Decision Digest – J – O

Judicial Notice

1. Of Department records. (See RECORDS, par. 4.)

Judgment

1. Of United States court, effect of.
Although judgments of the United States court in Indian Territory are not binding upon the Commission, the fact that a judgment was rendered in such a court by agreement of the parties is confirmatory evidence of the facts upon which the judgment was predicated. (Cherokee No. 26, Barlow v. Brown.)

2. Same.
Judgment of United States court not binding on contestant where contestant was not made a party to the suit in said court. (Creek No. 131, Beams v. Taylor.)

3. When void; want of proper service.
Irregularity of service may be “of such a nature as to justify the court in setting aside the judgment, if it appears that on account of the irregularity the rights of the contestee have been prejudiced. But jurisdiction having been acquired, the judgment is not void, and will stand unless taken advantage of by the proper parties. (Chickasaw No. 169, Ingram v. Wiltsey.)

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4. As evidence.
While the Commission is not bound by any action of the court, never the less judgments in other courts between the same parties are evidence that should be considered by the Commission. (Cherokee No. 597, Whitmire v. Payne.)
Valid, does not necessarily support execution sale. (See EXECUTION SALE, par. 1.)
Motion to vacate. (See APPEAL, pars. 20, 21.)
Of court, effect as res judicata. (See RES JUDICATA, pars. 1, 2.)

Jurisdiction

1. Of Commission; exclusive.
Under section 24 of the act of July 1, 1902 (32 Stats., 641), the Commis sion has exclusive jurisdiction to determine the rights of parties in the mat ter of allotment contests, and is not bound by a prior court judgment, even though the latter was rendered in a case between the same parties. (Chick asaw No. 274, Alexander v. Wright. Chickasaw No. 547, con. Howard v. Walker.)

Of Commission. (See TRIBAL LAWS, par. 2.)
Of appeal filed out of time. (See APPEAL, par. 4.)

Laches

1. What constitutes.
Contestant had the land in controversy leased to a tenant until January 1, 1903; on December 23, 1902, contestee took possession under a claim of title; on January 1C, 1903, contestant wrote the Commission that he claimed the land, but was informed that he could not file on it until the Land Office opened. On April 30, 1003, he again wrote and stated that he wished to contest anyone who filed on the land : Held, That it was contestant s privilege to wait and bring his case before the Commission, and he could not be said to have slept on his rights. (Chickasaw No. 547, con. Howard v. Walker.)

2. What is, to amount to abandonment.
When a citizen, who has never been in possession of land, and claims ownership in the improvements only as the heir of another, sleeps on his rights for seven years, and in the meantime allows the improvements to decay, his laches is such as to amount to abandonment. (Choctaw No. 172, con. Wadley v. Barbour.)

Landlord and Tenant

1. What necessary to create relation.
Evidence that a contract was made by noncitizen with a citizen by which the former erected for the latter a cellar worth $65, which was to pay for his right to occupy the land until the citizen demanded more, it being testified that the $65 was paid for the citizen s ” good will,” and the noncitizen testified that he owned the improvements, is insufficient to establish the relation of landlord and tenant. (Choctaw No. 331, Nash v. Locke.)

2. Establishment of relation.
The payment of $20 per year for four years next preceding allotment is sufficient to establish the relation of landlord and tenant. (Chickasaw No. 726, Leslie v. Ebisch.)

3. Creation of relation.
The relation of landlord and tenant does not depend on the intention of the tenant, nor is a contract to pay the rent always necessary to create the relation of landlord and tenant between the grantee and the lessee of the grantor, and in such cases no attornment is necessary. (Chickasaw No. 639, Sullivan v. Melville.)

4. Same.
An agreement between a noncitizen and a citizen that the former should put improvements upon tribal lands and occupy them under the latter, and that the former was not to pay any rent, but should hold the land for the citizen until the latter allotted the land, when she was to have the improvements, was sufficient to create the relation of landlord and tenant between the citizen and the noncitizen. (Chickasaw No. 726, Leslie v. Ebisch.)

5. Same.
The implied relation of landlord and tenant does not depend on the intention of the tenant; the conveyance of the reversion creates the relation of landlord and tenant between the vendee and the lessee of the grantor. (Cherokee No. 527, con. Grimmett v. Uawson.)

6. Effect of relation.
The fact that contestee’s grantor paid rent to contestant s grantor for the occupancy of the land in controversy is fatal to the contention that contestee’s grantor was then the owner of the premises. (Choctaw No. 343, Morris v. Walker.)

7. Fencing of contiguous land by tenant, presumption.
When a noncitizen tenant fences land contiguous to that he holds under the tenancy, there is a presumption that he does it on behalf of his citizen landlord. (Chickasaw No. 639, Sullivan v. Melville.)

8. Transfer by tenant.
Contestant purchased improvements from a citizen, and a noncitizen paid the $600 for contestant. Noncitizen took possession as tenant of contestant to get his money back. Contestant refused to give noncitizen a written lease for a certain number of years as he had agreed, whereupon the noncitizen in possession sold to contestee, who took actual possession and filed upon the land with the full knowledge of circumstances: Held, That contestee acquired no title to improvements located on land in controversy. (Choctaw No. 7, Neal v. Ward.)

9. Transfer by noncitizen tenant, effect of.
A transfer by a noncitizen tenant, holding lands under a lease contract with a citizen, operates not to pass any title to the vendee, but to substitute the latter as the tenant of the original landlord. (Chickasaw No. 1392, Finley v. Self.)

10. Same.
Alvin Neal, husband of the contestant, was the owner of the improvements and entered into a contract with his uncle, one Moore, a noncitizen, whereby Moore became his tenant. Moore alleging that Neal had failed to carry out his contract, transferred improvements to contestee and contestee claims through no other source: Held, That no title passed to contestee and land should be awarded to contestant. (Choctaw No. 2, Neal v. Ward.)

11. Same.
The most that a purported transfer by a tenant to a third party can accomplish is to subrogate the vendee to the tenant s rights under the lease. (Cherokee No. 629, con. Dougherty v. Payne.)

12. Estoppel of tenant to deny landlord s title.
One who makes a bill of sale to another citizen and becomes the latter s tenant can not deny his landlord s title, much less set up a claim and sell the premises to another. (Cherokee No. 629, con. Daugherty v. Miller.)

13. Same.
It is a well-recognized rule at the present day that a tenant can not dispute his landlord s title. The fact that the lease was void will not prevent the estoppel arising. (Choctaw No. 119, Garland v. McDaniel.)

14. Attornment of tenant to third party.
A tenant in possession of land under a rental contract can not, by attorning to a third party, affect his landlord s title or prejudice his rights. (Chickasaw No. 274, Alexander v. Wright.)

Lease

1. Written instrument construed to be.
C., a citizen, was in possession of land under W., another citizen. W. owed C. a debt of $46O; under these circumstances W. executed the follow ing instrument to C.:
“I hereby agree to turn over all the land and improvements on the north side of section line running through the Robert Wright farm, known as the Win. Crites farm, for the consideration of the sum of $460 to Wm. Crites, and that the said Wm. Crites agrees to put a cross fence on the section line running east and west on or before the 15th day of March 1901; all of said property being in Gaines Co., Choctaw Nation, and near the village of Ola, Ind. Ter.”

Held, That this instrument did not constitute C. the agent of W., but that it was a lease which created the relationship of landlord and tenant between them. (Choctaw No. 424, Pebworth v. Wright.)

LEGAL SUBDIVISIONS. (See IMPROVEMENTS, par. 6.)

Legitimate Birth

1. Presumption of.
A showing is not sufficient to designate one as of illegitimate birth when no specific part of a two years absence of his supposed father is designated within which he was born. The presumption of law is that one born in wedlock is of legitimate birth, and to overthrow this presumption it is nec essary to show affirmatively that he was born more than ten months after the departure of his mother s husband. (Choctaw No. 127, Jennings v. Lester.)

Limitation

1. On institution of contests.
The limitation as to the time when a contest may be instituted does not apply where one citizen filed on land legally in the possession of another. (Creek No. 700, McIntosh v. Ballard; Creek No. 722, Woodward v. Wiley; Chickasaw No. 1324, Alexander v. Stidham.)

2. Creek rule No. 2. how applied.
The rule laid down by the Department in Garrett v. Johnson, Creek No. 1G5, that the ninety-day limitation prescribed in Creek rule No. 2 did not apply to a citizen who is lawfully in possession of land at the time contestee filed, does not protect one who was not in the legal possession of the land when contestee selected the same. (Creek No. 759, Burnette v. Berry.)

3. Statute of, possession of improvements.
Whether a finding that, because each party had been in possession of improvements on the same land for more than six years, the statute of limitation bad run so as to render it unnecessary to consider the relative age of the improvements is correct Query ? (Choctaw No. 883, Huddleston v. Gilmore.)

Loco Parents

1. Selection for minor by person in charge.
A child, when quite young, at the request of its father on his deathbed, was placed in the care and under the control of another, who took said child to his own home, raised, educated, and treated it in all respects as his own child and a member of his own family, but did not legally adopt it or have himself appointed its legal guardian until after the time when certain lands, which were being held by him for said child, had been filed upon by another: Held, That the laud was properly selected for the child by the person having it in charge, and by holding it for the child he did not become an excessive holder. This child, under these conditions, was a member of the family. (Creek No. 780, Barwell v. Smith.)

Minors

1. Representative of.
It is the duty, under section 70 of the act of July 1, 1902 (32 Stats., 041), for the father, mother, guardian, or curator, “in the order named,” to select allotments for minors, and it necessarily follows that it is the duty of the representative who makes the selection to defend, for and on behalf of the minor, any contest proceedings. (Chickasaw No. 109, Ingram v. Wiltsey.)

2. Rights of.
The irregular conduct of a minor s parent, who is without business experience, in dealing with laud other than that in controversy should not be allowed to prejudice the rights of the minor in the laud in controversy. (Chickasaw No. 104, Lane v. Apala.)

3. Services of.
The services of a minor applied on lands in the possession of his father do not, of themselves, give the minor any claim to the land as against the father, who is entitled to the services of his minor children. (Chickasaw No. 9, Trahern v. Russell.)

4. Estate of; control of grandfather over.
A grandfather is not, unless he is duly appointed the legal guardian of his minor grandson, authorized to control the allotment right of the latter. lie has no power or control over the estate, real or personal, of such minor. (Cherokee No. 830, Heady v. Bob.)

Character of improvements for. (See IMPROVEMENTS, pars. 8, 9, 10.)
Authority of guardian to sell personal property. (See GUARDIAN, par. 1.)

Mississippi Choctaw

1. Rights of.
The conditional character of the right of a Mississippi Choctaw under section 44 of the act of July 1, 1902 (32 Stats., 041), will not prevent him from prevailing in a contest case. The said matter will remain open, the qualification noted on the allotment certificate, and the land awarded to him, subject to the condition that he thereafter establish his status under said section 44. (Chickasaw No. 1202, Byers v. Carter.)

Mistake

In selection, effect of. (See ABANDONMENT, par. 5.)

Mortgage

1. Evidence required to show deed to be.
The fact that the consideration for an instrument was the assumption of past debts of the grantor is no evidence that the instrument was intended to be a mortgage rather than a deed. (Chickasaw No. 221, Kemp v. Reichert.)

2. Same.
In order that an instrument, which is on its face a deed, may be found in fact to be a mortgage, the evidence to that effect must be clear and convincing. (Chickasaw No. 221, Kemp v. Reichert.)

Motions

1. Must be filed within time.
One who does not appeal, but files a motion for review out of time, can not be heard to complain if the Department holds the decision below final. (Creek No. 203, Smith v. Cully.)

2. To reopen, must be in conformity with rule 21 of Rules of Practice.
Motion to reopen properly denied when not accompanied by an affidavit of the party filing same to the effect that said motion is made in good faith and not for the purpose of delay, as is provided for in rule 21 of the Rules of Practice in Choctaw, Chickasaw, and Cherokee allotment contest cases. (Chickasaw No. 72, con. Oliver v. Scroggins.)

For rehearing; when granted. (See REHEAKING, pars. 1, 2, 3, 4.)
For rehearing; when to he filed. (See REHEARING, par. f>.)
For rehearing and review. (See APPEALS, pars. 18, 19, 20, 22.)
For review. (See APPEAL, pars. 17, 18.)
For review; when granted. (See REVIEW, par. 1.)
For rehearing; order denying not appealable. (See APPEAL, pars. 18, 10, 20, 22.)
For reinstatement; discretion of Commissioner. (See REINSTATEMENT, par. 1.)
For dismissal of appeal, how verified. (See APPEAL, par. 11.)
To vacate judgment; appealable. (See APPEAL, par. 21.)

Nemo Est Haeres Viventis

1. Application of maxim. (See HEIRS, par. 1.)

New Horn

1. Sufficiency of possession on behalf of. (See POSSESSION, par 3.)

Newly Discovered Evidence

1. What is.
Newly discovered evidence is such evidence as did not, at the time of the hearing, rest in the bosom of the party presenting it and could not have been discovered by him at that time with the exercise of due diligence. (Creek No. 3GO, Gentry v. Graves.)

2. Same.
Newly discovered evidence is that not resting at the time of the trial in the bosom of the party presenting it and which could not have been discovered by him at that time with the exercise of due diligence. It must also be such evidence as will make a prima facie case for the party offering it. (Cherokee No. 597, Whitmire v. Payne.)

3. Same, to warrant a rehearing.
Newly discovered evidence is such evidence as did not rest in the bosom of the party presenting it at the time of the hearing and could not have been discovered by him at that time by the exercise of due diligence. It must also be such that, if introduced and not rebutted, it would be sufficient to make out a prima facie case for the party introducing it. (Chickasaw No. 1009, Kaney v. Kemp.)

Ninety-eight Meridian

How lands affected by changing of. (See CHICKASAW LANDS, par. 1.)

Noncitizen

1. Right to convey.
As a noncitizen can have no title to improvements on tribal lands, he can convey no title. (Chickasaw No. 256, Wolfe v. Shoemaker; Chickasaw No. 440, Runton v. Merryinan; Chickasaw No. 72G, Leslie v. Ebisch; Chicka saw No. 701, Guinea v. Daugherty ; Creek No. 700, Mclntosh v. Ballard.)

2. Rights of, transfer by.
A noncitizen has no right to hold or transfer improvements on tribal lands, and where noncitizens are in possession of such lands in their own right, the land is public domain, subject to allotment by the citizen who first makes application therefor. (Choctaw No. 120, Folsom v. Hoi ton.)

3. Transfer by, when accompanied by delivery of possession.
A noncitizen entered upon and improved a part of the public domain by permission of a citizen, who stated that he would allot same, provided the grade was satisfactory. The noncitizen sold his improvements March 1, 1903, and remained in possession as tenant. The citizen transferred all his right, title, and interest in and to the tract without consideration:

Held, That the citizen had no interest in the improvements, and that the sale by the noncitizcn and the delivery of possession to contestant prior to filing of contestee vested title in contestant. (Choctaw No. 319, Gilmore v. Story.)

4. Segregation by.
A noncitizen can not, by putting improvements upon tribal lands, segregate them for his own benefit. (Chickasaw No. 639, Sullivan v. Melville.)

5. Rights of.
The occupancy by a noncitizen of lands of the Five Civilized Tribes gives him no title thereto or interest therein. (Chickasaw No. 9, Trahern v. Russell.)

6. Same.
Under the peculiar conditions obtaining in the Five Civilized Tribes a noncitizen could obtain the right of occupancy and ownership of improvements in such tribe. (Chickasaw No. 221, Kemp v. Reichert.)

7. Rights of, transfer by.
Under the peculiar conditions obtaining in the Five Civilized Tribes a noncitizen could obtain the right of occupancy and ownership of improvements in such tribe. He could therefore dispose of them under the same conditions and circumstances as could a citizen of the nation. (Choctaw No. 311, Pool v. Jackson.)

8. Validity of sale by, presumption.
When a noncitizen made a sale within the time limited in section 4 of the Curtis Act, it will be presumed that he acted within the law, and that he did not come within the terms of the proviso to said section. (Cherokee No. 52, con. Kuln v. Ross.)
Transfer by. (See TRANSFER, par. 3.)

Notice

1. Of intruder sale.
Notice provided by Cherokee law of intruder sales must be complied with in order that sales be legal. (Cherokee No. 52, con. Kuhn v. Ross.)

2. To occupant before filing, who entitled to.
Only an occupant lawfully in possession of no more land than could legally be selected by himself and for members of his family is entitled to notice of another s filing. (Creek No. 759, Burnette v. Berry.)

3. Of decision, date, and date of service.
Contestee’s attorney, to support his contention that his appeal was filed in time, exhibited a copy of notice sent to him, which appeared to be dated April 15, 1905, though the figure 5 appeared to be written over an erasure. The office copy of the notice showed the date to be April 10. The records showed that it had been mailed April 10, and the registry receipt, signed by contestee’s attorney, showed it to have been received April 10. The appeal was filed May 13. Held, That in order to excuse the delay in filing an appeal it was necessary for contestee to show that the notice was dated on the 15th by authority of the Commission, and that it was not delivered to contestee’s attorney before the latter date. (Chickasaw No. 1383, Has-sell v. Quincy. )

Constructive, records of Commission. (See RECORDS, par. 2.)
Constructive, by records. (See RECORDS, par. 1.)
Office copy of, part of record. (See RECORDS, par. 3.)
To excessive holder, necessity of. (See EXCESSIVE HOLDING, pars. 4, 5.)
Improvement plat as. (See IMPROVEMENT PLAT, par. 1.)

Objection

1. To evidence deemed abandoned.
The contestant having objected to a certain written instrument on the ground that it was not acknowledged, will be deemed to have abandoned the objection when, after being challenged by contestee’s counsel in a brief to point out a statute requiring acknowledgment, he files a reply brief which fails to indicate such a statute. (Chickasaw No. 1202, Byers v Carter.)

Oral Transfer

1. Of an interest in land.
Under the statutes of Arkansas, in force in the Indian Territory, an oral transfer is insufficient to convey any interest in land. Withdrawn by sub sequent letter of Assistant Secretary Ryan on March 6, 1906. (I. T. D., 3968-1906.)

2. When sufficient.
As between members of the same family a verbal contract or understand ing as to the ownership of improvements is uniformly held good. (Chicka-saw No. 1069, Kaney v. Kemp.)
Validity of. (See TRANSFER, par. 4.)

Orphans

1. What is, under Chickasaw laws.
The Chickasaw law authorized a county judge to appoint guardians for “orphans” that were not of age. Held, That the word “orphan” may be construed to mean minors having but one parent living. (Chickasaw No. 286, Hill v. Reynolds.)

Parol Evidence To vary terms of written contract. ( See CONTRACT, par. 7 ; deed, par. 2.)


Collection:
United States. Commission to the Five Civilized Tribes. Laws, Decisions and Regulations Affecting the work of the Commissioners to Five Civilized Tribes, 1893-1906. Washington: Government Printing Office, 1906.

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