Of less than 10 acres. (See ALLOTMENT, par. 6.)
1. In making selection, effect of.
Contestee filed upon land, falsely swearing that he was the owner of the improvements and subsequently attempted to obtain title therein from one of the former owners of said improvements. Held, That contestee’s filing was fraudulent and of no effect and conveyed no rights to contestee. (Choctaw No. 42, Freeny v. Dillard.)
2. Presumption of, inadequate consideration.
Where the amount for which land was sold at an execution sale ($8) was grossly cut of proportion to the real value ($800 to $2,200), especially where the sheriff conducting the sale bid in the property in his own name, a strong presumption of fraud will arise. (Choctaw No. 357, Perry v. McMurtry. )
1. In filing allotment.
One who files on land to which he knows another makes claim can not claim that he filed in good faith if he gives no notice to the other of his intention to file and makes no investigation of the other s rights. (Choctaw No. 127, Jennings v. Lester.)
1. Alienation of title by.
Where the holder of the possessory right to land gives permission to a party to go upon and improve said land, and the donee takes possession under and by virtue of said gift and places valuable improvements on said land, the subsequent transfer by bill of sale of the same land by tin donor to a third party vests in the vendee no title as against the original donee. (Chickasaw No. 34, Donaghey v. Colbert.)
With condition attached. (See CONDITIONAL GIFT, par. 1.)
1. Authority of.
A guardian, under the Chickasaw laws, was authorized to sell the personal property of his ward without order from the probate court, unless his authority had been limited by the court. (Chickasaw No. 230, Hill v. Reynolds.)
2. Transfer by, ratification by ward.
Where there is positive evidence that one who presumed to act as guard ian in transferring a minor s land had apparent authority so to do, and that the ward affirmed his action when he became of age, the transfer is effective, even though not made by the proper person or with proper formality. (Chickasaw No. 1G09, con. Reynolds v. Caraway.)
Right of Commission to control. (See POWERS OF COMMISSION, par. 1.)
Husband and Wife
1. Noncitigen, comparative rights of.
The occupancy of a tract of land by a noncitizen wife gives her no greater rights than those of her noncitizen husband, who occupies the same tract with her. (Chickasaw No. 9, Trahern v. Russell.)
2. Selection by wife of land segregated by husband.
A wife has the right, as against third parties, to select as a portion of her allotment land on which her husband owns improvements. (Cherokee No. 45, Terrapin v. Eaton.)
1. Construction of term.
F., being dead, leaving five children, his brother-in-law, S., put improvements on a large tract of land, stating that he was segregating land for the “F. heirs.” Contestant claimed that this meant the family of the wife of F., who was still living: Held, That such a construction was unreasonable; that the maxim, nemo est haeres viventis, applied in this case?, and that clearly the term must have been used by S. as meaning the heirs of the deceased F. (Cherokee No. 140, Patterson v. Stewart.)
Improved by Mistake
1. Effect of.
The unintentional inclosing of a small fractional part (one-half to 3 acres) of a 40 acres by running the south line of a fence on the land located north of said 40 acres, through mistake, confers no right on the person erecting said fence. (Choctaw No. 119, Garland v. McDaniel.)
1. Ownership of, sufficiency of evidence to establish.
When it appeared that the place in controversy had been put in by the father of the contestant, when the latter was living with the family, and with the contestant s assistance, but it does not appear that the place was put in for contestant, and, prior to the time the improvements were turned over to the latter, his father had attorned to contestee, as his tenant, the evidence is insufficient to establish ownership of the improvements in the contestant. (Creek No. 719, Hawkins v. Hawkins.)
2. Title to, evidence of.
Where contestant s brother had been in possession and control of land for several years, and at about the time contestee filed, made several deals concerning same, and it does not appear that he ever acted as agent for contestant, the finding that at that time the title to the improvements was in the brother and not in the contestant, is not error. (Choctaw No. 497, Robinson v. Bully.)
3. Sufficiency of, to segregate, grade of land.
On a low grade of land, where one person can take in allotment a large area, it would be an unreasonable requirement to insist on the same grade of improvements as would be reasonable and just on a high grade of farm land, and it is right and proper to take into consideration the financial condition of the citizen in passing on the matter. (Choctaw No. 505, Moore v. McKinney.)
4. Sufficiency of, to segregate.
The mere running of a portion of a fence across the northwest corner of a 10-acre tract by a citizen who did not want the land, but erected the fence merely to keep cattle from running south through his own pasture is not an improvement sufficient to segregate the land. (Chickasaw No. 943, Barker v. Carter.)
Three bearing fruit trees, the remnant of an old orchard once owned by contestant, from which trees the contestant each year gathers fruit, together with some wire fence, which does not entirely surround the land is sufficient to segregate the 10 acres upon which said improvements are located. (Cherokee No. 329, Klaus v. Donohoo.)
6. On each 10-acre tract, necessity for.
The ownership and possession of improvements by the original segregator on an abandoned town site, although said improvements are on the 20 acres contiguous to that in controversy, is, nevertheless, a sufficient segregation of the entire town site; there is no law to compel a citizen to place improvements on every 10-acre tract within the tract claimed as his allotment. (Cherokee No. 332, Black well v. Parks.)
7. Value and age.
Where it appears that the improvements of contestant on a 10-aere tract are of more value and of greater age, though they cover less ground than those of contestee on the same tract, there is no error in awarding 10 acres to contestant. In such a case there is no reason why contestant should be compelled to remove her improvement of greatest value a house to an adjacent tract. (Choctaw No. 874, Ellis v. Williams.)
8. For minor, sufficiency of.
A minor contestant s father had erected for his son a pole fence which partially inclosed the land in controversy, a small area of it also cleared by cutting the timber and piling brush and “deadening” trees: Held, Sufficient to put an intending allottee on notice that somebody claimed the land. (Choctaw No. 5G1, McCann v. Coone.)
The act of June 28, 1898, does not require lands in possession for minor children to be fenced. Any fair indication of possession is sufficient. (Creek No. 131, Beams v. Taylor.)
The acts of Congress concerning allotments do not require “land in pos session” for minor children to be even fenced. Any fair indication of possession is sufficient. Following Grisson v. Asbury, Creek No. 10. (Choctaw No. 501, McCann v. Coone.)
11. Character of, when unimportant.
When it appears that contestant had relinquished to contestee whatever improvements were on certain land, it is unnecessary to determine the character of the improvements or whether the land was public domain when contestee filed. (Chickasaw No. 1667, con. Potts v. Kelly.)
12. Prior rights of owner.
The contestee acquires no right in land by appearing at the land office and selecting it as a portion of his allotment when it appears that said land was in the possession of the contestant, who owned the improvements thereon. (Creek No. 808, Ponds v. Rentie.)
When contestee owns the principal improvements on a 10-acre tract, consisting of 4 acres in cultivation, and those who had the cultivation on the remaining portion recognized contestee’s right to the land, he is entitled to take the same in allotment. (Chickasaw No. 1404, Watkins v. Gilliam.)
Where a citizen is the owner of, and in possession of, improvements on land at the date of another s filing, and when no consent to said filing was given by the owner of said improvements, the land should be awarded to the latter. (Creek No. 605, Sapulpa v. Frank.)
15. When approval of sale necessary.
Under the provisions of section No. 2116, Revised Statutes of the United States, a sale of improvements on lands which subsequently became a part of the Chickasaw Nation by virtue of the reestablishment of the ninety-eighth meridian, west longitude, by a citizen of the Kiowa-Comanche Agency to a citizen of the Chickasaw Nation to be valid must be approved by the Indian agent of the Kiowa Agency and the Indian agent of the Five Civilized Tribes. (Chickasaw No. 28, Keno v. Fillmore.)
16. Owned by third party, effect of.
When a third party is the only one owning improvements on the land in controversy and makes no objection to contestee’s filing, the prior filing of the latter gives him the better right to the land. Choctaw No. 668, Agent v. Rose.)
17. Ownership of, by both parties, division.
Where the evidence establishes the fact that both parties have valuable improvements on the controverted land, both having made them in good faith, a division of Said land, so that each may retain the land upon which his improvements are situated, if possible, should be made. (Chickasaw No. 793, Buckholts v. Hopping.)
18. Inclosure wade by different owners, rights of party completing the inclosure and taking possession.
The contostee’s grantor owned improvements on the north and east sides of a tract of 2,000 acres, including the land in controversy, making a partial inclosure. G. owned improvements on the west, C. on the south, leaving a gap of a mile and a half, and some smaller openings. H., the husband of contestant s grantor, closed all of said gaps by fence, put a portion of the land in cultivation, and pastured his cattle on the remainder and held possession thereof for several years. Held, That H., having completed the mclosure, taken possession of the inclosed land, and held it for some years, had the better title as against one who had improvements on two sides but who had not reduced the same to possession. (Choctaw No. 305, Lewis v. Durant.)
19. On public domain, appropriation of.
Where there are improvements on land, but because they are owned by a noncitizen the land is public domain, and a citizen appropriates and takes possession of the improvements without objection from anyone, the improvements become the property of said citizen, and no other citizen is thereafter entitled to take the land in allotment. (Chickasaw No. 943, Barker v. Carter.)
20. Erection of, on land in the possession of another.
The erection of improvements on land in the possession of another citizen, against the protest of the latter, confers on the erector no rights in the land as against the citizen in possession, or one claiming under him. (Chickasaw No. 303, Johnson v. Goldsby.)
21. Additional, made by stepfather of minor heirs inures to their benefit.
Susan Scroggins, after the death of her husband, married L. C. Oliver, and they took possession of the place formerly held by her and her former husband, Scroggins, and placed additional improvements thereon : Held. That said additional improvements inured to the benefit of the minor heirs of the Scroggins estate, and that Oliver did not acquire sufficient title to said premises by reason of being in possession thereof and placing additional improvements thereon to defeat the rights of said heirs to take said land in allotment. (Chickasaw No. 72, con. Oliver v. Scroggins.)
22. Object and purpose of.
The object of improvements is to show that someone is claiming the land, and if they are sufficient to put one on his inquiry, the latter can not acquire rights by a prior filing. (Choctaw No. 565, Moore v. McKinney.)
23. As notice to allottee.
The land in controversy was transferred by one Mrs. Perkins to J. C. Cobb. trustee for the board of trade of the town of Caney, and was surveyed into lots and blocks. The land was not included in the town site of Caney by the government segregation. Cobb transferred to Dulaney. Prior to this time, however, contestant had thereon a barn, cow shed, seed houses, and lots. Dulaney conveyed to contestee, as did Mrs. Perkins, and contestee fenced the land: Held, That the contestee was presumed to be aware at the time she filed upon the land that there were improvements located thereon which belonged to contestant, and that contestant should be awarded the land. (Choctaw No. 1, Turnbull v. Ball.)
24. Sufficiency of, to constitute notice.
The land in controversy was inclosed by fences, though the fencing on three sides inclosed improvements owned by other citizens: Held, The improvements upon the land at the time contestee examined them were of sufficient character to have caused her to make a more thorough investigation as to whether the land was in possession of anyone and as to who was the owner of the improvements. (Creek No. 738, Sneed v. Duff.)
25. Removal of, voluntary stipulation.
Where it does not seem for the best interest of the parties to award contestant a certain isolated 10-acre tract, but he has valuable improvements thereon, the award should be made to contestee if the latter will file a stipulation that contestant may remove his improvements within a reasonable time. (Choctaw No. 454, Mayo v, Payte.)
26. On excessive holdings arc personal property.
Though improvements on lands held for allotment may be considered as an interest in real property, it is otherwise with improvements on lands held after allotments of the owner have been taken, and where he still has the right to sell the improvements, under the ninety days limitation of the act of July 1, 1902 (32 Stats., 041). (Chickasaw No. 230, Hill v. Reynolds.)
27. On proposed town site, effect of resurvey.
In 1890 contestant s husband constructed an improvement on 10-acre tract in suit, the part so improved being a part of a lot in the proposed town site of Choteau. By resurvey of the United States Government the 10 acres in dispute, including the town lot above mentioned, were thrown back into the public domain and were no longer a part of said town site. October 6, 1902, contestce inclosed the entire 10-acre tract with a three-wire fence, excepting therefrom about one-fourth acre covered by the improvements of contestant, who on that day personally notified contestee that he claimed said land: Held, The contestant owned the only improvement on the 10 acres in suit at the date of the ratification of the Cherokee agreement, which provides that the Commission shall not be required to divide land in tracts of less than 10 acres. Contestee is therefore chargeable with full knowledge of the provisions of said agreement. No distinction between improvement on proposed town lot and one on public, domain. Improvement follows the land, and the character of said improvement is not changed from the fact of a town lot on which it is placed becoming public domain. (Cherokee No. 90, Gray v. Lindsey.)
28. Made after contest.
Evidence that improvements have been placed upon land after the controversy arose can have no bearing on the issues of the cause. (Chickasaw No. 197, con. Jacobs v. Townsley.)
Burden of proof to establish ownership. (See BURDEN OF PROOF, par. 3.)
Rights of owner of undivided interest. (See UNDIVIDED INTEREST, par. 1.)
1. As notice of ownership.
The fact that on the Commission s improvement plat a certain tract is marked as belonging to a certain citizen is notice of his claim to one intending to allot the land. (Choctaw No. 054, con. Halsell v. Middleton.) As evidence, conclusivcness. (See SURVEY, pars. 1, 3.)
Presumption of fraud. (See FRAUD, par. 2.)
1. Insane wife; selection by husband.
Under section 70 of the Cherokee agreement a husband is authorized to select an allotment for his insane wife, and it follows that he is authorized to surrender her possessory right to land. (Cherokee No. 830, Heady v. Bob.)
1. Who is.
A person who buys improvements with his eyes wide open, knowing that another than his vendor claims them, and the purchaser buys, expecting to tight for the improvements, he can not be considered an innocent purchaser. (Chickasaw No. 230, Hill v. Reynolds.)
A citizen who has notice of the claim of another citizen before he pays any of the purchase price or puts any improvements on the land is not an innocent purchaser. (Chickasaw No. 547, con. Howard v. Walker.)
1. When witness entitled to.
It is not error for the Commission to fail to provide an interpreter where the witness uses language with as much proficiency as the average person, especially where the witness fails to ask for an interpreter. (Chickasaw No. 400, Stallaby v. Ebisch.)
1. Notice of; sufficiency.
In this case the land in controversy was sold at an intruder sale by a district revenue collector of the Cherokee Nation under the provisions of an act of the Cherokee council, known as senate bill No. 2, and approved by the President January 16, 1902, section 4 of which act provides ” that the revenue collector shall advertise all places or improvements which shall come into his possession as provided in this act in some newspaper of general circulation published in the district wherein the improvements advertised may be located for at least thirty days, or in four consecutive issues, and proceed to sell the same at the time and place advertised to the highest bidder, payment therefor to be made as follows.” The sale in this instance was made twenty-eight days after the date of the first publication: Held, The proper official of the Cherokee Nation sold the premises in question twenty-eight days after the first publication of sale to Hiram Stevens, guardian of the contestee herein; that the act under which he sold required thirty days notice from the date of the first publication. It is evident that proper and legal notice not having been given, no title passed to Hiram Stevens under this sale. (Cherokee 52, con. Kuhn v. Ross.)
Contestee bases title to controverted land by reason of purchase at an intruder sale, under Cherokee law. Notice of sale, as provided by Cherokee law, defective, and contestant retained possession after sale: Held, Sale by Cherokee authorities void and contestant entitled to the laud. (Cherokee No. 27, Ingram v. Tarepin.)