233 F. 177 | 8th Cir. | 1916
(after stating the facts as above).
The claim of the Creek Tribe, the only party plaintiff that has any pecuniary interest in this litigation, is conditioned by the existence of its alleged right to avoid that adjudication and the patents founded on it on the ground that there was no evidence of the qualifications of Thomas Atkins for enrollment before the Commission which adjudged him entitled thereto and no evidence before it that he was living on April 1, 1899. That adjudication, the allotment of this land to Thomas Atkins, and the patents to him were all public records open to the inspection of the Creek Nation from 1903 until the present time, but no attack upon their justice or verity was ever made, until this suit was filed in 1915', more than 11 years after the completion of the adjudication, the patents, and the public record thereof. This land was of small value, of but a few dollars an acre, until about 1912 to 1914, when oil was discovered in its vicinity and the defendants purchased their lease, drilled wells in it, and demonstrated its great value for its oil. Wells were being drilled in 1914 and the early part of 1915 on all sides of this land, and to save the oil from being drawn out of the pool beneath by others, the defendants sank four wells in it at a cost of $44,000, were drilling six more at an expense of $11,000 each, had constructed many wooden tanks, had contracted for eight steel tanks at a cost of $11,000 each to hold the oil which the wells were producing much faster than it could be sold or piped away, and had expended and incurred expense in producing and preserving the oil in this land, which amounted in the aggregate to more than $125,000, and had collected in return only about $8,000, when on the application of the plaintiff the court below appointed a receiver of the land, of all the wells, tanks, derricks, piping, casings, and other material of every nature which the defendants owned and had placed upon the land, of all the oil they had produced from and stored upon it, and of all the
First: The fact that there is imminent danger that unless a receiver is appointed the property or its proceeds will be deteriorated in value or wasted during the pendency of the suit. Second: The fact that the plaintiff will suffer irreparable loss from such deterioration or waste. But if the defendant is solvent and abundantly able to respond to any such loss, or if he will give a good bond so to respond, the loss can rarely be irreparable, and the general rule is that a receiver should not be appointed. Third: The fact that on the pleadings and preliminary proofs there is a strong probability that the plaintiff will ultimately prevail on the merits.
The cases cited by counsel for the plaintiffs neither challenge nor detract from these rules and principles. They either rest on facts so different from those of this case and of other cases which these rules govern that the cases thus cited do not fall under those principles. The cases cited are such as Fink v. Montgomery, 162 Ind. 424, 68 N.
“It is true now, as it ever has been, that an injunction will not be granted, where the title is in dispute, previous to the-determinatiqn of legal rights of the parties unless the threatened act is of such a nature that, should the right to commit it be decided against them, the consequence will be irreparable. * * * Possession is prima facie evidence of title, is sacred, and no court in any form of hearing can take it from him without a hearing without overthrowing the maxim that no man can be condemned in person or deprived of property without a day in court and due process”
—and held that the issue of a preliminary injunction restraining lessees in possession from boring for oil or interfering with the claims of the plaintiff was efroneous. We turn to the fácts of the case.
The appointment of a receiver to hold and manage the property and business of owners or claimants necessarily imposes upon the parties in interest the expense of the compensation of the receiver and his counsel and generally other expenses which would be avoided by refusing the appointment. Ordinarily the personal interest of the owners or claimants in possession and their knowledge of and'experience with the property and the business enable and cause them to hold and manage the property and the business with less expense and more profit than can a receiver. And where loss to the applicants during the pendency of the suits can be avoided without making such appointments the cases are rare that will warrant them.
Did the plaintiffs establish the fact that there was a strong probabil
The only evidence the plaintiffs produced was the affidavit of Mr. Merrick, verified February 25, 1915, more than thirteen years after the event, that in May, 1901, he was a clerk and employe of the Dawes Commission, that on May 23, 1901, he “listed for enrollment as a citizen by blood of the Creek Nation, the name of Thomas Atkins who is enrolled opposite roll number 7913 of the final roll of the Commission and on census card No. 2707, field No. 2774, a true copy of which census card is hereto attached and made a part of this affidavit,” that the evidence'which induced him to list Thomas Atkins was “the authenticated 1895 roll of Creek citizens, which said roll was used and relied upon by said Commission and by myself as the representative of said Commission in enrolling the name of Thomas Atkins.” The census card recorded these facts: That Thomas Atkins was a Creek Indian of half blood 10 years of age, that he was enrolled on the authenticated Creek tribal roll of 1895 as of Euchee township, under the name Thos. Atkins, No. 213, and that on that roll Minnie Atkins was recorded as his mother, and a white man as his father. Mr. Merrick further deposed that he had searched and found in the office of the Dawes Commission, where all such matters are kept, no memorandum or notation indicating that evidence or information was had or received by the Commission on the question whether Thomas Atkins was living or dead on April 1, 1899, and that he had no recollection of
On the other hand, Mr. Lyons, a witness called on behalf of the defendant, personally appeared before the court and testified that he had a conversation with Mr. Merrick in which the latter called attention to the fact that the census card of Thomas Atkins showed his parentage, his mother and his father, that he could not have got that from the 1895 roll, and Lyons testified that Merrick said that he was satisfied from that fact that there must have been evidence on that question, and that there must also have been evidence or information of some character, which was not made of record, that Thomas Atkins was living on April 1, 1899, and further that he had no independent recollection of the whole matter, except that the enrollment was made iti his handwriting. Mr. Lyons was cross-examined by counsel for the plaintiffs and testified that Mr. Merrick said that they must have had information as to the parentage probably from the 1895 roll, and he said also- that they must surely have had information as to whether or not lie was alive or dead on April l, 1899, or they would not have enrolled him. Mr. Merrick’s testimony was an ex parte affidavit in - troduced two days before Mr. Lyons testified in open court, and Mr. Merrick was not called to deny that Mr. Lyons’ statement of his admissions was correct.
*188 “Said Commission shall make such rolls descriptive of the parties thereon,, so that they may be thereby identified, and it is authorized to take a census of each of said tribes,” (hence the authorized census card in this case) “or to-adopt any other means by them deemed necessary to enable them to’ make such rolls. They shall have access to all rolls and records of the several tribes. * * * The rolls so made when approved by the Secretary of the Interior shall be final' and the persons whose names are found thereon, and their descendants thereafter born to them, with such persons as may intermarry according to tribal laws, shall alone constitute the several tribes wMch they represent.”
The act of March 1, 1901 (31 Stat. 869, c. 676, § 28), provided that all citizens who were living on the 1st day of April, 1899, entitled to be enrolled under the act of June 28, 1898, should be placed upon the rolls. The act of June 28, 1898, was not simply an act of Congress. It embodied and ratified the agreement between the Creek Nation and the United States, which was shortly after ratified by the Creek Nation, that the Dawes Commission should make the final roll of the latter’s citizens, that for that purpose the Commission should have access to all its rolls and records, and that it might take a census of’ the nation or adopt any other means by the Commission deemed necessary to enable them to make such rolls. Among the rolls and records of the Creek Tribe, duly authenticated by the approval of the Creek Council, was a roll of citizens made by the tribe in 1890, another made in 1895, the pay roll of that nation for the year 1895, upon which a per capita payment was made to the citizens of the tribe. On the roll of 1890 appeared “Minnie Atkins (Thos. and Mary, 2 children).” On the roll of 1895 appeared the names of Minnie Atkins and Thomas Atkins and the receipt of Minnie Atkins for a payment to herself and also for a payment of a like amount to her as the per capita payment due to her son Thomas Atkins.
The Creek Tribe was a civilized and intelligent people governed by laws made by its own Creek Council which was composed of two bodies, the House of Kings and the House of Warriors, under whose direction the census of its citizens and its rolls of citizenship were made. Noah Gregory testified that in 1889 and 1890, he was town king of Euchee township and a member of the House of Kings, that under the direction of the Creek Council, and as such town king, he made the original census roll of Euchee township, that after he made up this original census roll he reported it to the Creek Council, that the Creek Council appointed a committee of 16 from its membership, which investigated, purged, and corrected that roll and the rolls of the other towns, some 48 in number, then reported the corrected roll to the House of Kings and to the House of Warriors, and that each house separately approved and adopted it, and this roll thus made is the Creek roll of 1890, that he was a member of the House of Warriors when the roll of 1895 was made, and that it was approved'by both Houses. Mr. Gregory testified that after he had made up the original census roll of Euchee township for the enrollment of 1890, he called a convention of the people of that tow-nship, that the name of each one of those placed upon the original' census roll by him was read out in the hearing of this convention, and with the assistance of suggestion and information made at "the convention this original census
As the Commission was required by the acts of Congress to give full force and effect to the authenticated tribal rolls, the usages and customs of each tribe and was by those acts given access to all their rolls and records, the Creek Rolls of 1890 and 1895, on each of which Minnie Atkins and Thomas Atkins as her son were enrolled as citizens of the tribe by blood, constituted not only prima facie, but, in the absence of strong and persuasive countervailing proof, conclusive evidence before the Commission of the right of Thomas Atkins to enrollment as a citizen of the Creek Tribe. In the face or this record counsel for the plaintiffs no longer contend in this court, as they pleaded in the court below, that “no evidence of any character was produced before, or had or obtained by said Commission with respect to the right of the alleged Thomas Atkins under said act of Congress to be so enrolled,” but they now argue that, although all the evidence and information disclosed above was before the Commission, there was no evidence before them that Thomas Atkins was living on April 1, 1899. The answer is, first, that the testimony of Merrick and Lyons tends to show that Merrick, who made the census card, had information that he was living before making that card, and made it in reliance upon such information; and, second, that the authenticated Creek roll of 1895 was conclusive evidence that he was living in that year, and, in the absence of any direct evidence before the Commission that he had died, or that he had been in such a dangerous situation that men of reasonable prudence would infer that he had died, prior to April 1, 1899, the conclusive ldgal presumption was that he continued to live for at least seven years after the making of the Creek roll in 1895, and hence that he was living on April 1, 1899. In the absence of proof of earlier death, or of evidence of unusual danger of such earlier death, the legal presumption is that a live person continues to live for at least seven years. Fidelity Mutual Idle Ass’n v. Mettler, 185 U. S. 308, 316, 22 Sup. Ct. 662, 46 L. Ed. 922; Montgomery v. Bevans, 1 Sawy, 653, 17 Fed. Cas. 628, 633, No. 9,735; N. W. Mutual Life
So it is that all the claims and reasons for the avoidance of the judgment of the Commission and the patents, and for the appointment of a receiver and an injunction on the theory of the original bill, fell disproved by the evidence produced upon the motion for the appointment of the receiver.
But counsel for the plaintiffs presented in that evidence a new issue not set forth in their pleading, which was whether or not there ever was any Thomas Atkins, the son of Minnie Atkins, and whether or not the defendants knew there was no such person before they purchased their title. And counsel now contend that they proved that no such person ever existed and that the defendants were aware of this fact before they became interested in the property in suit. Upon these subjects many witnesses testified. Some of them were weak-willed, dependent, and timorous; some of them were evidently swayed by interest or influence. They testified to occurrences 15 to 20 years before they spoke, and their memories of dates and occurrences were necessarily vague and uncertain. The record convinces that there was an interested and fervent effort on the part of the parties on each side of this litigation to procure favorable evidence for themselves and that much of the testimony introduced is unreliable. Agents of the plaintiffs and of the defendants solicited Minnie Atkins, who seems to have been a timorous, dependent Indian woman, to testify in their favor, and the plaintiffs succeeded in procuring statements from her that she was not the mother of her alleged son, Thomas Atkins, while the defendants obtained statements that he was born and lived her son. At the end of many and continuous solicitations she finally adhered to the latter statement and made affidavit that the former was induced by the overpersuasion of the plaintiffs’ agents and her fear of them.
Upon the issue of whether or not Thomas Atkins ever lived, a review of the entire testimony shows it to be conflicting, and that, standing alone, it would have left that issue doubtful. But this testimony is not all the evidence, nor is it the most reliable evidence, upon that issue. There is the Creek tribal roll of 1890, which records Minnie Atkins and two children, Thomas and Mary, there is the Creek tribal roll of 1895, which records Minnie Atkins and Thomas Atkins, there is the receipt of Minnie Atkins upon the pay roll of that year for the . payment to her of the per capita allowance for her son Thomas, there is the testimony of the care with which these rolls were made by the town king, corrected by the town meeting, investigated and purged by the committee of the Creek Council, and there is the fact that these rolls were made and approved within 11 years after the alleged birth of Thomas, among the acquaintances of Minnie Atkins, all naturally jealous of and watchful to prevent any undue payment of tribal funds to each other, and there is the fact that under the Creek Agreement the tribe had the right to appear before the Commission and by its agent and its attorney, who during all the enrollment proceedings was un
Is it not much more probable that those rolls are right, that Thomas Atkins was living when they were made, and that the people of Euchee township, at whose meetings they were corrected, knew that he was living, and satisfied the officers of the tribe of that fact, than it is that the testimony of witnesses gathered by interested parties to testify to occurrences 20 years behind them tending to show that no such person existed is true? This court will hesitate long to hold on such testimony that Thomas Atkins never existed in the face of these old and hitherto unassailed corrected rolls of the Creek Tribe, and their persuasive evidence of a living Thomas Atkins, the son of Minnie Atkins, when they were made. The proof now before the court that he never existed, that he was a myth, is not clear, unambiguous, convincing or satisfactory to this court.
Nor is there any satisfactory or persuasive evidence, that the defendants knew or had notice that Thomas Atkins never existed, before they purchased their lease or title. They had the right to rely and act upon the Creek rolls of citizenship made by the tribe itself and upon the final roll made by the Dawes Commission until they received satisfactory evidence that these rolls were false, and the evidence fails to convince that they ever had such evidence before they purchased.
The United States has no pecuniary interest in this litigation. The only pecuniary or property interest or equity in the plaintiffs is that of the Creek Tribe, and as the stream cannot rise higher than its source the equities of the United States are no greater and no less than those of the tribe. United States v. Beebe, 127 U. S. 338, 346, 8 Sup. Ct. 1083, 32 L. Ed. 121; French Republic v. Saratoga Vichy Co., 191 U. S. 427, 438, 24 Sup. Ct. 145, 48 L. Ed. 247; State of Iowa v. Carr, 191 Fed. 257, 265, 266, 112 C. C. A. 477, 485, 486; United States v. Detroit Timber & Lbr. Co., 131 Fed. 668, 678, 67 C. C. A. 1, 11; La Clair v. United States (C. C.) 184 Fed. 128, 135, 136; Mountain Copper Co. v. United States, 142 Fed. 625, 629, 73 C. C. A. 621, 625; Chesapeake & Delaware Canal Co. v. United States, 223 Fed. 926, 929, 930, 139 C. C. A. 406, 409, 410, L. R. A.. 1916B, 734. Even where equities are equal the defendant prevails. It is only when the case of the complainant appeals to the conscience of the chancellor with the greater force that he will interfere to grant relief, and in equity no one may successfully deny to the damage of another the truth of statements by which he has purposely or carelessly induced another to so change his situation that the assertion of the truth will irreparably or-seriously injure him. Hemmer v. United States, 204 Fed. 898, 902, 123 C. C. A. 194, 198; Town of St. Johnsbury v. Morrill, 55 Vt. 165, 169; 2 Pomeroy’s Equity Juris. § 739; Illinois Trust & Sav. Bank v. City of. Arkansas City, 76 Fed. 271, 293, 22 C. C. A. 171, 193, 34 L. R. A. 518; Paxson v. Brown, 61 Fed. 874, 881, 10 C. C. A. 135, 142; Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 51 Fed. 309, 326, 327, 2 C. C. A. 174, 191, 192.
The Creek Tribe made the Creek rolls of 1890 and 1895. By the Creek Agreement (31 Stat. 869, § 28), which it made and ratified, the Creek Tribe contracted with the United States that tire Dawes Commission should make the final roll of its citizens and allot them their lands, and that it should base that enrollment on the Creek tribal rolls of 1890 and 1895, and especially upon the latter. It had the opportunity and the privilege to correct and purge its rolls before that tribunal, and it must have had more knowledge and more means of knowledge whether Thomas Atkins was rightly or wrongly enrolled when its tribal rolls were made, and thereafter, while the Commission was sitting, when the acquaintances of Minnie Atkins were living in the tribe and must have known the facts, than the tribe or its members have ever had since. Either purposely or carelessly it failed to correct its roll, if indeed that roll was erroneous, held that roll out to the Commission as correct in the regard here in question, thereby induced that Commission to enroll Thomas Atkins, purposely or care
However, this litigation presents claims of some of, the parties which have not been material to the decision of the question whether or not the receiver was rightly appointed and the injunction rightly issued, the defendants have offered to give a sufficient bond to protect all parties in interest during the pendency of this suit, and the court is of the opinion that it is wise and equitable to accept and require such a bond. The order of the court will accordingly be that upon the filing in this court within 60 days of the date of the filing of this opinion of a bond with security approved by the judge of the court below in such an amount as shall be fixed by this court on 10 days’ notice to be given by Page and Josey to the complainants and the other defendants herein conditioned to account for and pay over to those parties to this suit who shall be finally adjudged to be entitled thereto the profits that have been and shall be derived by them from the land in controversy between March 8, 1915, the date when the receiver was appointed, and the final determination of this suit, to file with the clerk of the court below a verified account of the operation of the property showing generally the expense, the proceeds and the profit thereof between March 8, 1915, and May 1, 1916, on or before August 1, 1916, to file on or before the 25th of each month, commencing on June 25, 1916, such an account of the operation thereof during the preceding month, to pay to the parties ultimately adjudged entitled thereto any damages resulting to them from the negligence or mismanagement of the property, and to abide by and perform the further orders of this court and of the court below in the premises, the order of the court below dated March 8, 1915, appointing the receiver, directing the defendants to deliver the possession of the land, improvements and property to him and enjoining the defendants from operating or interfering with it, shall be in all things reversed and set aside, and this case shall be remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion; and it is so ordered.
CART,AND, Circuit Judge, concurs in result.
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