227 F. 775 | 8th Cir. | 1915
This is a suit of the same character as that in United States v. Debell and Butterfield, 227 Fed. 760, —— C. C. A.-, in which the opinion is filed herewith. The act of Con
We return to the evidence. It established these facts conclusively: Clown Woman, was about 67 years old in 1907. She held her land under a trust patent dated July 1, 1901, with no power to alienate it until July 1, 1926. She was a widow. Her husband had died about 15 years prior to 1907. She had the usual characteristics'of the native Indian woman. She had never attended a school, she could not read or write the English language, she could speak or understand but few English words, and her conversations with Debell were conducted through an interpreter. She could count silver money, but could not count paper money. She did not know the names of the months. She drew her rations from the government monthly, and had done so for many years.. Her application, for a patent in fee simple was dated June 1, 1907. It was written by Debell, and was accompanied with a
her
on June 1, 1907. They were signed, “Heokawin or Clown Woman X,”
mark
and all of this signature but the mark was written by Debell. Kelley, the Indian agent, sent these papers to the Commissioner of Indian Affairs and a patent in fee simple to Clown Woman was issued March 23, 1908, but it was not delivered to her until May 9, 1908.
Upon the account book of Debell there are entries made by him personally under the dates February 17 and February 18, 1908, of a credit to Clown Woman “By land deposit 2,000” and of debits of several items aggregating $723.40, one of which is “Cash 400.” Clown Woman deeded her land to Courtis, but Courtis subsequently deeded it to Debell, who they testified paid to Courtis whatever he had paid for it. They testified that Courtis gave Debell $400 in paper money, and Debell paid Clown Woman $400 in silver money when she signed the deed, and that later Debell paid, back to Courtis what he had advanced, and completed the payment of the $2,000 to Clown Woman. The fact is conclusively established that whenever Clown Woman signed the deed to Courtis, Debell gave her a big bag of silver money, which amounted to $400. The deed and its acknowledgment, which is signed by Debell, bear the date March 31, 1908, and Courtis conveyed the land to Debell by a deed dated January 5, 1909. The issue whether the deed was signed and delivered to Clown Woman on February 17 or 18, 1908, when Debell’s entries on his account book charge the payment of the $400 to Clown Woman and credit the $2,000 to her for the land deposit, or when the deed and acknowledgment bear date, is of some importance because, if at the former date, the restriction on alienation was then actually and apparently complete, the deed was void, and it passed no title to Courtis or Debell. Monson v. Simonson, 231 U. S. 341, 34 Sup. Ct. 71, 58 L. Ed. 210; Moffat v. United States, 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 623; Iowa Land & Trust Co. v. United States, 217 Fed. 11, 33, 133 C. C. A. 121. Debell testified that the entries in his account book under the dates February 17th and 18th were made about the time the deed was signed, but that the dates were wrong; that the deed was signed the day it bore date, but he could not account for the dates of the entries on the book. Debell and Courtis testified that the deed was signed after the patent was issued, but before it was received by Clown Woman. Courtis testified that he negotiated the purchase from Clown Woman. The witnesses to the deed, Louise Flood and Charley No Heart, testified that the talk which resulted in the sale and the signing of the deed by Clown Woman was conducted by Debell and Clown Woman, and that the only persons present were Debell, Clown Woman, No Heart, and Louise Flood, who acted as interpreter. Acts often speak louder and more truthfully than words. Personal interest, time, the intervening consideration of other matters dim and sometimes modify the memory, but the written record of the transaction made at the time when no motive to cause it to speak otherwise than the truth existed, is generally correct and, once made, never changes itself. It requires
The application for the patent in fee simple which Debell wrote and Clown Woman signed by her mark stated that she had 18 head of horses and 60 head of stock cattle, and that her former husband had taught her the ways of the white people. Kelley, sending the application to the Commissioner, wrote: “The statements set forth in her application are true in every respect, and I respectfully recommend that- she be granted a patent in fee simple.” She had no horses and just three cattle. She lived with her son, was drawing monthly rations from the government, and, as her son testified, eating off them. She had done no- business or work for 15 years except to make a few moccasins and sell them for a little spending money. It cannot be that Debell or Courtis or Kelley did not know that the statements in the application were untrue, and that Clown Woman was incompetent and incapable of managing her own affairs, and especially of selling her land and managing its proceeds with any substantial degree of prudence or wisdom. Confidence in these conclusions is much confirmed by the facts that it was the duty of the Indian agent to list or enroll all the land of noncompetent Indians as noncompetent land; that Act of March 1, 1907, 34 Stat. c. 2285, p. 1018, provided that the Secretary might authorize the sale of such land, but that the proceeds of such sales should not be paid to the noncompetent Indian to dispose of as he chose, but that the Commissioner of Indian Affairs should hold them and apply or supervise the application of them to the best interest of the Indian; that the land of Clown Woman had been enrolled or listed in the Indian agent’s office as noncompetent land by the issue clerk to whom Kelley had deputed the duty of determining the character and listing such lands; that Clown Woman had made an application for a sale of her land as noncompetent land under this act of March 1, 1907, and a notice thereof had been posted
The decree below must therefore be reversed, and the case must be remanded to the district court, with instructions to render a decree to the effect that on condition that the United States pays to Debell the sum of $2,000 within three months after the entry of the decree, the patent to Clown Woman, her deed to- Courtis, and Courtis’ deed to Debell be set aside and held for naught; that in case the $2,000 is not thus repaid, the land in controversy be sold at public sale, after due notice, under the direction of the court; that the parties to this suit and all persons claiming under them be thereby estopped from claiming this land, and that the title thereto be confirmed in the purchaser at the sale; that $2,000 of the proceeds thereof be paid to Debell and the remainder thereof be paid to the United States and held and applied by it to.the use and benefit of Clown Woman and her heirs in the same way that it would have been held and applied if those proceeds had been realized from the sale of the land as non-competent land, pursuant to the provisions of Act of March 1, 1907, 34 Stat. c. 2285, p. 1018, and that the defendants pay the costs of this suit. The decree may contain such other provisions, not inconsistent with the views expressed herein, as the court below may deem proper.
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