds: “(1) That the intervener set up an independent title to that claimed by the parties to the suit. (2) That said intervention is contrary to law, and not authorized by the rules of pleading and practice in force in this jurisdiction. (3) That said intervention shows no right in the intervener to be joined , or permitted to interfere in this case. (4) That neither the plaintiff nor the defendant are in any way attacking the right of property or possession, nor are they seeking any judgment against the intervener.”

Section 4946, Mansf. Dig. (Ind. Ter. St. 1899, § 3151), provides: “ Where in an action for the recovery of real of personal property any person having an interest in the property, applies to be made a party, the c.ourt may order it to be done.” This statute does not mean that in an action of ejectment every person who may have an interest in the land, which is not and cannot be effected by the result of the suit, one way or the other, may intervene, for in- such case he could recover nothing by the judgment, nor could any right of his be affected. In such a ease he would be an intermeddler. The statue simply means that he must have an interest in the object of the suit. The mere fact that he has an interest in the thing which is the subject of controversy will not be sufficient. The supreme court of California, in which State the right of intervention has been most liberally construed, in the case of Horn vs Water Co., 13 Cal. 70, 73 Am. Dec. 569, say: “The interest mentioned in the statute which entitles a person to intervene in a suit between other parties, must be in the matter in litigatoin, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some-part thereof, in a suit or a claim to or lien upon the property, or some part thereof, which is the subject of litigation.” The supreme court of the United States in the case of Smith vs Gale, 144 U. S. 509, 12 Sup. Ct. 674, 36 L. Ed. 521, has decided this question to the same effect. In this case the plea of intervention sets up the Cherokee Nation’s title; that one Jerry Hubbard, the grantor of the defendant, had made the improvements on the place in controversy under the claim of citizenship, which claim had been adjudged against him by a final judgment of a court, and that pursuant to law in such case the Cherokee Nation had, through the sheriff of Delaware district, sold the improvements to one S. C. Wallen, a Cherokee citizen, arid the grantor of the plaintiff Donohoo, which, under the law, carried With it the right of possession of the land upon which they were erected; that the second and third deferred payments were past due and unpaid, and that the- fourth, fifth, and sixth payments were not yet due; and that the Cherokee Nation had an interest in the improvements to the extent of the deferred payments. It denies the title of Jerry Hubbard, and therefore that his conveyance to the defendant conveyed any title. Its only prayer is, “that, upon the failure of plaintiff to recover, that it have judgment for the possession of the lands and improvements, and for rent from January, 1898.” The whole purpose of the intervention was, in case of the failure of the plaintiff to recover, that the court by its judgment would direct that the possession of the lands and improvements and back rents be given to the intervener. The mention of the unpaid installments of the purchase money arising out of the sheriff’s sale was only for the purpose of showing the interest of the Cherokee Nation in the. subject-matter of the suit, and the plea of intervention expressly so states. But had there been a claim for the money, the intervener would have been in no better condition, for neither of the parties to the suit owed it anything on that account. The sale to the plaintiff, being void, created no privity between him and the intervener. If there were anything due the nation on account of the sheriff’s sale, it was Wallen, the purchaser at the sale, who owed it, and he was not a party to the suit. Having held that the sale of the premises by Wallen to plaintiff was void, it necessarily follows that the obligation to pay the deferred installments falls with the contract, and therefore the Cherokee Nation has no interest in the suit because pf that. When the court below reached the conclusion that the sale was void, and dismissed the plaintiff from the suit for want of title, there was no possible judgment it could render in favor of the intervener. It could do nothing but dismiss it from the suit and give judgment for the defendant. But it is claimed that because the Cherokee Nation asserts title to the land, that is sufficient to show such an interest in the suit as to give the court jurisdiction to try the issue between it and the defendant after the plaintiff had been dismissed. The fallacy of this contention will be seen when it is considered that the Cherokee Nation, except by its prayer, makes no claim to the possession of the premises. It says by its plea that, notwithstanding its legal title, it has lawfully sold its right to th,e possession and is insisting that that sale is a valid one. Had the purchaser at the sale been a party to the suit, and the nation were in court, insisting upon its forfeiture, there might be some virtue in this position. The suit was for the possession of the premises, and neither of the parties to it was attacking the title of the intervener, and no judgment could have been rendered in it that could in the remotest degree have affected its right or its title in and to the improvements or the land. If it be said that the law under which the sale was made required the Cherokee Nation, through its sheriff, to put thn purchaser in possession, and therefore it would have thát interest in the suit, and that it was in court for the purpose of upholding the title of its grantee and of-putting him in possession, the answer is that its grantee is not in court; the court had no jurisdiction over him to put him in possession or to adjudge his title. Besides, that is not the práyer of the intervener. It asks to be put in possession itself, notwithstanding the fact that it has sold the right to another. We therefore hold that the court below did not err in dismissing the Cherokee Nation from the suit.

The fourth' specification of error is that the court erred in ordering the money for the installments delivered to plaintiff. We suppose that this means that the court erred in ordering the money that had been deposited by plaintiff in court to be paid to the Cherokee Nation in case plaintiff prevailed, to be returned to plaintiff.. There are two answers to this: First, that the money was deposited in court by plaintiff upon the express ■stipulation that it was to be paid to the Cherokee Nation only in the event that the plaintiff should prevail in the suit. He failed. Second, that the money belonged to the plaintiff. ■ The Cherokee Nation had no interest in it.

The sixth specification of error is that the court erred ip ordering the money derived from the receivership paid to defendant. The answer to this is that there was no other person to whom the court could pay the money. It was derived from the rents and profits of the place while in the hands of the receiver, of which possession had been wrested by order of the court from the defendant. The Cherokee Nation had sold its right to the rents and profits, and the plaintiff took nothing by its purchase of the purchase of the premises. The defendant had prevailed in the suit. To whom else could the money have been paid?

Finding no error in the judgmnet of the court below, it is affirmed. •