Petition for a Writ of Certiorari — Thlocco v. Magnolia Petroleum Co.

IN THE

Supreme Court of the United States

October Term 1944

AMEY THLOCCcO, LoRIN Ray, Guardian of the Person and

Estate of Amey Thlocco, an incompetent person, and

OREL BusBy, Special Guardian Ad Litem,

Petitioners,

VERSUS

MAGNOLIA PETROLEUM COMPANY

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE FIFTH CIRCUIT

and

BRIEF IN SUPPORT THEREOF

. r o-,

€ fr atti oxy

Le a7 LS af

OREL Busy,

Ada, Oklahoma

J. W. GORMLEY,

Dallas, Texas

Attorneys for Petitioners.

OF COUNSEL:

BUSBY, HARRELL AND TRICE,

TOUCHSTONE, WIGHT, GORMLEY & TOUCHSTONE.

KE. Dunean & Co.. Brief Printers, Dallas

ENE Ts isla Pe tS BAR SE A A OEE TO IE SII IT

INDEX

Page

I FU 6s iaiscinenctinin ering nienasenibienson 2

PIE sirnrecccidesansesisieccostshnsedetnnadnuahomentanaess 2

DIE FGI sincicrsviiesinesiavinisiobinninesapacqipasombiiins 2

II crises ccnp aps vigneicinpivesseenthinde rbonrispleaeaeiis 5-15

NNER FIO Siihiinescinsctenssdictcetinionioniercnummnniens, 28

AE GE TATE ao vccscictisciccinccixtsrscncsricmmmnsianel 28

Argument:

1. Restrictions:

(a) Effect of Federal Acts:

(1) Act of May 27, 1908, amended April

12, 1926, and extended May 10,

1928, imposing restrictions upon

certain lands and funds of mem-

bers of Five Civilized Tribes .......... 2

(2) Act of January 27, 1933 authorizing

creation of a trust of property of

restricted Indians only through ap-

proval of Secretary of Interior ...... 16

(b) Whether such restrictions follow funds

and lands of restricted Indians out of

Oklahoma into Texas: .........................0080

2. Opinion violates Section 1, Article IV of the

Constitution of the United States ...............0..... 17

Ce SBA NIL II VEIL IEEE Aa EI Fal PME COLT IE IE ESERIES RSL AOA ANE Si ORE OLB a

INDEX—Continued

Page

3. Opinion ignoring status of Amey Thlocco as

defined by state of her residence and declaring

her competent in Texas violates Rule 17, Fed-

eral Rules of Civil Procedure ..................0::ceees

4. Federal courts, which have no probate au-

thority, cannot in a collateral proceeding pass

upon a status of competency of one already ad-

judicated incompetent by proper court of state

alana dicta tchicctescucielieedias teinctnwenhonioncncinysciens

on

An adjudicated incompetent citizen of Okla-

homa cannot be divested of property in Texas

without ancillary guardianship proceedings

as provided by Articles 4285, 4286, Revised

I GE TINE sacs scincsseessieckcovenstcsvnecns

6. Application of Section 7425a, Revised Civil

Statutes of Texas:

(a) Opinion holding the trust, if any, was an

express trust is erroneous ............0006

(b) Definition of express, resulting and con-

INI cacccncehamnesieseittouisicpnkinidasixwiinses

(c) If not an express trust, Section 7425a,

supra, has no application to fact situa-

RE INE Gictleigthcncktarablacigs eunrcsacsinavatnn potacae te

10.

INDEX—Continued

{(d) Magnolia could not be an innocent pur-

chaser if there was a resulting, or con-

structive, or void trust ............................

A lease void in its inception in Oklahoma can-

not become valid by transfer to a respondent in

Texas claiming to be an innocent purchaser

(a) Definition of “innocent purchaser” in

PE Sole Nae theta ccuksraciceincta cough tiimunin sobeciared ie

A full blood, enrolled, restricted and adjudi-

eated incompetent Indian cannot ratify an

oil and gas lease by any personal act ............

Ratification does not arise out of entry of

NII =k ahieh cas iatdeacidhandone shaneglin inativeinsbciiscicsas’

(a) Effect of Oklahoma Federal court judg-

ments in actions in which Amey Thlocco

a intent TN ee Ose eT Or eae

Opinion herein is contrary to opinions of Fed-

eral courts of other circuits and of the Supreme

Court of the United States 0... eeeeees

aac iweahils pking ilinado

SINE iiss bait vakiaedink cat hedabsaicsapaisvnpeainenvmnsucatonteetatien

Page

40

32

31

32

36

45

Citations

Page

CASES:

American Surety Co. of New York v. Fitzgerald,

OF ie We OE TIE cukcininindcccccid. 24, 39

Anding v. Perkins, 29 Tex. 348 ...........ssseeseeeees 44

Baker v. Schofield, 243 U. S. 114, 61 L. Ed. 626 25

Baldridge v. Caulk, (1925) 237 P. 453, 110 Ok.

BE eat cad ti apaessahncancmcencaclanbanieenliemananenaniae 17

Brader v. James, 246 U. S. 88, 96; 62 L. Ed. 591,

Gils SS Bae. Ch, BR: BBG. 0. csciscsisicccirenere 18

Briggs v. McBride, 190 S. W. 1128 ............. cee 25

Bunch v. Cole, 263 U. S. 250; 68 L. Ed. 290; 44

NN: Ce FENN Be science dcccsieeecpestaneeneieias 18

Burgess v. Bosen, 31 Fed. Sup. (2) 352 ............04 18

Cage v. Eastburn & Company, 23 S. W. (2) 65 28,25

Clinkenbeard v. United States, (10 Cir.) 109 Fed.

OO Te i eta lie eae aaa seeeene 16

Cravens v. Amos, 64 Okl. 71, 166 P. 140 «0.0.0... 18

Donahue v. Vosper, 243 U. S. 59, 61 L. Ed. 592 45

Downs v. Hubbard, 123 U. S. 189, 31 L. Ed. 114 45

Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. Rep. 327,

OF Te Fe kiieenvicnidoinnmitnesatinaeen 21, 38

Ewert v. Bluejacket, (8 Cir.) 259 U. S. 128, 66

Bi, Se IE ea caiveshidixsaicinaaeincucndiesanvgenndenaian 26, 46, 47

Cases:

Page

Grand Court of Order of Calanthe of Texas v.

Eveliew, 129 8. Wi. 1B) TRG cvcciccsicdicissoeecsneuss 23, 25

Gulf Production Company v. Continental Oil Com-

pany, 182 S. W. (2) 553, 164 S. W. (2) 488 34,39

Gulf Production Co. v. Oldham, et al., 274 S. W.

OER ON, DE AM RMN IN LR BRAS og CK Tene N 24, 39

Hand v. Errington, 238 S. W. 567 (Tex. Civ.), 242

Oe E+ BER een a eh 44

Houston Oil Company v. Hayden, et al., 135 S. W.

SIE: - sscmadinmnisecenecinsaudighatns taakeaenae 25, 31, 40

Humble Oil & Ref. Co. v. Campbell, 69 Fed. (2)

DPE -ssssctennsnpteorssacsacscintion tase nauigesebesea aihaditeta anne 25,31, 44

In re Baptiste’s Will, (1925) 237 P. 854, 110

UR, TIE: anciciseacesncckadscoisatacts te eae 17

In re Nitey’s Estate, 52 P. (2) 215 ....... eee 34

Jones et al. v. Sun Oil Company, et al., 153 S. W.

LB) PER aciatcnctiua eaaaeenenae Sve panacabiahial 24, 39

Kelsey v. Trisler, et al., 74 S. W. 64 oo. 24, 39

Kendall v. Ewert, (8 Cir.) 259 U. S. 128, 66 L.

NER, MT issvieikesinu th biiiciery in tnccadondes ating aeCnimaadae 26, 46

Kiker v. United States, (8 Cir.) 63 Fed. (2) 957... 6, 35

Klaxon Company v. Standard Electric Manufac-

turing Company, 313 U.S. 487, 61 S. C. 1020 4

Cases:

Lewis v. Cantlonam, 2 Tem. 423 sncccscissscccicicccconin

McCamey v. Hollister Oil Co., et al., 241 S. W.

TO sscessincecins Gapanietsiccohstigied tocatedainns teaser teodniae

McWhorter v. Oliver, 2 S. W. (2) 281

eee e eee eeeeneeeee

Martinez et al. v. Gutierrez, et al., 66 S. W. (2)

678

eee eRe ee eee eH EEE HEE HEHE HEHEHE HEHE HEHE EHH E EEE EH EEEEEEH EEE EES

Merrell v. United States, 140 Fed. (2) 603

seen ee eennes

Merriman v. Russell, 39 Tex. 278, 284

Minnesota v. United States, 305 U. S. 382

eee enneee

Mullen v. Pickens, 250 U. S. 590, 63 L. Ed. 1158,

40 Sup. Ct. Rep. 31

eee eee EEOC ECCS e ECCS e Oe TCC eee eee eee eres

Mullen v. Simmons, 234 U.S. 192 ...... ees

Murray v. Ned, (10 Cir.) 135 Fed. (2) 407 ...... 16, 29, 47

Neal v. Holt, 69 S. W. (2) G08 ............ccsssscssseseseees 39

Neblett v. Valentino, 92 S. W. (2) 482 0.0.00... 23, 24, 39

O’Callaghan v. O’Brien, 199 U. S. 89, 25 Sup. Ct.

Rep. 727, GO Le. Ghd, 104 ...ciossesssccovesssssesseessvarenes 21

Oklahoma Natural Gas Corp. v. Lay, 51 P. (2)

BHO (ORIR.) cvcsesccsocsscssvsorvesveassvsnsshipnecsonanetacsniiedes 34

Poorman vy. Carlton, (Kansas) 253 P. 424.000... 20, 38

Pure Oil Co. v. Clark, 56 S. W. (2) 852 wo... 24, 39

Kedmon v. Leach, 130 S. W. (2) 873 wows 21, 39

Cases:

Page

Rodriguez v. Vallejo, 157 S. W. (2) 172 0.0... 23, 31

Rollow v. Taylor, 104 Okl. 275, 231 P. 224 ............

Schrimpsher v. Stockton, 183 U. S. 290 .......... eoane 47

Ne Se FI, Tee c. FOW vonevticdecticliptsvesererteremss 34

Sperry Oil & Gas Co. v. Chisholm, 264 U. S. 488,

68 L. Ed. 808, 44 Sup. Ct. Rep. 372 ............ 18

Strader v. Graham, 10 How. 82, 93, 13 L. Ed.

TET. sEucrekcashasdie co ccasoinnaneeass aakphacantene ta tances: 38

Studebaker Bros Mfg. Co. v. Hunt, ‘Tex Civ.

PD) Fr a eo RE biisccenreinentechcajdcbetecnivoesaseuss 19

Sutton v. English, 246 U. S. 199, 38 Sup. Ct. Rep.

BOA EE Fi Tie WOE vsctntsieceneencie ius: 21

Testerman v. Burt, 289 P. 315, 143 Okl. 220 ...... 40

Texas & N. O. Ry. Co. v. Jones, 103 S. W. (2) 1043 24,39

Three Foretops v. Ross, County Treasurer, 235

RE RR TV EVE Ee a 5 EE 17, 29

Tiger, Marchie, v. Western Invest. Co., 221 U.S.

286, 55 L. Ed. 738, 31 Sup. Ct. Rep. 578 ......

United States v. Brown, (8 Cir.) 8 Fed. (2) 564 18, 29

United States v. Corporation of President, etc.,

(30 Cir) 100 Fok. 62). BGG i eiccchcsscns 18

United States v. Fitzgerald, 201 Fed. 295 ............ 17

United States v. Gray, 201 Fed. 290 00... 17

Cases:

ina ovis k cee eau a es batieiganpidenamionnecienel eon

United States v. Hellard, 88 L. Ed. 929 ...............

United States v. Merrell, (10 Cir.) 140 Fed. (2)

602

EbeaSASe CREDO CCEDEESDSUSES CECOASESCEESAA CERES SSEY TEREST OHEO SUS COSNE SS

United States v. Pearson, County Treasurer, 231

Fed. 270

PRPTTTITITITT Te

United States v. Rickert, 188 U. S. 432, 488, 47 L.

Ed. 532, 536, 23 Sup. Ct. Rep. 478 .............0+

United States v. Thurston County, Nebraska, et

ae! 2 ey Seeeennnrenieeemersmetertenrerren tt 17

United States v. Williams, (10 Cir.) 139 Fed. (2)

OI eset ick, i cctawepeerekdvscanpaeeommenaniaanainnees 16, 29, 47

United States v. 7405.3 acres of land, (4 Cir.)

ee Ge Ge oo ci nctcewnudn ncaa 18

Ward v. United States, (10 Cir.) 189 Fed. (2)

Fe ak heeiiccectotisrinctiireccne 16, 29, 47

Whitchurch v. Crawford, (10 Cir.) 92 Fed. (2)

ie ee CIR GALERIE oe SERN OI He Pane NIRS BO 26, 46

Wilkinson v. Owens, et al., 72 S. W. (2)

I Scie 2) nc wapansunvaan ian eaisucineman ich 22, 24, 26, 39

Woodall v. Adams, 7 S. W. (2) 922 ..........ccceeeeeeees 23, 25

Worst v. Sgitcovich, 42 S. W. 72 ......eeeseseseseseeteens 25

STATUTES:

Section 1, Article IV. Constitution of the United

BE : akties nth tercadip enn anal nema

Act of May 27, 1908, See. 1, 35 Stat. 312 oo...

Act of April 12, 1926, Sec. 1, 44 Stat. 239.000...

Act of May 10, 1928, Sec. 2, 45 Stat. 495 ..0..0..

Act of March 2, 1931, 46 Stat. 1471, as amended

by act of June 30, 1932, 474 Stat. 474, 25

ie chs Mas, SIE cca bcadsioicnaccokenny exnabehemead taba scdpeas

Act of January 27, 1933, Sec. 8, 47 Stat. 777

Act of May 19, 1937, 50 Stat. 188, 25 U.S. C. A.

IE ah ee ea Bee a

Rule 17, Federal Rules of Civil Procedure ............

Article 4285, Revised Civil Statutes of Texas ......

Article 4286, Revised Civil Statutes of Texas ......

Article 6627, Revised Civil Statutes of Texas ......

Section 16, Title 15, Oklahoma Statutes (Con-

IN ~ «ick aici cidacchuck tensvannianuabotaadiiaentiatemiinnteeness

Section 8, Title 30, Oklahoma Statutes (Guardian

i PUNE © has s iat atinthaes meaiaatnaabalbdieareindaspeieaiones

Section 852, Title 58, Oklahoma Statutes (Probate

i ETS TNR Monee EPCS aE REED

66

66

66

MISCELLANEOUS:

Page

Act of May 26, 1790, Title 28, Ch. 17, U.S. C. A.,

ER Re ireeir ser rein Ramee ere ie ORIEN 20

Section 2, Article III, United States Constitution 49

Article 4132, Revised Civil Statutes of Texas ........ 8

2 PTY On THOMA, SEG, BOG, SEE cscs cierncu...:, 17

al

Handbook of Federal Indian Laws, by Felix S.

Cohen, foreword by Harold L. Ickes, intro-

duction by Nathan R. Margold ............., 17

Be as ks ies IE Ge ircensvisiestitianissicsingiieceronisiion 19

Restatement of the Law, Trusts, pp. 5, 6, 1244,

I ME ear baskets eked tctnantenicn oneniseedians 19, 40

Restatement of the Law, Restitution, pp. 642, Par.

Pe IN sincicencinchinscsicinitegoemmnnapaton sti eaniwatianee 40

65 C. J., Trusts, pp. 223, 224, 225, 363, 740 ......19, 40

i A: I. SERS skiowaiecdncsaiahamntaeoReene 26, 44

Vol. 4, Words and Phrases, Second Series, p. 127 26

Rule 38, Revised Rules of the Supreme Court of

SII RMU: sii tescdsstantaiencegMeokonaiabeereaionecniveteemiates 28

No.

IN THE

Supreme Court of the United States

October Term 1944

Amey THLOCCO, LORIN Ray, Guardian of the Person and

Estate of Amey Thlocco, an incompetent person, and

OREL Busby, Special Guardian Ad Litem,

Petitioners,

VERSUS

MAGNOLIA PETROLEUM COMPANY

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE FIFTH CIRCUIT

and

BRIEF IN SUPPORT THEREOF

Amey Thlocco, by her Guardian ad litem, Orel Busby,

and by Lorin Ray, duly appointed Oklahoma guardian of

her person and estate, prays thav a writ of certiorari is-

sue to review the judgment of the United States Circuit

Court of Appeals for the Fifth Circuit, which became fi-

nal May 23, 1944, affirming the judgment of the United

2

States District Court for the Eastern District of Texas,

Texarkana Division, dated May 12, 1943.

Opinion Below

The District Court did not file an opinion in this

cause. The opinion of the Circuit Court of Appeals is

reported in 141 Fed. (2) 934.

Jurisdiction

The judgment of the Circuit Court of Appeals was en-

tered on April 12, 1944, and petition of appellants for re-

hearing was overruled on May 23, 1944.

The jurisdiction of this court is invoked under Sec.

240 (a) of the Judicial Code as amended by the Act of

February 13, 1925.

Questions Presented

1. Whether the lower courts correctly held that Amey

Thloceo, an enroller restricted full blood Seminole In-

dian, was not entitled to invoke the Act of May 27, 1908,

sec. 1, 35 Stat. 312, as amended April 12, 1926, sec. 1,

44 Stat. 239, and extended May 10, 1928, sec. 2, 45 Stat.

495 (Appendix, infra, P. 49), imposing restriction upon

certain lands and funds of members of the Five Civilized

Tribes of Indians; also, the Act of January 27, 1933, sec.

8, 47 Stat. 777 (Appendix, infra, p. 49), authorizing

the creation of a trust of property of restricted Indians

igs > Rm OF Wed SET EN OEE NS

Sek pens

RS

3

only through the approval of the Secretary of the In-

terior.

2. Whether such restrictions imposed upon certain

lands and funds of members of the Five Civilized Tribes of

Indians are confined to such funds and lands only in

the State of Oklahoma, or whether such restrictions fol-

low such funds and lands beyond the territorial limits of

that state and into the State of Texas.

3. Whether the judgments of the lower Federal courts

in Texas which refused to accept the status of Amey Thloc-

co as determined by the proper courts of Oklahoma, the

state of her residence, declaring her an incompetent, are

violative of the full faith and credit clause of the Fed-

eral Constitution.

4. Whether the judgments of the lower courts in Texas

in holding that in the premises declared upon, the district

court could ignore the status of Amey Thlocco as defined

by Oklahoma, the state of her residence, and declare her

a competent in Texas, is violative of Rule 17 of the Fed-

eral Rules of Civil Procedure.

5. Whether a Federal district court in Texas, which

has no probate authority to appoint a guardian, as dis-

tinguished from a county or state court of Texas which

does have such authority, may pass upon the status or

competency of one already adjudicated incompetent by a

proper court of Oklahoma.

4

6. Whether the judgments of the lower courts and the

opinion of the Circuit Court in the premises declared upon,

are inconsistent with the opinion of this Court in Klazon

Company v. Standard Electric Manufacturing Company,

313 U. S. 487, 61 S. C. 1020; especially since the public

policy of both Oklahoma and Texas is to the effect that

an incompetent may be divested of title to real estate only

through proper guardianship sale, and there was no guar-

dianship sale of the property involved here, either in an

Oklahoma or a Texas state probate court.

7. Whether the lower courts correctly held that Art.

7425a, Revised Statutes of Texas, is properly applicable to

Texas realty, title whereof was vested in a duly adjudi-

cated incompetent resident of Oklahoma by a judicially

approved compromise and settlement of a valid Oklahoma

judgment, to compensate appellant for restricted funds

filched by a faithless guardian, in view of the fact that

the Texas Trust Act of which Art. 7425a is a part is

conclusive that it was beyond the legislative intent that |

said Act should apply to estates in guardianship.

8. Whether the so-called trust, if there was a trust as

a matter of law, was an express trust as pronounced by

the Texas courts or a resulting or implied trust as con-

tended by petitioners. Section 7425a as applied in favor

of respondent depends upon the nature of the trust in-

volved here.

9. Whether an oil and gas lease executed in Oklahoma

and void in its inception under Oklahoma laws may be-

come valid by assignment to a respondent in Texas claim-

ing to be an innocent purchaser under the laws of notice.

10. Whether the lower courts correctly held that Mag-

nolia Petroleum Company was an innocent purchaser in

the premises within the purview of Art. 6627, Revised

Statutes of Texas, as the term “innocent purchaser” in

such premises has been defined by the courts of Texas.

11. Whether a full blood, enrolled restricted and ad-

judicated incompetent Indian can ratify a void oil and gas

leas and estop herself from proclaiming its invalidity by

any personal act.

12. Whether the judments of the lower courts and the

opinion of the Circuit Court are not in direct conflict with

many opinions of this court and the opinions of other

circuit courts hereinafter pointed out. If conflicting, wheth-

er the particular questions involved herein should be passed

upon and settled directly by the Supreme Court of the

United States.

Statement

Amey Thlocco is a duly enrolled full blood Seminole

Indian, Roll No. 1516. She has always resided in We-

woka, Seminole County, Oklahoma. She received moneys

from her restricted allotted lands and at the death of her

full blood Indian father in 1929 she inherited certain re-

stricted lands and moneys. Almost immediately she be-

came a victim of swindlers, with the result that she was

6

duly adjudicated an incompetent and both her person and

estate were placed in guardianship in 1929. Her incom-

petency was further declared by Federal Judge Williams

whose findings were reviewed and approved by the Tenth

Circuit Court of Appeals in Kiker v. United States, 62

Fed. (2) 957. (R. 115)

The first guardian of her person and estate, Hugh

Barham, misappropriated approximately $16,000 of the

restricted funds of Amey Thlocco. When this misappro-

priation was discovered, Barham was removed; his ac-

count was surcharged with the amount of his misappro-

priation; Kenneth Mainard was appointed his successor

as guardian and ordered to institute suit against the sure-

ty of Barham in the Oklahoma district court, which he did.

In this suit judgment was rendered against said surety and

in favor of the estate of Amey Thlocco in the full amount

of his misappropriation. (R. 115)

Thereafter, Fidelity Union Casualty Company, a Texas

corporation, the surety of Barham, tendered compromise

and settlement of this judgment (R. 118), which was duly

approved (R. 124) by the County Court of Seminole

County, Oklahoma, in which the guardianship was pend-

ing. Among the res thus tendered by the Surety Company

was the fee title to certain realy in Titus County, Texas.

The title to the mineral estate in one of these tracts of

Texas realty is the res in controversy in this suit.

7

The order approving the compromise and settlement

was entered November 15, 1934 (R. 124). This order re-

cites that the court found the compromise and settlement

“to the best interests of the estate of Amey Thlocco” and

ordered Kenneth Mainard, her guardian, to “satisfy the

judgment against the Surety Company upon delivery to

him of good and sufficient deeds.”

Mr. M. S. Robertson, then United States Probate At-

torney at Wewoka, Oklahoma, also approved the compro-

mise and settlement and furnished this guardian and his

attorneys with a form of deed specifically designating that

the deed be excuted by the Surety Company to Kenneth

Mainard “as Trustee for Amey Thlocco”. (R. 224) Instead

of forwarding the form of deed furnished them by the

United States Probate Attorney, Mr. Ledbetter, attorney

for Walter Billingsley who had been appointed guardian

ad litem for Amey Thlocco in the Oklahoma court, wrote a

letter to Fidelity Union Casualty Company instructing it

(R. 226) to execute the deed “to Kenneth Mainard, Trus-

tee’. This it accordingly did on November 15, 1934. (R.

131) Admittedly Mr. Ledbetter so instructed Fidelity

Union Casualty Company to thwart the guardianship code

of Texas. (R. 746) He profited by this later, in his deal-

ings with the Magnolia on this property. (R. 748, 757)

Although this deed was duly recorded in Titus County,

Texas, it was never exhibited to the County Court of

Seminole County, Oklahoma, or to the United States Pro-

bate Attorney at Wewoka, Oklahoma. Kenneth Mainard

ba

$25 READ NMS GAA att NETRA TN AMEE TILIA B LILO AAAS CRIS PARLE GE 5 ET) SIE TL Ey HO EE RAE 8 EI NEI ANB ONT E

8

never qualified as guardian of this Texas estate of Amey

Thocco nor was there an ancillary guardian in Texas ever

appointed as provided by the Texas statutes. Art. 4132,

4285, Chapter 13, Revised Civil Statutes, Texas. ( Appen-

dix, infra, p. 64), Kenneth Mainard paid the taxes on

these Texas lands out of moneys he received as Oklahoma

guardian of the estate of Amey Thlocco.

On February 14, 1936, Kenneth Mainard, acting in

the dual capacity of guardian and trustee for Amey

Thlocco, filed in the County Court of Seminole County,

Oklahoma, through his attorneys, Billingsley and Ken-

nerly, an application to sell an oil and gas lease on 130°)

acres of these Titus County, Texas lands to Bat Shuna-

tona of Wewoka, Oklahoma, then the law partner of

Mr. Ledbetter, for $5 per acre. (R. 52) On the same day

an order was entered by the County Court of Seminole

County, Oklahoma, approving the sale of said lease to

Shunatona; the oil and gas lease was executed on that

day by “Kenneth Mainard, Trustee”, for a consideration

of $5 per acre. (R. 1386) Mr. Ledbetter admitted he was

the moving spirit in procuring the lease and owned an

interest in it. (R. 748, 757) On this point the trial court

found (R. 68):

“* * * that the purchasers of the said oil and gas lease

in question were Bat Shunatona and his law part-

ner, Louis Ledbetter, both of whom had been for

many years residents of Wewoka, Oklahoma, and

knew all the circumstances surrounding the condi-

oe Fae we -s Vibe POE PIM Tg OU EP YS EUR gy QO ER TOE RE

- al

9

tions of the the title to said lands in Titus County,

Texas; that the laws of Oklahoma with reference to

guardianship sale or sales of trust property were not

complied with, either as to the jurisdiction of Okla-

homa County Courts of guardian’s sales of oil and

gas lease or as to the jurisdiction of District Courts

of Oklahoma over the sale of oil and gas leases by a

trustee.”

Four days after the execution of the lease Mainard,

Ledbetter and Billingsley went to Dallas, Texas and re-

sold this mineral estate to Magnolia Petroleum Company

for $50 per acre. On this point the trial court found (R.

70) :

“5 That the said original lease shows on its face

that it was executed in Seminole County, Oklahoma

on February 14, 1936, by Kenneth Mainard, Trus-

tee, to Bat Shunatona of Wewoka, Oklahoma, for a

consideration of $5.00 per acre; that the said Ken-

neth Mainard, trustee and guardian together with

Louis Ledbetter, appeared at plaintiff’s office in Dal-

las, Texas, within a short time thereafter with said

original lease and an assignment of the same, which

assignment had been executed by Bat Shunatona in

Seminole, County, Oklahoma, with the name of the

assignee not filled in; that Kenneth Mainard then

entered into negotiations for the sale and assign-

ment of said lease with Charles Gladden, then vice-

president of and lease purchasing agent of plain-

tiff; that the said Charles Gladden was a former

resident of Wewoka, Oklahoma and then in the em-

ployment of the Magnolia Petroleum Company; that

he was personally acquainted with Kenneth Mainard

10

and Louis Ledbetter and knew they were residents

of Wewoka, Seminole County, Oklahoma; that the

said Kenneth Mainard, trustee, offered said lease

to Charles Gladden for a consideration of $50.00 per

acre; that after said lease was offered to him in his

office the said Gladden then consulted with Ralph

Talley and examined the Magnolia’s maps which were

in an office other than his own; that he directed

Talley to purchase the lease in question at a price

not to exceed $50.00 per acre; that he then introduced

Kenneth Mainard and Louis Ledbetter to Ralph Tal-

ley who concluded the negotiations for the purchase

of said lease for $50.00 per acre; that one requirement

made by plaintiff with reference to title was that

a new assignment of the lease be procured from

Shunatona with the name of Magnolia Petroleum

Company written into the same as assignee.”

Magnolia Petroleum Company had a branch office with

a lease purchaser in charge at Wewoka, Oklahoma, at

the time it purchased this lease. Petitioners contended the

evidence was clear and convincing that this lease pur-

chaser knew in advance all the facts with reference to

Amey Thlocco’s ownership of the lands and of the pur-

ported lease sale at Wewoka, Oklahoma. The trial court

found (R. 55-56, 68-70) that the Magnolia had a district

office located in Wewoka, Oklahoma; that Dow Dunaway,

its lease purchaser in charge, was advised by the United

States Probate Attorney in advance of the prospective

sale of the lease on Amey Thlocco’s Texas lands; that

Dunaway in advance of the sale obtained a description

11

of the lands in Texas. The court further found, however,

that the information he obtained as Magnolia’s agent was

not acquired as a part of his duties or within the scope of

his employment. Dunaway died prior to the trial of the

ease and his evidence was not available.

The proof also showed that prior to the purported

lease sale in Wewoka, Oklahoma a well for oil and gas was

drilling near the Thlocco property in Texas and that Mag-

nolia was receiving geological information and, through

its agents and officials, knew the value of this lease prior

to the purchase from Mainard and Ledbetter (R. 275-

277). Petitioners contended that Magnolia was willing

to take a chance on its title rather than have a guardian

appointed for Amey Thlocco in Texas and have a public

sale of the lease in Texas. Petitioners also argued that

this evidence showed collusion and fraud between Main-

ard, Ledbetter, et al. and Magnolia in the original sale

and resale of the lease to Magnolia. This evidence caused

the trial court to make the following observation during

the trial: (R. 420)

“Billingsley, Ledbetter, Mainard, they were all to-

gether. I would not believe any of them. They were

not taking any chances, Shunatona’s check was not

cleared until after Magnolia’s check cleared the bank.”

The checks referred to were Shunatona’s check to Main-

ard for $653.50 and Magnolia’s check to Shunatona for

$6,537.50. (R. 717) These checks represented the respec-

tive sale prices of the lease.

®. RAK MN aba EAD at.

emo DEIR

98 IAS FEO REEL LE TOT LPS BEE

sn ee cA CEE A CCE REIL OE COC OOD EEL DEDIE DENA IEE DEE IED ALLA LEAPDD LIE LAMLE LL LLDE DAN

12

Magnolia entered on the property and drilled a num-

ber of wells which produced. It then filed this action in

the United States District Court for the Eastern District

of Texas, Texarkana Division, against Amey Thlocco to

quiet title to its leasehold and test its validity.

Motion to dismiss for lack of jurisdiction over the per-

son of Amey Thlocco was filed (R. 5), in which the

trial court was advised that Amey Thlocco is a full blood

restricted Indian. The court refused to dismiss the ac-

tion. Subsequently Magnolia filed a “Suggestion of Plain-

tiff of Uncertainty of Status of Defendant, Amey Thloc-

co” (R. 14) and therein suggested the appointment by

the trial court of a guardian ad litem so it could carry

on its litigation against Amey Thlocco and quiet title to

its lease in a Texas Federal district court. The court found

(R. 15) that Amey had been “adjudged an incompetent

under the laws of the State of Oklahoma, but that her

status under the laws of the State of Texas has not been

determined” and then proceeded to appoint a guardian

ad litem for her so Magnolia could continue its litigation

against her in a Texas Court. Nowhere in its pleadings

did Magnolia advise the court that Amey Thlocco was a

full blood restricted Indian. Nor did it notify the Secre-

tary of the Interior pendency of this action or make the

United States Government a party defendant. Minnesota v.

Uinted States, 305 U.S. 382; United States v. Hellard, 88

L.. Ed. 929.

13

For answer to plaintiff’s complaint Amey Thlocco set

up her incompetency and the personal restrictions exist-

ing against her as a full blood Indian and the restricted

status of the land in question. She alleged that she was

the real and beneficial owner of the lands which stood

wrongfully in the name of Kenneth Mainard as trustees;

that the oil and gas lease to Shunatona was not executed

in Oklahoma by lawful authority; that plaintiff in taking

the lease knew of her ownership, or knew or was acquainted

with facts sufficient to put it on inquiry; that Magnolia

acquired nothing by its purchase of the lease. She prayed

that the action be dismissed for want of jurisdiction over

her, or, in the alternative, if it be not dismissed, that she

have a cancellation of the oil and gas lease and an ac-

counting as to, and recovery of, all proceeds resulting from

the drilling of the wells less the actual cost of said drill-

ing and operations.

In reply Magnolia filed a general denial and pleaded

various Texas statutes of limitation, also ratification of

the lease by Amey Thlocco.

On the question of Amey Thlocco’s competency, in its

findings the trial court held that although Amey had been

adjudicated an incompetent person by the proper court of

Oklahoma, the state of her domicile, which court had placed

both her person and her estate in guardianship, neverthe-

less the judgment of the Oklahoma court was not binding

on the Federal district court in applying the Texas stat-

utes of limitation and adverse possession. It further held

14

that she was of sound mind at the time of the excution

of the lease and had been continuously of sound mind down

to the present time.

The trial court refused to consider or value evidence

offered relative to the question of the restrictions on

Amey’s funds or the restrictions on lands received by her

in lieu of these funds. The court took the position that

petitioners were seeking to place an Oklahoma state re-

striction, not a Federal restriction on these lands and that

the laws of the State of Texas would not recognize such.

(R. 227, 228)

The trial court held for the plaintiff, Magnolia Petro-

leum Company,on all points and based its decision on pow-

ers of the trustee (Mainard) to transfer Texas property

according to the terms of Section 7425a, Vernon’s Anno-

tated Civil Statutes of Texas (Appendix, infra, p. 65).

The trial court held in substance that Mainard held title

to the Texas property as trustee through a deed which did

not disclose the names of the beneficiary and that a pur-

chaser (Magnolia) could deal with the trustee with full

reliance on his power to act by virtue of said Section 7425a

supra. It also held that under the fact situation here there

was neither a resulting or a contructive trust but an ex-

press trust which enabled the trustee to deal freely with

such lands.

The Fifth Circuit Court upheld the decision of the trial

court. It did not discuss or analyze any of the Congressional

aa * nase no on rine ee iE eC ON Ee RD

15

Acts or Federal statutes hereinafter set forth relative to

the protection of Indian wards of the United States Gov-

ernment, nor did it cite or analyze any decision of any state

or federal court interpreting these Acts. On this point it

said:

“* * * But if we should assume that the land was

restricted, nothing in the federal statutes nor in the

decisions construing them gives warrant for appel-

lant’s claim that they operate to remove land in

Texas from the operation of Texas laws, and par-

ticularly nothing in them operates as a barrier to

the running of the Texas Statutes of Limitation.”

(R. 848)

Reasons for Granting the Writ

There are a number of far-reaching and important ques-

tions involved in this appeal. They are:

1. The question of restricting alienation on lands ac-

quired by or for full blood restricted Oklahoma Indians in

states other than Oklahoma and the method of transfer

thereof. This particular question should be passed upon

and settled directly by the Supreme Court of the United

States.

The trial court erroneously found that the lands in ques-

tion were not and never had been restricted. The Cir-

cuit Court’s opinion affirmed this finding.

Amey Thlocco acquired the lands in question as the

equivalent of and in lieu of restricted funds regardless

Ae te

OE eM

16

of the method of transfer from the Fidelity Union Casual-

ty Company. The only money Amey Thlocco ever had was

(a) from her own allotment, and (b) from the allot-

ment of her father, Teewee, full blood restricted Seminole

Indian, and in either case the money would have been

restricted since the funds came from full blood restricted

lands.’

These funds were under the supervision of the Secre-

tary of the Interior, which made them restricted funds

under the terms of the Act of Congress of January 27,

1“Where property in its original state and form has once been im-

pressed with a trust, no change of that state and form can divest it of

its trust character, so long as it remains capable of clear identification.

“Where land was purchased for a full-blood Choctaw Indian from pro-

ceeds of his original restricted allotment, he was an ‘allottee of such

lands’ within statute imposing qualified restrictions on interest in re-

stricted land acquired by inheritance or devise from allottee. Act May

27, 1908, Sec. 1, 35 Stat. 312; Act May 27, 1908, Sec. 9, 35 Stat. 315, as

amended by Act April 12, 1926, Sec. 1, 44 State, 239; Act May 10,

1928, Sees. 1, 2, 45 Stat. 495.

“If statute regarding qualified restrictions on Indian land was am-

biguous, the doubt was to be resolved in favor of the Indian. Act. May

27, 1908, Sec. 9, 35 Stat. 315, as amended by Act April 12, 1926, See.

1, 44 Stat. 239.”

Ward v. United States (10 Cir.), 139 Fed. (2) 79, 80.

“Where land was acquired with funds derived from restricted allot-

ment of Indian and was held under the same trust, it constituted ‘lands

allotted to members of the Five Civilized Tribes’ within statute creating

restrictions. Act May 10, 1928, Sec. 1, 45 Stat. 495.”

United States v. Williams, (10 Cir.) 139 Fed. (2) 83.

Murray v. Ned, (10 Cir.) 135 Fed. (2) 407; United States v. Grisso,

(10 Cir.) 188 Fed. (2) 996; Clinkenbeard v. United States, (10 Cir.)

109 Fed. (2) 730.

pe

cl ” eee PR EONS TS Ly ON CE AREY NE WL ASME

we

17

1933, sec. 8, 47 Stat. 777. (R. 227, 535)° The courts have

universally held, as applied to funds of restricted Indians,

that no change in the form of the property divests it of

the trust and its restricted character.*

2. The holding of the lower courts, to the effect that

nothing in the Federal statutes or the decisions interpreting

them removes restricted Indian lands from the operation

of local state statutes of limitation and adverse posses-

sion, is contrary to numerous decisions of this court and

other circuit courts.

This question has been passed upon as federal question

squarely and in contrary manner by state courts, other

cireuit courts, and by the Supreme Court of the United

States in the following cases:

Baldridge v. Caulk, (1925) 237 P. 458, 110 Okl. 185;

In re Baptiste’s Will, (1925) 237 P. 854, 110 Okl.

267 ;

Burgess v. Bosen, 31 Fed. Sup. (2) 352;

United States v. Rickert, 188 U. S. 482, 438, 47 L.

Ed. 532, 536, 23 Sup. Ct. Rep. 478;

2See Sec. 6 of Act of May 27, 1908; Act of July 14, 1918; Sec. 8,

Act of January 27, 1933. (Appendix, infra, p. 61).

2U. S. v. Gray 201 Fed. 290; U. S. v. Thurston County, County, Neb-

raska, et al, 143 Fed. 287; U. S. v. Fitzgerald, 201 Fed. 295; 2 Perry

on Trusts, 835, 836, 837; Three Foretops v. Ross, County Treasurer,

225 Pac. 334; U. S. v. Pearson, County Treasurer, 231 Fed. 270; also

cases cited in U. S. v. Pearson County Treasurer, supra, which are fol-

lowed in that opinion; see also Chapter 10, p. 195, Handbook of Federal

Indian Laws, by Felix S. Cohen, mmol by Harold L. Ickes, intro-

duction by Nathan R. Margold, published by the United States Depart-

ment of Interior.

18

Sperry Oil & Gas Co. v. Chisholm, 264 U. S. 488, 68

L. Ed. 803, 44 Sup. Ct. Rep. 372;

United States v. 7,405.3 acres of land, (4 Cir. 97

Fed. (2) 416;

United States v. Corp, of President, ete., (10 Cir.)

101 Fed. (2) 156;

Cravens v. Amos, 64 Okl. 71, 166 P. 140;

Bunch vy. Cole, 263 U.S. 250, 68 L. Ed. 290, 44 Sup.

Ct. Rep. 101;

Marchie Tiger v. Western Invest. Co., 221 U. 8S. 286,

55 L. Ed. 738, 31 Sup. Ct. Rep. 578;

Mullen v. Pickens, 250 U. S. 590, 63 L. Ed. 1158,

40 Sup. Ct. Rep. 31;

Brader v. James, 246 U. S. 88, 96, 62 L. Ed. 591,

595, 38 Sup. Ct. Rep. 285;

United States v. Brown, 8 Fed. (2) 564.

3. The holding of the lower court to the effect that

under the fact situation here “it is quite clear that the

trust in question here was neither resulting nor con-

structive but an express trust created for the purpose of

enabling Mainard, as trustee, to deal freely with the

Texas lands, and that in terms and in fact it is directly

within both the purpose and the language of the statute

(Texas) ” is erroneous.

19

Amey Thlocco was a _ full-blood, incompetent In-

dian, a resident of the State of Oklahoma; she was not

sui juris, and was incapable of creating a trust. As to her

it was a resulting or constructive trust, if any was created.

137 A. L. R. at page 469;

Studebaker Bros. Mfg. Co. v. Hunt, (Tex. Civ. App.)

38 S. W. 1134;

Merriman v. Russell, 39 Tex. 278, 284;

Restatement of the Law, Trusts, pp. 5, 6, 1244, 1245,

1249;

Restatement of the Law, Restitution, pp. 642, par.

160 (g);

65 C. J., Trusts, pp. 2238, 224, 225, 363, 740.

(b) Since the res of the trust was funds belonging

to Amey Thlocco and lands in lieu thereof, and at the

time the purported trust was created (November 15,

1934) the Act of Congress of January 27, 1933 (Appen-

dix, infra, p. 19) was in operation, any attempted trust

powers vested in Mainard would have to be approved by

the Secretary of the Interior. Robertson, United States

Probate Attorney, attempted to protect Amey Thlocco in

the manner of taking the deed but his instructions were

disregarded. However, only with the approval of the Sec-

retary of the Interior could such a trust have been created.

Act of January 27, 1933, supra. That approval was not

obtained.

ANG Ie

20

4. The holding of the lower courts was erroneous in

that it permitted a collateral attack in a Federal court

of Texas on a valid existing judgment in Oklahoma.

There is no Federal statutory provision for the ap-

pointment of a guardian in a Federal court. Therefore, the

appointment of a guardian in an Oklahoma county court

was res adjudicata as to a Federal district court, particu-

larly since the question of Amey Thlocco’s incompetency

had never been raised in a county or a district court of

the State of Texas. This precluded a Federal trial judge

from striking down the judgment of the Oklahoma county

court or making an original finding of fact contrary to

that judgment pleaded and proved.

United States v. Merrell, (10 Cir.) 140 Fed, (2)

602 ;*

Poorman v. Carlton, (Kansas) 253 Pac. 424°

Act of May 26, 1790, Title 28, Ch. 17, U. S. C. A.

See. 2, Art. 3, United States Constitution ;

4 United States v. Merrell, 140 Fed. (2) 602: “A state court having

first exercised jurisdiction, its judgment is exclusive of federal jurisdic-

tion and not subject to collateral attack unless the absence of juris-

diction over the subject matter, or lack of power to render judg-

ment, affirmatively appears from the face of the proceedings. * * *

A county court’s adjudication appointing administrators for the estate

of decedent, which judgment was not void on its face, was not subject to

- eollateral attack in a federal court exercising concurrent jurisdiction.”

5 Poorman v. Carlton et al., 253 Pac. 424 (Kan.): “Under the pro-

vision of the Constitution of the United States, which requires that

full faith and credit be given to the judicial proceedings of every other

state, a judgment of a court of competent jurisdiction in Oklahoma,

declaring an Osage Indian an incompetent person and appointing a

guardian for his estate, establishes the status of the Indian which fol-

lows him into this state.” ay

+

— RES ELMS A POA EON EEN PML EER MEI ET sy eects

21

| Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. Rep. 327,

27 L. Ed. 1006;

Sutton v. English, 246 U.S. 199, 38 Sup. Ct. Rep. 254,

62 L. Ed. 664;

O'Callaghan v. O’Brien, 199 U. S. 89, 25 Sup. Ct.

Rep. 727, 50 L. Ed. 101.

5. Eliminating the question of restrictions and all

Federal questions, the decision of the trial court was er-

roneous because it divested an incompetent citizen of

Oklahoma of property in Texas without ancillary guar-

dianship proceedings as provided by the Texas statutes.

Articles 4285-4286, Revised Civil Statutes, Texas. (Ap-

pendix, infra, p. 64).

Amey Thlocco, a resident of the State of Oklahoma all

her life, had been duly adjudicated an incompetent in

Oklahoma and full faith and credit should have been given

the findings of the Oklahoma court on this point. This

is particularly true since the local and public policy of

the State of Oklahoma and of the State of Texas is to

the effect than an-incompetent can only be divested of

property by a gurdianship sale.

Redmon v. Leach, 130 S. W. (2) 873 (Writ of error

dismissed by Supreme Court with notation “Cor-

rect judgment”’);

Martinez et al v. Guiterrez, et al., 66 S. W. (2)

678;

99

ond td

Wilkinson v. Owens, et al., 72 S. W. (2) 330.

The holding of the trial court so far departs from the

accepted and usual course of judicial proceedings by a

lower court as to call for an exercise of this court’s power

of supervision.

6. The decision of the lower courts is erroneous in

its interpretation and application of Section 7425a, Re-

vised Civil Statutes of Texas, (Appendix, infra, p. 65)

because said statute contemplated a legal trust created by

one sui juris. The trust here was neither a legal trust

nor one created by a person sui juris. Amey Thlocco, a

restricted full blood Indian, legally adjudged an incompe-

tent person, could not and did not create the trust in ques-

tion and the decision erroneously holds that here was

created an express trust. Robertson, the United States

Probate Attorney, testified (R. 228, 229) that Amey was

not consulted when the deed to Mainard was executed,

had no part in the creation of the trust, did not have the

mental capacity to know the meaning of a trust and would

not have known how to create a trust had she been con-

sulted.

If a trust resulted from the acts of other parties, Main-

ard could only have been a resulting or constructive trus-

tee, in which event the Texas laws of notice would not

apply and the case of Gulf Production Company v. Con-

naesie . . FRI pha LTO oI LT ONES GOS MEN ROT

aes

eS

23

tinental Oil Company, 182 S. W. (2) 553, 164 S. W.

(2) 488 has no application here.°

Cage v. Eastburn & Company, 23 S. W. (2) 65;

McWhorter v. Oliver, 2S. W. (2) 281;

Woodall vy. Adams, 78. W. (2) 922;

Grand Court of Order of Calanthe of Texas v. Ebel-

ing, 129 S. W. (2) 715;

Rodriguez v. Vellejo, 157 S. W. (2) 172.

_

v.

Fifth Cireuit Court was erroneous in its application of

Section 7425a, Revised Civil Statutes of Texas (Appen-

dix, infra, p. 65), to the fact situation here, in that

said section was never intended to permit a trustee to

transfer lands of an incompetent who was incapable of

The opinion of the trial court as affirmed by the

creating a trust. Such a construction of the Act would

create a means for gross fraud in depriving innocent

persons of their property as illustrated here. The decision

in applying said Section 7425a is to thwart the public

‘The Texas Constitution requires the Texas Statutes to be codified

under separate and distinct titles. All statutes governing the relations

between guardians and wards are contained in Title 69 of the Texas

Code entitled “Guardian and Ward.” Article 7425a is incorporated into

Title 125a captioned “Trustees”. No Texas court has ever held that

Article 7425a applies to estates in wardship. Manifestly, Article 7425a

does not apply to Trustees ex maleficio. Moreover, the Supreme Court

of Texas has recently held it Neblett v. Valentino, 92 S. W. (2) 432, that

one who purports to act as a Trustee for a ward assumes the statutory

obligations of a guardian. Finally, the Texas Courts have repeatedly

held that trusts created to thwart the public policy of the State as de-

fined in the Statutes are absolutely void and unenforceable. McCamey

v. Hollister Oil Company, et al., 241 S. W. 689.

-

24

policy of Texas by permitting the transfer of an incom-

petent’s property without a proper guardianship sale.’

This is contrary to the local and state policy. The case

relied upon in the decision, Gulf Production Company vy.

Continental Oil Company, supra, is not applicable.

American Surety Co. of New York vy. Fitzgerald,

36 S. W. (2) 1104;

Neblett v. Valentino, 92 S. W. (2) 4382;

Wilkinson v. Owens, et al., 72 S. W. (2) 330;

Kelsey v. Trisler, et al., 74 S. W. 64;

Jones et al v. Sun Oil Company, et al., 153 S. W. (2)

571;

Gulf Production Co. v. Oldham et al., 274 S. W. 238;

Pure Oil Co. v. Clark, 56 S. W. (2) 852;

Texas & N. O. Ry. Co. v. Jones, 103 S. W. (2) 1043.

8. The decision of the trial court is erroneous in

holding that under the fact situation here an express

was created. If the court had correctly defined the pur-

ported trust as a resulting or constructive trust, then

Magnolia could not have been an innocent purchaser un-

der the decisions of the Texas state courts and Federal

7 Chapter 138, Title 69, Articles 4285 ss, Texas Statutes, permit duly

appointed foreign guardians to qualify in Texas. If the foreign guardian

does not choose to take advantage of Article 4285, such foreign guardian,

or others interested may procure appointment of an ancillary guardian

of the Texas estate of the ward, perforce of Article 4132.

“ee

25

courts, and the Circuit Court’s opinion should have re-

versed the trial court. The following Texas cases have

applied Section 7425a, supra, to fact situations involving

resulting or constructive trusts:

McWhorter v. Oliver, supra;

Woodall v. Adams, supra;

Cage v. Eastburn & Company, supra;

Grand Court of Order of Calanthe of Texas v. Ebel-

ing, supra;

Rodriguez v. Vellejo, supra.

The following cases lay down the rule that one who

purchases trust property with actual or constructive no-

tice of the trust is held to the same liability as the ori-

ginal trustee and as the statutes of limitation will not run

in favor of a trustee they will not run in favor of a pur-

chaser :

Houston Oil Company v. Hayden, et al., 135 S. W.

1142;

Worst v. Sgitcovich, 42 S. W. 72;

Briggs v. McBride, 190 8S. W. 1123;

Lewis v. Castleman, 2 Tex. 422;

Humble Oil & Refining Co. v. Campbell, 69 Fed. (2)

667;

Baker v. Schofield, 243 U. S. 114, 61 L. Ed. 626.

26

9. The trial court found that Amey Thlocco by her

acts ratified the oil and gas lease in question. The Cir-

cuit Court merely stated that it was not necessary for

that appellate court to discuss or consider this question

for “we think it plain that whether this contention be

sound or unsound, it is quite clear that the judgment

must be affirmed on the showing and findings made of

record and limitation title in plaintiff’. The trial court’s

decision as affirmed by the Circuit Court was erroneous

because an incompetent full blood Indian could not have

ratified the oil and gas lease on the lands in question

whether the lands were restricted or unrestricted, and

no personal acts of hers would have worked an estoppel.

19 Am. Jur. 637;

Vol 4, Words and Phrases, Second Series, p. 127;

Ewert v. Bluejacket, (8 Cir.) 259 U. S. 128, 66

L. Ed. 858;

Kendall v. Ewert, (8 Cir.) 259 U. S. 137, 66 L.

Ed. 862;

Whitchurch v. Crawford, (10 Cir.) 92 Fed. (2)

249;

Wilkinson v. Owen, et al., 72 S. W. (2) 330.

The trial court in its findings and the Circuit Court

in its affirming opinion refer to suits brought by Amey

Thlocco in the Federal court in Oklahoma for the pur-

‘i sibeety> 1 : s Pie I Ay MRL RENE ED LAE PRAIRIE DE TOE A BEE He TAIN

27

pose of making Mainard account to her as trustee, resign

as guardian, and to make transfers to her on the Texas

lands. In one of these suits other defendants than Main-

ard (but not Magnolia) were named. These cases were

designed to unhorse Mainard who proved to be faithless

to his trust as guardian and as trustee. Compromise set-

tlements were entered into in these cases in the Oklahoma

Federal court (R. 171, 180). The stipulation of settle-

ment (R. 180) contained a clause* protecting Amey in

any other suit that might arise. Likewise the Federal

district court in Oklahoma entered a savings clause” to

protect Amey (R. 209), which saving clauses were wholly

jgnored by the trial court and the Circuit Court.

*“That neither the approval and acceptance of this offer of compro-

mise, nor the accounting to be had as herein provided, shall in anywise

prevent, prejudice or estop the said Amey Thlocco, by guardian or next

friend, or the Government of the United States in her behalf, from in-

stituting or maintaing any action, suit or proceeding to recover any

property, funds or interest therein lawfully belonging to her other than

the above described 65-acre mineral intrest conveyed to J. B. Terry

as aforesaid and the decree to be entered herein shall expressly so pro-

vide.” (R. 180)

°“Tt is Further Ordered that the judgment of this Court shall in no

respect affect the rights of the said Amey Thlocco, an incompetent, her

present guardian, and guardian ad litem, or the United States of

America from maintaining or instituting any other suit, or suits, affect-

ing the estate or properties of the said Amey Thlocco, an incompetent,

regardless of where said estate or properties may be situated; and that

the judgment of this Court shall in no respect be construed as res

adjudicata.” (R. 209)