125 F. 280 | 8th Cir. | 1903
This case originated in the Indian Territory, and comes to this court on a writ of error from the Court of Appeals of that territory. The record discloses that J. C. Washington, the defendant in error, is a member of the Chickasaw tribe of Indians, and a resident of the Indian Territory, and that on January i, 1898, he leased to James Fraer, the plaintiff in error, who is not a member of any tribe of Indians, a lot of land 25 feet in width by 140 feet in depth, which fronted on Main street, in the town of Marietta, within the Indian Territory. By the terms of said lease the lessee acquired the right to occupy the demised premises for the term of one year from and after January 1, 1898, with the right to renew the lease for another year at the expiration of the first term. The lease contained a provision to the effect that the lessor, Washington, could only repossess himself of the demised premises on the expiration of the lease by paying to the lessee, Fraer, the value of the improvements which the lessee had made on the demised premises, and that upon making such payment he should be entitled to the
The principal contention on the part of the plaintiff in error is to the following effect: That an act of Congress approved June 28, 1898, after the lease now in question was executed (30 Stat. 493, c. 317), operated to destroy all of the lessor’s contractual rights under the lease, and to extinguish whatever interest, possessory or otherwise, he may have had in the demised premises when the lease was executed. In other words, it is insisted, in substance, that, although Washington, the lessor, may have been lawfully in possession of the demised lot on January 1, 1898, pursuant to the right of occupancy accorded to Indians by the tribes to which they belonged, and may have been induced to surrender such possession to the lessee for the term of one year, in consideration of the latter’s promise to pay a stipulated rent, and to restore the possession to the lessor at the end of the term, provided he was paid the value of all improvements which he might erect in the meantime, yet the subsequent passage of the act of Congress on June 28, 1898, commonly called the “Curtis Act,” not only released the lessee from all of his promises made to the lessor, but operated to vest the lessee with whatever rights and privileges incident to possession would have belonged to the lessor had he not been induced to relinquish his possession to the lessee. This claim is based primarily on sections 15 and 16 of the Curtis act (30 Stat. 500, 501) and certain paragraphs of an agreement between the United States and the Choctaw and Chickasaw Indian tribes, commonly termed the “Atoka Agreement,” which is set forth in the act of Congress, and as therein amended was ratified. 30 Stat. 505, 508.
We feel constrained to hold that the Curtis, act did not affect the rights of the parties to this litigation in the manner asserted and above stated. When the lease was executed, Washington, the lessor, being a member of the Chickasaw tribe of Indians, had the right to occupy the demised premises according to the customs and usages of his tribe. Fraer, the lessee, on the other hand, not being a member of any Indian tribe, had no such right. He had at that time no interest in the lot, either present, .future, or contingent, such as a court of law would recognize or enforce; and after the execution of the lease
Another subordinate question which is presented by the record is whether Washington, the lessor, can maintain an action of unlawful detainer on the state of facts disclosed by his complaint, all of which, as we must presume, were established to the satisfaction of the court and jury, or whether he should have proceeded in equity to compel the lessee to accept payment for his improvements and convey them to the lessor. It seems to be urged by the plaintiff in error that the lessor should have obtained such a decree before suing in unlawful detainer. With respect to this question we conclude that there was no occasion for first seeking the aid of a court of equity. The question of possession was the only one involved in the case. When the lessee’s term ended and the full value of the improvements made by him was tendered, and he declined to accept the sum1 tendered or to surrender possession of the demised premises pursuant to his covenant, his possession was thenceforth wrongful; in other words, he became guilty of an unlawful detainer. We do not understand that an ordinary lessor, who simply agrees with his tenant to pay him for any improvements made on the demised premises during the term, thereby disables himself from bringing an action of unlawful detainer, provided the tenant, at the end of his term, refuses to accept pay
The final contention on the part of the plaintiff in error is based on section 4174 of Mansfield’s Digest of the. Statutes of Arkansas (Ind. T. Ann. St. 1899, § 2854), which provides, in substance, with respect to suits brought by a landlord to recover possession of property on account of the failure of his tenant during his term to pay rent,' that, “if the defendant before judgment is given in such action, either tenders to the landlord or brings into court where the suit is pending all the rent then in arrears and all costs, all further proceedings in the action shall cease.” It is claimed that about a year after this action was instituted the plaintiff in error offered to deposit in court a sum sufficient to pay the rent of the demised premises at the rate of $25 per year for the years 1898, 1899, and 1900, and asked to have the suit abated, which request was denied. The motion to abate the suit, the evidence in support of the motion, and the order made- thereon are not made a part of the bill of exceptions, as they should have been to obtain a review of the trial court’s action on appeal. Dietz v. Lymer, 10 C. C. A. 71, 61 Fed. 792. But, in any event, the section of Mansfield’s Digest which is invoked has no application to a suit like the one at bar, where an action is brought against the tenant, not to recover possession during the term for -nonpayment of rent, but to recover the possession of property unlawfully withheld by the defendant after his term has expired. In the latter class of cases, to which the suit at bar belongs, the statute invoked has no application.
No sufficient reasons have been shown for the reversal of the judgments below, and the same are accordingly affirmed.