Mars v. McDougalMars v. McDougal
The appellants brought this action against the appellees to recover possession of an undivided one-half interest in 160 acres of land situate in Creek County, Oklahoma, commonly known as the allotment of Susie Crow, to quiet -title thereto, to cancel certain deeds and to avoid certain prior judgments.
Susie Crow, a Creek allottee, died during her infancy in September, 1899. Upon selection, her allotment descended in equal undivided moieties to her maternal heirs (Fannie Fulsom and others) and to her father, Kernel Jack.
• Kernel Jack died in 1903, leaving surviving him two sons, Wallace Jack and Lolly Jack. Wallace Jack died in May, 1913, leaving his mother, Lusanna Brink, as his sole heir. Lusanna Brink died in April, 1922, leaving surviving her two daughters, Katie Robedeaux and Lizzie Gibbs, who were her heirs at law and the devisees under her will. All the above named persons, excepting Lolly Jack, were enrolled Creek Indians of the full blood.
Lolly Jack was a son of Kernel Jack and Toehee Grayson. Tochee Grayson was part Seminole and part Creek Indian, and was enrolled as a Seminole. Lolly Jack died in 1925, leaving surviving him a wife, Ada Jack, and a child, Melinda Jack.
The appellants claim as the successors of Lusanna Brink. The appellees, MeDougal, Lytle, Pryor, Roekwood, Bartlett, J. Garfield Buell and Ethel E. Buell, claim through Wallace Jack and Lusanna Brink. The other appellees claim through Lolly Jack.
On January 22, 1913, Wallace Jack entered into a contract with MeDougal and Lytle, by which Wallace Jack employed MeDougal and Lytle to prosecute an action to establish Wallace Jack’s interest in, and to recover possession of, such allotment. In such contract, Wallace Jack agreed, in the event an interest in the land should be recovered in such action, to convey to MeDougal and Lytle, by warranty deed, a one-half interest in the land recovered. This contract was duly approved by the county court and duly recorded in the office of the recorder of deeds of Creek County, on the day of its execution. On January 24, 1913, pursuant to said eon-.tract, MeDougal and Lytle brought ‘suit against John Z. Cazy et al. in the district court of Creek County. The petition set forth three causes of action. The first, in
On February 11, 1915, Lolly Jack instituted a suit entitled Lolly Jack v. Wrights-man et al., No. 4233, in the district court of Creek County, Oklahoma, where the land involved is situate. He alleged he was the son of Kernel Jack and a brother of Susie Crow, and prayed for a recovery of his interest in such land. Lusanna Brink, by her attorneys, Pryor & Rockwood, intervened in that action. A final decree was duly entered under which. Lusanna Brink was adjudged to have no interest in such allotment; Lolly Jack was adjudged to be the'owner of an undivided one-fourth interest therein by inheritance from Kernel Jack, and MeDougal and Lytle were adjudged to be the owners of an undivided one-eighth interest therein and specific performance was decreed of their contract with Wallace Jack. Lusanna Brink prosecuted an appeal therefrom to the Supreme Court Of Oklahoma. On March 27, 1917, Lusanna Brink, by her counsel, stipulated that the judgment of the trial court in favor of Lolly Jack should be affirmed. Brink v. Canfield,
On December 18, 1918, Lusanna Brink conveyed to H. U. Bartlett, by deed approved by the county court of Creek County and the Secretary of the Interior all her interest in such allotment.
On January 22, 1921, Lusanna Brink, by her guardian, C. C. Taylor, commenced a suit against H. U. Bartlett and A. A. Hammond, No. 9005, in the district court of Creek County, in which she sought to set aside the deed to Bartlett on the ground of mental incapacity, inadequacy of consideration and fraud. Bartlett filed an answer denying the allegations of her petition and by cross-bill set up his title and sought a decree quieting the same. The court found the issues for Bartlett ; found that Lusanna Brink owned only a %6th interest in such allotment at the time of making the deed to Bartlett; found that Lusanna Brink had conveyed such interest to Bartlett by such deed and entered a decree quieting Bartlett’s title to such %eth interest in the allotment.
On June 26, 1924, the United States, as guardian for Lusanna Brink and others, commenced a suit, No. 3191 Equity, in the United States District Court for the Eastern District of Oklahoma, against the appellees herein, who claimed through Wallace Jack and Lusanna Brink. In its bill, the government alleged the allotment of the land to Susie Crow, her death, the descent of such land, and the patents conveying such land. It further alleged that Lusanna Brink and Lolly Jack were each the owners of an undivided % interest in such land; that the defendants in No. 3191 were claiming interests adversely to them. It prayed that all deeds or other evidences of title be cancelled and the title of Lusanna Brink and Lolly Jack be quieted; and that an accounting be had of the rents and profits. In the bill in No. 3191, the defendants therein filed their answer setting up the prior conveyances, contracts and decrees. On January 19, 1925, upon motion of the United States, a decree of dismissal, with prejudice, was entered in No. 3191.
By their second amended petition herein, the appellants, as the successors in interest of Lusanna Brink, seek to recover possession of an undivided' one-half interest in such allotment, to quiet their title thereto, to cancel the prior deeds, to set aside prior judgments and to have an accounting.
The appellees set up the deeds, contracts, prior litigation and decrees, above referred to, and denied the allegations of fraud and conspiracy.
Counsel for appellants contend that the decree in cause No. 3191 is not res ad judicata for the reason that the United States was without authority to bring an action in behalf of Lusanna Brink and then dismiss it with prejudice, without receiving' some consideration for such dismissal.
It is well settled that the United States, as guardian of its Indian wards, may maintain a suit in its name to enforce restrictions upon the alienation of lands by such Indians and to set aside conveyances or contracts by which such restrictions have been transgressed. La Motte v. United States,
Since the United States, acting through its Attorney General, has the power to maintain such a suit, it would be a strange situation, indeed, if the Attorney General could not dismiss such suit with prejudice upon discovery that it was groundless. We conclude that power is vested in the Attorney General, as the head of the department of justice, to initiate, control and dismiss such a suit. United States v. San Jacinto Tin Co.,
A dismissal with prejudice is a decision on the merits and is a bar to a further action, under the doctrine of res adjudicata. Conner v. Cornell (C. C. A. 8)
Counsel for the appellants contend that the decree in No. 4233, in favor of Lolly Jack, is of no force and effect for three reasons: First, that Lolly Jack, not being a member of the Creek tribe, could not inherit from his father, Kernel Jack, a Creek Indian, so long as there were Creek heirs capable of inheriting, and they cite Knight v. Carter Oil Co. (C. C. A. 8)
In No. 4233, the court found that, while Toehee Grayson was a niece of Kernel Jack, the latter had represented to Toehee Grayson that they were of no blood relation, and a common law marriage had been entered into between Kernel Jack and Toehee Grayson; that Lolly Jack was bom the issue of that marriage.
The Oklahoma court had jurisdiction of the parties and of the subject matter and, having jurisdiction, its decree, whether right or wrong, is valid and binding and is res adjudicata until set aside by proper proceedings. Swift v. Jackson (C. C. A. 10) 37 F. (2d) 237; Gordon v. Ware Nat. Bank (C. C. A. 8)
We have examined the evidence. We doubt-that the allegations of fraud, set up in the bill, were sufficient to avoid the judgment in a collateral attack, but, aside from this, there was no proof whatever to support such allegations.
The decree should be affirmed with costs.