Drummond v. Johnson

DRUMMOND, Individually Leva S.

as Executrix for the Estate of Gent

Drummond, Appellee, JOHNSON, formerly

Virginia Pratt, Augustus Homer

Mary Josephine Pratt, Mifaunwy Valen-

cia, Yvonne Annette Marlene Mirranda, Catherine Grace

Virgil Pratt, Appellants. Charles

No. 54032.

Supreme Court of Oklahoma.

March July

On Jоhnson entered into a written contract with Gent Drummond the terms of agreed which to sell to Drummond all might land which she receive from the es- tate Myron Bangs, equal Jr. for a sum appraised value of the real estate as appraisers. determined estate This contract was recorded in the office of County Osage County. Clerk of 1, 1963, March a On final decree was Pratt, Henry entered in the Estate of Jr. which directed that one-third of all of the Pratt, Henry of which Jr. died seized pоssessed “including and and but not Sagalkin, Acting Atty. Sanford Asst. contingent limited to a interest in the es- Gen., C., Washington, Bryant, D. Hubert H. Myron Bangs, tate of one Jr. be distributed Santee, Atty., U. S. Robert P. Asst. U. S. to Virginia Harragara Johnson.” The order Tulsa, Snel, Atty., Dirk Atty. Dept, D. became final April on 1963. It is the Justice, C., Washington, D. for appellant, ownership of an undivided interest of Vir- Augustus Homer Pratt. ginia Harragara Johnson in a 480-acre tract Kane, Kane, Wilson Mattingly, & Pa- in Osage County which came to her from whuska, appellee. Myron Bangs, and out of the estate of Jr. Pratt, via the demise of Henry Jr. which LAVENDER, Justice: became the matter of this action. This case involves rights correlative 5, 1969, September On a contract of set- justiciable status of both restricted and un- tlement was into writing entered be- Indians, Osage and the United tween the proponents and contestants of States Government. Myron the last will and testament of Bangs, From the complex web of factual events pursuant Jr. agreed to which it was circumstances, glean we following Pratt, Henry the estate of Jr. would receive which are presentation essential to the (480 acres) the land question from the resolution of the issues in this case: Bangs estate. Myron Bangs, Jr. died a Osage resident of 14, 1969, September probate On divi- County, Oklahoma. While Bangs estate sion of Osage County the district court of Pratt, was being probated, Henry Jr. died authorized the administrator of the Pratt 18, 1962, on May intestate, being survived estate and guardian ad litem for the by his Virginia Harragarа Pratt, widow minor children to execute the contract dat- (she now Johnson having remarried after September ed 1969. The contract was Pratt, Jr.), the death of Henry who was then Department submitted to the Interior unrestricted, children, seven several it, which approved on the condition that the of whom were minors and all of whom were Pratt, agree heirs of the estate of Henry Jr. restricted Osages. At the time of his de- by supplemental settlement on a division of mise, Pratt, Henry Jr. engaged was in con- among land themselves. testing Jr., the will Myron Bangs, claim- ing portion a estate reason probate A final decree was entered in the relationship blood Bangs. Proceedings proceedings in the of Myron Bangs, estate Oklahoma, were Osage County, instituted in Jr. in which distribution to the estate of to probate Pratt, Jr., Henry Pratt, the estate of Henry Jr. of the interest in the sub- deceased, May and on ject an adminis- “subject was ordered trator appointed. was Pratt, hеirs of the estate of Jr. agreeing by supplemental Virginia Harragara settlement on a Johnson died after division of the land with which we are judgment the suit was filed and before concerned.” below only entered. defendant who appearance entered

On a written and contested the agreement styled Agree- “Contract of Settlement Augustus case was Homer a restrict- ment Between the Heirs of Indian, Osage represent- ed who is was and Jr.,” between Harra- entered ed the United Attorney States District gara Pratt Johnson and the children for the Northern District Oklahoma. Jr., Henry Pratt, deceased, pursuant judgment plaintiff From in favor upon which final distribution of below, below, Augustus defendant Homer Jr., Henry Pratt, Pratt appeals. Johnson is to receive as her full distributive share of the realty passing Appellant to the Estate of contends the District Myron Jr. from the Estate of jurisdiction Court of had Bangs, any Jr. free part of claims on the of subject over the matter suit of the because acres, the children lands totaling certain all of except Virginia the defendants Har- and accepted the seven children 320 acres as ragara Osage were Johnson restricted Indi- their full share of distributive the 480 acres except ans that all of and the land passing from the estate to the Pratt owned by Harragara Johnson were estate. agreement provided The also lands; Osage restricted Indian the ac- the Osage division of and hеad- cash Indian title, actually one to quiet was right interest received from the es- since the United States had not consented tate. quiet to be in state a sued court in title April agreement was involving Osage action Indian approved by probate the of division the lands, jurisdiction. court lacked District Osage County, Court of approved by acting Muskogee area di- Congress Acts which restrict and con- of rector of the Bureau of Indian Affairs on alienability trol the of lands hands of May 21,1970. estate was distrib- persons having Osage Indian blood insofar pursuant uted to the decree of March case, they pertain as to the issues in this September on as follows: payment Partial of the price for Congress 3 of the Act of of Feb- Section interest in real estate was made 27, 1925, ruary provides: 43 Stat. Drummond. to of the “Lands devised members Os- Gent died Drummond and his estate is age of more Indian Tribe one-half or being probated Osage County, in Oklahoma. blood or who do not have certificates of Plaintiff appellee ap- below here competency, approved by under wills pointed executrix for the Gent estate of Drummond, Interior, Secretary deceased. of the lands inher- Indians, ited such shall be inalienable stage It was at this of affairs that Leva conveyed with the unless such lands be Drummond, individually S. and as executrix Drummond, for the of the of the Interior. Secretary estate of filed the Gent against suit now be- before us defendants having of not Property Osage Indians low, Pratt, Jr., who Henry are the widow of purchased competency certificates of Pratt, and the In children of Jr. subject set forth not be hereinabove shall plaintiff suit specific performance of seeks claim, debt, judg- or any to the lien of 28, 1962, the agreement July convey to taxes, subject to except ment or be alien- real undivided one-third interest in the ation, approval of the without the Secre- tract, аnd to determine that the chil- tary of Interior.” title, dren of Jr. have right, n Congress April 8 of the Act of Section or interest in her undivided question. provides: 480-acre tract Stat. any By “That of the will final Osage Bang’s adult member last and testament. mentally incompe- probate Tribe of Indians not of the division of the Dis- decree may dispose any tent or all of his trict on March Osage Court of estate, real, mixed, personal, including it was determined that the one-third trust by Henry passed funds from which restrictions as to interest owned Jr. removed, way alienation have not been Johnson will, succession, with accordance the laws of the the laws of Jr. Provided, State of Oklahoma: That no having died intestate. Since Har- Indian, such will probate ragara shall be admitted to Johnson was not a restricted any have validity approved right unless before the same to contract concern- had or after the ing dispose death of the testator her interest and to of the same any juris of the Interior.” as she saw fit as other sui individ- ual.1 3 of the Section Act provides:

Stat. juris person Did Johnson as a sui “That the deceased and right have to contract to sell to Gent minor, insane, orphan incompe- or other July Drummond her interest in the land on * * * tent allottees of the Tribe 28, 1962? We that she In the hold did. shall, matters, probate be Estate,2 ‍‌‌​​‌​‌​​‌​​​‌​​‌‌‌‌​​​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​​‌‌‍Gentry’s case of In Re this Court jurisdiction county courts of held that the has the administrator * * * provided State Oklahoma possession of thе real as well as the further, that no land shall be sold or estate, personal may receive all rents alienated under provisions of this sec- profits of the real estate until the es without the of the Secre- tate up is settled and delivered over to the tary of the Interior.” court, probate heirs order of the “but A history brief the development . . . change this does not the title which heirs, Indian land law is subject set forth in Donel right vested in the to the Oldfield, Okl., son (1971) 488 P.2d 1269 possession by the administrаtor.” In Leedy and need not be repeated Ass'n,3 here. v. Ellis Fair held we subject such interests constitute It is the manner in which Virginia Harra- alienation, subject devise or to descent gara Johnson acquired the undivided one- and distribution as assets of a decedent’s tract, third interest in the 480-acre and the death, estate. At decedent’s such interests legal consequences thereof which deter- succession, go “by to the heirs to be distrib occurred, mines whether an alienation ..., utеd assignees to them or to their hence Leva right Drummond’s to maintain (his) to the debts of estate.” against this action as the claim of sovereign immunity of the United States. We now turn to the effect of the apparent is 16, 1970, April Harra- “Contract Settlement and It gara Johnson’s title came to her under the Agreement Between the Heirs of succession, laws of and not by way of a last agreement Jr.” This was made in testament, will and September since the compliance with imposed thе condition 1969, contract of settlement between the Department’s approval Interior of the proponents and contestants of the agreement September settlement will determined that the estate of In agreement April it was Pratt, Jr. would receive a one-third interest determined that the vested interest of Vir land, contrary provisions ginia Harragara Johnson in the land which Mullendore, accord, F.Supp. appeal Baskins, 1. U.S. v. 4.In see Odie (10th 1940). Okl., (1942); Hitt, dismissed 111 F.2d 898 Cir. 126 P.2d 276 Hitt v. 258 P.2d (1953); 23 Am.Jur.2d Descent and Distri- 2. 158 Okl. 13 P.2d 156 bution, §§21, 23. 3. 188 Okl. 110 P.2d 1099 part of the mon estate was a 160-acre was held.8 partition agreement

tract, and the interest of each child was an imposed met the Depart- condition undivided ½ n interest in 320 acres out of Interior; remains, ment of but the fact the 480-acre tract which was part of the partition agreement did not affect the vest- Bangs estate. If an alienation of restricted ed alienable interest of Gent Drummond in Osage Indians’ mak- lands occurred in the the undivided one-third interest in the 480- ing agreement 16, 1970, Thus, acre tract. the Decree of Distribu- impediment thus imposed was removed tion of October determining that when agreement approved by the Virginia Harragara Johnson was entitled to Bureau of May Indian Affairs on receive an undivided one-third interest of estate of Jr. including the Compromise question tract determined her right of agreements heirs, among distributees, devi- succession; inheritance under the laws of sees, and legatees of a decedent’s estate will previously but having divested herself of be enforced if persons made between hav her interest in the title to the tract ing the legal capacity to contract.5 But reason of her contract with Gent Drum- contracts binding only are upon those who mond, her remaining interest was confined parties thereto,6 and are enforceable receiving balance of the only by the parties contract, to a those price upon the tender thereof Gent it, privity with unless the contract is made representative. Drummond or his The vest- express for the benefit party, of a third ed right contractual title to the which party case the third beneficiary may impaired was not by the decree of distribu- enforce the same.7 Neither Gent Drum- tion,9 whether that be characterized as mond nor his representatives successors or mortgage,10 beneficiary that of a of a were parties to the contract parti which trust.11 tioned the 480-acre tract agreement be tween Virginia Harragara Johnson and the Thus the case before us funnels issue of Henry Jr. Neither could down to this: Did the District Court of Johnson effectively Osage County jurisdiction have to hear and partition property, title to which she did not brought by repre determine the suit own. sentative of Gent specifically Drummond to

No act of conveyance and no enforce Drummond’s contract to alienation was involved in making of the undivided one-third interest the tract partition agreеment. An actual parti of land title to which had become vested in tion of land does not any create new title to Harragara Johnson from her es the shares set parties off to the to be held tate and to determine that the seven re in severalty. While its effect is to locate Osage stricted Indian children of the share of each in his parcel ‍‌‌​​‌​‌​​‌​​​‌​​‌‌‌‌​​​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​​‌‌‍Pratt, Jr., deceased, title, allotted of right, have no or land, and extinguish his interest in all interest in said undivided one-third interest оthers, by title tract, which he holds against his said as the claim of the divided share is the same as that by which United Government that the States suit is his undivided interest in the estate in com- in effect one for the of alienation restricted Ass’n, Administrators, 5. Building 9. Baker v. Tulsa Am.Jur.2d Executors and & Loan Nix, 432, 45; Walker v. Okl. 66 P.2d 196 Okl. 12. § (1946). 165 P.2d 378 6. 17 Am.Jur.2d Contracts §§ 297. Marshall, 10. Foster v. 284 P. 882 Okl. Supply City Muskogee, Electric 7. Co. v. of Okl. 42 P.2d 140 Association, Leedy v. Ellis Fair 11. (1941); In re Reid’s Okl. P.2d 1099 189; 8. 59 Am.Jur.2d Partition § 132 A.L.R. Estate, 451; Cal.App.2d Dunn 79 P.2d 173 A.L.R. Yakish, 926; Scott-Bald- 10 Okl. 61 P. McAdams, win Co. v. 141 P. Okl. Okemah, Osage by Indian Lands owned The case Town States,13 questiоn involved the Osage Indians? United “indispens- whether the United States is an Edition, Dictionary, Black’s Law Fifth party” able to an action wherein condemna- defines “alienation” as follows: sought to mem- tion was of lands allotted law, “In real the transfer of of the Five In hold- bers Civilized Tribes. lands, possession ten- ing that the United was an indis- States ements, or other things, person from one pensable party, (at page the Court said particularly ap- another. The term is 964): plied conveyancеs to absolute of real “Members of the Five Civilized Tribes property. voluntary The complete against who own allotted lands restricted person transfer from one to another. guardianship alienation are under the Disposition by Every pass- will. mode of States; they the United are wards of the ing realty by party, the act of the Nation so far as the alienation of such distinguished passing by from it oper- During lands is concerned. the continua- ation of law.” tion of guardianship, such is the No transfer of the 480-acre tract from duty of the United States to enforce the restricted Indian children to Drummond designed security the restrictions for the is involved in the passing suit. No mode of appropriate of the Indians all means. realty by the party act of a is involved. ‘The national interest is not to be ex- pressed property, in terms or to plaintiff judicial below be only seeks a rights limited assertion of incident determination vesting of title in real to the ownership of a reversion or to the estate and the enforcement a valid con- holding of a technical title in trust.’ It against Virginia tract to sell the same John- governmental has a the en- estate, son’s neither require of which will forcement of restrictions. It is not essen- conveyance future transfer of title pecuniary tial that it should have a inter- defendants; hence, the restricted Indian est. Where lands are held members “alienation” of restricted Indian lands is patents the Five CivilizеdTribes under involved. alienation, fee with restraints on a decree Is the United States nevertheless a neces- undertaking the alienation of the Indians’ sary indispensable party to the suit interest in the lands in a suit to which the reason of its engen- interest and concern may sue cancel the United States de- dered the fact that seven of eight conveyance cree and set aside the made defendants below Indians who do pursuant thereto. The United is States not have competency? certificates of indispensable party any action sought impair wherein relief would govern interest of the federal governmental protect its function to ment in the Indian tribes is such that its against allotted lands alienation.” to bring or maintain an action to protect property, their to restrain interfer The enunciations of the Court in Town of therewith, ence or conveyances to cancel Okemah, supra, apply equally the Osage made individual Indians in violations of degree Indians to the that alienation of imposed by Congress restrictions cannot be their lands are Acts of restricted Con- questioned.12 gress pertaining Osages. Rickert, 432, 100, 12. United States v. (1919); La Motte v. 188 U.S. 64 23 S.Ct. L.Ed. 184 States, 478, 532; 204, 570, Mullen v. United S.Ct. 47 L.Ed. United 254 U.S. 41 65 S.Ct. States, 448, 494, 834; City (1921); 224 U.S. 32 S.Ct. United States v. of 56 L.Ed. L.Ed. 410 States, McAlester, 413, (C.A. 10th, 42; Heckman v. United 1979), 224 U.S. 604 F.2d States, 424, 820; Mott v. United S.Ct. 56 L.Ed. Sadler v. Pub. Nat. Bank Trust of New & Co. 747, 1385; 870; Bilby Unit- (C.A. 1949) U.S. 51 S.Ct. York ‍‌‌​​‌​‌​​‌​​​‌​​‌‌‌‌​​​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​​‌‌‍75 L.Ed. 10th 174 F.2d Cir. Malone, ed States v. Moore Mill (C.A. & Lumber Co. P. 760 9th 130 Okl. 1963) 71; Cir. United States v. Board 313 F.2d Osage County, of Com’rs of 251 U.S. (1944), 10th 140 F.2d 963. C.A. The “interest” the acre estate the United States children an u/d ’/-th of the us government in case before is mini- (%i each) %rds of such estate. Under the Giving mal. pregnant that interest its most Virginia assumed conditions when contract- visage, protection is limited to the ed to sell to Drummond all was awarded Augustus Pratt, a Homer Estate, in the Bangs such a contract would Indian, possible overreaching from some have specific per- entitled Drummond to rights peculiar abuse of his him by rea- formance action for an Vsrd of u/d the 480 son of having сompe- his not a certificate acres. Virginia’s statutory share was Vsrd tency. protection fully Such afforded of the entire 480 acres under O.S. by his representation in case by the the 213, First. § Attorney.14 United States District But, the siblings because seven of Henry The United cannot be States bound Virginia Indians, Pratt were restricted judgment the this in action since it is not a they to 37 Stat. 3 which in § party to the of appel- suit.15 The denial pertinent part states “. .. no land shall be lant’s claim that the United States is an sоld or alienated approval without the indispensable party to the suit neither im- Interior,” the Secretary or in this case function, pairs governmental nor leaves Muskogee, Oklahoma area director of controversy in a situation inconsistent the Bureau of Indian Affairs. See USCS conscience, equity good with and we Uncodified Material 1369. therefore hold that the trial court was cor- rect in its determination that United By of Inte indispensable States was not an party to (Secretary Bureau) rior of the family the case.16 settlement or division of the land in the

The judgment of the court below is af- Estate, descending from the firmed. Estate, the u/d in each 2/«st children the seven as to the 160 acres V.C.J.,

BARNES, HODGES, SIMMS, set over (sold to Virginia or alienated WILSON, JJ., OPALA and 86.) concur. under 37 Stat. The alienation was in exchange Virginia’s in for u/d '/3rd the re IRWIN, C.J., HARGRAVE, DOOLIN and maining 320 acres. The approved aliena JJ., dissent. the fractional interests preserved and, estate of widow and children DOOLIN, Justice, dissenting: reality to or amounts is tantamount to an The facts are succinctly stated alienation of the seven children’s interest majority. It application is the of the law to separated 160 acres awarded to the facts prompts opinion. this family partition under settlement. By way of clarification sake of (Partition kind.)1 the argument us let assume for moment Secretary approved When the the family the seven children of and Vir- inheritance ginia Pratt not were restricted Indians. At father/husband, (Henry Pratt,) the death of the husband/father’s he would have approved inherited u/d Vtrd an alienation under Stat. 86 of Authority, Turnpike 14. Gibbs See also 37 Stat. § Oklahoma Ch. Okl., 285 P.2d 190 1912: Provided, partition “... That or sale of 15. Choctaw and Chickasaw Nations v. Seitz of a deceased allottee lands (C.A. 1951), 10th 193 F.2d 456. approved Secretary valid until the shall be of the heirs Interior. Where some of Seitz, partition 16. Choctaw and Chickasaw Nations v. land minors .. . of said shall be id.; (C.A. 1953) approved by Jackson v. Sims 10th 201 F.2d valid when the Court and the 259. by statute). (Emphasis of Interior. See also C.F.R. 127.54. § argue, majority the inter- and the u/d The Drummonds seven restricted Indians %rds adopt theory, the on the death of Hen- proper- ests in of their at least 160 acres of 480 acres in ry vested u/d ‘/3rd ties.2 contracted to and she thereafter approved There can doubt the be little sell this inheritance to G. Drummond. partition to an dealt with amounts aliena- But, opinion overlooks three majority the Supreme tion and since States the United contract, paragraphs which I sales Court has held a lease of re- ‍‌‌​​‌​‌​​‌​​​‌​​‌‌‌‌​​​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​​‌‌‍guardian’s dealing believe must be in with considered stricted Osage land is the res states she is a controversa. Interior, certainly the Secretary of the claimant to an in all the real prop- “partition Osage'land in kind” of is likewise erty owned her husband in the “burdened.”3 that after it Estate. agrees She has been Secretary’s authority to condition the ascertained what proportionate part she disposition in both the and eventually she will sell her inter- own, will Bangs Estate is established.4 What then est such land as Pratt’s widow to Drum- majority opinion the accomplishes or affects mond.6 by the Osage County action of the District entire instru- In construing a contract Court, negation is the of the Secretary’s together, possi- ment should be read and if power approval. every part ble be made effective should

giving ordinary accepted words their Likewise, meaning.7 construing con- II placе tracts a court itself should For majorities’ another posi- reason position contracting parties at tion is not well founded. time the contract entered into and con- object specific of this action is per- instrument, sider the circumstances formance of property. contract real it, prompting surrounding as well The res controversa is what constitutes “all circumstances The court should as well. (Virginia) may land which she inherit then determine from consideration of such from Myron Bangs.”5 (Parenthet- the said meaning elements the sense or of the con- phrase supplied.) ical tract.8 4-16-70, “WHEREAS, approved by party 2. Heirs’ contract dated first is a claimant to a 5-25-70, provided pertinent portion Myron Director Bangs, of BIA the Estate de- part: ceased, will, claim, if in her successful “(1) Upon become an owner of an interest in all the real final distribution of the Estate of Henry Pratt, Jr., Myron Bangs, owned the said de- Johnson ceased; shall receive distributive as her full share of the Pratt, Jr., realty passing the Estate WHEREAS, identity My- the heirs of Jr., Myron Bangs, from the Estate of and as her yet ron been has not ascertained and the separate property free and clear of all claims proportionate part his which will upon part of PARTIES OF THE SECOND eventually party; be owned first (second parties PART are the seven Indian WHEREAS, party it desire of is the the first heirs), following realty, described to-wit: any may to sell her land which interest in 4, 3; 2, 4, Lot Seсtion 1 and Lots Section Myron Bangs inherit from the said is the 23, Township Range 9 SE'A of SWA of Sec- party desire of the second 9, Township Range Osage Coun- same. ty, (Parenthetical phrase sup- Oklahoma.” NOW, THEREFORE, IN CONSIDERATION plied). (Contract pre- ...” received as evidence under order.) trial States, 3. La Motte v. United 254 U.S. (1920). S.Ct. 65 L.Ed. 410 Coppadge, 7. Brown 153 P. v. Gas, (1915); Wolf v. Blackwell Oil and 186 P. Beams, (1941

4. Scott v. 122 F.2d 77 Okl. 81 Cir.); Taunah, 10th Udall 398 F.2d (1968 Cir.) 10th Edwards, Iron Mountain Oil Co. P. 5. From the Contract of Sale between Drum- 100 Okl. 4 Virginia, supra. mond and footnote see hi Douglas JENNINGS, Appellant, controversy

The real its has of Myron Bangs. By root estate Bangs decreе Estate recorded in the Oklahoma, Appellee. STATE 9-24-70, County Clerk’s records the real No. F-80-837. property was over set and vested in the of Henry Pratt: Appeals Court of Criminal of Oklahoma. “Subject to heirs of the Estate of (Jr.) Pratt agreeing supplemen- tal on a division of land ...”

I conclude nothing except took

full interest in and to 160 acres.9 Pratt final account filed 3- ordered, adjudged

15-63 and decreed that contingent Pratt’s

Estate in litiga- the Estate of was in ‍‌‌​​‌​‌​​‌​​​‌​​‌‌‌‌​​​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​​‌‌‍the Department of Interior ordered,

Courts Oklahoma. It specially

adjudged and decreed that Estate open,

remain “until the interest of the dece- (Henry Pratt)

dent can be determined proceedings (Parentheti-

further had ...” phrase

cal supplied.)

The interest of Pratt re- heirs therefore contingent

mained approval by until

Secretary. This me is only logical

conclusion to be drawn and would follow

therefore, an rights that no u/d Vhrd

480 acres were in buyer Drummond

under the contract. No interest vest could the Secretary

until Interior’s family partition settlement. I conclude that could never have '/¡rd

sold or conveyed Drummond u/d

in the 480 acre property. She could only

have contracted to sell her full interest

in the 160 acres which alienated interest the approval

bore of Inte-

rior.

I am authorized to Ir- state Justice supports

win the views expressed. herein 2, supra.

9. See footnote

Case Details

Case Name: Drummond v. Johnson

Court Name: Supreme Court of Oklahoma

Date Published: Mar 16, 1982

Citation: 643 P.2d 634

Docket Number: 54032

Court Abbreviation: Okla.