Walker v. McLoud

The appellant, who was plaintiff below, appeals from the judgment of the circuit court of appeals (70 C. C. A. 534, 138 Fed. 394) affirming a decree of the United States court for the central district of Indian territory, dismissing the appellant's bill on the merits. 5 Ind. Terr. 563, 82 S. W. 908.

The appellant describes this action 'as in the nature of ejectment on the equity docket, instituted for the purpose of securing possession of certain buildings and the right to the occupancy of the land on which they were erected, and to quiet plaintiff in his title and possession of the same, and to remove the cloud from the title.' The appellant is the executor of the will of W. H. Ansley, who was the purchaser of the buildings, hereinafter referred to, at the sheriff's sale.

The facts necessary to state in considering the question decided are as follows: The defendant McLoud is a trustee under a deed of trust, which need not now be more particularly stated, and defendant Gowen is the receiver of the Choctaw Coal & Railway Company, which was a corporation created under the laws of the state of Minnesota. By the 2d section of the act of Congress of February 18, 1888 (25 Stat. at L. 35, chap. 13), it was granted the right to take and use for all purposes of a railway, but for no other purposes, a right of way 100 feet in width through the Indian territory for its main line and branch. The 10th section of the act provided that the company should accept this right of way upon the express condition that it would neither aid, advise, nor assist in any effort looking towards the changing or extinguishing of the present tenure of the Indians in their land, and would not attempt to secure from the Indian nations any further grant of land or its occupancy than was provided in the act; and that any violation of the condition mentioned should operate as a forfeiture of all the rights and privileges of the company under the act.

The Choctaw Nation, on October 30, 1888, passed an act, the 1st section of which reads as follows:

'All noncitizens not in the employ of a citizen of the Choctaw Nation, and not authorized to live in the Choctaw Nation under the provisions of existing treaty stipulations, who have made or bought improvements in said Nation, are hereby notified that they are allowed to sell their so-called improvements to citizens, and if such noncitizens fail to comply with this section, then it shall be the duty of the sheriffs of the counties in which such improvements may be located to advertise the same for sale in thirty days, and sell the same at the appointed time to the highest Choctaw citizen bidder for cash; one half of which shall be paid into their respective treasuries, and the other half into the national treasury. Provided, however, that, if any such noncitizen fail or refuse to deliver the possession of such an improvement, he shall be reported by the sheriff of that county to the principal chief, and by said chief to the United States Indian agent, to take proper steps for the removal and prosecution of such offender under § 2118 of the Revised Statutes of the United States. Provided, further, that a notice of sale shall be posted by the sheriff in three public places in his county, which shall be legal notice to all persons against whom this law may operate.'

While the above acts were in force and during the years from 1889 to 1893, both inclusive, it is charged that the company, through its officers and agents, built certain buildings at the town of South McAlester, Indian territory, outside and beyond its right of way, illegally and in violation of such acts, and were using the same in behalf and in the interest of the company.

In 1895 William Ansley, who was a citizen of the Choctaw Nation, and a deputy sheriff of the county where the buildings were erected, wrote to the governor of the Choctaw Nation and subsequently made a report in regard to the buildings as being erected by the company outside of its right of way, and that they were controlled by the company, and he was then directed by the principal chief of the Choctaw Nation to proceed according to law to sell and dispose of the buildings which had been built by the company outside its right of way. The sheriff proceeded to advertise the buildings for sale according to law, and in June, 1895, sold some of them to the appellant's intestate for $270; and the sheriff accepted his note as payment, conditioned that the same should be paid as soon as the purchaser was put into or otherwise obtained possession. This note has never been paid. The property purchased was, as alleged, of the value of about $60,000, and the purchaser was the son of the deputy sheriff who made the sale. The reason the money was not paid at the time of the bid, as stated by the bidder Ansley, was that the property was held by the company, and he was informed that it would take litigation to obtain possession. Immediately after the sale the sheriff who made it reported his action to the chief of the Choctaw Nation.

The appellant, upon the trial, offered in evidence the deposition of the deputy sheriff who made the sale, in relation to this matter, in which he swore that 'the chief ratified my action as to the sale and payments of said property, and instructed me to proceed at once and employ attorneys to assist me in getting possession of the property for the purchasers, and I at once employed attorneys to assist the plaintiff, W. H. Ansley, in obtaining possession of the property sold by me as sheriff. Mosely & Smith, of Denison, Texas, a firm of lawyers, and Cole & Redwine, attorneys at South McAlester, were employed by the chief of the Choctaw Nation to assist the plaintiff in obtaining possession of said property. In 1895 the Choctaw council passed a special act, appropriating $1,500 to employ attorneys to represent the Choctaw Nation and to assist the plaintiff in obtaining possession of the property aforesaid. In the December following contracts employing the aforesaid lawyers were signed by Jeff Gardner, chief of the Choctaw Nation, and all my acts as deputy sheriff aforesaid as to the sale and payments of the purchase price of the aforesaid property were accepted and ratified by the Choctaw Nation.'

All that portion of the deposition above quoted was objected to on the part of the defendants, and the objection was sustained, and that portion was stricken out under the exception of appellant.

The appellant also put in evidence the act of the general council of the Choctaw Nation, entitled 'An Act Authorizing the Principal Chief to Employ Counsel,' approved October 30, 1895, the 1st section of which reads as follows:

'Section 1. Be it enacted by the general council of the Choctaw Nation, assembled: That the sum of two thousand dollars ($2,000.00) is hereby appropriated out of any money in the national treasury not otherwise appropriated, and said sum to be placed to the credit of the principal chief, and to be by him used for and in behalf of the Choctaw Nation, in the employing of able and competent counsel to defend the interest of this nation in all suits now pending or that may hereafter come before the United States courts in any manner relative to the full and complete execution of the laws of the Choctaw Nation by the sheriffs of each and every county in the confiscation of property of noncitizens who are now occupying lands or buildings, or who may hereafter occupy, not in conformity to the laws of the Choctaw Nation.'

Messrs. W. N. Redwine, Chester Howe, George R. Walker, Preslie B. Cole, and J. O. Poole for appellant.

[Argument of Counsel from pages 306-307 intentionally omitted]

Messrs. John W. McLoud and Charles B. Stuart for appellees.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: