tiff. 66 The Five Civilized Tribes, as of the age of 8 court rendered judgment in favor of plainyears, that thereafter, while married and under the age of 18 years, she, with her hus- The issue presented being identical with band, executed certain conveyances to the that of the Spalding Case, and no sufficient defendants named, as follows: A note and reason being shown why the opinion in that mortgage to the defendant, Union Invest-case does not correctly state the law, it would ment Company, dated September 24, 1908; serve no useful purpose to cite further aua warranty deed to the defendant, William | thorities or include additional reasoning in D. Cornelius, dated December 4, 1908. That its support, hence we adhere to the concluboth said mortgage and said warranty deed sion announced by the court in its former were duly recorded in the records of the opinion. register of deeds in Okmulgee county; that [2] In Phillips et al. v. Byrd, 143 Pac. 684, said instruments were made without any recently decided, but not yet officially reportorder, decree, or authority of any court, were ed, construing that part of the Act of May void, and conveyed no interest to the par- 27, 1908, which provides: ties grantee or mortgagee, but were clouds enrollment records of the Commissioner to upon plaintiff's title to said lands; and that the Five Civilized Tribes shall hereafter be she had spent the consideration received on conclusive evidence as to the age of said account of the various transactions, and citizen or freedman," it was held that that was unable to refund the same. She asked part of said act of Congress quoted had no for a cancellation of the various conveyances, application to a transaction relating to a conincluding the note and mortgage to the tract or sale of lands completed prior to the Union Investment Company. Defendants date said act took effect, but that said enanswered, admitting the plaintiff was an en- rollment records were conclusive evidence as rolled citizen of the Creek Nation of the to the age of any enrolled allottee, when aphalf blood, and that the land described in plied to any transaction relating to a conher petition was a portion of her allotment, tract or sale of lands of such allottee, entered but denying that she was under the age of into subsequent to the taking effect of said 18 years at the time of the execution of the act. instruments described in her petition, and further alleging that at the time of their execution, plaintiff was over 18 years of age, and without restriction upon her right of alienation of her allotted lands. [1] In all of its material aspects the case is a companion to Yarbrough v. Spalding et al., 31 Okl. 806, 123 Pac. 843. Each case involves a part of the allotment made Jennie Yarbrough, as a citizen by blood of the Creek Nation, the plaintiff in error in the Spalding Case being defendant in error here. The conveyances attacked and sought to be set aside in each case were made after the passage by Congress of Act May 27, 1908, c. 199, 35 Stat. 312. In the Spalding Case the land was alienated during the year 1909, while in the present case the mortgage was made December 24, 1908, and the deed executed December 4th of said year. The similarity of the two cases is conceded by counsel for plaintiff in error, who in their brief say: "The facts in this case are practically identical with those appearing in case No. 2744, upon the docket of this court, recently decided; Jennie Yarbrough being the plaintiff in both cases, and the land involved in both being portions of her land allotted to her as a citizen of the Creek Nation of the half blood." [3, 4] The transactions of both the grantee in the deed and the mortgagee were made in the face of the statute making the enrollment records thereafter conclusive evidence of the age of the allottee. An investigation of these records would have disclosed the latter's inability to alienate in the manner attempted. As said in Bell v. Cook et al. (C. C.) 192 Fed. 597, 605: "If an intending purchaser from an allottee of tribal property holding the public rolls in one hand and the act in the other, by a comparison of the two found such allottee possessed the power of disposition under the act and the rolls, he was at liberty to purchase, and he was protected in such purchase. If, on the contrary, denied the right of the allottee to convey, a the law and the public rolls considered together purchaser from such allottee was not protected, and this regardless of the true state of facts as they might be made to appear in this case.' As to that part of the court's order canceling, setting aside, and holding for naught the note given the Union Investment Company, September 24, 1908, we think the court erred. The act of May 27, 1908, had to do primarily with the alienation of allotted lands of members of the Five Civilized Tribes. It was not by section 3 thereof intended to arbitrarily make the enrollment records conclusive evidence of age of the allottee for all purposes, but in the determination of questions arising under the provisions of the act alone. The giving of the note, considered apart from the contemporaneous execution Plaintiff's testimony consisted of a certified copy of her census or enrollment card, which is identical with that appearing in the opinion in Yarbrough v. Spalding et al. This was the only testimony offered by her. Defendant of the mortgage, was but the creation of a then offered, over plaintiff's objection, evidence which, if competent, tended to show that plaintiff was 18 years of age December 20, 1907. After hearing the evidence, the personal obligation to pay the amount thereof on a day fixed. It was the alienation of allotted lands that the statute aimed at, not independent or even related transactions. The fact of plaintiff's minority when the note was executed was put in issue by the answer, and the only proof submitted by her, as we have already seen, was the citizenship rolls. This, for the purpose now being considered, was incompetent, and furnished no proof of plaintiff's age at the time the note was executed. It therefore follows that the judgment of the court should be affirmed in so far as it cancels and sets aside the several instruments other than the note of the Union Investment Company. As to that portion of the judgment canceling said note, the same should be vacated and set aside. PER CURIAM. Adopted in whole. (44 Okl. 408) W. P. Langston, of Shawnee, for plaintiff in error. J. R. Witty and Mann, Rogers & Harris, all of Holdenville, for defendant in error. SHARP, C. On January 30, 1911, plaintiff instituted an action in the district court of Hughes county, seeking a writ of mandamus to compel the defendant, B. W. Mackey, treasurer of Hughes county, Okl., to pay a certain warrant in the sum of $479.41, drawn upon the treasurer of Hughes county, in fa vor of School District No. 38 of Hughes county. On March 4th thereafter, defendant filed its answer, to which a demurrer was filed June 29, 1911, and on the same day an agreed statement of facts was filed with the clerk of the court. On August 7, 1911, the case SCHOOL DIST. NO. 38 v. MACKEY, County came on to be heard upon the pleadings filed Treasurer. (No. 3687.) (Supreme Court of Oklahoma. Dec. 8, 1914.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 564*)-TRIAL ON AGREED STATEMENT-TIME FOR MAKING AND SERVING CASE-MADE. Where a case is tried upon an agreed statement, which eliminates all questions of fact, a motion for a new trial is unauthorized by statute, and the time for making and serving a case-made for this court runs from the date of the rendition of judgment, unaffected by such motion or the order overruling the same. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*] 2. APPEAL AND ERROR (§ 564*)-TIME FOR SERVING CASE-MADE-DISMISSAL. According to the law in force at the time, a party desiring to appeal had three days by statute in which to serve a case after a judgment or order was entered, and unless such case was served within that time, or within an extension of time allowed by the court or judge within such time, the case will not be considered by this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. 564.*] 3. APPEAL AND Error (§ 356*)—TIME FOR APPEAL DISMISSAL. Under chapter 18, Laws 1910-11, proceedings in error in the Supreme Court must be brought within six months from the date of the rendition of the judgment or order from which the appeal is sought to be taken, and when not so brought, this court is without jurisdiction to review such final order. [Ed. Note.-For other cases, see Appeal and Error; Cent. Dig. §§ 1926, 1927; Dec. Dig. § 356.*] Commissioners' Opinion, Division No. 1. Error from District Court, Hughes County; John Caruthers, Judge. Mandamus by School District No. 38, Hughes county, state of Oklahoma, on the relation of F. M. Hale, director of the school board for said district, against B. W. Mackey, county treasurer. Judgment for defendant, and plaintiff brings error. Appeal dismissed. and the agreed statement of facts, and, after consideration thereof, the court entered its judgment denying plaintiff the relief sought, and dismissed his petition. On the same day motion for a new trial was filed, but was not heard or disposed of until the 18th day of September following, when the motion was overruled, and defendant was given 90 days therefrom in which to make and serve a case-made for appeal. On November 4th thereafter, case-made was served upon opposing counsel, and the case signed and settled by the trial court on November 20th following. [1-3] The petition in error, with case-made attached, was filed in this court on March 13, 1912. Motion has been filed to dismiss plaintiff's appeal, on account of the fact that the petition in error was not filed in this court within six months from the date of the rendition of the judgment appealed from. The motion must be sustained. A motion for a new trial, where a case is tried upon an agreed statement of facts, is unnecessary, hence the filing of such motion does not serve the purpose of extending the statutory time in which to serve a case after judgment. The only order extending the time for serving the case was made 42 days after the rendition of the judgment, hence after the expiration of the time fixed by statute. In Board of County Commissioners v. Porter et al., 19 Okl. 173, 92 Pac. 152, in passing upon the question before us, it was said by the court: "The case was submitted upon the pleadings and an agreed statement of facts. There was no necessity for a motion for a new trial. The case went to the court upon a question of law, the facts being settled by stipulation, and the overruling of the motion for new trial saved no question for review, and, even had an extension been given at the time the motion for in this character of a case." new trial was overruled, it would be unavailing See, also, Stanard v. Sampson et ux.. 23 Okl. 13, 99 Pac. 796; Chicago, R. I. & P. Ry. Co. v. City of Shawnee, 39 Okl 728, 136 Pac. 591. See, also, Kansas cases to the same effect cited in foregoing opinions. As the proceedings in error were not commenced in this court until more than six months after the rendition of the judgment, this court is without jurisdiction to review the judgment of the lower court. Sumner et al. v. Sherwood, 25 Okl. 70, 105 Pac. 642; Tishomingo Electric Light & Power Co. v. Harris, 28 Okl. 10, 113 Pac. 713; State Savings Bank, etc., v. Bedden et al., 38 Okl. 444, 134 Pac. 20; Malloy v. Johnson et al., 40 Okl. 454, 139 Pac. 310; Muskogee Electric Traction Co. v. Howenstine, 40 Okl. 543, 138 Pac. 381, 139 Pac. 524; May v. Roberts, 40 Okl. 659, 140 Pac. 399. The former action of the court in denying the motion to dismiss should be overruled, and the appeal dismissed. PER CURIAM. Adopted in whole. 66 Act Cong. May 27, 1908, c. 199, 35 Stat. 313, in part provides: * The enroll ment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman." Held: That such act is not, nor was it, intended to be a rule of evidence; but the purpose of said act is to prescribe terms and conditions upon which members of the Five Civilized Tribes of Indians may alienate their lands, and to prescribe a fixed and uniform rule by which those contracting with such members of said tribes could determine the exact date minors may reach their majority for the purpose of alienating their lands. [Ed. Note.-For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. § 15.*] FECT. Commissioners' Opinion, Division No. 1. Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Willie Charles against Anna C. Thornburgh and others. Judgment for defendants, and plaintiff brings error. Affirmed. Geo. C. Beidleman and Merwine & Newhouse, all of Okmulgee, for plaintiff in error. Stanford & Cochran, Harlan Read, and Matthews & Ellison, all of Okmulgee, for defendants in error. SHARP, C. Willie Charles, a citizen freedman of the Creek Nation, enrolled as such, on September 24, 1904, sold and by warranty deed sought to convey title to 120 acres of the land allotted to him by virtue of his said citizenship, to the defendant in error Anna C. Thornburgh. Thereafter and on the 21st day of October, 1904, the grantee in said first above-mentioned deed sold said land to the defendants A. A. Vierson and L. L. Sessions. October 15, 1906, said last-mentioned grantees by warranty deed sold said land to the defendant the Standard Investment Company. Thereafter and on the 21st day of February, 1908, said company by warranty deed attempted to sell and convey title to said land to the defendant L. S. Skelton. November 21, 1907, the allottee, Charles, again attempted to convey said land, by making a deed thereto to one Willie Bradford. On September 22, 1910, said Bradford executed a quitclaim deed to his title in and to said lands to the plaintiff. At the trial, on the part of the defendants in error, it was claimed that the allottee, Charles, became 21 years of age on September 8, 1904, or prior to the execution of the deed by Charles to Thornburgh. On the part of the plaintiff, it was contended that according to the rolls of the Creek freedmen, certified to by the acting Commissioner to the Five Civ 2. INDIANS (§ 15*)—ALIENATION OF LAND-ilized Tribes, Willie Charles was 14 years OPERATION OF STATUTE RETROACTIVE EF- of age March 17, 1903, hence was a minor on the date of the execution of the Thornburgh deed. The case was tried before a jury; the sole issue submitted being the age of the plaintiff, Willie Charles, on September 24, 1904. The verdict returned was that on said day said Charles was 21 years of age. That part of said act of Congress mentioned in the foregoing paragraph has no application to a transaction relating to a sale of allotted land concluded prior to the date said act took effect. [Ed. Note.-For other cases, see Indians, Cent. Dig. 88 17, 29, 34, 37-44; Dec. Dig. 15.*] - 3. INDIANS (§ 15*) - ALIENATION OF ALLOTMENT REMOVAL OF RESTRICTION OPERATION OF STATUTE. For a reversal of the judgment of the trial court, plaintiff relies upon two alleged errors: (1) That the enrollment records of the Commissioner to the Five Civilized Tribes were conclusive evidence of the age of plaintions upon the alienation of lands of all allot- tiff; and (2) that on September 24, 1904, tees of either of the Five Civilized Tribes of the restrictions upon Charles' right of alienIndians who are not of Indian blood, except mi-ation had not been removed. Act Cong. April 21, 1904, c. 1402, 33 Stat. 189, removing all the restric * 44 nors, *" authorized a freedman citizen of the Creek Nation to alienate by deed her [1, 2] The first question involves the detersurplus allotment upon attaining her majority, mination of rights which accrued, and of the though a minor at the time of the passage of effect of transactions which were concluded, the act. [Ed. Note.-For other cases, prior to the passage by Congress of the Act see Indians, Cent. Dig. 88 17, 29, 34, 37-44; Dec. Dig. of May 27, 1908 (35 Stat. at L. 313, c. 199), 15.*] in which it is provided that the enrollment *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes records of the Commissioner to the Five Civilized Tribes "shall hereafter be conclusive evidence as to the age" of any enrolled citizen or freedman of those tribes. There was suf ficient evidence, if competent, in view of the statute, to sustain the verdict of the jury. Upon it defendants relied to sustain their title. If, however, the evidence was not competent, and the court erred in excluding, as conclusive evidence of the age of Willie Charles, the enrollment records of the Commissioner to the Five Civilized Tribes, then clearly the judgment of the trial court must be reversed. As has already been noted, the transaction was one that was concluded prior to the passage of the act. The exact question presented has been decided by this court in the following cases: Williams v. Joins, 34 Okl. 733, 126 Pac. 1013; Rice v. Ruble, 39 Okl. 51, 134 Pac. 49; Perkins v. Baker, 41 Okl. 288, 137 Pac. 661; Scott v. Brakel et al., 143 Pac. 510; Phillips et al. v. Byrd, 143 Pac. 684; Grayson et al. v. Durant et al., 144 Pac. 592. In Phillips et al. v. Byrd, supra, referring to that part of the act of May 27, 1908, providing that the enrollment records "shall hereafter be conclusive evidence as to the age" of said citizen or freedman, it was said: "That part of said act of Congress, quoted, has no application to a transaction relating to a contract or sale of lands completed prior to the date said act took effect." In our opinion, for the reasons already stated, the enrollment records were not competent evidence for any purpose, and such was the conclusion reached by this court in Grayson et al. v. Durant et al., supra. [3] It is next urged that Charles, having attained his majority subsequent to the passage of the Act of April 21, 1904 (33 Stat. at L. 189, c. 1402), and even though he had become of age prior to September 24th of said year, could not alienate his allotted lands. Willie Charles, it will be remembered, was a freedman citizen of the Creek Nation. The position of counsel is that the act of April 21, 1904, only removed restrictions upon those who were adults at the time of the passage of the act, and that the language of the statute does not include those who subsequently became of age. The act in this regard reads: "And all the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed." In similar language, it was said in Scott from its operation. Where the language of v. Brakel et al., supra: "In the determination of rights which accrued and the effect of transactions concluded prior to May 27, 1908, the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman enrolled thereon." a statute, as in the present case, is in general terms, and in words of the present tense, the statute will, as a general rule, be construed to apply not only to things and conditions existing at its passage, but will also be given a prospective interpretation, by which it will apply to such as come into existence thereafter. 36 Cyc. 1235; Pacific Milling & El. Co. v. City of Portland, 65 Or. 349, 133 Pac. 72, 76, 46 L. R. A. (N. S.) 363; Carter v. Coharie Lbr. Co., 160 N. C. 8, 75 S. E. 1074; Schus v. Powers-Simpson Co., 85 Minn. 447, 89 N. W. 68, 69 L. R. A. 887. Construing Clay's Dig. of Alabama, 112, § 47, which provided that: The decision of the Circuit Court of Appeals for the Eighth Circuit, in Malone et al. v. Alderdice et al., 212 Fed. 668, is in harmony with the views of this court; the court in that case citing in support of its conclusion Williams v. Joins and Perkins v. Baker, supra. It was there, as here, insisted that the action of the Commission to the Five Civilized Tribes in making up the rolls, under authority given it by the various acts of Congress, therein reviewed, was conclusive "All the notes, bills, bonds, or other evidence of the age of the allottee. It was held, how- of debt, held by the state bank or branch banks, payable to the cashier, or the person who has ever, in answer to this contention, that the filled the office of cashier, of said bank, or branch action of the Commission in its decisions, re-banks, may be sued, and collected in the name of citals, or reports, regarding issues whose determination was not indispensable to enable it to decide who should be enrolled, what lands should be allotted to those enrolled, and how, was, in the absence of special legislation, such as the act of May 27, 1908, without judicial or other conclusive effect. The court said, in reaching its conclusion: "The result is that in the determination of rights which accrued and of the effect of proceedings which were concluded prior to May 27, 1908, the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman"-citing Hegler v. Faulkner, 153 U. S. 109, 117, 118, 14 Sup. the several banks, in the same manner as if bank, or branch banks, by which the paper has they had been made payable directly to said been taken or discounted," the Supreme Court of that state, in Davis et al. v. Branch Bank of Mobile, 12 Ala. 463, held that the act applied equally to notes which were executed at the time of its passage, and to those which had been made since. In United States v. Shock (C. C.) 187 Fed. 862, which involved the construction of the various acts of Congress on the subject of the right to alienate lands of the citizens of alienable, the United States Court for the Eastern District of this state, in passing upon the contention here urged, said: "For reasons sufficient to Congress, it saw fit to remove restrictions from the surplus lands of all adult allottees of the classes mentioned. The same reasons apply with equal force to those subsequently becoming adults. No reason is suggested, nor is any conceived, for making any distinction between those of the class named who were of age on April 21, 1904, and those subsequently becoming of age. To make such a distinction would, I think, be in direct violation of the plain purpose of the act. the act of April 21, 1904, the class Congress has in mind consists of those not of Indian blood. It excepts minors of the class named, from the operation of the law merely because of their minority, and no sound reason can be urged, why, when minors of the class named become of age, they are not within the purview of the law. * * In In Goat et al. v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841, the United States had brought suit to cancel certain conveyances made by Seminole freedmen, alleged to be in violation of existing restrictions on alienation. The broad position was taken by the government that all conveyances of the land allotted to members of the Seminole Tribe were void because made prior to the date of patent, under the agreement between the Commission to the Five Civilized Tribes and the Seminoles, set forth in the opinion. The court, however, directed attention to the act of April 21, 1904, removing the restrictions upon alienation by adult allottees of the Five Civilized Tribes who were not of Indian blood, of lands other than homesteads. It does not appear from the opinion when the adult allottees, whose conveyances were sought to be canceled, attained their majority. It was, however, held that adult grantors, after the passage of the act of April 21, 1904, stood precisely in the same position as though they had received their allotments without any restriction upon their right to alienate the interest thus acquired. The conclusion reached by the court was: (1) That the bill should be sustained so far as it related to conveyances of homestead lands; (2) that it should also be sustained to the extent that it was directed against conveyances of surplus lands made by freedman allottees who were minors, and thus excepted from the provisions of the act of April 21, 1904, and those made by adult allottees prior to that act; and (3) that so far as the bill related to conveyances of surplus lands, made by adult freedman allottees, subsequent to April 21, 1904, it should be dismissed. See, also, Deming Investment Co. v. United States, 224 U. S. 471, 32 Sup. Ct. 549, 56 L. Ed. 847. We find nothing in these recent expressions of the Supreme Court limiting the right to alienate to those who were adults on April 21, 1904, and do not believe it was intended to announce such a rule. In addition to that part of the act already quoted, the further provision is found: * And all restrictions upon the alienation of all other allottees of said tribes, except minors, and except as to homesteads, may, with the approval of the Secretary of the Interior, the Secretary of the Interior may prescribe, upbe removed under such rules and regulations as on application to the United States Indian agent at the union agency." Giving effect to the same rule of construction insisted upon, the Secretary of the Interior, under this provision of the act, would be without authority to remove restrictions from those who attained their majority after its passage. Such was not the intention of Congress, neither can the position be maintained from the language employed. The judgment of the trial court should in all things be affirmed. PER CURIAM. Adopted in whole. (Syllabus by the Court.) 1. VENDOR AND PURCHASER (§ 334*)—DEFAULT BY PURCHASER-RIGHT TO RECOVER MONEY PAID. Where a vendee contracts to purchase certain real estate, and, after paying a part of the purchase price, makes default, he cannot maintain an action to recover the money so paid. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.*] 2. VENDOR AND PURCHASER (§ 341*)—RESCISSION OF CONTRACT-SUFFICIENCY OF EVIDENCE. Evidence examined, and held insufficient to sustain an allegation of mutual rescission of a contract after default of the vendee. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 1008-1017; Dec. Dig. § 341.*] Commissioners' Opinion, Division No. 1. Error from District Court, Grant County; W. M. Bowles, Judge. Action by Gust Johnson against S. S. Snyder. Judgment for plaintiff, and defendant brings error. Reversed and remanded. soll, of Medford, for plaintiff in error. erro. RITTENHOUSE, C. On June 10, 1909, S. S. Snyder, plaintiff in error, who was defendant below, sold to Gust Johnson, defendant in error, who was plaintiff below, the southeast quarter of section 12 in township 25 north, range 6 west of the Indian meridian, for a consideration of $13,000; $9,000 to be paid in cash; and the balance of $4,000 secured by mortgage due in one year. One thousand dollars which was to be applied as part payment on the purchase price was paid at the time of entering into the contract. It is alleged and proven that after making said For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |