4 Indian Terr. 148 | Ct. App. Ind. Terr. | 1902
At our last January term we handed down an opinion in this cause. A motion for a rehearing was filed within the time prescribed by the statute. At our last June term the motion, together with an argument upon the whole case, was submitted, with the understanding that, if the motion were sus
The appellants’ complaint in equity alleges'that the defendants (appellees here) and plaintiff Crowell are Cherokee Indians, and that the plaintiff Blevins is a citizen of the United States; that on the 13th day of September, 1895, the defendants, being indebted to plaintiffs in the sum of $1,677.50, executed to plaintiffs their promissory note for that sum, and upon the same day, to secure the payment of said note, and another indebtedness of $100 upon account, they executed to plaintiffs a mortgage upon a certain farm and improvements and personal property, all located and being in the Cherokee Nation; that the amount due has, by payments and credits, been reduced to the sum of $863.50, with interest thereon from April 19, 1898, at 10 per centum per annum; and that defendants are insolvent. The prayer of the bill is: First, for judgment against defendants for the amount due, with interest; second, that a receiver be appointed to take charge of the mortgaged premises during the pendency of the suit; and, third, that the interest of the defendants in the premises be sold, etc. To the complaint the defendants filed a demurrer, setting up the following grounds: “(1) That the said complaint does not state facts sufficient to constitute a cause of action; and (2) that the said complaint does not state facts sufficient to entitle the plaintiffs to any relief in equity.” The court sustained the demurrer, and, the plaintiffs refusing to plead further, entered judgment for defendants. To the sustaining of the demurrer and the entering of judgment for defendants, the plaintiffs saved their exceptions, and duly appealed to this court.
The court below entertained the opinion that a Cherokee Indian could not execute a valid mortgage to a citizen of the United States upon his premises located in the Cherokee N ation,
But we are confronted with the act of congress of May 2, 1890, entitled “An act to provide a temporary government for the territory of Oklahoma, to enlarge the jurisdiction of the United States Court in the Indian Territory, and for other purposes,” the thirty-first section of which, among other things, provides: “That executions upon judgments obtained in any other than Indian courts shall not be valid for the sale or conveyance of title to improvements made upon lands owned by an Indian nation, except in cases wherein attachments are provided for.” 26 Stat. 94 (Ind. T. Ann. St. 1899, p. 9). This provision applies to improvements of Indians by blood, erected upon lands the title to which is in the Indian tribe. And when the evident purpose of the act is taken into consideration, — that is, that improvements erected by such Indians on Indian lands were to be sold bjr judicial sale only under the judgments of their own courts, — it must bo conceded it applies as well to sales under decrees in chancery as to judgments at law; that is, that the word “judgment” is used in the statute in its comprehensive sense, embracing not only judgments at law, but also definitive decrees and orders in the nature of judgments, decreeing the sale of Indian improvements so situated. See And. Law Diet. tit. “Judgments.” And therefore, in this case, the improvements sought to be subjected to sale by the decree of the court having been erected by and being the property of Indians, and.erected on Indian lands, can no more be condemned to sale under the decree of the
The decree of the court below is reversed.