This is a suit in equity brought by the appellant to determine conflicting rights to a parcel of real property situated in Oklahoma. While the cause was pending, George Franklin Berryhill was permitted to file a petition in intervention therein and make common cause with the complainant. The decree below dismissed the bill upon the merits. The case can best be presented by unfolding the facts and the law together.
Andrew J. Berryhill was the son of George Franklin Berryhill, a member of the Creek Nation of the mixed blood, and Clementine Berryhill, his wife, a noncitizen of that tribe. He was born on the 6th day of May, 1901, and died in the month of November of that year, leaving no brothers or sisters surviving him. At no time during his life was he entitled to enrollment as a member of the tribe, or to an allotment of its property. After his death, by the supplemental agreement entered into between the Commission to the Five Civilized Tribes and commissioners of the Creek Nation (Act June 30, 1902, c. 1323, 32 Stat. 501), proclaimed by the President August 8, 1902, it was provided in section 7, as follows:
“All children born to those citizens wlto arc entitled to enrollment under previous acts, subsequent to July 1, 1900, and up to and including May 25, 1901, and living upon the latter date, shall be placed on the rolls made by said commission.”
Andrew J. Berryhill met precisely the conditions of this agreement. He died, however, before the agreement was entered into, as already stated. But the agreement further made express provision for such a contingency in section 7, as follows:
“And if any sneh child has died since May 25, 1901, or may hereafter die before receiving his allotment of lands, and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled, if living, shall descend to his heirs, as herein provided, and be allotted and distributed to them.”
The phrase, “as herein provided,” refers to chapter 49 of Mansfield’s Digest of the Statutes of Arkansas, which deals with the subject of heirship and descent.
The word “descend” is, of course, inapplicable to the actual contingency provided for by the statute, because that contingency contemplates the death of the child before he had actually become seised of any interest in the land. The word “descend” is a word of art, and indicates the transference of property by inheritance. If any significance is to be given to it as used in this section, it must be held that the intent of the parties to the agreement was that the land should pass to the same persons and in the same proportions as it would have
This construction receives further support by the general scheme which the federal government and the Creek Nation formed for the disposition of the tribal property. The first requisite for the partition of the tribal estate in severalty among its members was to ascertain and legally establish who were members of the tribe. By reason of the many intermarriages between members of the tribe and members of the white and negro races, and by reason of the fraudulent claims to membership,, the ascertainment of the particular persons who were in fact entitled to such membership proved a much more difficult task than was at first anticipated. The Commission was empowered and directed to prepare such a roll. This work not only required much investigation on its part, but resulted in voluminous litigation. Instead of being a work of months, it proved to be a work of years. In the meantime, however, the membership of the tribe was constantly undergoing change by birth and death. In order to provide for all members of the tribe who were born subsequent to the beginning of the enrollment, the date of right to enrollment was twice set forward, the statute last quoted fixing the latest date. By reason of these facts, when the roll was completed, it contained more names than' there were members in being. The roll, however, furnished the basis for the division of the tribal estate. Every person whose name was entered on the roll was entitled to an equal proportion of the tribal land and funds; but by reason of the fact that before actual distribution could be made, and even while the enrollment was in progress, some persons whose names were on the roll would die, the statute made provision for the disposition of the share of tribal property which would go to them if living. Such a provision was necessary. Otherwise there would have been a portion of the tribal property undistributed. It was never the intent, however, either of the tribe or of the federal government to grant to parties having a kinsman who had died before the actual making of the allotment additional lands as a bounty. These kinsmen got all their right to additional lands under and through the enrolled member who had died. Whether the ancestor was actually seised of the property or not in his lifetime, was immaterial. It was the intent of the statute that the property should pass by the same right and in the same manner that it would have passed if the person enrolled had survived to receive his allotment. The tribe was not bestowing such land as a bounty, but was simply providing for the right of inheritance.
Congress itself has construed this statute. Section 5 of the act (Act April 26, 1906, c. 1876, 34 Stat. 138) provides:
“That all patents or deeds to allottees in any of the Five Civilized Tribes to he hereafter issued, shall issue in the name of the allottee; and if any such allottee shall die before such patent or deed becomes effective, the •title to the lands described therein shall inure to and vest in Ms heirs; and*533 in case any allottee shall die after the restrictions have been removed, his property shall descend to his heirs or his lawful assigns, as if the patent or deed had issued to the allottee during his life; and all patents heretofore issued where the allottee died before the same became effective, shall be given like effect.”
Here is an express declaration by Congress that the land shall descend to heirs the same as it would have descended if tfre patent or deed had issued to the allottee during his life, and it is declared that allotments for allottees who have died shall also thus descend. This interpretation by Congress of its own act leaves no room for doubt as to its intent.
We must, therefore, look to chapter 49 of the Arkansas statute both to ascertain who the heirs are, and what estate they shall take in the property. That statute does not treat of the subject of heirship independently, but combines that subject with the estate to pass by inheritance. Subsection 2 of section 2522 provides as to the general estate, both personal and real, of a person dying intestate, and having no children, that it shall go to the father. This section, however, is to be read in connection with section 2531, which deals with the subject of the devolution of property when there is no heir of the blood to whom it can descend. Under this statute, if the deceased person came by the estate from his father, it is to go to the father, and, if he came by it from his mother, it goes to the mother. The statute then proceeds :
“But if tbe estate be a new acquisition, it shall ascend to the father for his lifetime, and then descend in remainder to the collateral kindred of the intestate in the manner provided in this act.”
This statute makes provision for all possible acquisitions of real property for the civilized white community whose estates it was intended to govern. _ Among the people of Arkansas there was no way of acquiring land except by grant, gift, or inheritance. This was true even of lands acquired from the federal government under the public land laws. The patentee of such lands was always required to purchase the same either by residence and improvement, or the payment of a purchase price, or by these elements combined. It needs but a moment’s thought to see that, when this statute was applied to the lands of the Creek Nation, it was applied to a subject-matter entirely different from that which was in the mind of the Legislature of Arkansas. The lands of that tribe fit into neither of the classes mentioned in the statute. They did not come to a member of the tribe by inheritance from any ancestor, nor could they be spoken of with propriety as a purchase. In applying the statute in this case, therefore, we shall have to proceed by analogy only. The tribal lands belonged to the tribe. The legal title stood in the tribe as a political society; but those lands were not held by the tribe as the public lands of the United States are held by the nation. They constituted the home or seat of the tribe. Every member, by virtue of his membership in the tribe, was entitled to dwell upon and share in the tribal property. It was granted to the tribe by the federal government not only as the home of the tribe, but as a home for each of the members. From the time they took up their residence west of the Missis
We next pass to the rights of the parties to this controversy under the conveyances from George Franklin Berryhill. On June 5, 1906, he and his wife executed a warranty deed of the property to Fdmund and Perry McKay in consideration of the sum of $2,000. It is now contended that this deed was void because at the time of its execution the grantor was without legal capacity to make such a conveyance. It is conceded that George Franklin Berryhill had only such power to dispose of the lands in question as was granted to him by act of Congress. Both parties base their right upon section 22 of the act approved April 26, 1906, which reads as follows:
“That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe, * * * may sell and convey the lands inherited from such decedent”
George Franklin Berryhill and .appellant Shulthis make the same argument upon this statute that they did upon section 7, above quoted. It is urged that the land in question is not “inherited” land. For reasons already explained, that contention, while technically right, is substantially wrong. The scheme of the statute dearly indicates that the land was to be regarded the same as if it had been inherited. No sound reason can be adduced for treating these lands otherwise than they would have been treated if Andrew J. Berryhill had survived long enough to receive the allotment. This interpretation is further supported by the provision of the several acts dealing with these allotments. Every member of the tribe was allotted a share in the tribal lands. Such allotment is repeatedly spoken of in the act as his “homestead.” It was intended to he such, and to serve as a sure basis for his own support and the support of his family, either actual or prospective. To protect this homestead, it was made inalienable for the term of five years. The reasons for making it inalienable did not apply to lands obtained by inheritance, and for that reason the statute last quoted was passed granting power to convey the same. The lands here in question fall under the same policy as lands obtained by inheritance, and the statute should be held to apply thereto. Berry-hill, therefore, had power to make the deed to the McKays.
The remaining question relates to the priority of the conflicting claims of appellant, Shulthis, and the appellees who have succeeded to the rights of the McKays. March 24, 1906, George Franklin Ber-
“No deed, bond or instrument in writing, for tbe conveyance of any real estate, or .by wbicb the title thereto may be affected in law or equity, shall be good or valid against a subsequent purchaser of said real estate for a valuable consideration, without actual notice thereof, * * * unless such deed, bond or instrument, duly executed and acknowledged, or approved, as is or may be required by law, shall be filed for record in the office of the clerk and ex-officio recorder of the county where such real estate may be situated.”
Did the lease come within the class of instruments specified in these statutes? Was it an instrument by which the title of real estate “may be affected in- law or equity” ? We think it was. While it required the approval of the Secretary of the Interior before it became in all respects binding, that approval was intended solely to protect the Indian against improvidence. When the lease was executed and delivered, it created an inchoate interest in the.land which by the approval of the Secretary became absolute without any further act of the parties. Even after the approval, there would have been nothing to record but the lease. By the doctrine of relation, the leasehold estate upon the .approval qf the lease, had its beginning at the date of the execution and delivery of the instrument. Either the lease creat
“But never to be leased or conveyed by Mm, them, his or their heirs, to any person whatever, without the permission of the President of the United .States.”
The land was situated in Illinois. The registration law of that state was by no means as comprehensive as the statutes above quoted; yet the Supreme Court of Illinois held that the deed upon its execution and delivery, and before it was approved by the President, was an instrument so affecting the title to real property as to require its registration. Speaking of this ruling, the federal Supreme Court used the following language:
“Even if this be not a construction of the state statute binding upon us, and decisive of the case, we regard it as a correct exposition of the law.”
This decision, in our judgment, controls the question we are now considering, and under it the lease was subject to the registration law in force in the territory, and -should have been recorded in order to protect the interest which it granted as against a good-faith purchaser. This is not a case in which the title to land is in the government and a proceeding is pending before the Land Department for its acquisition under the public land laws. The title to the land here was in Ber-ryhill, and the object of the supervisory approval of the Secretary of the Interior was simply to protect the Indian against the improvident disposition of his property. Pickering v. Lomax, 145 U. S. 310, 316, 12 Sup. Ct. 860, 36 L. Ed. 716. We can attach, no weight to the suggestion of counsel that Shulthis could not record his lease, because under the rules of the department one copy was to be delivered to, and retained by, him. The lease under such circumstances occupied precisely the same position as a deed. He could have filed it in the proper office for record, and upon its being recorded it would have been returned to him as the muniment of his right.
. This leaves only the question whether appellants acquired their title with actual or implied notice of the lease. It is first urged that we should hold that they had implied notice, by reason of the fact that .a copy of the lease was, pursuant to the rules of the Secretary of the Interior, filed with the Indian agent at Union Agency, Muskogee. That filing, however, was purely for administrative purposes, to aid the Land Department in supervising the leasing of these Indian lands. There was no rule or statute which made such filing notice to parties acquiring an interest in the property. Neither had such parties any right, as a matter of law, to examine the records at the Indian agency, or to take copies thereof. The evidence itself shows that peo-
Did the McKays have actual notice of the lease? The evidence as to the facts known to them on this subject, and the inferences properly deducible from such facts, are in direct conflict. Berryhill testified that the lease to Shulthis was obtained by two parties by the name of McElwane and Chaney, and that he himself did not know that the lease was in favor of Shulthis, but supposed it ran to McElwane. There was either some actual or supposed defect in the lease, and Chaney came repeatedly to the Indian urging him to execute new papers, which he refused to do. From this experience he came to believe that the lease was void. During the negotiations between him and the McKays for the sale of the land, they inquired of him whether there was anything against the property. His testimony as to what then took place is as follows:
“Q. Just go ahead and tell what you told them at the time you had this trade? A. Well, I didn’t tell a great deal about it; I told them they had a oil and gas lease on it, and at the time X didn’t believe it was any good, and X believe that was áll.
“Q. Did you tell them why you didn’t believe it was any good? A. Yes, sir.
“Q. Why did you tell them? A. Because they come back and wanted me to change my woman’s name, and we didn’t do it.
“Q. Did you tell them who took that lease? A. Told them who had it.
“Q. Who did you tell them? A. McElwane and Chaney.”
Both of the McKays testified as witnesses in the case. The substance of their evidence is that, in response to their inquiry as to whether there was anything against the land, he at first said there was nothing, but afterwards stated that he had signed an 'old lease some time ago, but it was not any good; he said he knew, because the parties for whom he had signed this lease had come back after him and wanted him to sign up new papers, and, when asked the names of the parties to whom he had given the papers, he answered that he didn’t know. This is the testimony of one of the McKays, and the other stated in substance as follows:
*539 “We asked him if he had ever made ¡my deal on his land or signed ¡my papers of any kind against the land, lie first said he had not signed any papers, and then he said afterwards that lie did sign some kind of papers, but lie didn’t know who they was to, or what they meant, and they came back to him and wanted him to sign them over again, and he would not do this. He didn’t know (he name of the parties to whom he had made the papers. I remember of asking him who he had signed papers with, and he said he didn’t know.”
It appears from BerryhilFs evidence that he did not know McF,l-wane, the party to whom he supposed the lea.se ran, but did know Chaney. Upon receiving the above information the McKays paid a small part of the consideration, and declined to pay the balance until they had obtained an abstract of title to the property. This they immediately did, and the abstract showed the title to be clear. They then went forward and paid the balance of the consideration. This evidence makes a close case on the question of notice. If Berryliill in fact told the McKays the name of the parties to whom he had executed the papers, they, of course, could not have accepted his statement that the papers were invalid, but would have been charged with the duty of consulting "the other parties to the transaction, and ascertaining from them the nature and extent of their rights. Failure to do so would have impressed the land in their hands with all the rights of those parties. The question of notice, therefore, tttrns upon whether the preponderance of the evidence shows that the McKays knew, or could by the exercise of reasonable care have ascertained, the name of the parties holding these outstanding rights. The testimony of the McKays on this point is directly in conflict with that of Berryliill. They state that they inquired of him directly the names of the parties to whom he had executed these papers, and that he told them that he did not know who they were. We accept their testimony as the more credible on this question for the following reasons: First, witness for witness, they are certainly as trustworthy as Berryliill. Second, Berryliill at the time was anxious to consummate the sale of the land to them. He thus had a strong motive to conceal from them any knowledge which would be likely to defeat that purpose. His native shrewdness would teach him that, if lie disclosed the name of Chaney, the McKays would consult him, and thus ascertain the state of the title and decline to consummate the purchase. Third, the McKays were farmers. There is no evidence in the record that they purchased the land for oil and gas purposes, or for any other purpose than agriculture. They had never themselves had anything to do with oil and gas leases, and for that reason knew nothing about the filing of such leases with the Indian agent, or that it was possible to learn from that source what leases an Indian had given. Fourth, the evidence contains convincing proof that they did not shut their eyes against ascertaining the existence of the outstanding rights referred to by Berryliill, in order that they might not learn the truth. On the contrary, they took the very steps which would have been taken by a prudent business man to ascertain the state of the title. Instead of consummating the purchase, they suspended the transaction, and ordered an abstract. They had good reason to believe that, if there was any outstanding instrument affecting this title to the property, the
“In order to charge a purchaser with notice of a prior unrecorded conveyance, he or his agent must either have knowledge of the conveyance, or at. least of such circumstances as would by the exercise of ordinary diligence and! judgment lead to that knowledge; and vague rumor or suspicion is not a-, sufficient foundation upon which to charge a purchaser with knowledge of a title in a third person. Notice of a sale does not imply knowledge of an outstanding and unrecorded conveyance.”
In the case of United States v. Detroit Dumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499, the suspicious circumstances were much stronger than in the present case, but the Supreme Court refused to charge the purchaser with notice, using the following language:
“A chancellor will not be astute to charge a constructive trust upon one who-has acted honestly and paid a full and fair consideration without notice or knowledge. On this point we need only to refer to Sugden on Vendors, p. 622, where he says: ‘In Ware v. Lord Egmont, 4 De Gex, M. & G. 460, the Lord Chancellor Cranworth expressed his entire concurrence in what, on many occasions of late years, had fallen from judges of great eminence on the subject of constructive notice, namely, that it was highly inexpedient for courts of equity to extend the doctrine. When a person has not actual notice, he ought not to be treated as if he had notice, unless the circumstances are such as enable the-court to say, not only that he might have acquired, but also that he ought to-have acquired it, but for his gross negligence in the conduct of the business in. question. The question, then, when it is sought to affect a purchaser with constructive notice, is not whether he had the means of obtaining and might by prudent caution have obtained the knowledge in question, but whether not obtaining it was an act of gross or culpable negligence.’ ”
See, also, the same case in this court, 131 Fed. 668, 674, 67 C. C. A. 1.
The position of the assignees of the McKays, however, is more-favorable than their own. The evidence shows affirmatively that in
From a careful examination of the evidence we are of the opinion that the defendants are entitled to the protection of good-faith purchasers as against complainant’s lease. The decree, therefore, of the trial court was right, and it is affirmed.
RIXER, District Judge, concurs in the result.