Canfield v. Jack , 78 Okla. 127 ( 1920 )

The land involved in this litigation is in the heart of the Cushing oil field and is of great value. There were originally many parties and many conflicting interests, but owing to the fact that many of these interests have been settled, we will only burden the reader of this opinion with the facts necessary to determine the issues in this case.

In the month of September, 1899, Susie Crow, an infant, died, and after her death there was allotted to her heirs the lands, consisting of 160 acres, involved in this suit. On her mothers side there were two full-blood aunts, Mollie Crow, now Mollie Tiger, and Baby Barnett, now Baby Cumsey. They were the owners of one-sixth each of her allotment. On January 13, 1914, these two aunts joined in the execution of a deed to John Z. Cacy for their interest in the above lands, which was placed of record in the office of the county clerk January 20th following, and was approved by the county court as to 120 acres on March 3, 1915, and on February 14, 1916, was approved as to the whole 160 acres. On October 28, 1914, these two heirs joined in the execution of a deed to their interest in the above lands to Ira E. Cornelius, which was approved by the county court November 21, 1914. It is thus to be seen that the Cacy deed, which was the first in execution, was the last in approval, and that the Cornelius deed, which was the second in execution, was the first in approval. It is out of the conflicting claim of Cacy and his grantees and the claim of Cornelius, each claiming under his deed, that this cause arose.

In the pleading Cornelius claims title under his deed aforesaid, and Cacy and grantees in answer thereto plead as follows:

"And these defendants answering the cross-petition of Ira Cornelius say that they deny that said Ira Cornelius has or ever had any right, title, or interest in and to said land; that the pretended deeds taken by said Ira Cornelius were later in date than the deeds taken for the same land from the same grantors by these defendants, and that at the time of taking said deeds the title to said land had been conveyed by the grantors of said Ira Cornelius to these defendants and that these defendants were, and had been for more than one year prior to the execution of said deeds, in the open, notorious, and peaceable possession of said land, paying taxes thereon; and receiving the rents and profits therefrom, and that the grantors of said Ira Cornelius had not been in possession of said land, nor had they received the rents and profits for more than one year prior to the execution of said deed: that, in addition, the said Ira Cornelius took said deeds with full notice and knowledge of the possession and title of these defendants, and knew at the time he took said deeds that his grantors had conveyed any interest they might have in said lands to these defendants, and that said Cornelius represented to the county court of Creek county, in order to get said deeds approved for the very small consideration paid to his grantors, that their rights were very uncertain and doubtful; and these defendants say that under these facts the said Ira Cornelius does not come into court of equity with clean hands, but that he purchased a speculative title, knowing the rights of these defendants, and paying a very insignificant price therefor, for the express reason that the rights of his grantors were doubtful and in litigation; a copy of the deed to said Ira Cornelius is hereto attached, marked 'Exhibit J,' and made a part hereof.

"And further answering the cross-petition of the defendant, Ira Cornelius, these defendants say: That heretofore, to wit, on the _____ day of __________, 19__, and prior to the execution of the pretended deeds by Mollie Tiger and Baby Barnett, instituted an action in the district court of Creek county, which said court then and there had jurisdiction in the premises herein, wherein the said Mollie Tiger and Baby Barnett were plaintiffs and George W. Canfield et al. were defendants, being known as Cause No. 3142, on the docket of said court, by which action the said plaintiffs claimed title and the right of possession in and to the land in controversy in this action; that such proceedings were had in said action, that the same was dismissed with prejudice to the rights of the said plaintiffs therein, and said judgment has become final; that said defendant, Ira Cornelius, purchased said land pending said action and with full knowledge thereof; and these defendants plead the judgment in said action as an estoppel of record against the said plaintiffs therein, and the said defendant, who purchased the said land with full knowledge of the pendency of said action."

The trial court found in favor of the Cornelius deed, and Cacy and his grantees seek a reversal in this court.

We shall classify the principal errors assigned for a reversal of this case as follows: First, that the court erred in failing to find that Cornelius came into court with hands unclean and that his deed was champertous; second, in finding that the rules of this court promulgated August 15, 1914, in regard to the approval of a full-blood deed, had not been violated; third, in holding that the lands involved were restricted and that the deed to him, Cacy, must be approved; and, fourth, in holding that the title in his, Cacy's, deed did not relate back to its execution and first delivery, thus cutting off Cornelius' rights acquired subsequent to the execution thereof.

Under the first assignment of error, that Cornelius did not come into court with clean hands, the record shows that Cornelius knew of the Cacy deed at the time he procured his, Cornelius', deed; that Cacy prior to his deed herein had procured a deed from another heir, and under that deed made improvements and was in possession of the land when the deed in question was executed to him.

In American Ass'n v. Innis, 109 Ky. 595, 60 S.W. 388, it is stated:

"The maxim that one who comes into Equity must come with 'clean hands' is based on conscience and good faith. The maxim is confined to misconduct in regard to, or at all events in connection with, the matter in litigation, so that it in some measure affects the equitable relations subsisting between the two parties and rising out of the same transaction. 'Clean hands' means a clean record with respect to the transaction with defendant, and not with respect to any third person."

We do not believe the evidence is sufficient to prove that Cornelius came into court with hands not clean. The question of the purchase of a speculative title and the inadequacy of consideration charged under this assignment will be discussed in another part of this opinion.

Champerty is not available as a defense to a deed executed by a full-blood Indian. In Murrow Indian Orphan Home v. McClendon, 64 Oklahoma, 166 P. 1101, this Court held:

"Our statute on champerty does not apply to restricted Indian lands. Congress has reserved the exclusive right to control the sales and prescribe the conditions, under which title to these lands may pass. And a conveyance of such lands, made in compliance with the acts of Congress and the rules and regulations of the Department of the Interior, carries title to such lands as against the world."

In the second assignment of error Cacy contends that the trial court erred in not finding that the rules of the Supreme Court promulgated August 15, 1914, in reference to the approval of a full-blood Indian's deed, had not been violated. The pleading, as will be seen, does not set this forth as a defense, so we will examine the record to ascertain if there is any evidence of this fact.

In the trial of the case Cornelius sought to get an admission from the opposing parties that at the time his deed was approved he called the county court's attention to the fact that his Indian grantors had executed a former deed to Cacy and that the parties objecting to his deed appeared in the interest of those who had the prior deed. Cacy and his grantees refused to so admit, whereupon Cornelius was placed upon the stand to prove this contention, and in his testimony there was developed the fact that there was a record made in the county court as to these facts at the time the deed was approved. Whereupon Cacy and his grantees objected to oral testimony for the reason there was a record of what was done, which objection was by the court sustained. The record then was offered by Cornelius, but objections were further made thereto upon the ground that the record was not competent for any purpose whatsoever. The record was introduced in evidence, and it is into this record we are now asked to look and ascertain if the rules of this court have been violated, as well as to consider other irregularities alleged by Cacy to have taken place therein.

We find that this record was introduced in the trial court for the purpose of showing that Cornelius called the attention of the county court to the Cacy deed, prior to the approval of his deed, and that there were certain parties objecting to its approval who appeared in the interest of those who held under the Cacy deed, and this record should not be considered for the purpose of showing whether or not the rules of this court had been violated or for any other purpose other than the purpose for which it was introduced. If Cacy and his grantees believed the rules of this court had been violated or that there were grave irregularities and wished to rely thereon to defeat the Cornelius deed, they should have pleaded and proved such at the trial, and opportunity should have been given the other side to controvert the same. From the record we find that the attention of the county court at the time it approved the Cornelius deed was called by Cornelius to the former deed executed by these two Indian women to Cacy, and that Cacy and some of his grantees, but not all, appeared in the county court at that time.

Under the third assignment of error Cacy and his grantees contend that the lands involved were not restricted and that the deed in question did not require approval. This was Cacy's and his grantees' contention at the time the pleadings were joined, the trial was had in the lower court, and the first brief filed in this court. This seems to have been their principal defense, and it is strenuously urged in their brief first filed. The question there is exhaustively discussed. Since the filing of the first brief, the Supreme Court of the United States, in Tally v. Burgess, 246 U.S. 104, 63 L. Ed. 600, has held that the lands were restricted and the deed of a full-blood heir must be approved. Consequently this defense is not now available to Cacy and his grantees.

In view of the fact that Cacy and his grantees have heretofore contended so strenuously that the lands herein involved were free of restrictions and the deed of his full-blood grantors required no approval, it might be well herein to give the history of judicial expression pertaining thereto and ascertain if Cacy and his grantees have been misled to their prejudice by judicial expression or by their own construction of statutory law pertaining thereto.,

The Supreme Court of the United States, in Mullen v. United States, 224 U.S. 448, Sheldon v. Dill 235 U.S. 206, Atkins v. Arnold, 235 U.S. 417, and in Greenlee v. Morris,239 U.S. 627, wherein inherited lands were conveyed and rights acquired prior to the act of Congress of April 26, 1906 (34 Stat. 137), held that there were no restrictions on inherited lands of the members of these tribes and that an heir might sell the same. Congress, in order to give protection to the full-blood members of these tribes, provided in section 22 of the act of April 26, 1906, that all conveyances of inherited lands made by full-blood Indians are subject to the approval of the Secretary of the Interior. In this act for the first time Congress has placed the Indian into two classes, that is, the full-blood Indian and the mixed-blood Indian. Again, under section 9 of the act of May 27, 1908, Congress provided that the conveyance of full-blood Indians shall be approved by the court having jurisdiction of the settlement of the estate of the deceased. Cacy's deed was executed to him January 13, 1914, subsequent to both of the acts mentioned above, wherein an approval of such a deed was required. We know of no judicial expression of an appellate court holding that the lands herein involved were not restricted and the deed did not require approval at the time of its execution. This cause came on for trial in the trial court June 27, 1916, but previously thereto this court, on February 15, 1916, in Sampson v. Staples, 55 Okla. 547, 155 P. 213, held that the deed of a full-blood heir must be approved. On June 17, 1916, the United States district court for the Eastern district of Oklahoma, in Younken v. David, 235 Fed. 621, held to the contrary. This issue finally reached the Supreme Court of the United States, and in Tally v. Burgess, supra, it was held, as in this court, that the deed must be approved. Consequently it is to be seen that Cacy in failing to secure the approval of his deed was not prejudiced at the time it was executed by any appellate court holding that it did not have to be approved. If he was prejudiced in any way, it was for the reason that he erroneously construed federal statutes. At the time he took his deed there was the act of April 26, 1906, and of May 27, 1908, both requiring its approval, and he went into the facts of both of these acts.

Under the fourth assignment of error Cacy and his grantees contend that the trial court erred in not holding that the approval of Cacy's deed on March 3, 1915, related back and that the title to him became effective upon the date of its execution and first delivery to him, to wit, January 13, 1914. This is invoking the doctrine of relation. 34 Cyc. 1036, states:

"That the doctrine of relation is that principle by which an act done at one time is considered by a fiction of law to have been done at some antecedent time."

Devlin on Real Estate, at section 328, says:

"The general rule is that the title passes only upon the second delivery, or upon the happening of the event made the condition of delivery. But in certain cases, for the prevention of injustice, the instrument will relate back to the first delivery so as to pass title at that time. The law upon this point has been thus stated: 'The title only passes on the performance of the condition or the happening of the event, except in certain cases where by fiction of law the writing is allowed to take effect from the first delivery. This relation back to the first delivery is permitted, however, only in cases of necessity and where no injustice will be done, to avoid injury to the operation of the deed from events happening between the first and second delivery; as if the grantor, being a feme sole, should marry, or, whether a feme sole or not, should die or be attained after the first and before the second delivery, the deed will be considered as taking effect from the first delivery, in order to accomplish the intent of the grantor, which would otherwise be defeated by the intervening incapacity. But subject only to this fiction of relation in cases like those above supposed and others of the kind, and which is only allowed to prevail in furtherance of justice and where no injury will arise to the rights of third persons, the instrument has no effect as a deed, and no title passes until the second delivery; and it has accordingly been held, that if, in the meantime, the estate should be levied upon by a creditor of the grantor, he would hold by virtue of such levy in preference to the grantee in the deed.' "

In support of this doctrine the following cases, some of which are Indian cases, are urged: Almeda Oil Co. v. Kelly,35 Okla. 525, 130 P. 931; Scioto Oil Co. v. O'Hern, 67 Oklahoma,169 P. 483; Pickering v. Lomax, 145 U.S. 310, 36 L. Ed. 716; Lomax v. Pickering, 173 U.S. 26, 42 L. Ed. 601; Lykins v. McGrath, 184 U.S. 169, 46 L. Ed. 485. In Pickering v. Lomax the cause was reversed upon the application of the doctrine of relation as applied to the facts of that case, but in Lomax v. Pickering the case did not turn on that doctrine. In the language of the latter opinion in the body of the same the following is said:

"By the approval of the first deed (which was the first approval) the title of Robinson was wholly divested and there was nothing left upon which a subsequent approval could operate unless we are to assume that such subsequent approval in some way revested the title in Robinson and passed it to McClure."

In Murray v. Wooden, 17 Wend. (N.Y.) 531, an Indian executed separate deeds to two parties. The law required that his deed be approved by a certain official. The deed first in execution was last in approval, just as in this case. The court held that the deed second in execution but first in approval prevailed over the deed first in execution but last in approval.

The other cases referred to as having been decided in this court were such as where an Indian had executed an oil and gas lease, requiring the approval of the Secretary of the Interior, and where the lessee had filed the same in that office for approval as by law required, but while the lease was pending and before its approval, the Indian died (Scioto Oil Co. v. O'Hern, supra). This court held that in such a case an approval by the Secretary of the Interior, even though after the death of the lessor, related back, under the doctrine of relation, to make title effective under the lease as of date of its first delivery to the lessee; that the equity of the lessee was superior to the equity of the heirs of the deceased grantor, and the filing of the application for the approval of the lease in the Interior Department was constructive notice to all subsequent purchasers from the heirs.

In this case, Cacy procured his deed, placed it of record, held possession, and for more than a year made no effort to procure its approval. Cacy had taken a deed and was in possession of land of full-blood Indian contrary to federal law. His deed was valid until approved by the county court. In none of the cases cited above is it held that the deed last in approval takes title to the land. In the Lomax v. Pickering case the deed first in approval passed title. We do not believe that under the doctrine of relation an approval of a full-blood Indian's deed will relate back to its execution and first delivery when the same is taken in violation of statute, and thus cut off a subsequent purchaser who has taken his deed and had it approved as by law required.

We do not believe that an unapproved deed of a full-blood Indian, whether appearing of record or not, is a cloud upon his title. We do not believe that such an Indian, by his act or by the act of any one dealing with him, can execute any instrument of writing, other than in the way directed by statute, that will be a cloud upon his title or affect it in any way, and such a deed appearing of record is merely a stray deed taken in violation of law and is not notice to any one. When a full-blood Indian presents his deed for approval the law declares for him that his title is clear in so far as his acts theretofore are concerned. If the doctrine or relation could be applied to the facts of this case, then the beneficent power of the federal government to protect him from his improvidence would be very much weakened, and would be destructive of those safeguards placed about a helpless people by acts of Congress.

We therefore find that under the facts of this case the doctrine of relation is not applicable thereto.

In the briefs of Cacy and his grantees there is much said about the inadequacy of consideration paid these Indians by Cornelius. Cacy appears now to be under the belief that Cornelius wronged him by failing to pay the Indian women an adequate consideration. We believe the wrong, if any, was against the Indian women. Inadequacy of consideration is not pleaded as a defense against the Cornelius deed by Cacy and his grantees further than to attempt to show that Cornelius did not come into court with clean hands. We have examined the record and find there was a marked silence on that subject in the trial court. The Indian women were parties there, and if that issue had been raised there these women might have been shown beneficiaries of an inadequacy of consideration by either Cornelius or Cacy. But in this court these women did not appeal, and we cannot grant them any relief, consequently there is a greater freedom of action along that line.

Let us examine the record and ascertain how much was paid by Cornelius and by Cacy to these Indians. Cornelius had his deed approved on November 21, 1914, and paid them $1,000. Prior to that time he had paid them $125 for a lease. Cacy had his deed approved as to 120 acres on March 3, 1915, and the consideration shown therein was $600, and on February 14, 1916, had it approved for the whole 160 acres, there being paid the Indians $450 by one of his grantees with a promise to pay them a like sum out of the run of the oil. The total* amount paid these Indians in cash by Cornelius was $1,125, and by Cacy and his grantees was $1,050. So if Cornelius sinned by paying an inadequate consideration to the Indians, then Cacy and his grantees have also sinned. If the consideration is insufficient, then for one of these parties to complain at the other "would be like the pot calling the kettle black."

But was this sum at the time it was paid by either Cornelius or Cacy inadequate under the facts and law applicable thereto when these deeds were executed and approved? At the time these deeds were taken by these parties and were approved, the Supreme Court of this state had on June 18, 1912, in Brady v. Sizemore, 33 Okla. 169, 124 P. 615, held that the paternal heirs took to the exclusion of the maternal heirs. This case finally reached the Supreme Court of the United States,235 U.S. 441, and it was there held that the paternal heirs took to the exclusion of the maternal heirs. These aunts were of the maternal line. Consequently, at the time these deeds were taken and approved, the two highest courts of the land had held that these Indian women had no title. Both Cacy and Cornelius, at the time they purchased this land and had their deeds approved, were merely buying shadows.

It is contended in the brief of Cacy and his grantees that, owing to the form of the Cornelius deed and the allegations set forth therein as to other instruments of writing affecting title to the lands involved, his deed was therefore subject to the Cacy deed. It is not clear, however, under what assignment of error this objection goes. In the Cornelius deed the many instruments of writings, suits, and other facts affecting title prior to his deed were set forth. The reference therein to the deed to John Z. Cacy is in words as follows:

"Whereas, Mollie Tiger and Baby Cumsey, nee Barnett, did on the 13th day of January, 1914, execute a quit-claim deed to John Z. Cacy for all of said land above described."

In this deed there are in all some 30 "whereases" set forth, going to show the various clouds on the title and contentions that the Indian women did not possess title to the lands involved. There is no reservation in the deed that the Cornelius deed was subject to the purported title of others, or words importing such. We do not believe that the language of the Cornelius deed is uncertain or ambiguous as to it being subject to the Cacy deed. This was not contended in the trial court and was not specifically referred to in the assignment of errors in this court. We believe the Cornelius deed is sufficiently clear to require no construction.

We therefore find that the Cornelius deed was not taken and approved subject to the deed to Cacy.

In the briefs of Cacy and his grantees much is said in regard to fraud being perpetrated by Cornelius on the Indian women. Fraud as a defense was not alleged in the pleadings, and was not relied upon in the trial of the case.

Lewis C. Lawson, Esq., as attorney for Mollie Tiger and Baby Cumsey, nee Barnett, has filed in this court a brief in their behalf which shows a great research of the law pertaining peculiarly to the protection afforded by federal law to full-blood members of the Five Civilized Tribes, and is a wealth of information on that subject. We have carefully examined this brief. The matters we are urged therein to determine we cannot do, for the reason that his clients, who were parties in the lower court, did not except to the judgment therein rendered, did not appeal to this court, and have not filed any cross-petition in error.

As the record does not disclose when Clara A. Ryan acquired her title to a portion of the lands, we are unable to say whether or not she is an innocent purchaser, and for that reason refuse to disturb the decree in her favor, for whatever interest she may have.

Pending the appeal various settlements have been made affecting the rights of some of the parties to the proceedings in error. These settlements, as between the parties thereto, will, so far as possible, remain unaffected by this opinion.

As to the question of ad valorem taxes on the funds in the receiver's hands, the trial court is directed to determine all issues involving liability of the funds to taxation of which it may have jurisdiction whenever that question may properly be triable.

Affirmed.

RAINEY, V. C. J., and KANE, JOHNSON, and BAILEY, JJ., concur; PITCHFORD and McNEILL, JJ., dissent; OWEN, C. J., disqualified; HARRISON, J., not participating.

Dissenting Opinion Filed March 16, 1920.