166 F. 738 | 8th Cir. | 1908
Mrs. Crabtree sued for the possession of a lot in the town of Wagoner, Ind. T., and) the cause having been transferred to the equity docket, she obtained a decree which was affirmed by the local Court of Appeals. The appellants, who were defendants in the trial court, now complain of that part of the decree which requires them to remove their improvements from the lot, and they invoke the Arkansas betterment act (Mansf. Dig. §§ 2614, 2615 [Tnd. T. Ann. St. 1899. §§ 1928, 1929]), which provides that if any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved any land which, upon judicial investigation, shall he decided to belong to another, the value of the improvements shall be ascertained by the court or jury, and the successful party shall pay the amount thereof, less damages and mesne profits, to the occupant, before he is required to yield possession. Tu other words, they say they were entitled to retain possession until the value of their improvements less the rental value of the lot was paid them. To obtain the benefit of this statute, both good faith and color of title must appear. Beasley v. Security Co., 72 Ark. 601, 610, 84 S. W. 224; Penrose v. Doherty, 70 Ark. 256, 67 S. W. 398; White v. Stokes, 67 Ark. 184, 53 S. W. 1060; McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71. Did appellants act in good faith and have color of title ?
“It is certain, we think, that Congress did not intend that white men who had obtained temporary possession of town-site lots or land in the Indian Territory from Indians by means of leases should make use of the possession so acquired to secure a fee-simple title to the demised property to the exclusion of Indian lessors to whom they had covenanted to restore the possession.”
This conclusion is in harmony with the Creek agreement (Act March 1, 1901, c. 676, 31 Stat. 861), which in some respects superseded the Curtis act.
It was found in the trial court that appellants made their improvements on the lot in good faith, believing “they had the right to the possession of the same.” But this does not in itself suffice to give color of title, and in view of known conditions it is questionable whether the requirement of good faith was met. Appellants do not appear to have inquired as to the nature and extent of the right of their vendors, though it was common knowledge that the title to such property was in the Creek Nation, and that individual occupants had no more than mere possessory rights; also that the Department of the Interior, proceeding under the authority of acts of Congress, was engaged in extinguishing tribal titles. and causing the lots and lands to be owned and held in severalty. Conditions in the territory were exceptional, and contracts for and conveyances of real property were not governed by the rules which obtained elsewhere between persons not under disability. Moreover, in that country the common tenure of the white man or noncitizen was by leasehold, which implied conditions and responsibilities to members of the Indian tribes.
“Color of title” is that which appears to be, but in reality is not, title. Wright v. Mattison, 18 How. 50, 56, 15 L. Ed. 280. But appellants did not'obtain even a semblance of title to the lot, and their manner and form of purchase was not that customary in the acquisition of real property. In negotiating for the property, they wrote the parties
The decree is affirmed.