Thomas v. Glenn

Opinion by COLLIER, C. (after stating the facts as above). There are no allegations in the petition setting out how the Secretary of the Interior erred, either in considering the evidence or deciding the law. The aver-ments of the petition “that the Secretary of the Interior committed an error of law in awarding said land to said Nancy A. Glenn, as administratrix of the estate of Samuel C. Glenn, deceased, and in not awarding said land to this plaintiff, and committed an error of law in disregarding the evidence and disregarding the admitted and proven facts in the case,” are mere conclusions of the pleader. *760 While it is the better practice to make a direct statement of the facts in the order in which they occurred, this being the oderly method that a good pleader will observe, where exhibits are made a part of the petition, although not required by the statute, and when taken in connection with the contents of the petition, state a cause of action, reference may be had to such exhibits in order to determine whether a cause of action has been stated to such an extent as to withstand a general demurrer. Long v. Shepard, 35 Okla. 489, 130 Pac. 131. Under the authority cited, the petition will be construed in connection with said exhibits attached to the petition as a part thereof, and, thus considered, it it will be held that the petition specifically avers that the Commissioner to the Five Civilized Tribes, the Commissioner of Indian Affairs, and the Secretary of the Interior each erroneously considered the evidence that the plaintiff was not in possession of the land in controversy when he attempted to file thereon, and erred in holding that the purchase of said improvements upon said land' by plaintiff from Mrs. Williams was void, and that each of said officials erred, as a matter of law, by not holding that plaintiff had a preferential right to file upon said land by reason of the purchase of said wire fence upon said land from Mrs. Williams. In the case of Harnage et al. v. Martin et al., 40 Okla. 341, 136 Pac. 154, this court held: “Courts of equity have jurisdiction, after the Commissioner to the Five Civilized Tribes and the- Secretary of the Interior have exercised their powers and exhausted their jurisdiction, to determine whether by error of law, or through fraud or gross mistake of fact, the commission or the secretary has failed to allot land in the Cherokee Nation to the citizen who, under the law and the treaties, was entitled to the same.” *761 From said affidavit of contestee, offered in evidence, herein, it is made to appear that at the time plaintiff sought to have said land allotted to his intestate plaintiff was in possession of same, and that he (contestee) relinquished all claims of every kind to said land. The evidence of plaintiff directly contradicts said affidavit of the contestee, that plaintiff was in possession of said land at the time he attempted to file upon the same for his intestate. Whether or not said contestee relinquished his right to the land which had been allotted to him was not germane to the issue involved in said contest, and the commissioners and the secretary properly “ignored” such alleged relinquishment. If the contestee desired to relinquish said land, which had been allotted to him, he should have taken direct proceedings to accomplish the same; and the Secretary of the Interior would be'entirely unwarranted in setting aside an allotment, upon affidavit alone “that the allottee relinquished his allotment.” As shown by the so-called bill of sale offered in evidence, plaintiff attempted to purchase the improvements on the land in controversy on February 4, 1907, prior to the approval of act of Congress of March 2, 1907 (34 Stat. at L. p. 1220), which is as follows: “That for sixty days after allotment but in no case less than sixty days after the approval of this act white persons who intermarried with Cherokee citizens prior to December sixteenth, eighteen hundred and ninety-five, and made permanent and valuable improvements on lands belonging to the Cherokee Nation prior to the decision of the Supreme Court of the United States in the case of Daniel Red Bird, the Cherokee Nation, and others, against the United States- (203 U. S. 76), shall have the right to sell such improvements to citizens of the Cherokee Nation entitled to select allotments at a valuation to be *762 • approved by an official to be designated by the Secretary of the Interior for that purpose; and the vendor shall have a lien on the rents and profits of the land on which the improvements are located for the purchase money remaining unpaid and shall have the right to enforce such lien in any court of competent jurisdiction: Provided, that where citizens of the Cherokee Nation entitled to allotments have heretofore applied for lands on which intermarried white persons own improvements, such citizens entitled to allotments shall- have the prior right to purchase said improvements as herein provided.” In Boudinot v. Morris, 26 Okla. 770, 110 Pac. 895, it was held that, so far as an intermarried noncitizen was concerned, the statute relied upon “does not attempt to make such improvements subject to barter and sale generally.” Thus it will appear that said sale, claimed by Mrs. Williams of the improvements upon the land in controversy, is a nullity, by reason of the fact that at the time of the purported sale she had no right to sell the same; that same had not been appraised in the manner provided by law; and that said improvements were not permanent and valuable improvements. Ross et al. v. Wright et al., 29 Okla. 186, 116 Pac. 949; Boudinot v. Morris, supra. The presumption favors the correctness of the ruling of the Secretary of the Interior; and, in order that a court of equity may properly set aside his ruling in regard to which of two Indians is entitled to an allotment, it must affirmatively appear from the pleadings that such ruling was caused by error of law, or through fraud or gross mistake of facts. In the instant case it clearly appears from the petition, aided by the exhibits made a part thereof, that plaintiff did not legally purchase the improvements on the land in controversy, and had no *763 interest therein. Upon this proposition rested his right to favorable consideration in the contest waged by him. Plaintiff, having failed in this particular, and there being evidence from which the secretary could reach the conclusion that plaintiff was not in possession of the land prior to the time defendant filed thereon, and the so-called relinquishment by the contestee to his allotment of said land not being germane to said contest instituted by plaintiff, the correctness of the ruling of the secretary cannot be questioned. Therefore the petition in this case failed to state a cause of action, and the court did not err in sustaining a demurrer thereto. There being no prejudicial error in this case, the judgment of the trial court should be affirmed. By the Court: It is so ordered.