This action arises out of a transaction between appellant's^ intestate and appellee, botll members of the Chickasaw tribe of Indians, of this territory. Under the law each was entitled to an allotment out of the tribal land, and deceased, having more land in his possession than he could take as his allotment, on June 3, 1903, for the consideration of $2,500 to him paid in cash by appellee, sold and bjr deed of conveyance undertook to convey to appellee, by deed in form a quitclaim, his surplus land, being 200 acres, with the accrued rents and rents to accrue. The deed closed with a covenant as follows: “I hereby agree to warrant and defend the title to said lands and premises against all persons claiming the same by, through or under me or my deceased wife.” This land ivas actually occupied by the.deceased and his tenants at the time of said conveyance, and appellee never got actual possession of same. Soon after this conveyance the grantor, Burks, died intestate, and appellant was appointed his administrator bjr the county and Probate Court of Pickens county, Chickasaw Nation, which at that time had exclusive jurisdiction of probate matters therein. Burks, after -the conveyance to appellee, caused this land to be allotted to himself and his children. After the death of Burks, his administrator had the actual possession of this land, and, upon demand of appellee to surrender possession,
The assignment of errors embraces but one contention— the validhy of the judgment of the Indian court. The only evidence offered was that of appellant. He produced as witnesses the appellee and Colbert, the judge who rendered the judgment, in the Indian court, both of whom were, by the answer, charged with being co-conspirators in making the alleged, fraudulent judgment. The commissioner who heard the witnesses found that there was not such fraud, and this was confirmed by the court. The burden is cast upon appellant to overcome this finding and judgment. We are firmly convinced from a careful examination of the record that the commissioner and court were right in this finding. There might have been some ground for attack upon the judgment of the Indian court, for it appears that it was rendered without any notice to the defendant administrator, but the appellant saw fit to try the case on its merits in the District Court, and that court found upon the evidence and the law that appellant's intestate had received from appellee $2,500, which, in equity and good conscience, should be repaid him. The case was in effect tried de novo by the District Court, the same as though it had been appealed from the Indian court. The fight was in the open and upon the affirmative allegations of the answer of appellant, in which he set up every defense that could be made — meritorious and technical. He entered the camp of his opponent for witnesses, and sought to have them commit the suicidal act of proving that the judgment was the result of the most infamous conspirac}- to corruptly and fraudulently make a judgment.
The appellant most strenuously contends that Ms intestate could not be liable upon the covenants of the deed he made to appellee, because it was merely a deed of quitclaim, without entering into a consideration of the question how far it is binding' upon the grantor to restore to the grantee the consideration or any part thereof, or what evidence dehors the ■deed would be admissible, to show the intention of the parties thereto at the making of it, yet the appellant overlooks the last clause of the deed, herein quoted, of special warrant}’ against all persons claiming the sainé by or under the grantor. The evidence shows that the grantor never surrendered possession during Ms lifetime, and that his legal representative •refused to deliver possession to appellant, or refund the money. It is to be considered that the interest sought to be conveyed by this deed was the right “to file an allotment thereon by .an Indian,” and to receive the improvements thereon and the rents. It was not the conveyance of the fee, but the transfer •of a mere right of possession, and to make allotment thereon by an authorized Chickasaw citizen. We think the recital contained in Probate Court's judgment — “for the amount .advanced for purchase of a certain farm situated in Pauls Valley, Indian Territory, for benefit of said estate” — is pertinent and legally correct. And the Indian judge who made this entry, when being examined as a witness by appellant, made some answers not less pertinent: “Q. Did you arrive at your conclusion of the justness of the claim as a matter of law, or did you just arrive at it as a matter of equity and justice and right? A. • I thought it was a matter of law, and equity and justice, too. Q. Did you hold it as a matter of law that a party was liable
No injustice can be done by affirming a judgment that puts both parties upon an equalitjq by allowing the one to hold the land he never gave up, and the other to receive back the money for which he got nothing in return.
The judgment is affirmed.