Oates v. Freeman , 57 Okla. 449 ( 1915 )

As far as the defendant Lowe is concerned, she has waived the defects, if any, in the service by publication, for in her answer she asks for affirmative relief. See Cameron v.Consolidated School District No. 1, of Kiowa County,44 Okla. 67, 143 P. 182, and cases therein cited. This does not apply to the defendant Oates, who does not ask for affirmative relief, but in our opinion the affidavit and notice are not subject to attack on the grounds set out in the motion. The affidavit set out, "that the plaintiff is unable to procure personal service upon the defendants, or either of them, because they are nonresidents of the State of Oklahoma, and he has been, and still is, unable to make service of said summons on them in the State of Oklahoma," and the affidavit further states, "that said defendants being nonresidents of the State of Oklahoma, claim some right, title, or interest in real estate situate in Okmulgee county, Oklahoma," and proceeds to state that the action is brought for the cancellation of the deeds and mortgages covering the land in dispute, and gives the grantor and grantee in the deeds, and their dates. This affidavit fully complies with the requirements of Rev. Laws 1910, sec. 4722. InRichardson v. Howard, 51 Okla. 240, 151 P. 887, it is held:

"If the defendant is a nonresident, and the plaintiff has neither knowledge nor reason to think he may be served within the state, it is not necessary that the affidavit for publication should show any active diligence or effort to serve him within the state."

We have set out the affidavit and the motion to quash in full, and the affidavit shows that it does not contain the allegations on which the motion to quash is founded. Objection is also made to the publication notice, but an examination of the copy thereof, set out in the statement of the case, shows that it complies with the requirements of Rev. Laws 1910, sec. 4725.

In McBride v. Hartwell, 2 Kan. 410, it is held:

"An order of the clerk that defendants be notified of the pendency of the suit, giving the title and court, time of filing the petition, and its prayer, and on what founded, and the day the defendants are required to answer, signed and sealed by the clerk with the name of the plaintiff's attorney appended, contains all the statutory requisites of a notice for publication of summons."

The next assignment of error is that the court did not require the plaintiff to elect as to which cause of action he proposed to rely on. If causes of action were improperly joined, the proper practice was to attack the petition by the demurrer. Rev. Laws 1910, section 4740, provides:

"The defendant may demur to the petition only when it appears on its face * * * 5th. That several causes of action are improperly joined."

Section 4741 provides:

"The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action."

Section 4742 provides:

"When the defects do not appear upon the face of the petition, the objection may be taken by answer, and if no objection be taken by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action."

This section was construed by this court in Choctaw, O. G.R. Co. v. Burgess, 21 Okla. 653, 97 P. 271, where it is held that misjoinder of causes of action should be raised by demurrer. It is true that there was a demurrer filed in this case, but it was only on the ground that the petition did not state a cause of action. The defendants therefore waived the question of misjoinder. But in no event have the defendants been injured, for if the petition had been attacked by demurrer on this ground, the court could only have required the plaintiff to file several petitions, each including such causes of action as might have been joined (Rev. Laws 1910, section 4743); and the defendants can claim no prejudicial error in any event, for the trial court could only consider the first cause of action.

We come now to the most important question in the case, which is, was the land in the case restricted from alienation, and this presents two questions: First. Was the homestead restricted? Second. Was the surplus allotment restricted?

We will first consider the homestead, and it is well to bear in mind that the allottee was three-quarters Creek; that he died on March 27, 1902, leaving no wife, child, nor the issue of any child, and that the certificates of his allotment were issued prior to his death, but the deeds for the surplus allotment and homestead were separately issued in his name after his death. The Original Creek Agreement (31 Stats. at L. p. 861, c. 676, sec. 7), being the act of March 1, 1901, provides, in regard to homesteads:

"The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, free from such limitation."

The limitation here referred to is that contained in the first portion of the same section, and the only question is, has this result been changed by the Supplemental Agreement of 1902 (Act of June 30, 1902, c. 1323, sec. 16, 32 Stats. at L. 500), which provides:

"Lands allotted to citizens shall not in any manner whatever or at any time be incumbered, taken, or sold to secure or satisfy any debt or obligation nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear. Selections of homesteads for minors, prisoners, convicts, incompetents and aged and infirm persons, who cannot select for themselves, may be made in the manner provided for the selection of their allotments, and if for any reason such selection be not made for any citizen it shall be the duty of said Commission to make selection for him. The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after May 25, 1901, but if he have no such issue then he may dispose of his homestead, by will, free from the limitation herein imposed, and if this be not done the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the laws of descent herein otherwise prescribed. Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity."

It is argued that the provision in this section that the lands allotted to citizens shall not in any manner be alienated by the allottee, or his heirs, applies to the homestead as well as to the surplus allotment, but such construction would make the section contradict itself, for in the latter part thereof it expressly provides that under the conditions existing in the case at bar, unless the homestead is disposed of by will, it shall descend to the heirs free from the limitations imposed by the first part of the section. The fair construction of this section is, that the surplus allotment is restricted, and cannot be alienated, except with the approval of the Secretary of the Interior, but that the homestead goes to the heirs free from all restrictions, in cases like the one at bar. This construction gives full force and effect to all of the provisions of the statute, while the one contended for by the defendant in error would nullify that portion thereof providing that the homestead should go to the heirs free from the limitations imposed by the first part of the section, provided the allottee dies without children born after May 25, 1901, and does not dispose of it by will.

In Bledsoe's Indian Land Laws (2d Ed.) sec. 82, it is said that the homestead of a Creek allottee, where no issue was left surviving, born subsequent to May 25, 1901, descended free of all restrictions or alienations, and that such homestead lands were alienable by the heirs of the allottee immediately upon his death. In Rentie v. McCoy, 35 Okla. 77, 128 P. 244, where the question now under consideration was before the court, it is said:

"The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after May 25, 1901; but if he have no such issue, then he may dispose of his homestead by will, free from the limitation herein imposed, and if this be not done the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the laws of descent herein otherwise prescribed."

The question before the court in that case was a construction of the Creek Original and Supplemental Agreements, in the case of a Creek freedman; and the same question, that is, that the homestead of a Creek freedman descends to his heirs unrestricted, was decided in Deming Investment Co. v. BrunerOil Co., 35 Okla. 395, 130 P. 1157; Young v. Chapman,37 Okla. 19, 130 P. 289; Bilby v. Gilliland, 41 Okla. 678,137 P. 687, 139 P. 988.

In Re Lands of the Five Civilized Tribes (D.C.) 199 Fed. 811, on page 826, in passing on the question of alienability of homesteads of deceased Creek allottees, the District Court of the Eastern District of Oklahoma arrived at the same conclusion — that the homestead descended to heirs in a proper case, free from restrictions. It is true in these cases that the allottee died prior to the issuing of the certificate of allotment, but we cannot see where this makes any distinction, as far as the homestead is concerned. The act of Congress above cited applies to the homestead irrespective of when it was acquired, and the fact that the deed for the homestead issued in the name of the dead allottee and not to his heirs can make no difference, because the plain intent of Congress was that the homestead, whenever acquired, should descend to the heirs free from restrictions, the intent of Congress being directed to the character of the land, and not to the time of the issuing of the patent or of the allotment certificate. The same question was decided in regard to the Choctaw and Chickasaw allotments in Mullen v. United States, 224 U.S. 448, 32 Sup. Ct. 494, 56 L.Ed. 834, and the reasoning of the court in that case applies equally to the Creek allotments. On page 456 of 224 U.S., on page 498 of 32 Sup. Ct., 56 L.Ed. 834, it is said:

"It is true that under the Creek Agreement in cases where the ancestor died before allotment, the lands were to be allotted directly to the heirs, while under the Choctaw and Chickasaw Agreement the allotment was to be made in the name of the deceased member and 'descend to his heirs.' This, however, is a merely formal distinction and implies no difference in substance. In both cases the lands were to go immediately to the heirs, and the mere circumstance that under the language of the statute the allotment was to be made in the name of the deceased ancestor instead of the names of the heirs furnishes no reason for implying a requirement that there should be a designation of a portion of the lands as homestead."

And see United States v. Cook, 225 Fed. 756, 141 C. C. A. 22.

We therefore hold that under the above authorities and under the proper construction of the act of Congress above cited, the homestead descended free from restrictions, and that the deeds to the homestead made in 1905 passed a good title to Oates.

In regard to the surplus allotment much we have said in regard to the restrictions on the homestead will apply. All of the cases above cited were those in which the Indian died prior to allotment, and the land was allotted under the provisions of section 28 of the Creek Supplemental Agreement, which provides for the allotment of lands Where the Indian dies prior thereto, but in the case at bar the allottee had received his certificate of allotment, and the issuing of the patent related to the date of this certificate. Brady v. Sizemore, 33 Okla. 169, 124 P. 615, affirmed on appeal to the Supreme Court of the United States,235 U.S. 441, 35 Sup. Ct. 135, 59 L.Ed. 308. And the questions presented are the same as if the Indian had died after the patents were issued. To say that this surplus allotment descended without restrictions is to ignore that portion of section 16, above cited, which provides that land allotted to citizens shall not in any manner whatever be alienated by the allottee or his heirs, before the expiration of five years from the date of the approval of the Supplemental Agreement without the approval of the Secretary of the Interior. We can imagine no cases in which the statute could apply to heirs, except to land descended where the allottee dies after the allotment has been selected and certificate issued. As above said the homestead is expressly excepted from this rule by the statute, and this furnishes another argument why the statute intended to prevent the alienation of descended lands after the allotment was selected, because it was useless to exempt the homestead if the entire land was unrestricted, and this is in line with the holding in Mullen v. United States, 224 U.S. 448, 32 Sup. Ct. 494, 56 L.Ed. 934, where it is held that if the Indian dies before allotment, separate patent shall not issue for the homestead and surplus lands.

In Rentie v. McCoy, 35 Okla. 77, 128 P. 244, the distinction seems to have been in the mind of the court, because it is expressly stated that the allottee died before his allotment was selected. And in Deming Investment Co. v.Bruner, 35 Okla. 395, 130 P. 1157, the distinction between the two classes of land is also pointed out, in the following language:

"Two classes of allotments are provided for by the treaty: First, an allotment to each member of the tribe that he is entitled to receive because of his membership in the tribe and his interest in the tribal property; and, second, an allotment which the treaty deems just for the heirs to receive, not because they are members of the tribe, but because they are heirs of a person who would have been entitled to take an allotment had he lived until the ratification of the treaty. It was with the former of these classes of allotments, we think, section 16 of the Supplemental Treaty and its counterpart, section 7 of the Original Treaty, intended to deal, and that it intended to divide the lands embraced in such allotments into two classes, consisting of those upon which there is a restriction upon the alienation for a period of five years from the ratification of the treaty, and of those upon Which there is restriction upon the alienation for a period of 21 years; but section 28 provides for no such division of the lands allotted thereunder, and makes no reference to restrictions upon the alienation thereof. An Indian having died before taking an allotment, the land he was entitled to receive as his allotment descends directly to his heirs under the law of descent and distribution named, and shall be allotted and distributed to them accordingly. The land allotted to the heirs of deceased is neither homestead nor surplus; and there is no more reason for applying the restrictions upon alienation of the surplus to this entire allotment than there is to apply the restrictions upon the alienation of homesteads."

This distinction also seems to be kept in mind by the Supreme Court of the United States in Mullen v. United States, supra, for they say:

"It is true that under the Agreement in cases where the ancestor dies before allotment the lands were to be allotted directly to the heirs," etc.

And see Welty v. Reed, 219 Fed. 864, 135 C. C. A. 534.

We therefore hold that as to the surplus allotment the land was restricted. This being so, under the finding of fact by the court the deed for it was void. Carter. v. Prairie Oil GasCo., 58 Okla. —, 160 P. 319; Nunn v. Hazelnigg, 216 Fed. 330, 132 C. C. A. 474.

The rule to be deduced from a fair construction of the statute, and the authorities above cited, is, that where a Creek Indian dies prior to allotment, the allotment must be made under section 28 of the Supplemental Creek Agreement, and descends to his heirs free from restrictions, but where the allottee dies after the certificate of allotment has issued, but before patent, the homestead descends free from restrictions, but the surplus is restricted.

We are asked by the plaintiffs in error to examine the evidence. This being a case of equitable cognizance, the findings of the trial court are open to review in this court. We have carefully examined the evidence, and, in our opinion, the findings of the lower court are amply sustained thereby.

It is also argued in the brief that the plaintiff below is not entitled to relief, because he makes no offer to refund the purchase money received by him. It is undoubtedly a maxim in equity "that he who asks equity must do equity." But this does not apply to cases where a party is not seeking to avail himself of the ordinary equitable jurisdiction of the court, but is seeking to avail himself of a substantive right under the express provisions of a statute. See Missouri KansasTrust Co. v. Krumseig, 172 U.S. 351, 19 Sup. Ct. 179, 43 L.Ed. 474. Congress, exercising its power to deal with the affairs of the Indians, has seen fit to provide that deeds of restricted lands shall be absolutely void, and that any agreement or conveyance of any kind or character in violation of any of the provisions of the act shall be absolutely void, and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity. To allow a party to speculate in the purchase of restricted Indian lands, and if a suit is brought to set it aside, to require the return of the purchase money would be largely to bring about the conditions which Congress wished to avoid, for the purchaser would be acting with perfect safety, for if the Indian did not choose to attack his deed he would have the land, and if he chose to attack it, his purchase money must be returned. However, this very question was settled by the Supreme Court of the United States in Heckman v. United States, 224 U.S. 413, 32 Sup. Ct. 424, 56 L.Ed. 820, where it is said:

"Where, however, conveyance has been made in violation of the restrictions, it is plain that the return of the consideration cannot be regarded as an essential prerequisite to a decree of cancellation. * * * Those who dealt with the Indians contrary to these provisions are not entitled to insist that they should keep the land if the purchase price is not repaid, and thus frustrate the policy of the statute. United States v. Trinidad,etc., Co., 137 U.S. 160 [11 Sup. Ct. 57, 34 L. Ed. 640]."

See, also, B. F. Collins Invest. Co. v. Board, 46 Okla. 310,148 P. 846.

We therefore recommend that the judgment of the trial court canceling the deeds as to the homestead allotment be reversed, and that in so far as it canceled the deed for the surplus allotment it be affirmed, and that in pursuance of the provisions of section 5261, Rev. Laws 1910, the costs of this court be equally divided between the parties, and that the trial court be directed to enter a decree in accordance with this opinion.

By the Court: It is so ordered.

ON SECOND PETITION FOR REHEARING.