261 F. 518 | 8th Cir. | 1919
A patent for the land was issued in the name of said Wallace Cash December 14, 1905. Hinkle filed a demurrer to the complaint, which was overruled. November 20, 1914, Mullen' and Hinkle answered. December 23, 1914, the United States filed an amended and supplemental complaint, wherein it was alleged that Wallace Cash
On February 3, 1916, the defendants filed what is called in the record a motion to dismiss. The ground of this motion was that Sophia Robert, née Cash, had on January 5, 1916, conveyed the land in controversy for a consideration of $10,000 to the defendant J. S. Mullen and that said deed of conveyance had been duly approved by the county court of McCurtain county, Okl.; the court having jurisdiction of the settlement of the estate of Wallace Cash, deceased. June 8, 1917, the defendants Anderson and M. Gorman filed separate amended answers in which the deed of January 5, 1916, was pleaded as a defense. July 3, 1917, the Crystal Oil Company and Sinclair Gulf Oil Company filed their separate amended answers, setting up the same deed as a defense. September 18, 1917, the Twin State Oil Company filed its separate amended answer making the same defense as the other defendants. October 8, 1917, the United States filed a replication to the separate amended answers of the defendants. In this replication the United States attacked the conveyance of January 5, 1916, by Sophia Robert, née Cash, to J. S. Mullen, as fraudulent and void for reasons specified.
On the same date the case came on for trial, upon the request of the defendants that the court hear and determine the defense set up in the amended answers as a plea in abatement to the action, and dispose thereof before a trial of the principal case. The record shows that what was meant by this language was that the court proceed to try the validity of the deed of January 5, 1916. Pursuant to the request of defendants the court proceeded to decide that question. The defendants introduced in evidence the deed of conveyance for the land in controversy from Sophia Robert, née Cash, to J-. S. Mullen, his heirs and assigns, for the expressed consideration of $10,000, “to
Counsel for the United States concede that the court did not err in adjudging that the deed of Sophia Robert, née Cash, of January 5, 1916, to J. S. Mullen, was a valid conveyance, but insist that the court erred in not retaining jurisdiction of the action for the purpose of hearing the case for an accounting of the mineral rents and profits received by the defendants from the lands in controversy down to January 5, 1916, the date of the last conveyance. The original complaint contained no allegation with reference to rents and profits, nor was there any prayer for a receiver or an accounting. The supplemental complaint, however, did ask for an accounting of the rents, profits, royalties, and revenues derived from said lands while in the possession of said defendants, and a receiver was asked for to take charge of the land and collect such rents, royalties, and revenues derived therefrom hy reason of the operation of said land by the defendants for oil and gas.' The complaint also contained allegations that the defendant Mullen and his lessees had been in possession of .the land since 1904, and had collected and received the rents and profits issuing from the said lands.
We are of the opinion, from the recital 'in the judgment of the court as to the question that was taken up for trial, that the trial did not involve a trial of the whole case, and that therefore the United States could not be said to be in default in not offering any proof upon the subject of the accounting. It does not appear that a receiver was ever directly applied for, otherwise than in the prayer of the complaint, or that a receiver was ever appointed. In the attitude now assumed by counsel for the United States, we take it that the title of the land in controversy passed by the deed of January 5, 1916, from Sophia Robert, née Cash, to J. S. Mullen; therefore the right of a receiver to take charge of the land is gone, if any ever existed. The right to an accounting, however, for the mineral rents and profits received by the defendant Mullen and his codefendants, still remains, unless the language quoted from the deed of conveyance had the effect to deprive Sophia Robert, née Cash, and the United States, of all right to an accounting for the mineral rents and profits alleged to have been unlawfully received by the defendants from 1904 to January 5, 1916.
We are of the opinion, however, that under sections 19 and 20 of the Act of April 26, 1906, c. 1876 (34 Stat. 137), and section 2 of the Act of May 27, 1908, c. 199 (35 Stat. 312), and the regulations of the Secretary of the Interior promulgated July 7, 1906, June 11, 1907,
“The heir is a full-blood Indian, as was the allottee, and is regarded by the act as in need of protection, as was the allottee. In the absence of some provision to the contrary, the supervision naturally falls to the Secretary of the Interior. R. S. §§ 441, 463 [Comp. St. §§ 681, 716]; West v. Hitchcock, 205 U. S. 80, 85 [27 Sup. Ct. 423, 51 L. Ed. 718]. And see Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 166 [15 Sup. Ct. 779, 39 L. Ed. 931].”
Just when the United States shall cease to sustain the relation of guardian to this full-blood Indian seems, under the decisions, a matter for Congress to decide. Brader v. James, supra; United States v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192; Tiger v. Western Investment Co., 221 U. S. 286, 316, 31 Sup. Ct. 578, 55 L. Ed. 738; Heckman v. United States, 32 Sup. Ct. 424, 56 L. Ed. 820. The rules and regulations of the Secretary of the Interior as to the collection, control, and custody of mineral rents and profits, made within the power granted by the acts of April 26, 1906, and May 27, 1908, supra, have the force and effect of law upon the subject, and persons dealing directly with a tribal Indian in violation thereof cannot retain the fruits of such unlawful agreement. Heckman v. United States, supra; United States v. Eaton, 144 U. S. 688, 12 Sup. Ct. 764, 36 L. Ed. 591; Wilkins v. United States, 96 Fed. 837, 37 C. C. A. 588; United States v. Gray, 201 Fed. 291, 119 C. C. A. 529; United States v. Law, 250 Fed. 218, 162 C. C. A. 354.
It results from what has heen said that the decree below should he reversed, and a decree entered establishing the validity of the deed of January 5, 1916, from Sophia Robert, née Cash, to J. S. Mullen, so far as it conveys the title to the land in controversy, but without prejudice to the right of the United States to have an accounting in this action as to the mineral rents and profits unlawfully received by the defendants, or either of them.
And it is so ordered.