Schmidt v. Durant

HERR, C. This is an action brought in the district, court of Haskell county by Ed Schmidt against Caroline Durant and others to foreclose a real estate mortgage. The mortgage was executed by defendant Caroline Durant and her husband to Gum Brothers ; was given to secure a note of $125, and covered 100 acres of land situated in Has-kell county. This mortgage is a second mortgage, and is subject to a prior mortgage in the sum of $2,500. The mortgage was subsequently assigned to th'e plaintiff herein. Defendant Caroline Durant admits the execution of the note and mortgage, but as a defense alleges that she is the sole owner of the premises sought to be foreclosed; that the same constituted a portion of the allotment of Eve Perry, a full-blood Choctaw Indian; that Ev’e Perry died seized of said lands leaving surviving, as her only heirs, defendant Caroline. Durant, nee Perry, Edna LeFlore, nee Perry .and Campbell Perry. It *57 is alleged that these heirs are all full-blood Ohoetaws; that Edna LeFlore and Campbell Ferry conveyed to Caroline Durant all their interest in and to said premises, and that these conveyances were properly approved by the county court of Haskell county; that by reason of such conveyances she is now the sole owner of said premises. It is further alleged in the answer that the purported mortgage executed by her was approved by the county court of Haskell county, and that said county court had Jurisdiction over the estate of the said Eve Perry, deceased; that the land in question is restricted, and that the mortgage as well as the approval thereof by the county court of Haskell county is void as being in direct violation of the Act of Congress of May 27, 1908. The prayer of the answer is for cancellation of the mortgage. As to the circumstances under which the mortgage was executed, plaintiff, in his reply, pleads practically the same state of facts así are pl'eaded by defendant Caroline Durant in her answer. Both parties ask for judgment on the pleadings. The trial court held with defendant Caroline Durant. Judgment was rendered in favor of the plaintiff for the amount claimed, but foreclosure of the mortgage was denied and judgment rendered in favor of said defendant canceling the mortgage. Plaintiff appeals. It is contended by defendant that the mortgage, as well as the order of the county court of Haskell county approving the same, is void as violative of the Act of Congress of May 27, 1908. This contention has been decided adversely to defendant by this court in the cases of Terrell v. Scott, 129 Okla. 78, 262 Pac. 1071, and Potter v. Vernon, 129 Okla. 251, 264 Pac. 611. Judgment should be reversed and the cause remanded, with directions to enter decree of foreclosure in favor of plaintiff in accordance with the prayer of his petition. BENNETT, JEFFREY, HALL, and DIF-FENDAFFER, Commissioners, concur. By the Court: It is so ordered.