Smith v. Kennedy , 46 Okla. 493 ( 1915 )

The first question raised by the demurrer is to the jurisdiction of the court. The power of a court of equity to declare the grantee in a patent issued by the government, or, in this case, by the chief of an Indian tribe, in pursuance of the authority derived from the government, a trustee, where the Department has proceeded on an error in law in issuing the patent, has been too long settled to require citation of authority. This disposes of the first ground of the demurrer.

The second ground is that several causes of action are improperly joined. It will be noted that the deed made by the Blackstone heirs for the property in controversy to Jas. A. Smith and Milton K. Thompson is for their undivided interest in this property. The object of the action is to attack a deed which would render these two deeds nugatory. In our opinion, the provision of our statute in regard to a misjoinder of causes of action is the same as the old equity rule against multifariousness, and consequently, where a bill in equity under the old practice was not multifarious, there is no misjoinder of causes of action under the code practice. In 8 Ecy. United States Sup. Court Reports, 535, it is said:

"The principle of multifariousness is one very largely for convenience, and is more often applied where two parties are attempted to be brought in by a bill in chancery who have no common interest in the litigation whereby one party is compelled to join in the expense and trouble of a suit in which he is codefendant, having no common interest, or in which one party is joined as complainant with another party with whom in like manner he either has no interest at all, or no such interests is required the defendant to litigate it in the same action."

See, also, De Roberts v. Cross, 23 Okla. 888, 101 P. 1114, and Seibert v. Thompson, 8 Kan. 66. Applying this principle to the case at bar, there is no misjoinder of actions in this petition.

The one remaining ground in this demurrer open for consideration in this court is that the petition does not state facts sufficient to constitute a cause of action, and that the petition is an effort in this court to set aside and go behind the patent issued by the Cherokee Nation and by the United States. What has been said under the first ground of the demurrer, that the court has no jurisdiction, disposes of the third ground, that the petition is an effort in this court to set aside and go behind the patent.

This leaves the only other remaining ground now open; that is: Does the petition state facts sufficient to constitute a cause of action? We think it does. From the foregoing statement of facts it appears that the contest of Turner to have this land declared partnership assets was, in fact, rejected by the Commissioner of Indian Affairs on the very apparent ground that the Department could not administer the equities in this case between the heirs of Blackstone and the creditors of Blackstone Co. The Secretary also directed the deed to issue to Clarence W. Turner and the heirs of Pleasant N. Blackstone, by his letter of September 15, 1908. Without further hearing, as far as this record discloses, or without any additional notice to the Blackstone heirs, the deed was issued to Clarence W. Turner as surviving partner of Blackstone Co. This deed, it is true, was approved by the Secretary of the Interior, but the record is silent as to why this change was made.

But, under the law governing Indian allotments of this kind, could this right of Blackstone to purchase these lots at one-half of their appraised value become a partnership asset? In this case Blackstone, a citizen, and Turner, a noncitizen, were partners in the mercantile business, and they occupied these lots, as we gather from the record, for the purpose of their business. This does not carry the right which Blackstone had to purchase the lots at one-half of the appraised value, or at least his interest in them. Section 43, c. 1375 (32 Stat. L. pt. 1), provides:

"Any citizen in rightful possession of any town lot having improvements thereon other than temporary buildings, fencing, and tillage, the occupancy of which has not been acquired under tribal laws, shall have the right to purchase same by paying one-half of the appraised value thereof: Provided, that any other person in undisputed possession of any town lot having improvements thereon other than temporary buildings, fencing and tillage, the occupancy of which has not been acquired under tribal laws, shall have the right to purchase such lot by paying the appraised value thereof."

In the case at bar Blackstone did not acquire his right to purchase this property at one-half of its appraised value by reason of any partnership arrangement, or by anything whatever growing out of the partnership. As was said by the Supreme Court of the United States in the case of McDougal v. McKay, decided April 26, 1915, 236 U.S. ___, 35 Sup. Ct. 605, 59 L.Ed. ___:

"The right to the property antedates the allotment, and is simply given effect to by that act. Viewing the tribal property and its division in this light, Andrew J. Berryhill acquired his right to the land in question by his membership in the tribe. It was his birthright. It came to him by the blood of his tribal parent, and not by purchase."

See, also, Shultis v. McDougal, 170 Fed. 529, 95 C.C.A. 615. Applying this principle to the case at bar, the right of Blackstone to acquire the title to this property by paying one-half of the appraised value antedates the allotment and was his tribal right, and came to him by reason of his Indian ancestors. It is true that his possession with Turner was a joint possession, and Blackstone and his heirs only claim, and have only claimed from the outset, a one-half interest in the lots, that is, that they should have the right to acquire a one-half interest by paying half of the appraised value, while Turner, under the proviso of section 43, had the right to acquire the other one-half interest by paying the full appraised value. This right of Blackstone was derived from his Indian ancestors and from the act of Congress, and cannot in any sense be called a partnership asset, and it appears from the petition, and is admitted by the demurrer, that the heirs of Blackstone have paid $868 on this purchase price. We cannot in this suit dispose of any of the equities between the creditors of Blackstone Co. and Blackstone's heirs, if there are any; for this is an action in which the creditors are not parties, and the only object of which is to declare Turner's vendee a trustee for one-half interest in this property.

There is another question also presented by this record, and under which we think it was error for the court below to sustain the demurrer. It will be noted that this application and the schedule of these lots was to Turner and Blackstone. The case of Arthur v. Coyne, 32 Okla. 527, 122 P. 688, throws light on this question. In that case two tenants in common who owned an undivided interest in the improvements on, and the right of possession to, town lots in the city of Tulsa, scheduled them jointly. One of the codefendants fraudulently obtained a deed in his own name for the entire property, and the court held that he took the legal title as trustee for his codefendant as to one-half. In passing on this subject the court used this language:

"Under the doctrine of relation, when the patent issued to defendant, it related back and took effect as of the date of the application for and scheduling of the lot, to wit, July 10, 1902. Shepley v. Cowan, 91 U.S. 330 [23 L.Ed. 424]; Beard v.Federy, 3 Wall. 478 [18 L.Ed. 88]," and other cases cited.

In the case at bar, under this rule, the patent issued to Clarence W. Turner as surviving partner of Blackstone Co. related back to the original schedule, which was in the name of Blackstone Turner as joint occupants, with the right of Blackstone to acquire his one-half interest by the payment of one-half of the appraised value of his interest, and of Turner acquiring his one-half interest by the payment of the entire appraised value of his interest. We therefore think there was error in overruling the demurrer. The demurrer was general to the entire petition, and, if the petition stated any cause of action, it was good as against a general demurrer. The court held as to lot 8 in block 23, and, this being the case, the demurrer should have been overruled in any event.

There is no final judgment in the case, but we entertain the appeal under the doctrine of Ashley Silk Co. v. Oklahoma FireIns. Co., 33 Okla. 348, 125 P. 449, which decides that an appeal may be taken from an order sustaining a demurrer to a petition prior to the entry of final judgment against the pleader. The title of lot 8 in block 23 is left open by the trial court, but this can be provided for upon the further hearing of the case.

We, therefore, recommend that the judgment be reversed, and this cause remanded for further proceedings not inconsistent with this opinion.

By the Court: It is so ordered.