Williams v. First National Bank of Pauls Valley

The defendant in error commenced this action in the United States court for the southern district of Indian territory. The now plaintiffs in error were named as defendants. S. L. and S. T. Williams are brothers, and Jennie L. Williams is the wife of the defendant S. L. Williams. Recovery was sought by the bank, as an innocent holder for value, before maturity, upon a note for $5,000, executed by the defendants, dated February 4, 1904, and payable to the order of Susan E. Mays, with interest. The consideration for the execution of the note was thus alleged in an amended complaint:

'Plaintiff further alleges and charges the truth to be that the said note was executed by the said Jennie Lee Williams for the benefit of her separate estate; that, at the time of the execution of said note, a contest was pending before the Commission to the Five Civilized Tribes, which said body at said time had authority under law to entertain and hear the same, between the said Jennie Lee Williams, one of the makers of said note, and Susan E. Mays, the payee therein, to determine which of the said parties had a right to take in allotment a certain tract of land located adjacent to the town of Maysville, Indian territory; that said [note] was executed by the said Jennie Lee Williams, S. L. Williams, and S. T. Williams, in consideration of the abandoning of said contest by the said Susan E. Mays, the payee therein; that after said note was executed the said Susan E. Mays did abandon her contest and permit the said Jennie Lee Williams to take the said land in allotment, which she did, and the said land therby became and is her separate the said land thereby became and is her separate

The amended complaint was demurred to on the following grounds:

'1st. Because the said amended complaint does not state facts sufficient to constitute a cause of action, and does not entitle plaintiff to the relief prayed for.

'2d. Because the transferee of a non-negotiable note must aver and prove consideration for the transfer; and the note in suit is non-negotiable, and plaintiff fails to aver any consideration whatever for the transfer.

'3d. Because § 16 of the Atoka agreement provides the only legal way Indian lands may be sold, and where a statute positively declares a thing cannot be done, the law will not suffer its policy and purpose to be thwarted by any subterfuge or ingenious contrivance clothed with the semblance of legality. This was a short-cut attempt to sell 40 acres of land, title to which was in the Indians.

'4th. Because the Dawes Commission had exclusive jurisdiction to determine all matters in controversy between members of the tribes as to their right to select particular tracts of land for allotment, and to determine the rights, if any, of Mrs. Susan Mays in the contest for said 40 acres of land; but the original payee of the note sued on, for a bare promise, violated the law in such case made and provided.

'5th. Because it appears from the allegations in said complaint that the note sued on herein and for the amount and accrued interest of which the plaintiff seeks a judgment against the defendants was executed pursuant to an alleged contract entered into by and between the defendant Jennie Lee Williams and Susan E. Mays, in that said complaint shows that the sole and only consideration of said note was the agreement of the said Susan E. Mays to abandon a certain contest which she had instituted against the said defendant Jennie Lee Williams, before the Commission to the Five Civilized Tribes at Tishomingo, wherein she claimed the right to select as a part of her allotment certain premises which had been Williams as a member of the tribe of Chickasaw Willimas as a member of the tribe of Chickasaw Indians.

'6th. Said complaint upon its face shows that the said note was executed by the defendants to the said Susan E. Mays for an illegal consideration, and was executed without any consideration whatever, and of all this the defendants pray the judgment of the court.'

The demurrer was overruled. In an amended answer, thereafter filed, after admitting the making of the note, and averring that it was executed by Jennie Lee Williams as principal and by the other defendants as sureties, the following allegations were made:

'lst. The defendants admit that heretofore, to wit, on the 4th day of February, 1904, they executed and delivered unto Susan E. Mays their promissory note for the principal sum of $5,000, due ninety days from date, and they admit that said note, as so executed, is copied in the plaintiff's first amended complaint, and the same is witnessed by James A. Cotner, and they admit that the defendant Jennie Lee Williams is a married woman and the wife of the defendant S. L. Williams, but they allege and charge that said note was executed by Jennie Lee Williams as principal and S. L. Willimas and S. T. Williams as sureties.

'There defendants deny, as alleged in the complaint, that said note was executed by the said Jennie Lee Williams for the benefit of her separate estate; but they admit that, at the time of the execution of the said note, a contest was pending before the Commission to the Five Civilized Tribes between Susan E. Mays, as contestant, and Jennie Lee Williams, as contestee, and that the purpose of said contest, as instituted by the said Susan E. Mays, was to determine whether she or the said contestee had a right to take in allotment a certain tract of land located adjacent to the town of Maysville, Indian territory; but these defendants deny that said note was executed by the said defendants Jennie Lee Williams, S. L. Williams, and S. T. Williams, in consideration of the withdrawal of the said Mrs. Susan E. Mays from said contest, as aforesaid; and they deny that the said Susan E. Mays did withdraw her contest and permit the said Jennie Lee Williams to take the said lands in allotment; and that, by reason of the withdrawal of the said Susan E. Mays from said contest, that said land became and was the separate property of the said efendant Jennie Lee Williams; but defendants allege and charge the truth to be that since the execution and delivery of said note, as aforesaid, that said Commission aforesaid has duly awarded and delivered to said defendant Jennie Lee Williams certificate to said land.

'2d. But these defendants allege and charge the truth to be that sole and only consideration of said note, as aforesaid, was the pretended and illegal sale of certain lands situated near Maysville, in the Chickasaw Nation, Indian territory, by the said Susan E. Mays to the said Jennie Lee Williams; that said pretended sale was illegal, fraudulent, and void; that the same was made, executed, and delivered by said Susan E. Mays to said Jennie Lee Williams in violation of and in contravention of the provisions of a treaty made by and between the United States and the Chickasaw and Choctaw tribes of Indians in the year 1902, which said treaty was ratified by a majority vote of said tribes and by act of the Congress of the United States, and in violation of and in contravention of the provisions of a treaty of the United States and the said tribes of Indians, made, concluded, and ratified by said tribes and the Congress of the United States in the year 1898, and known as the 'Atoka Agreement,' and that by reason thereof said pretended conveyance from said Susan E. Mays to said Jennie Lee Williams is illegal, fraudulent, and void, and of no effect, and that, by reason of the premises aforesaid, the said note herein sued for, when executed, was and hitherto since has been, illegal and void and without consideration. A copy of said conveyance is hereto annexed and marked 'Exhibit A,' and made a part hereof.

'3d. And still further answering herein, the defendant's say that the plaintiff ought not further prosecute and maintain this action against them because they allege and charge that, at the date of the execution of said conveyance from Mrs. Susan E. Mays to Jennie Lee Williams, as aforesaid, said Susan E. Mays did not have the possession, right, or title to the premises in said conveyance described, and did not own the improvements situated thereon, and had no interest therein which she could convey to the defendant Jennie Lee Williams, and that the consideration of the note herein sued on for that reason has totally failed; all of which the defendants are prepared and willing to verify, and they put themselves upon the country, and pary the judgment of the court that they be discharged, with their costs.' Exhibit 'A,' omitting the acknowledgment, reads as follows:

Tishomingo, Indian Territory, February 4, 1904.

Know all men by these presents:

That I, Susan E. Mays, of Maysville, Indian territory, for     and in consideration of the sum of one dollar ($1), cash in      hand to me this day paid by Samuel L. Williams, Jennie Lee      Williams, and receipt of which money is hereby acknowledged,      and the further consideration of the sum of five thousand      dollars ($5,000), to be paid me by said Samuel L. Williams,      Jennie Lee Williams, on the 4th day of May, 1904, which      indebtedness is evidenced by a promissory note of even date      herewith, due on the 4th day of May, 1904, bearing interest      at the rate of 8 per cent per annum from date, signed by S.      L. Williams, Jennie Lee Williams, and S. T. Williams, I      hereby bargain, sell, and convey and relinquish all my right,      title, or claim which I have in any way in and to the      possession of the lands and improvements situated upon the N.      1/2 of the N.E. 1/4 of the E. E. 1/4 of sec. 16, and the N.E.      1/4 of the N.W. 1/4 of the S.E. 1/4 sec. 16, and the S.E. 1/4      of the N.E. 1/4 of the S.E. 1/4 of sec. 16, all in township 4      N., range 2 W., Chickasaw Nation, Indian territory.

Relinquishing unto the said Samuel L. Williams and Jennie L.     Williams all rights which I have in and to the proceeds due      or to become due, or from the sales of town property, or my      interests in the said town site, located on the above      described premises, hereby relinquishing to them any claim      that I have by any former agreements pertaining to any town      site on said lands above described.

Witness my hand on this the 4th day of February, 1904.

Susan E. Mays.

A demurrer to the amended answer was sustained, and, the defendants refusing to plead further, judgment was entered on April 14, 1905, in favor of the bank for the full amount of the note, with interest and costs. A writ of error was allowed and the cause was taken to the United States court of appeals for the Indian territory. While the cause was pending in that court, Oklahoma became a state, and by virtue of the enabling act the cause was transferred to the supreme court of the new state. On December 24, 1907, a petition was filed on behalf of the plaintiffs in error in the supreme court of the state, accompanied with bond, and it was prayed that the cause be removed into the circuit court of the United States for the eastern district of Oklahoma, upon the ground 'that, by virtue of the enabling act, it was entitled to be so removed because the suit herein is of a civil nature at law, arising under the Constitution and laws of the United States.' The application was denied, and, from a judgment of affirmance thereafter entered (20 Okla. 274, 95 Pac. 457), this writ of error is prosecuted.

The errors assigned in substance are that the supreme court of Oklahoma erred in overruling the application to remove, in holding that error was not committed by the trial court in overruling the demurrer to the amended complaint, and in deciding that error was not committed in sustaining the demurrer to the amended answer.

Messrs. W. O. Davis, L. S. Dolman, and R. E. Thomason for plaintiffs in error.

[Argument of Counsel from pages 588-590 intentionally omitted]

Messrs. S. T. Bledsoo and J. B. Thompson for defendant in error.

Statement by Mr. Justice White:

[Argument of Counsel from pages 590-592 intentionally omitted]

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