104 S.W. 847 | Ct. App. Ind. Terr. | 1907
This is an appeal from a matter in probate relating to the leasing of the allotment of said infant, a Creek citizen of Indian blood, to the appellee, Galbreatli Oil & Gas Company. This appellee company moves to dismiss the appeal, and in the alternative to strike parts of the supposed record. The weight of argument of both sides is devoted to the discussion of this motion, upon the assumption that the practice under the Arkansas statute is in force in this jurisdiction, for the reason that the Congress of the United States has extended, by specific legislation, the Arkansas statutes relating to administration of the estates of decedents, guardianship of infants, and incompetents over this territory. Conceding that impliedl}r the practice under that statute, as defined by the Supreme Court of Arkansas, followed as an incident, yet it -must be remembered that Congress by act adopted March 3, 1905, c. 1479, § 12, 33 Stat. 1081, directed that all appeals and writs of error taken from the United States District Courts of the Indian Territory, and from the United States Court of Appeals of said territory, to the United States Court -of Appeals for the Eighth circuit, should be governed by the acts of Congress and rules of the court in accord therewith as provided for appeals and writs of error from the Circuit Courts of the United States to said Court of Appeals for the Eighth circuit. The Circuit Court of Appeals of the Eighth circuit, in a very recent decision handed down in the case, directly in point, of Morrison vs Bur-nette, Curator, etc., filed July 10, 1907, 154 Fed. 617, holds that all matters of probate arising in the United States District Courts of this territory can be reviewed only by appeal to the United States Court of Appeals of this territory. This disposes
December 8, 1905, there was entered of record the following order in said District Court, sitting at Sapulpa, Inch Ter.: “Order Relating to Leasing of Minor’s Lands for Mineral Purposes. In the United States Court in- the Indian Territory, Western District of Indian Territory, at Sapulpa. Hon. Louis Stdzbacher, Presiding. Now, on this day, upon due consideration by the court, it is considered and ordered by the court that whenever a guardian desires to lease the lands of his ward for oil, gas, or mining purposes he shall' file in the office of the clerk of this court in which such guardianship proceedings are pending a proper petition; that all such petitions are ordered at once referred to the master in chancery of this district, to be at once transmitted to him by the clerk, and such master (is directed to examine the same and take such testimony relating thereto as he may deem fit and proper, and report his findings and conclusions together with the testimony to the court for its action: that this order shall be entered of record in the office of the clerk of this court at Sapulpa, Wewoka, Okmulgee, Eufaula, and Wagoner. Louis Hulzbacher, Judge of the United States Court, Western District of Indian Territory.” Under this order the guardian of said infant, January 18, 1906, filed in said District Court his petition for leave to lease land of his said ward for the mining of oil and gas therein, and alleging that he had executed a lease to the appellee, Laurel Oil & Gas Company, for the term of his ward’s minority, being 133di years, and prayed for an order approving the same. The master in chancery, pursuant to said general order, took the testimony in writing, showing that the proposed lease covered the 160-acre
March 27, 1906, this appellant'filed in said District Court its exceptions at length; those which we deem material being that the master did ¿rot follow the said order of December 8, 1905, but, instead thereof, proceeded upon his own motion to advertise for sealed bids long afterward, and did receive a number of bids, naming first the bid of this appellant for $300, and denies, as a matter of fact, that it made an3" sealed bid whatever, and on the contraiy was present bj’ its president at the receipt' and opening of the sealed bids for the purpose of protesting, and did then and there protest, to the receiving of
June 12, 1906, being of the May term of said District Court, there was entered an order as follows: “Upon the announcement by the court this afternoon that, although these lease matters were still in the breast of the court, no new sale should be made on to-morrow morning, the court expressed its reason, stating that it feared that bids would only be raised in isolated cases, that doubtful territory would be abandoned, and therefore the lands of some minors ignored, and theywould not receive any bonus. Also fearing that, perhaps, combinations would be formed, and, in the end, less money bid than is now deposited. These doubts, however, have been removed, when one party guaranteed that they would 'offer at least 20 per cent, additional on all leases, and another party presented certified checks, which he said he would add to all of the present bids pro rata, which would make almost 60 per cent, more than the bonus now offered. The court, as then stated, deem it proper, for the best interest of the minor, that the present bids should be changed and new bids received, and the land offered to the highest bidder. Provided, however,. that the parties who desire to bid upon these leases, and who make these guaranties, must file with the master in chancery a written guaranty to this effect, accompanied by a certified check covering the amounts equal to the highest bonuses already bid, together with additional sums offered, and agree that they will bid upon each separate lease to the amount equal to the highest bid now
In pursuance of said order, the master executed the same and filed his réjiort thereof June 14, 1907, therein setting forth a list of 53 separate bids upon said lease, running in amounts from $3,000, the lowest, to $12,600, the highest — being the bid of said Galbreath Oil &'Gas Company, which bid he recommended be received and the guardian ordered to execute lease therefor. On the same date the court, pursuant to said recommendation, ordered and decreed the execution of lease to said highest bidder, which was done accordingly on said date, and thereupon the court made its order, confirming the lease to said Galbreath Oil & Gas Company. From this order the appellant, Laurel Oil '& Gas Company, prosecutes its appeal, and assigns 24 distinct grounds of error. Those which we deem material and necessary for us to consider are the first, being the action of the court in overruling the exceptions of appellant to master's report filed March 27, 1906; second, in refusing to confirm the lease of January 18, 1906, made, by guardian to appellant; third, in making the order of June 14, 1906, directing the guardian to execute lease to the appellee, Galbreath Oil & Gas Company; fourth, making the order of Ju'ne 14, 1906, confirming the lease
It is to be observed that the court omitted to confirm the lease of appellant and lease of Selby, which the master recommended should be approved, as was expressed by.the court in it's order of June 14, 1906/, “that this matter of leasing remained in the breast of the court,’’ and thereupon ordered that the master submit the sale of the leasing of the land of this ward, Joseph F. Berryhill, to a public bidding, and thereupon the bidding resulted in a bonus of $12,600, in favor of the infant. The report of this bid of $12,600 was approved by the court, and a lease ordered to be made to Galbreath Oil & Gas Company, appellee. This is the first action of the court in this entire transaction, aside from the general order made for leasing December' 8, 1905. No vested right had accrued to appellant because of its private contract of leasing with the guardian January 18, 1906. This was not like a bidding at a public sale, made under an order or decree for such sale, where the highest and best bidder acquires a legal right to a confirmation of his purchase, in the absence of fraud, accident, or mistake, for the reason that he may be compelled by the order of the court to coihplete his sale by paying the price bid. Morrison vs Burnette, Curator, supra. But a sale made by a guardian under a general order, without competition and entirely private,
Moreover, it appears from this record that this appellant was a sealed bidder under the unauthorized bidding by the master, and this was subsequent to the making to it of the lease by the guardian Januaiy 18, 1906. This was evidence of a waiver or abandonment of the private leasing made with the guardian. It is the attempt to occupy two inconsistent positions, for it could not claim under the lease and under the sealed bid of $300. The making of this bid was the entering into a congest for the right to the property, and because it did not chance to be the highest and best bidder it cannot be allowed to shift to the lease with the guardian. In its exceptions it attempts to dispute the report of the master as to so much as alleges that it made a bid at the sealed bidding Of $300. This raised an issue of fact, and could not be determined by a bare assertion in the exception. It would require the hearing of evidence, which should have been taken, submitted to the trial court, and preserved in the record by a certificate of evidence. This was not, done, and therefore the master’s report must stand as to this statement of fact.
The judgment of the court below is affirmed.