6 Indian Terr. 466 | Ct. App. Ind. Terr. | 1906
August 21, 1900, appellee, a Choctaw Indian and citizen, brought an action oi forcible detainer against appellant, a noncitizen, to recover the possession of 500 acr'-s of land situate in the Choctaw Nation, and $1,000 damages for its unlawful detention. He alleges the purchase of the land in March, 1899, of one Dillard, a Choctaw- Indian and citizen; that appellant was then occupjdng it as Dillard’s tenant; that he became entitled to the possession January 1, 1900, under the provisions of section 23 of the act of Congress approved June 28, 1898 (30 Stat. 504, c. 517), known as the “Curtis Bill;” that he had made written demand of appellant 30 days prior to said date that he surrender said possession, which appellant had failed to do; that the rental value of the land is $1,000 per year, for which, and for immediate possession of the premises, he asks judgment. The appellant answered denying appellee's right to said possession, his purchase of the premises from Dillard, the unlawful detention, the rental value at $1,000 a year, and of damages. As an affirmative defense he alleges that on December 23, 1890, under written contract with George W. Roberson and wife, Choctaw Indians and citizens of the Choctaw Nation, he became entitled to the possession of the land for a term beginning January 1, 1891, and ending January 1, 1911, for the consideration of the sum of $3,000 rent, which amount he then paid in money and has occupied the land since January 1, 1891, under said contract; that, subsequent to making said contract, Roberson and wife sold their interest under the contract to one Colbert, who agreed to carry out the terms of the contract; that Colbert sold his interest to said Dillard, from whom the plaintiff claims to have purchased, with notice of said contract; that, in ac
It is stated by counsel for appellee, and not disputed by counsel for appellant, that the court transferred the case from the law' to the equity docket for the reason that the defense set up was equitable, but such order nowhere appears in the transcript of the record. February 16, 1901, the court referred the case to the master in chancery, with directions to hear evidence as to the rental value of the lands, and as to the value of the improvements, and to report his findings of facts therein at an early day. Thereupon, as appears of record, there was an agreement of counsel for both parties that the question of title raised by the pleadings be referred to the
February 3, 1902, the appellant moved the court to re-refer this cause to the master in chancery with instructions to find specifically the time under which Dillard, the vendor of appellee, had possession of the premises and collected rents and the value of the same. February 15, 1902, the court ordered the rereference on said motion, with directions to the master to take an account as to rents and improvements on 160 acres of land selected by appellant, and to take an accounting only on said 160 acres since same had been in possession of defendant, and an accounting of the lasting and valuable improvements made thereon by appellant since he had been in the quiet and peaceable possession of the same, and what part, if any, had been taken from the possession of appellant as alleged by him, and for what purpose and who received
In disregard of said protest the court, on said date, rendered a decree confirming both reports of the master finding the plaintiff to be the owner entitled to possession of the premises sued for, that the improvements thereon were reasonably of the value of $5,213.65, and the reasonable rental value of the same up to and including the year 1901 was $6',286.50, and, it further appearing to the court, by stipulation of the parties filed of date September 9, 1902, that the findings of the master for the value of said improvements are accepted as true and the rental value of the land is correct, and, it also appearing to the court that, when this action was begun, the appellant gave bond and retained possession of the premises by virtue thereof, the court decreed that this appellee, William Kreiger, have and recover from this appellant, A. N. Sharrock, thq possession of the premises sued for, and that he have and recover of said appellant and his bondsmen, Will Edwards and F. G. Roberson, the sum of $1,732.90 damages, being the rental value of said premises up to and including 1902 in excess of the value of said improvements as found by the master, with interest thereon from the date thereof at 6 per cent, per annum together with all costs, and that execution issue, to all of which the defendant then and there excepted. It is further decreed that motion of appellant — that the court disregard master's report and all proceedings had herein under hird section of the Curtis act — is disregarded, and the motion
Appellant assigns four errors alleged to have been committed by the court, the first, second, and third, being, in substance, that the court erred in comfirming the master’s reports filed December 18, 1902, for the reasons that the law, under which this cause was transferred to the equity docket and the proceedings had before the master after the institution of this case but before final judgment, was repealed by the adoption of the supplemental treaty between the Choctaws and Chickasaws and the United States, and alleging that the cause heard by the master was one set up under the third section of the Curtis act, being a claim for the amount of improvements made by appellant on the premises in question together with payment made by him for the use of the premises which largely exceeded
The fourth assigns the error of the court in sustaining appellee’s demurrer to that portion of the appellant’s answer which set up the defense of the payment of $3,000 to appellee and his vendors for use and occupation of the premises as provided by the contract between the appellant and George and Rose Roberson. This action of forcible detainer is an action at law authorized by chapter 28 of Carter’s Ind. Ter. Ann. St. 1899. The proceeding was begun and prosecuted in all respects under the provisions of this statute until the filing of the appellant’s amended answer, which denied all the material allegations of the petition, and set up by way of affirmative defense a claim for improvements made by him upon the land during the term of his possession as provided by section 3 of an act of Congress known as the “Curtis Bill,” approved June 28, 1898. The provisions of that act applicable to this case' provided: “That any person being a noncitizen in possession of lands, holding the possession thereof under an agreement, lease or improvement contract with either of said nations or tribes or any citizen thereof, executed prior to January 1st, 1898, may, as to lands not exceeding in amount 160 acres, in defense of any action for the possession of said lands show that he is and. has been in peaceable possession of said lands, and that he has while in possession made lasting and valuable improvements thereon, and that he has not enjoyed the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying said cause shall determine the fair and reasonable value of such improvements and the fair and reasonable rental value of such lands for the time the same shall have been occupied by such
It appears from the record, and the fact must be taken notice of by the court that the third section of the Curtis act was repealed by a subsequent act of Congress put in force 'September 25, 1902. (32 St at. 656, c. 1362, § 67) that contained no saving clause as to any causes that might be pending under the provisions of the Curtis act. At that time this case had not been determined but was still pending awaiting the final report of the master in chancery, which was not filed in the court until December thereafter, and the decree and the judgment of the court finding in favor of plaintiff, not only for the possession of the premises in question, but for the sum of $1,732.90 as damages, which was the amount found due for the use and occupation of the premises over and above the value of the improvements. Thereafter appellant moved the court for an order to transfer tins cause from the equity docket to the law docket, and to permit the reform of the pleadings so as to conform to the law as it now exists, and, for the issue arising in this case, to be given a jury trial. This motion was denied by the court. The' first question to be considered is whether or not the repeal of the third section of the Curtis act had the effect to deprive the court of the authority to proceed further with the case under that act. Sutherland on Statutory Construction, § 162, is in part as follows: “The .general rule is that, when an act by the Legislature is repealed
Without considering the said fourth error assigned, the case is reversed and remanded, with directions to the court to transfer the same to the law docket and allow amendment of the pleadings to conform to the changed condition of the case.