Ansley v. McLoud , 5 Indian Terr. 563 ( 1904 )

Townsend, J.

The appellant has filed the following assignment of error: “That it is therein adjudged and decreed that plaintiff take nothing by this suit, and that F. I. Gowen receiver, recover from plaintiff all his costs herein laid out and expended, the effect of which is to dismiss plaintiff's suit, whereas said decree should have sustained said action, and granted the relief sought.” Appellant says the real question in the case is, “Was there a forfeiture to the Choctaw Nation of the improvements in question?” It is conceded by the plaintiff that the defendants are citizens of the United States, and in possession of the property in controversy. ' The forfeiture claimed by appellant is by virtue of an act of the Choctaw Council. The first question that presents itself for our consideration is, under and by virtue of what treaty or act of Congress did the Choctaw Council obtain authority to pass an act forfeiting the property in possession of noncitizens or citizens of the United States? Section 7 of the treaty of 1855 (11 Stat. 612) is as follows: "So far as may be compatible with the Constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government and full jurisdiction over persons and property within their respective limits, excepting, however, all persons with their property who are not by birth, adoption or otherwise citizens or members of either the Choctaw or Chickasaw tribe, and all persons not being citizens or members of either tribe found within their limits shall be considered intruders and be removed from and kept out of the same by the United States Indian agent, assisted if necessary by the military, with the following exceptions, viz.: Such individuals as are now or may be in the employment of the government and their families, those peacefully traveling or sojourning in the country or trading therein under license from the proper authority of the United States, and such as may be permitted by the Choctaws or Chickasaws with the assent of the United States Indian agent to reside within their limits without becoming citizens or members of either of said tribes.” This gives the tribes full jurisdiction over persons and property within their respective limits, except all persons who are not, by birth, adoption, or otherwise, citizens of either tribe. Article 43 of the treaty of 1866 (14 Stat. 95) is as follows: “The United States promise and agree that'no white person except officers, agents and employees of the government and of any internal improvement company, or persons traveling through or sojourning in said nations or either of them, shall be permitted to go into said territory, unless formally incorporated and naturalized by the joint action of the authorities of both nations into one of the said nations of Choctaws or Chickasaws, according to their laws, customs or usages, but this article is not to be construed to affect parties heretofore adopted, or to prevent the employment temporarily of white persons who are teachers, mechanics, or skilled in agriculture, or to prevent the legislative authorities of the respective nations from authorizing such works of internal improvement as they may deem essential to the welfare and prosperity of the community, or to be taken to interfere with or invalidate any action which has heretofore been had in this connection by either of said nations.” It thus appears that certain classes of noncitizens were allowed to come in'the Choctaw Nation, but in no provision of any treaty that our attention- has been called to is there any authority given to these tribal governments to enact any legislation that shall affect or control non-citizens or their property. Is not this absolutely essential before any validity can be given to, the, act of the Choctaw Council? Appellant seems to rely on the decision of Hockett vs Alston, 3 Ind. Ter. Rep. 432, (58 S. W. 676). Unfortunately for plaintiff, this decision was reversed by the Circuit Court of Appeals in 110 Fed. 912, in which the court says: “No judgment, order, or execution from any court authorizing the sale of this property by the sheriff of the Cooweescoowee district was pleaded or proved. There was therefore no evidence that this sheriff had any more power then any other stranger to sell and convey the property here in controversy. A sheriff is nothing but the agent of the government to do the acts which the laws authorize him to perform, and his acts, without proof of his lawful authority to perform them, are as ineffective in judicial proceedings as the acts of a private agent without proof of authority from his principal. * * * There was no evidence of any execution, process, order, or judgment of any court which directed him to sell or convey this property. The record is entirely barren of any evidence of any authority on his part to make either the sale or certificate thereof, and that instrument constitutes no evidence of any' title or right tó the possession of the improvements in controversy. A sheriff’s deed, unwarranted by any law or order or process of a court, is not evidence of any title or right of possession in its grantee in the property which it describes. Counsel for the plaintiff below devote much time and space to an endeavor to support the contention that the defendants are unlawfully in the possession of these improvements; that they are trespassers and intruders upon this land in violation of the laws of the United States and of the Cherokee Nation. It is unnecessary to the decision of this case to consider or decide whether they are trespassers or not. If thejr are, there is no evidence here that the plaintiff has any right to disturb them. Under the record before us, she also seeks to intrude upon this property without right under a sheriff’s certificate of sale issued without warrant of law or order of court. The possession of a trespasser or of an intruder is superior to, and must prevail over, the claims of all who have no superior legal rights to the title or the possession.”

Appellant insists.m his brief that the Circuit Court of Appeals sustained in every particular the decision of this court, except as to the fact-that the Indian statute relied on must be pleaded and proven. On the other hand, the court say: “* * It is unnecessary to the decision of this case to consider or decide whether they are trespassers or not.” Without express authority by treaty or some act of Congress empowering the Choctaw Council to enact any such legislation pertaining to citizens of the United States and their property, we are of the opinion that said act of forfeiture is without validity.

The action against Francis I. Gowen, as receiver, was improperly brought, for the reason he had been discharged as such receiver for months prior to its institution. After the discharge of a railroad receiver, no action can be maintained against him where the property formerly in his custody has been transferred to a purchaser under an order of the court in foreclosure proceedings. Farmers' L. & T. Co. vs Central R. Co. (C. C.) 7 Fed. 537; Davis vs Duncan (C. C.) 19 Fed. 477; New York Tel. Co. vs Jewett, 115 N. Y. 166, 21 N. E. 1036; Bond vs State, 68 Miss. 648, 9 South. 353; Ryan vs Hays, 62 Tex. 42; Brown vs Gay, 76 Tex. 444, 13 S. W. 472.

Appellant has cited authorities to show that objection to the jurisdiction comes too late when made in this court. But defendants filed a demurrer at the same time they filed their answer, and under section 5054, Mansf. Dig. (Ind. Ter. St. 1899, § 3259), it is provided as follows: “When a party files a demurrer with Ms answer or reply, the demurrer must be presented for the consideration of the court at or before the first calling of the cause for trial after the filing of the same. If he fails to do so, the demurrer shall be regarded as waived as to all points except the jurisdiction of the court, and that the pleading demurred to does not state facts sufficient to constitute a cause of action, or a defense, counterclaim, or set-off."

The relief sought in this action, when considered in the light of the facts established by proof, is, to say the least, most remarkable. The sheriff, who, under the statute, claims the right to declare a forfeiture of the title to property of the value of $60,000, and to sell the same, pretends to advertise and sell, and sells to his own son, who becomes the purchaser for the sum of $270, of which amount $1 cash is paid, and a note given for the balance of the purchase money, to become due when the son gets possession. In the meantime the note passes to each successive-sheriff, waiting the recovery of a judgment for possession. This is an unconscionable demand, and not one that, in our judgment, commends itself to a court of equity. It is therefore the opinion of this court that the judgment of the court below should be, and it is hereby, affirmed.

Raymond, C. J., and Gill, J., concur.