Decision Digest – P – W

Parties

1. At interest in contests.
The only parties at interest in contest matters are the contestant and contestee, and they are the only persons considered when determining the questions at issue in contests. (Choctaw No. 565, Moore v. McKinney.)

Possession

1. When necessary.
The ownership of improvements on the north and east sides of a tract of land, such improvements being erected especially with reference to lands lying north and east of that in controversy, gives no right to the owner thereof unless he exercises acts of possession over the land in controversy. (Choctaw No. 305, Lewis v. Durant.)

2. Coupled with equity in the land.
Where the evidence shows that the contestant was in possession of the land when contestee filed, and that his equities were greater than those of contestee, he should be awarded the land. (Chickasaw No. 86, Wright v. Ilomma.)

3. On behalf of new-born.
Where the minor contestant s father was in possession of land up to January 1, 1905, under a lease from the Creek Nation, and during that lease erected a fence on the land, and after its expiration remained in possession, putting in cultivation three or four acres in one part thereof and using the remainder for a pasture, his possession was lawful, and sufficient to segregate the land on behalf of minor contestant. (Creek No. 832, Porter v. Haikey.)

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Of improvements for more than six years. (See LIMITATION, par. 3.)
Taken after transfer by noncitizen. (See TRANSFER, par. 3.)

Powers of Commission

Control of minor s allotment.
Section 22 of the Cherokee Treaty (32 Stats., 716), is not broad enough to warrant the Commission in interfering with the selection of allotments by guardians for their wards. (Cherokee No. 830, Heady v. Bob.)

Practice

On appeal. (See APPEAL, par. 6.)

Presumptions

Reasonable.
Where the evidence on the point is conflicting, it will be presumed that contestant would not voluntarily exchange 10 acres of cultivated and, which is a portion of the farm on which he is living, together with two houses and an orchard, for less number of acres of raw, uncultivated land located in a pasture. (Creek No. 808, Ponds v. Rentie.)

Date of written instrument. (See WRITTEN INSTRUMENTS, par. 1.)
Fencing of contiguous land by tenant. (See LANDLORD AND TENANT, par. 7.)
As to legitimacy. (See LEGITIMATE BIRTH, par. 1.)

Principal and Agent

Authority of agent. (See AGENT, pars. 2, 3, 4,)

Prior Selection

Of land on which improvements are owned, by another. (See IMPROVEMENTS, par. 12.)

Priority

Of filing. (See SELECTION, par. 3.)

Privileged Communication

Between attorney and client. (See ATTORNEY AND CLIENT, par. 2.)

Public Domain

1. Segregation of.
The first citizen who goes upon land which is public domain and improves it thereby segregates it and is entitled to take it in allotment. (Cherokee No. 1284, Ross v. Loeser.)

2. Abrogation of quarter mile limit law.
After the quarter mile limit law of the Cherokee Nation was abrogated by the act of July 1, 1902 (32 Stat. L., 710), all unimproved land lying within one-quarter mile of a citizen s improvements became public domain. (Cherokee No. 1284, Ross v. Loeser.)

3. Estoppel to claim land to be.
When at the trial of the cause contestee claims land through the owner ship of improvements purchased from another and it appears that he attempted to buy from others improvements sufficient to preclude the land from being public domain, he abandons his claim that the land is public domain, and such a claim need not be further considered. (Chickasaw No. 197, con. Jacobs v. Townsley.)

When improved land is. (See EXCESSIVE HOLDING, pars. 10, 11.)
Lands held by noncitizens. (See NONCITIZEN, par. 2.)

Quarter Mile Limit Law

1. Effect on Commission.
Held: That the “quarter mile limit” law adopted by Choctaw council has no binding force on the action of the Commission in the allotment of the lands of said nation. (Choctaw No. 119, Garland v. McDaniel.)
Abrogated by treaty. ( See TRIBAL LAWS, par. 4. )

Record

1. Of bill of sale, necessity for.
While provision is made for the recording of bills of sale in Indian Territory, such provision is not mandatory, and the recording of such an instrument is not requisite to its validity. (Choctaw No. G54, Halsell v. Middleton.)

Records

1. Of lease, constructive notice.
The record of a lease is such notice that a party can not well say that he could not have discovered the existence of the lease by the exercise of reasonable diligence. (Chickasaw No. 10G9, Kaney v. Kemp.)

2. Of Commission, constructive notice.
A notation upon the records of the Commission, made by request of a citizen, that such citizen is claiming certain described lands, is notice to all the world. (Chickasaw No. 547, con. Howard v. Walker.)

3. Office copy of notice.
The office copy of notices sent to litigants and their attorneys are essential parts of the record. (Chickasaw No. 1383, Hassell v. Quincy.)

4. Of the Commission.
The Commission will take judicial notice of the records of its own office. (Chickasaw No. 1300, Alexander v. Bean.)

Rhearing

1. For newly discovered evidence, when granted.
Where a motion for a rehearing on the ground of newly discovered evidence is supported only by the affidavit of the moving party, where there are no affidavits of the witnesses who it is claimed will give new evidence, and no attempt to show that the alleged evidence could not by the exercise of due diligence have been discovered in time for the hearing, the motion will be denied. (Choctaw No. 173, con. Wadley v. Barbour.) 2. When granted.

A rehearing will not be granted to admit the testimony of certain wit nesses where it does not appear that their evidence is newly discovered, but does appear that they were absent from the former hearing for reasons which would have justified a continuance to procure their testimony, no continuance having been asked for by the party now moving for a new trial. (Choctaw No. 668, Agent v. Rose.)

3. Same.
When a motion for rehearing is not grounded on a question of law or fact that was not duly considered when the case was first decided, or when it does not appear that a reconsideration would bring about a different result, the motion should be denied. (Creek No. 786, Barnwell v. Smith.)

4. When granted, after decision of United States court.
A contest case should be reopened and the cause reheard when, after final decision of the cause, a suit in the United States court between the same parties, involving the same issues, has been decided contrary to the decision of the Department by the United States circuit court of appeals. (Chicka-saw No. 187, Watkins v. Gooding.)

5. For newly discovered evidence, when motion must he filed.
There is no limitation as to the time within which a motion for a rehearing, based on newly discovered evidence, must be filed. (Cherokee No. 597, Whitmire v. Payne.)
When granted, newly discovered evidence. (See NEWLY DISCOVERED EVIDENCE, par. 3.)

Reinstatement

1. Motion for, discretion of Commissioner.
A cause having been lawfully dismissed for want of prosecution, a motion to reinstate the same is addressed to the sound discretion of the Commissioner, and in the absence of a showing of an abuse of such discretion an order granting or denying such motion shall not be disturbed. (Choctaw No. 552, Colbert v. Lewis.)

RELEASE Unacknowledged, competency as evidence. (See EVIDENCE, par. 3.)

Relinquishment

1. By administrator, when approved.
A relinquishment made by an administrator of an estate, of an allotment selected on behalf of his intestate will, when confirmed and approved by the court having jurisdiction of the said estate, be accepted by the Department. (Creek No. 605, Sapulpa v. Frank.)

2. Made after contest commenced.
A relinquishment signed by contestee after the institution of the con test as part of an unsuccessful attempt to compromise and reciting no consideration is not sufficient to deprive contestee of her rights in the land when she does not waive her claim in the presence of the Commission. (Chickasaw No. 1202, Byers v. Carter.)

3. Attempted, effect on right of party.
An attempted relinquishment by a party not approved by the Commission, where the party does not waive his right to a hearing of the contest, does not estop him from having his rights ascertained in due course. (Chickasaw No. 1067, con. Potts v. Kelly.)

4. When allowed, after appeal.
A contestee, in straitened circumstances, whose contest case has been delayed for six years, pending the determination of contestant s citizenship, and who swears that he believes that contestant had improvements on the land sufficient to segregate the same, should be allowed to relinquish his selection, even after appeal of the contest case. (Creek No. 297, Taborn v. Nero.)

5. Written, proof of execution.
The admission of contestant that he signed a paper, introduced in evidence as a relinquishment to contestee, is sufficient proof of its execution. (Chickasaw No. 1202, Byers v. Carter.)

6. Construction of.
A written relinquishment signed by contestant commenced: “I hereby agree to relinquish,” etc. It contained no condition except in the present tense. Held, That it was not merely a promise to relinquish in the future, but a present agreement. (Chickasaw No. 1202, Byers v. Carter.)

7. Reservation of improvements.
The fact that in a written relinquishment of land reservation is made by the contestant of the fences on the land does not vitiate the instrument as a relinquishment of the land. (Chickasaw No. 1202, Byers v. Carter.) By applicant after appeal. (See APPEAL, pars. 7, 8, 9.)
REMOVAL Of improvements, stipulation for. (See IMPROVEMENTS, par. 25.)
RESCISSION Of contract, burden of proof. (See CONTRACT, pars. 1, 2, 3.)

Res Judicata

1. Identity of cause of action.
A judgment in an action in the United States court for the recovery of possession of the land in controversy is not res judicata in a contest case before the Commissioner, for the reason that the causes of action in the two cases are not the same. (Chickasaw No. 274, Alexander v. Wright; Chickasaw No. 334, Kemp v. Turnbull.)

2. Identity of parties.
Where the parties to a prior suit in the United States court are not the same as those in a contest case, a judgment in the former can not he res judicata in the contest case. (Chickasaw No. 274, Alexander v. Wright.)

Review

1. Motion for, when granted.
Motions for review are not granted simply on the assertion or assumption that a reexamination of the evidence will bring about a different result. (Chickasaw No. 334, Kemp v. Turnbull.)

RIGHT TO ALLOT What constitutes. (See CHICKASAW LAND, par. 1.)
RIVER As part of an inclosure. (See INCLOSURE, par. 1.)

Rules of Practice

1. Motion to reopen.
The rules of practice do not provide for motions to reopen cases. The same relief is obtained by motions for rehearing or review. (Creek No. 203, Smith v. Cully.)

2. Creek rule 27.
The rule limiting the time within which motions for review may be filed will be strictly enforced in contest cases. (Creek No. 203, Smith v. Cully.)

3. Same, what required.
The rules of practice governing allotment contest matters in the Creek Nation provide that motions for rehearing and review must be filed within ten days from notice of decision. The motion not having been filed in time, and as it is defective in other particulars, must be dismissed. Motions for rehearings are allowed in accordance with legal principles applicable to motions for new trials at law, and this motion does not meet such requirements. The affidavit which accompanies the motion is not supported by other affidavits, and it is not shown when the alleged discovery of new evidence was made and that such discovery was acted upon without unnecessary delay. (Creek No. 759, Burnette v. Berry.)
Rule 25, substantial compliance. (See APPEAL, par. 5.)
Same, effect of noncompliance. (See APPEAL, par. 4; SERVICE, par. 3.)

Rules and Regulations

Of Department, dated October 7, 1898. (See SELECTION, par. 2.)

Segregation

Improvements necessary for. (See IMPROVEMENTS, pars. 3, 4, 5, 6, 8, 9, 10.)

Selection

1. Duty of applicant.
It is the duty of one applying to allot lands upon which there are improvements to ascertain the ownership of improvements before applying for the land. (Choctaw No. 311, Pool v. Jackson.)

2. Fraud or mistake in making, presumption.
In view of the rules and regulations of the Department promulgated October 7, 1898, providing that an applicant for land must swear that he has personally viewed the land he applied for, it must be presumed there w y as either fraud or mistake in the making of contestee’s selection of lands which he admits that he had never examined. (Cherokee No. 361. con. Kerr v. Shell.)

3. Rights obtained by a prior applicant.
A citizen can not acquire the right to land in any of the nations of the Five Civilized Tribes awfully held by another citizen merely by going to the allotment office and making selection thereof. (Chickasaw 197, Jacobs v. Townsley.)

Service

1. Defect in, who can take advantage of.
No one but the contestee can take advantage of an objection that the service on a minor contestee was insufficient. (Chickasaw No. 169, Ingram v. Wiitsey.)

2. Of summons, duty of contestant.
It is the duty of contestant to serve, or cause to be served, the notice of contest and summons on the contestee. (Choctaw No. 552, Coibert v. Lewis.)

3. Of notice of decision.
In order to set running the limitation within which a party must appeal from a decision, service of a notice of that decision must be made on the attorney of record for the party, and service on the attorney who appears of record before the Commissioner to the Five Civilized Tribes is not sufficient when it appears that he severed his connection with the case prior to the giving of the notice. (Chickasaw No. 16, Hays v. Brashears.)

4. Of brief, what is sufficient.
The service of a brief on one or several of the attorneys of record is service on all and also on the party they represent. (Chickasaw No. 197, con. Jacobs v. Townsley.)

Of motion, defect in, waiver. (See APPEARANCE, par. 2.)

Sheriff

1. Purchasing at a sale conducted by himself.
While there may have been no law in the Choctaw Nation forbidding a sheriff to bid at an execution sale conducted by himself, a proper regard for official duty would prevent a man from so doing, and such a sale will be closely scrutinized for fraud. (Choctaw No. 357, Perry v. McMurtry.)

Statutes

1. Construction of, Creek agreement.
Section 6 of the Creek agreement, approved March 1, 1901 (31 Stit., 861), is intended to place the allotments mentioned therein on the same footing as if they had been made under said agreement. It is simply a remedial provision for the protection of allotments, the validity of which might otherwise have been questioned. (Creek No. 722. Woodward v. Wiley.)

2. Construction of Atoka agreement.
Section 29 of the act of June 28, 1898 (30 Stat, 495), does not operate to confer citizenship rights upon Chickasaw freedmen, or to resurrect occupancy rights of such persons long since deceased, or to revive such rights to tracts of land theretofore abandoned. (Following Trahern v. Russell, Chickasaw No. 9; Chickasaw No. 838, Trahern v. Russell.)

Subpcena

1. Duces tccum, when granted.
The Commission is not required to issue a subpoena duces tecum where the party complaining failed to request such a subpoena at the hearing. (Chickasaw No. 460, Stallaby v. Ebisch.)

Survey

1. Public, conclusive character of.
A survey made by authority of law, such as an improvement plat, is a matter of record and evidence of the highest character ; a private survey will not be accepted as sufficient to warrant a conclusion that the official survey is incorrect. (Choctaw No. 778, Jones v. Betts.)

2. Changing line of town site, effect of.
It never was the intention, nor would it be equitable to allow a survey line to change a lawful holding into an unlawful one, thereby transferring valuable improvements of one person to another without any compensation at all, or any prior right of the recipient to claim it. Thus where one citizen had, without objection, put valuable improvements on land in a town site, but subsequent survey showed the line to be without the town site, the benefit of the improvements will not be lost to the first citizen. (Cherokee No. 1591, La Hay v. Denton.)

3. Public, improvement plat, as evidence.
The rule that the returns of the surveyor-general and the record of a survey made under his direction are evidence of the highest character and that a private survey will not be accepted as sufficient to warrant a conclusion that the official survey is wrong applies to improvement plats. (Choctaw No, C68, Agent v. Rose.)

Tender

1. Keeping good, necessity of.
N., the citizen owner of improvements, made a written bill of sale to L., which recites that the consideration, $150, was due one-half on January 1, 1903, and one-half on January 1, 1904. On December 2, 1902, N. made another bill of sale to M., contestant s remote grantor. On January 1, 1903, L. made a good tender of the first half of the purchase price, but it was refused by N. No further tender was made on either January 1, 1904, or at the trial. During all the time one S., a noncitizen, was in possession of the land as tenant, first under N., until the latter s sale to M., subsequent to which time the latter and his vendee received the rents : Held, That L. and his vendee, having failed to keep the tender good, they took nothing by the first bill of sale, and contestant was entitled to the laud. (Chickasaw No. 731, Dunnigan v. Wilburn.)

Title

Alienation by gift. (See GIFT, par. 1.)

Town Lots

(See IMPROVEMENTS, par. 27.)

Townsite

Abandonment of; reversion of title. (See ABANDONMENT, par. G.)
Change of lines; resurvcy. (See SURVEY, par. 2.)

Transfer

1. Evidence of.
The fact that a landlord who, it is claimed, has transferred the reversion of the land keeps in his possession the lease contracts with the tenants in possession is entitled to weight as evidence that no transfer was ever made. (Choctaw No. 120, Wilson v. Simmons.)

2. Made after institution of contest.
A bill of sale executed after the institution of a contest is not binding on the Commission. (Chickasaw No. 197, con. Jacobs v. Townsley.)

3. By noncitizen.
A transfer by a noncitizen of improvements on tribal lands conveys, of itself, no interest in the improvements or land unless possession thereof is taken by the citizen vendee, in which case the citizen obtains the right to allot the land by virtue of such possession. (Choctaw No. 343, Morris v. Walker.)

4. Oral, validity of.
A verbal contract for the transfer of improvements is valid and binding as between the parties thereto, although not notice to the world. (Choc taw No. 311, Pool v. Jackson.)

5. By widow of intestate; effect on rights of heirs.
A husband having died intestate and no settlement of his estate having been made prior to a conveyance by the widow of the same, and the letters of administration not having issued, the widow having only a life estate, or dower right, to convey her deed, could not pass a fee-simple title to the land attempted to be conveyed to the exclusion of other heirs. (Cherokee No. 4, Williams v. Taylor.)

Oral. (See ORAL TRANSFER, pars. 1, 2.)
Of improvements, by corporation. (See CORPORATION, par. 1.)
By excessive holder. (See EXCESSIVE HOLDER, pars. 2, 3, 5, G.)
By applicant, pending final determination. (See APPLICANT, pars. 1, 2, 3, 4.)
By a citizen to noncitizen, effect of. (See ABANDONMENT, par. 3.)
By tenant, effect of. (See LANDLORD AND TENANT, pars. 9, 10, 11.)

Trespass

1. What is.
One who takes possession of land not in the actual possession or improved by others and stays upon the land, making improvements, with the acquiescense of others who later make claim to the land, is not a trespasser. (Choctaw No. 305, Lewis v. Durant.)

Tribal Laws

1. Application of.
Whether the Commission should, in determining whether a party had abandoned land in the Chickasaw Nation, take into consideration the pro visions of the Chickasaw laws relating to that subject Query? (Chicka saw No. 334, Kemp v. Turnbull.)

2. Same.
Section 24 of the act of July 1, 1902 (32 Stats., 641), confers exclusive jurisdiction on the Commission to the Five Civilized Tribes to determine all matters relating to allotments, and it is not bound by the laws of the Chickasaw Nation, nor required to notice them in making allotments (Chickasaw No. 236, Hill v. Reynolds.)

3. Recognition by Commissioner.
While the Commissioner should not recognize tribal laws as controlling, he has the right to consider the usages and customs of the citizens of the Chickasaw Nation. (Chickasaw No. 701, Gaines v. Daugherty.)

4. Cherokee laws, abrogated by treaty.
The quarter-mile limit law of the Cherokee Nation (Compiled Laws of the Cherokee Nation of 1892, 37(5) was abrogated by the passage of the act of July 1, 1902. (32 Stats., 710.) (Cherokee No. 205, con. Reese v. Reese; Cherokee No. 251, Audoe v. Jordan.)

Udivided Interests

1. Rights of owner of.
Where one citizen owns in severally improvements on 3 acres of a 10-acre tract of land and an undivided one-third interest in 6.27 acres of the remainder of the tract, he should be regarded, for purposes of allotment, as owning 5.09 acres, and being the owner of the major portion, is entitled to take the laud in allotment. (Chickasaw No. 29, Askew v. Sharp.)

Usage and Customs

Of tribe. (See TRIBAL LAWS, par. 3.)

Utility

Of land not to be considered in contest cases. (See ALLOTMENT, par. 5.)

Value of Land

Consideration to be given to. (See DIVISION, par. 3.)

Waiver

Of conditions of escrow. (See ESCROW, par. 1; ELECTION OF REMEDIES, par. 1.)

Will

1. Acquiescence in, acceptance of benefits under.
The nonacceptance or nonrejection of money arising from the sale of a testate s property, in accordance with the terms of her will, which money is placed by the contestee to contestant s credit in a bank outside the Indian Territory, does not amount to an ncceptaiue of the provisions of the will by contestant. Whether an acceptance of the money would have vested in the contestee title to land owned by contestant, but attempted to be devised to contestee in the will Query? (Chickasaw No. 187, Watkins v. Gooding.)

Witnesses

1. When disqualified.
Persons convicted of any of the offenses mentioned in section 2859 of Mansfield s Digest are disqualified as witnesses before the commissioner, and it is error to admit or consider their testimony. (Creek No. 719, Hawkins v. Hawkins; also Chickasaw No. 1300, Alexander v. Bean.)

2. Disqualification, credibility.
The mere fact that a witness had been arrested does not disqualify him, nor does it tend to discredit him, there being no showing that there was any conviction. (Chickasaw No. 197, con. Jacobs v. Townsley.)

3. Credibility of.
The fact that a person has served a term in the penitentiary for the offense of disposing of mortgaged property, while insufficient to disqualify him as a witness under section 2859 of Mansfield s Digest, is, nevertheless, a fact which goes to his credibility as a witness, and in a close case would turn the scales against the testimony of such a person. (Choctaw No. 343, Morris v. Walker.)

4. Same.
The evidence of a witness whose testimony is vacillating, contradictory, and inconsistent is not entitled to much weight. (Chickasaw No. 701, Games v. Daugherty.)

5. When disqualified; time of taking objection.
It is too late on appeal to take an objection to the competence of testimony on the ground of a witness’s disqualification. (Creek No. 719, Hawkins v. Hawkins.)

6. Omission of party to call.
The omission of a party to call a witness who might have been called by the other party is no ground for the presumption that the testimony of the witness would have been unfavorable. (Choctaw No. 654, Halsell v. Middleton.)

Interpreter for. (See INTERPRETER, par. 1.)
To bill of sale, necessity for. (See BILL or SALE, par. 1.)

Written Instruments

1. Date of, presumption.
It is the presumption of law that instruments bear the date of their execution. (Chickasaw No. 74, Oliver v. Chandler.)

 

 


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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