283 F. 921 | 8th Cir. | 1922
In November, 1905, two Cherokee Indians gave oil and gas leases for terms of fifteen years on lands which had been allotted to them. .Pursuant to. the requirements of the seventy-second section of the Act of July 1,1902 (32 Stat. 716), both leases were approved by the Secretary of the Interior. The .Act and the regulations of the Secretary were referred to in the leases as authority under which they were made. Each lease contained this:
“And it is mutually understood and agreed that no sublease, assignment or transfer of this lease or of any interest therein or thereunder can be directly or indirectly made without the written consent thereto of the lessor and the Secretary of the Interior first obtained, and that any such assignment or transfer made or attempted without such consent shall be void,” and that if any of the covenants, stipulations or provisions of the lease were violated by the lessee, its sublessee, heirs, assigns, etc., “then the party of the first part [lessor] shall be at liberty in her discretion to avoid this indenture of lease and cause the same to be annulled, when all the rights, franchises, and privileges of the party of the second part [lessee], his sublessees, heirs, executors, administrators, successors or assigns hereunder shall cease and end without further proceedings.”
Thereafter and in August, 1907, the lessees brought a suit in the Territorial court against Weber, Hertzell and Barnsdall, in which it was alleged that they had in hand more than $20,000 in which they had no interest, that the money had come into their possession from the working of the two leases, that the leases were then being operated and that from time to time thereafter other and additional funds would come to them from the same source, that said funds were and would be received and held in trust for those to whom they may belong, that said funds belonged to defendants, but as to which one it belonged plaintiffs did not know and had no means of knowing, and averred that all of it was claimed by defendant Weber but that defendants Hertzell and Barnsdall also claimed it, and prayed that the court require the parties to interplead and adjust their conflicting claims, both as to the funds then in hand as well as such funds as might arise out of the future operation of the leases. Weber answered and claimed that he was entitled to all of it. Hertzel and Barnsdall answered jointly and claimed that they were entitled to all of it. A master was appointed and took the proof. Pending the cause the Indian Territory became a part of the State of Oklahoma, and under the Enabling Act the suit was transferred to the district court of Washington County, Oklahoma, in which it reached final decree in favor of Weber in February, 1910. Hertzel and Barnsdall took an appeal to the Supreme Court of the State and the judgment in favor of Weber was affirmed by an opinion of that court rendered on November 14, 1911. The decree adjudged that Weber was “the lawful, sole, exclusive owner in his own name and right of seventy-five per centum of all the oil and gas, or either, produced or to be produced from the said Moore the Mode allotments or either, as covered by said original leases thereon (the two leases .which had been approved by the Secretary on January 18, 1906), and which has been or may hereafter be produced by reason- of any operations or developments therefor under or pursuant to the said original leases thereon, respectively, or under or pursuant to the said drilling contracts or said assignments thereof, as herein directed to be made to the said Howard Weber in his sole and exclusive right and so to be such owner as of and from the 18th day of January, 1906.” It directed the lessees to execute to Weber a written contract in the same form and as of the same date as the contract which had been prepared in favor of Weber, Hertzel and Barnsdall, but which was never executed by the three persons named, that the lessees should pay to Weber all of the funds in their hands received from three-fourths of the oil- and gas produced and to be produced from the premises. It found that Hertzel and Barnsdall had no inter
Within two months prior to the entry of this decree the appellant purchased from the lessors the two leased tracts and procured from them warranty deeds conveying the leased premises to himself. Hert-zel having lost in his litigation with. Weber in the State court, then brought this action against him in the United States District Court for the Eastern District of Oklahoma, basing his right to relief on the fact that he had become the owner in fee of the leased premises, coupled with his claim that Weber’s arrangement with the lessees was void. His complaint contains four causes of action. The first count is in ejectment for the leased lands. The second alleges the date (January 8, 1910) on which he purchased one of the tracts, that since that time Weber has been in the unlawful possession thereof, has produced therefrom oil of the value of $123,664.45, that said oil was the property of plaintiff and he prays damages. The third alleges the date (December 16, 1909) on which he purchased the other tract, that Weber has since that time been in the unlawful possession of that tract, that he has produced from said land and sold oil of the value of $95,101.93, Which was the sole property of plaintiff, and he asks damages; and the fourth alleges that Weber was in the unlawful possession of one of the tracts from November 14, 1905, to .December 16, 1909, at which last date plaintiff acquired title to that tract, that during said time Weber produced oil from that tract of the value of at least $30,000, that on September 20, 1911, his grantor of that tract assigned and transferred to him her claim and right of action against defendant for the oil produced therefrom by him, that Weber converted the oil so produced by him during said time to his own use, and he asks damages therefor.
Before this cause came on for trial the terms of the original leases and Weber’s contracts with the lessees had expired and he had quit the premises. The first count was in consequence dismissed. A written stipulation waiving a jury .was filed, motion to transfer the cause to the equity side was sustained without objection, and on final hearing decree went in favor of defendant Weber on each of the three counts, from which Hertzel has brought this appeal.
The subject that requires first consideration is that of jurisdiction, which was challenged by Weber in his answer and is urged here in argument and brief. It is said that the second and third counts are rested on the deeds of conveyance from the two lessors, the fourth on the written assignment from one of them, and that the effect of those instruments was to put Hertzel in the position of assignee of the lessors, and that inasmuch as diversity of citizenship is the only ground of jurisdiction Hertzel could not bring and maintain this action because his assignors could not, Weber and they being citizens of the same State. That part of the Act of August 13, 1888 (25 Stat. 434, U. S. Comp. Stat. 1901, § 629), reading* * * Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee * * * unless
On the merits, the right of recovery on any of the three counts does not exist unless appellant’s counsel can sustain their proposition that the contracts between the lessees and Weber were void — not merely voidable. For that purpose they rely on Muskogee Land Co. v. Mullins, 165 Fed. 179, 91 C. C. A. 213, 16 Ann. Cas. 387; Alfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 517; Barnsdall v. Owen, 200 Fed. 519, 118 C. C. A. 623; and Chapman v. Siler, 30 Okl. 714, 120 Pac. 608. We are not persuaded that those cases lend support to their contention. In the Mullins case the Creek Indian allottees were permitted by Act of Congress to rent their allotments for a term not to exceed one year for grazing purposes only, and for not to exceed five years for agricultural purposes; and the Act declared that any agreement or lease violative of its terms should be absolutely void. The land company sublet allotted lands to Mullins for a term of two years. He remained in possession one year and refused to occupy the premises longer or to pay rent for the second year. The action was to recover the second year’s rent. His lease on its face purported to be for
“The plan set forth, in the bill appears to have been one to circumvent the regulations of the Secretary of the Interior, to dissolve temporarily a contract relation which it was feared, and rightly so, would, if known, prevent his approval of the leases (to Owen), and then, after approval was secured, to restore it in the name of some third party for complainant’s benefit, thus accomplishing the same object by indirection. A contract, the direct and sole object of which is the deception of a public official in the performance of his duties, is contrary to public policy and void. A court of equity will neither enforce such a contract nor aid the parties to regain their prior status. It will leave them as it found them.”
We come, then to the effect of the stipulation in each lease which provides that a sublease, assignment or transfer of any interest in the leased premises without the written consent of the lessor and the Secretary should be void; but this was only contractual between the parties to those leases. It was inserted for the benefit and protection of the interests of the lessors, and we see no reason why the general rule of construction, applied to the terms used, whether found in statute or contract, should not prevail here. If the party making the contract with the lessee should be acceptable to the lessor and the Secretary, the terms of the contract unobjectionable to them, his ability to carry on operations in accordance with the terms of the lease undoubted, and the making of the contract was not violative of the regulations made in the interest of the lessors and of the public, there could be no reason why it should be stricken down and annulled. Nothing of the kind has been shown here, and we think the term was used in the sense of voidable, and not void. Westerlund v. Black Bear Mining Co., 203 Fed. 599, 611, 612, 121 C. C. A. 627, 639, 640:
“One of these rules is that an act declared to be void by statute which is malum in se or against public policy is utterly void and incapable of ratification, but an act or contract so declared void, which is neither wrong in itself nor against public policy, but which has,been declared void for the protection or benefit of a certain party, or class of parties, is voidable only and is capable of ratification by the acts or silence of the beneficiary or beneficiaries. * * * Such an act or contract is valid until avoided, not void until validated, and it is subject to ratification and estoppel.”
Furthermore, the conduct of Hertzel prevented an application to the lessors and the Secretary for their consent to Weber’s contracts. The lessors declined to act until the State court had adjudicated the claim of Hertzel, and after that case was finally decided against him and Weber has performed in accordance with the decree in his favor, Hertzel cannot be heard to take advantage of his own wrong in a court of equity and set up requirements not made for his benefit and to which he was not a party.
“A judgment is conclusive upon every matter actually and necessarily decided in the former suit, though not then directly the point in issue. If the facts involved in the second suit are so cardinal that without them the former decision cannot stand, they must now be taken as conclusively settled. •* * * a judgment necessarily affirming or denying a fact is conclusive of its existence whenever it becomes a matter in issue between the same parties. '5 * '• It is not necessary to the conclusiveness of the former judgment that the issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. Every point which has been either expressly or by necessary implication in issue', which must necessarily have been decided in order to support the judgment or decreé, is concluded. * * And a fact is necessarily determined to exist or not to exist if its existence or non-existence is required to support the judgment rendered.”
Black on Judgments, at Sections 613 and 615, states it thus:
“ICecessary and inevitable inferences — facts without which the judgment could not have been rendered — are equally covered by the estoppel as if they were' specifically found in so many words. * * * In other words, it is conclusive evidence of whatever it was necessary for the jury to have found in order to warrant the verdict in the former action, and no further.”
The judgment of the State court in Weber’s favor can be supported upon no other theory than that the court found the contracts which he had with the lessees were valid and binding obligations, and that he had a right to conduct mining operations on the two tracts in accordance with the terms of the leases. But all of that aside, and conceding that the validity of Weber’s contracts was not an issue in that case, still it is a waste of words to contend that the question
Equitable estoppel is also pleaded as a defense, and that is another reason why Hertzel’s appeal cannot be sustained. He knew from! the beginning that Weber claimed to be in possession by right, operating the property under valid contracts with the lessees. He obtained deeds conveying to him the leased premises prior to the date of the decree in the State court. There is no testimony showing that he notified Weber at any time until he brought this suit that he had become owner of the properties and that he claimed that Weber was in possession without right under void contracts, and that he intended to oust him. He sat by and permitted Weber to continue in the hazardous venture of mining operations, which may be profitáble one day and disastrous the next. He insisted throughout the litigation in the State courts that the arrangement which Weber had made with the lessees was a valid and binding obligation and that he was entitled to an interest in it. After such conduct he should be estopped on familiar principles from thereafter asserting the contrary. Johnston v. Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214. The doctrine of estoppel in pais “proceeds upon the ground that he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speák when he ought to be silent.” Morgan v. Railroad Co., 96 U. S. 716, 24 L. Ed. 743.
Conceding for the moment that Weber’s contracts were in their inception void, and that the defense of res adjudicata was not sustained, we hold that Hertzel’s conduct estops him from claiming that he did not take title to the tracts subject to the fights which those contracts purported to give to Weber.
Eor the reasons stated the decree is affirmed.