Perryman v. Woodward , 37 Okla. 792 ( 1912 )

ON REHEARING. Three grounds for reversal are urged in the petition for rehearing in this case. It is urged that the case must be reversed because the order of the probate court vesting the improvements on the lot in controversy in the widow of Squire Saunders was not received in evidence at the hearing before the master. The report of the master shows that the order was offered in evidence, but excluded by him. The order, however, is set forth at length in the report, and was considered by the court in passing upon the exceptions to the master's report. The record with reference to the order shows the following:

"By the Master: Case closed, with exception of a certified copy of the order in probate case of the estate of Squire Saunders, which it is agreed by Judge Thomas shall be introduced subject to his objection when he has seen it, and that made closes the case.

"Mr. Thomas: Plaintiff objects to the introduction and consideration of the certified copy of the order of the probate court in the matter of the estate of Squire Saunders, deceased, for the reason that said order related exclusively to the personal estate of Squire Saunders and not to real estate, and therefore is incompetent and inadmissible in this action for partition of real estate."

The master sustained the objection to the order apparently upon the ground raised by the objection. The material portion of the order of court is as follows:

"Whereupon it is considered, ordered, and adjudged by the court that, it appearing that the estate of said deceased does not exceed $300, said estate be vested absolutely in Sarah Saunders. the widow of said Squire Saunders. It is further ordered that the improvements on lot 10 in block 248 of the township in Muskogee, a horse, saddle, and bridle, and the other personal property described in the petition of the said widow are declared to be the property of said widow, and that there be no administration granted upon the estate of the decedent."

The question does not appear to have been specially called to the attention of the trial court in motion for new trial, unless by the general allegation of error that the judgment was contrary to law. It is claimed that the statutes prevented the court from considering the evidence offered as part of the record and required it to re-refer the matter to the master. Section 5269 of Mansf. Dig. of Ark. provides that:

"If either party shall except to the competency of any witness, or to the admission or exclusion of any evidence, the master, if required, shall state the particulars of the exceptions in his report."

Section 5273 provides that:

"Exceptions may be allowed to the master's report where he admitted incompetent testimony, or where he excluded competent testimony, or for any other cause which may be adjudged good by the court, or when it shall be apparent from the face of the report that injustice has been done."

Section 5274 provides that:

"When exceptions are allowed, the court may refer the report to the master again, with such instructions as may be necessary."

Section 5276 provides that:

"Where exceptions have been allowed to the master's report, and the account shall have been restated by the court or master, a decree shall be entered accordingly."

It will be seen from the section last quoted that the court, under the law in force in the Indian Territory prior to statehood, was not required to re-refer all cases in which exceptions are allowed. The court could pass upon the case without re-referring it; and this is the general rule.American Freehold L. Mort. Co. v. Pollard, 132 Ala. 155, 32 So. 630; McHenry v. Moore, 5 Cal. 90; Davis v. Roberts, Smedes M. Ch. (Miss.) 543; Taylor v. Read, 4 Paige (N.Y.) 561; Gaines v. Brockerhoff, 136 Pa. 175, 19 A. 958; Huston v.Cassidy, 14 N.J. Eq. 320.

The order of the probate court vesting the property in the widow was offered in evidence. While the master excluded it, he copied it in his report, and sent it up to the court where it was treated as before the court. The judgment of the court was based upon it. It was not urged or contended that the probate order was not entered, or that it was not in all respects regular. The only objection made to it was that it was made with reference to personal estate, and not real estate. Its existence is not challenged anywhere in the proceedings. It does not seem that the law would require the case to be reversed and sent back for the purpose of formally offering and receiving in evidence certified copy of the judgment which nobody disputes was entered, and which was offered in evidence and treated by the court as if it had been regularly offered in evidence. The court merely sustained the third exception urged by the defendant, which was that the master erred in refusing to admit the order of court in evidence, and refusing to consider it himself. As was said by Mr. Chief Justice Taney in the case of Kelsey v. Hobby, 16 Pet. 269, 10 L.Ed. 961:

"There is no propriety in requiring technical and formal proceedings, when they tend to embarrass and delay the administration of justice, unless they are required by some fixed principles of equity law or practice, which the court would not be at liberty to disregard."

The case is different from cases in which oral evidence offered has been excluded by the master. In those cases it must he re-referred in order that the party objecting may be allowed to cross-examine the witness, if his evidence is considered admissible. Even in those cases, according to the practice in most states, the witness may be offered before the court to be heard by him rather than have the case re-referred. But in the present case there was nothing to cross-examine. It was record evidence and the existence of the record was practically admitted, and it was considered by the court.

It is next contended that the order did not pass title to the land to the defendant, and that the deed from the Principal Chief of the Creek Nation to Squire Saunders carried the title to his heirs, and not the defendant Peggy Woodward, who bought the property from his widow. Under the treaty with the Creek Nation, the right to buy the land from the government depended upon the ownership of the improvements on the land. The order of court vested the title to the improvements in Squire Saunders' widow, and she sold them to the defendant. The defendant then paid the purchase price to the Creek Nation. That vested her with full title. It is argued that, where the person in whose name the lot was scheduled died before receiving title, the deed from the Principal Chief conveyed the land to his heirs in the same way that it conveyed land to the heirs of a deceased allottee. This argument is based upon the language of section 23 of the Original Creek Treaty (Act March 1, 1901, c. 676, 31 St. at L. 868), which is in part as follows:

"The Principal Chief shall, in like manner and with like effect, execute and deliver to proper parties deeds of conveyance in all other cases herein provided for."

It is claimed that this section gave the deeds to town lots the same effect that it did to patents or deeds to allottees. The deed in this case was made since the passage of Act April 26, 1906, c. 1876, 34 St. at L. 137. The provisions of section 5 of that act are as follows:

"That all patents or deeds to allottees in any of the Five Civilized Tribes to be hereafter issued shall issue in the name of the allottee, and if any such allottee shall die before such patent or deed becomes effective, the title to the lands described therein shall inure to and vest in his heirs."

It is argued that under this section the patent from the Principal Chief vested the title in the heirs. This argument is not tenable. Section 5, Act April 26, 1906, was passed several years after the Original Creek Treaty was made, and section 5 of said act was intended to apply only to allotments. Allotments could not be sold prior to their selection, but there was no such prohibition with reference to the sale of town lots. They could be sold at any time, and thousands of titles in the towns on the Indian Territory side of the state would be rendered defective if it should be decided that a patent from the Principal Chief of the tribe conveyed the land to the heirs, notwithstanding they or the owner of the lot may have sold it prior to the execution of the patent. In such cases section 642 of Mansf. Dig. (which was only declaratory of the common law) applied, and the patent inured to the benefit of the grantee of the patentee. The heirs in this case inherited nothing, because the property was worth less than $300, and vested in the widow.

Lastly, it is urged that section 3 of chapter 1 of Mansf. Dig., under which the defendant in this case claims that the order of the court vesting title in her grantor was made, was not in force in Arkansas at the close of the session of the General Assembly of the state of 1883, as published in 1884, in a volume known as Mansf. Dig., because it was in conflict with the Constitution of Arkansas with reference to homesteads. It was held in Arkansas, in the case of Sansom v. Harrell,51 Ark. 429, 11 S.W. 683, that where the estate or a portion of it was homestead, it would not vest in the widow, although it might not exceed $300 in value, because the devolution of the homestead was provided for by section 6 of article 9 of the Constitution of Arkansas, which provided that the homestead should vest in the widow during her natural life, with remainder to the children. But in the case of Chappel v. Gidney, 134 P. 859 (not yet officially reported,) it was held in an opinion by Mr. Justice Kane that the statutes mentioned in section 31, Act May 2, 1890, were extended over the Indian Territory if not locally inapplicable, whether they were in force in Arkansas or not. Section 3 of chapter 1 of Mansf. Dig. was not locally inapplicable, and it was extended over the Indian Territory, notwithstanding that it conflicted with the provisions of the Constitution of Arkansas referred to. The order of the court vesting the improvements in the widow of Squire Saunders was therefore valid, and conveyed title.

The former opinion affirming the judgment of the lower court should be adhered to.

By the Court: It is so ordered.