Transcript of Record — Hill v. Reynolds

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1915.

No. 337.

HARRY F. HILL, A MINOR, AND J. B. HILL, A MINOR, BY

THEIR NEXT FRIEND AND LEGAL GUARDIAN, DAVE

HILL, AND LOUIS JAMES, BY HIS LEGAL GUARDIAN,

PLAINTIFFS IN ERROR,

v8.

FRANK REYNOLDS, A MINOR.

IN ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.

INDEX

Original. Print

eee TOUNEM CO WERE OF CPTOE. «ccc csccccccecctesccteseutese a 1

i i. ach och Sac ireccn a AW ch ca iain ere em 1 1

etition for writ of error and allowance.................00005 3 3

eS pd anes cue Senet 6bA cad HERS CREM MEUM Rares 5 3

tidavit as to amount involved............. 0 ceceecccecccccees 8 5

ns Cagd bbads bk ME tiKe nk Reoe bine eScabe CON aWN 9 5

ME 5 56 0 4a Sees eee eed es MAE Kee Uae hanbee ava wees 11 6

NE <5 ha GA e's a Ware baer ek SOG as Osa ewe ee wana ee ees 12 7

Petition in error of Frank Reynolds et al..............0c0ceee 14 8

Ethel A. Reynolds e¢ al.................. 16 9

poe ee ee er errr ard es 18 10

Seldon Reynolds et al............2. 00005 20 12

Frank Reynolds et al................0000. 22 13

a I ord 694.5 ko tA Dek AANA Oddo ae ee MOw Ke Chew eeer 24 14

Jupp & DerwetLEer (INc.), Printers, WASHINGTON, D. C., FesruaRy 25, 1916.

ii INDEX.

Case-made from superior court of Grady county.............6.

NE chs aGtigys Sau s wawbendesceteswese ake aE eye ee

Exhibits—Chickasaw allotment contest blanks....... ne

Statement of recerd by commission................0ee008 °

Findings of fact and conclusions of law by commission....

EE Pe PEP TEE TT eT TS

Communication, Larrabee, acting jiniumhinenas. to comunis-

sioner of five civilized tribes. ............... ccc eeeeeeee

Decision of Interior Departmert on review............... ‘

Statement of Mr. Bond, counsel for contestants......... ian

IEEE ccc edd esadchsscvacves precniee

J. W. Blassingame..............++- Bare

Frank W. Plato........ Seid sae wen sue e504

Ne dnc eH CeWS6 66-0 6 a.c Sede a raw sis

Cems Cy TRG ONE so. onan ccc ccceccenccece

ra ck warts bas a nid 4.6: sc Giev bie each be

James H. Tuttle (recalled).................

i EE iiinneudaccemevsi sv deds cekadioes

Certificate of acting commissioner to papers, etc............

Letter, Ryan. first acting secretary, to Commissioner of

Indian Affairs, February 6, 1907. ............cccceeeeees

Letter, Woodruff, aeting secretary, to Commissioner of In-

dian Affairs, August 21, 1907. ........ ccc cccccccccccces

Letter, Hauke, second assistant commissioner, to cena

sioner to the five civilized tribes, Mey 11, 1911...........

Exhibit 1—Decision of Interior Department on review.....

IE SP NNN, 5 oon Sac cccincescceicvcsscccscrecscs

Summons and sheriff's return...............ceeeeee ees ‘

Demurrer ..........-+- aid dealaAdiing Wiehe seh adie Sh eee wae

SN PIO a crawcwvials cnineicedebn'yic ccc cv vocgusvee °

Motion for appointment of guardian ad litem......... ere

Order appointing guardian ad litem.............6 cece eeees

Aneweor of guardian Gd Hom... 2... ccccccccscccccccccsccs

cette ce wal RaRb Ge AUE Eee ees pate sbeecadceee

Order appointing receiver. .......-...2.... eee eee ai aaies ae

Bond and oath of receliver..........ccccccccccccccccces pie

eee aa aa lcecueme hen Wis sss00d ¥s sae e0's os

de. ccltewswaeesiacéicies <weenawe

Exhibit D—Will of C. L. Campbell and certificate

SE WR cainnieccdawiataascncwetccegpeutens

Ne ee adwe pad Aeee ww s$1's bs ep -00. 60 be hee

Certificate of acting commissioner................. ee

Exhibit E—Quit-claim deed, Campbell to Hill, Novem-

F—Quit-claim deed, Campbell e Hill, Decem-

INDEX.

Exhibit G—Quit-claim deed. Campbell to Blassingame,

January 21, 1899.........ccccescccccees

H—Quit-claim deed, Blassingame to Brimage,

December 10, 1902..........0cee eee eeee

I—Quit-claim deed, Blassingame to Brimage,

December 10, 1902...........-sceeeeeee

J and J'—Testimony of Charles A. Reynolds

before department .........00eeeeeeeeee

pi er eer SP rey tere er eer tree ee ree fe wea

Motion for a new trial. ...... cc cece cccccccceccscccce yeas

Order overruling motion for a new triul, etc.............6.

Motion to extend time, etc...........0.0- eee ee ene earetete+ ge

Agreement, etc., as to Case-made....... ee. cee eeneeeeeecees

Reporter's certificates ......... cece cece e een renee eeeeee .

Service of case-made..........eee eee ee eens ended ods janen

CRIS COTEIEIOOED skins oi icici sc ccnccntccdensavcnsseees

. Order settling case-made. ........- 2... cece cece ee eeeeeceees

Stipulation as to case-made. ........ ccc cece ewer eer eeeeeee

Judge’s certificate to case-made........ cee eee eee eee eeees

Journal entry advancing cause...........+++. We Sy ee roe

Journal entry continuing cause...........+eeeeeeeee <essnteese

Journal entry continuing cause. ...........-.eeeeee wee paws ees

Motion to correct case-made........ cece eee cece eect eeeeee ne

Stipulation to correct case-MAde....... 6.6 eee cece eee eee e eee

Exhibit K—Amended complaint.............+eeeeeeceees ‘

Homestead patent No. 16752..........++. kee

No. 18633... cccccscoee rear

No. 18632...... SMPery ET eet

No. 20048... ccscccces Saran

Allotment patent No. 19340............. canes

TG 65.55 5 0 s\0:66.06 chA 8455 6's eer Tey

M—Writ of possession and return........ pe wagaee

N—Complaint in ejectment.........-..eeeeeees

Exhibit A—Quit-claim deed, Tuttle, etc., to

Hill, November 18, 1902...

Court’s instructions to jury..........eeeeeeeee

Journal entry: Oral argument and submission.............++-

Journal entry of judgment......... 2... cece cece cree er eee eeee ‘

Opinion, Turner, J... ....-+- eee reece cece eee Perr ey jaa

urder staying mandate..... ig CFE ae Se ees Ree TORO ewes

Petition for rehearing... ........-ccscccccsccccesccsens i i ve init

Reply to petition for rehearing. ..........eeeeeereeeeeeee cones

Jow™ial entry denying petition for rehearing...... Sai bees

Order staying mandate.............ceeeceeeeeeeecee ta eulekbices

Certificate Of Clerk...... ccc cece recs ccc ce cc eensvcccecceceees

lll

Original. Print

253 2148

256 86149

259 ©=—-:150

262 © 152

277 = s«158

280 ~=—«-:160

282 = s«161

285 162

287 ~—s«:168

290 ~=—«-164

293 8=—:166

295 «167

297 ~—s:168

299 ~=—«169

300 170

302 170

303 =—-:170

304 «171

305 «171

307 ~=—«:172

308 178

310 +174

311 176

812 177

313 —s-:178

314 ~—s- 180

315 =: 181

316 ~=—s-:188

318 184

321 186

324 187

329 «=—:190

330 190

331 191

339 = «s«196

340 4s «196

347 200

352-208

353-208

354 208

= , enone

HARRY F. HILL, ETC., ET AL. VS. FRANK REYNOLDS, ETC. 1

a In the Supreme Court of **e State of Oklahoma.

No. 5135, with Which is Consolidated Nos. 5136, 5137, 5138, and

5139.

Frank Reynotps, a Minor, etc., Plaintiff in Error,

vs.

Harry F. Hitt, a Minor, ete., Defendant in Error.

Clerk’s Return to Writ of Error.

In obedience to the command of the within writ of error, I here-

with Transmit to the Supreme Court of the United States the duly

certified transcript of the record, the opinion and the proceedings

of the within entitled cause, and all the things concerning the same.

In witness whereof, I hereunto subscribe my name and affix the

seal of the said Supreme Court of the State of Oklahoma this 13th

day of Jan’y, 1915.

[Sea! Supreme Court, State of Oklahoma. ]

WILLIAM M. FRANKLIN,

Clerk of the Supreme Court of Oklahoma.

1 Filed Dec. 18, 1914. William M. Franklin, Clerk.

Unitep STATEs OF AMERICA:

Frank Reynotps, a Minor, etc., Plaintiff in Error,

vs.

Harry F. Hitt, a Minor, ete., Defendant in Error.

Citation.

To the above named Defendants in Error, Greetings:

You are hereby cited and admonished to be and appear in the

Supreme Court of the United States in the City of Washington,

District of Columbia, thirty days from the date after this 18 day

of Dec. 1914, pursuant to a writ of error filed in the Clerk’s office

of the Supreme Court of the State of Oklahoma, wherein you are

defendant in error, and Frank Reynolds, a Minor, etc., are Plain-

tiffs in error, to show cause, if any there be, why the judgment

rendered against the said plaintiffs in error, as in said writ of error

mentioned should not be corrected, and speedy justice should not be

done the parties in that behalf.

Witness the Honorable John B. Turner, Acting Chief Justice,

2 HARRY F. HILL, ETC., ET AL. VS.

ved iy Supreme Court of the State of Oklahoma, this 18 day of Dec

1914.

JOHN B. TURNER,

Vice Chief Justice.

2 Attest:

[Seal Supreme Court, State of Oklahoma. ]

WM. M. FRANKLIN,

Clerk of the Supreme Court,

By JESSIE PARDOE, Deputy.

Service of the foregoing citation is hereby accepted.

This 19th day Dec, 1914.

F. E. RIDDLE,

Att'y for Def’ts in Error.

HARRY HAMMERLY,

Att'y for Minors and Guardian ad Litem.

Filed Dec. 18, 1914. William M. Franklin, Clerk.

3 Filed Dec. 17, 1914. William M. Franklin, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5135, with Which is ner Nos. 5136, 5137, 5138 an

139,

Frank Reynoxps, a Minor, Etc., Plaintiff in Error,

vs.

Harry F. Hitt, a Minor, Etc., Defendant in Error.

Petition for Writ of Error.

Harry F. Hill, a Minor and J. B. Hill, a Minor by their nex

friend and legal guardian, Dave Hill, and Louis James, by his lega

guardian, defendants in error in the above entitled causes, havin;

been ag-rieved by the decision and judgment of the court rendere

hereon, on the 13 day of Oct. 1914, Come now by Bond and Melto1

and C. B. Stuart, their attorneys, of record herein, and petition th

court for an order allowing the defendants in error to prosecute :

writ of error to the Honorable Supreme Court of the United States

under and according to the rules of the United States in that behalf

made and provided, and have an order that all other proceeding

herein be suspended and stayed until the determination of the sai

Writ of Error by the Supreme Court of the United States.

Petitioners respectfully state to the Court that a federal questioi

is presented by the record in this case, as will more fully ap

4 pear from the assignments of error filed herein setting up u

detail such federal question.

C. B. STUART,

BOND & MELTON,

Attys for Petit

FRANK REYNOLDS, ETC. 3

Allowed Dec. 17, 1914. Bond fixed at $1000.

JOHN B. TURNER,

Vice Chief Justice.

Attest:

[Seal Supreme Court, State of Cklahoma. ]

WM. M. FRANKLIN,

Clerk Supreme Court,

By JESSIE PARDOE, Deputy.

Filed Dec. 17, 1914. William M. Franklin, Clerk.

5 Filed Dec. 17, 1914. William M. Franklin, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5135, with Which is — Nos. 5136, 5137, 5138 and

139.

Frank Reynowps, a Minor, Etc., Plaintiff in Error,

vs. ‘i

Harry F. Ht, a Minor, Ete., Defendant in Error.

Assignment of Errors.

Now come Harry F. Hill, a Minor, and J. B. Hill, a Minor, by

their next friend and legal Guardian, Dave Hill, and Louis James,

by his legal Guardian, Defendants in Error in the above entitled

cause, and say that in the record and proceedings in the above enti-

tled cause, there is manefest error in this to-wit:

) &

The Supreme Court of the State of Oklahoma committed error in

reversing judgment of the ae Court of Grady County and in

rendering judgment against the Defendants in Error, and in favor

of the Plaintiffs in Error.

IL.

The Supreme Court of the State of Oklahoma committed

6 error in holding that the claim or right of the Minor Heirs

of C. L. Campbell, deceased, under the acts of Congress of

the 28 day of June 1898 and July, 1902, were, and had been aban-

doned by the Guardian of the Minors.

III.

The Supreme Court of the State of Oklahoma committed error in

_ denying to defendants in error the right and title set up and claimed

by defendants in error under the acts of Congress of June 28th, 1898,

iene

4 HARRY F. HILL, ETC., ET AL. VS.

and September 25th, 1902, known as the Atoka Agreement and the

Supplemental Agreement thereto.

IV.

The Supreme Court of the State of Oklahoma erred in holding

that the act of Congress of June 28th, 1898, providing that after the

passage of that act, the laws of the various tribes or nations of In-

dians should not be enforced at law or in equity by the Courts of

the United States or in the Indian Territory.

And, the section in the same act providing that all tribal courts in

the Indian Territory should be abolished applied to the Chickasaw

Tribe of Indians where the lands sought to be allotted in this case

is pocated. .

The Supreme Court of the State of Oklahoma erred in holding

that the will of C. L. Campbell, deceased, which was the paper title

upon which the defendants in error relied, should not be

7 considered in the determination of the case, and in holding

that said will was of no force and effect as a muniment of

title, because its probate was unauthorized and void by virtue of the

provisions of the acts of Congress, set out in the fourth assignment.

VI.

The Supreme Court of the State of Oklahoma erred in not holding

that the will of C. L. Campbell aforesaid, was duly probated was

the common scource of title to all the parties of this litigation and

was admissable in evidence.

VII.

The Supreme Court of the State of Oklahoma erred in not hold-

ing that under the Atoka Agreement aforesaid; and the Supple-

mental Agreement thereto, these defendants in error were entitled

to allot the land in controversy under and by virtue of said acts of

Congress under which the defendants in error claim and set up their

rights to the allotment in controversy.

Wherefore the said Plaintiffs in Error pray that the Judgment of

the Supreme Court of Oklahoma be reversed and that judgment be

rendered for the plaintiffs in error as prayed in their petition.

C. B. STUART,

BOND & MELTON,

Attorneys for Plaintiff in Error. '

FRANK REYNOLDS, ETC. 5

8 Filed Dec. 19, 1914. William M. Franklin, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5135.

Frank Reynoxps, a Minor, Plaintiff in Error,

Harry F. Hitt, a Seine, Defendant in Error.

Affidavit.

Alger Melton of lawful age on oath states that he is one of the

attorneys of record of Harry F. Hill, a minor, defendant in error

in the above entitled cause, and the amount in controversy in said

cause, exclusive of interest and costs exceeds $5,000.00.

ALGER MELTON.

Subscribed and sworn to before me this the 18th day of Decem-

ber, 1914.

[Seal of H. W. Cabeen, Notary Public, Grady County, Okla. ]

H. W. CABEEN,

Notary Public.

My commission expires Jan. 6th, 1918.

Unirep States OF AMERICA:

Filed Dec. 19, 1914. William M.’Franklin, Clerk.

The President of the United States of America to the Honorable

Judges of the Supreme Court of the State of Oklahoma, Greetings:

Because in the record and proceedings and also in the condition of

the judgment of a plea, which is in the said Supreme Court of the

State of Oklahoma, before you, or some of you, by the highest court

of law or equity of the State, in which a decision could be had in the

said suit between Frank Reynolds, a Minor, etc., Plaintiffs in error

and Harry F. Hill and J. B. Hill, by their next friend and ‘legal

guardian, Dave Hill, and Louis James, by his legal Guardian, De-

fendants in error, wherein was drawn in question the construc-

tion of a statute of the United States and the decision was against

the right, title, privilege or exemption specially set-up or claimed

under such statute, a manifest error has happened to the great dam-

age of Harry F. Hill, a Minor, and J. B. Hill, a Minor, by their

next friend and legal Guardian, Dave Hill, and Louis James by his

Legal Guardian, as by their complaint appears.

We being willing that error, if any hath been, should be fully cor-

rected and full and speedy justice done to the parties aforesaid in

this behalf, do command you, if judgment be therein given, that

then under your seal, distinctly and openly, you send the record

1 proceedings aforesaid, with all things concerning the same to

mer

6 HARRY F. HILL, ETC., ET AL. VS.

the Supreme Court of the United States together with this writ s0

that you have the same at Washington on the 18 day of Jany., 191&

in the said Supreme — to be then and there held that the

10 record and proceeding aforesaid, being inspected, the Su

preme Court may cause further to be done therein, to correct

that error, what of right and according to the laws and customs of

the United States should be done.

Witness the Honorable Edward D. White, Chief Justice of the

Supreme Court of the United States this 18 day of Dec., 1914.

[Seal of the United States District Court, Western District of

Oklahoma. }

ARNOLD C. DOLDE,

Clerk of the District Court of the United States,

for the Western District of Oklahoma.

Allowed by

JOHN B. TURNER,

Acting Chief Justice of the

Supreme Court of Oklahoma.

11 Filed Dec. 18, 1914. William M. Franklin, Clerk.

In the Supreme Court of the State of Oklahoma.

No. —

Frank Reynotps, a Minor, etc., Plaintiff in Error,

Harry F. Hir1, a Minor, ete., Defendant in Error.

Supersedeas Order.

This cause coming on to be heard on this 18th day of December,

1914, unon the application of defendant in error for a writ of error,

to the Supreme Court of the United States, and an order supersedeas

and the same having been duly considered it is hereby ordered that

the application for supersedeas to be in the same is hereby allowed,

and the iudgment of the said Supreme Court of the State of Okla- ‘

homa is hereby suspended and the Clerk of the said Court is hereby

directed to stay the mandate of the Supreme Court to the District

Court of Grady County, until the decision of the Supreme Court

of the United States to the said writ of error and the further order

of this court.

JOHN B. TURNER,

Vice Chief Justice.

Attest:

[sear.] WM. M. FRANKLIN, Clerk,

By JESSIE PARDOE, Deputy.

FRANK REYNOLDS, ETC.

12 Filed Dec. 19, 1914. William M. Franklin, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5135, with which is —— Nos. 5136, 5137, 5138 and

Frank Reynotps, a Minor, et al., Plaintiffs in Error,

vs.

Harry F. Ht, a Minor, et al., Defendants in Error.

Supersedcas Bond.

Whereas the above named defendants in error Harry F. Hill, a

minor, J. B. Hill, a minor, and Lewis James, a minor, by their next

friend and guardian has prosecuted a writ of error to the Supreme

Court of the United States to reverse the judgment rendered in the

above entitled action by the Supreme Court of the State of Okla-

homa which writ of error has been allowed by the Supreme Court of

the State of Oklahoma, and a supersedeas bond fixed in the sum of

$1,000.00 by the order of said Court.

Now, therefore, we, Harry F. Hill, a minor, J. B. Hill, a minor,

and Lewis James. a minor, by their next friend and guardian, prin-

cipal-, and Dave Hill, Ed. F. Johns, and C. R. Phillips, sureties, are

held and firmly bound unto Frank Reynolds, Ethel Reynolds and

Selden Reynolds, plaintiffs in error, in the sum of $1,000.00 to be

paid to said obligees, their successors, representatives and assigns, and

for the payment of which well and truly to be made, we bind our-

selves, our heirs, executors and administrators jointly and severally

by these presents. The condition of this obligation is such that if

the above named plaintiffs in error shall prosecute their said writ

of error to effect, answer all costs and damages if they fail to make

good in their plea, then this obligation shall be void; otherwise to

remain in full force and effect.

13 Signed and dated this the 18th day of December, 1914.

HARRY F. HILL,

J. B. HILL anp

LEWIS JAMES, Minors,

By C. B. STUART anv

BOND & MELTON & MELTON,

Their Attorneys of Record.

DAVE HILL,

ED. F. JOHNS,

C. R. PHILLIPS,

Sureties.

I hereby approve the foregoing bond and sureties thereon this the

19th day of December, 1914.

JOHN B. TURNER,

Vice-Chief Justice.

Attest :

[seat.] WM. M. FRANKLIN, Clerk,

By JESSIE PARDOE, Deputy.

8 HARRY F, HILL, ETC., ET AL. VS.

14 Filed May 19, 1913. W. H. L. Campbell, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5135.

Frank Reynotps, a Minor, Suing by and Through His Legal

Guardian, C. A. Reynolds, and Harry Hammerly, Guardian Ad

Litem, Plaintiffs in Error,

vs.

Harry F. Hitt, a Minor, and His Next Friend and Legal Guardian,

Dave Hill, Defendants in Error.

Petition in Error.

The said Frank Reynolds, and C. A. Reynolds, his legal guardian,

and Harry Hammerly, Guardian Ad Litem, plaintiffs in error, com-

plaining of said Harry F. Hill, a minor and his next friend and

guardian, Dave Hill, defendants in error, in that the said defendant

in error at the March 1913 term of the Superior Court sitting within

and for Grady County, Oklahoma, recovered a judgment, by the

consideration of said court, against the said Frank Reynolds, and his

legal guardian, C. A. Reynolds, and the guardian ad litem, Harry

Hammerly, plaintiffs in error, in a certain action then pending in

said court. wherein the said Harry F. Hill, by his next friend and

legal guardian, Dave Hill, was plaintiff, and the said Frank Rey-

nolds and his legal guardian, C. A. Reynolds, and Harry Hammerly,

Guardian Ad Litem, were defendants. The original case made, duly

certified and attested, is hereto attached, marked “Exhibit A” and

made a part of this petition in error.

And the said Frank Revnolds, and his legal guardian C. A. Rey-

nolds, and the said Harry Hammerly, Guardian Ad Litem, aver that

there are errors in said record and proceedings, in this to-wit:

15 First. That the tiral court erred in rendering judgment

against said plaintiffs in error and in favor of the defendant

in error.

Second. That the trial court erred in admitting and considering

certain testimony offered on the part of the defendant in error.

Third. The trial court erred in not dismissing the petition of de-

fendant in error and in not rendering judgment in favor of the 4

plaintiffs in error.

Fourth. The trial court erred in cancelling the patents of the

plaintiff in error and in decreeing and adjudging said plaintiff in

error holding the legal title to said land in trust for the defendant

in error.

Fifth. The trial court erred in holding that the Land Department

and the Secretarv of the Interior committed error of law and gross

error of fact in the final decision awarding said land in controversy

to the plaintiff in error.

ac,

FRANK REYNOLDS, ETC. 9

Sixth. The trial court erred in overruling the motion of the plain-

tiff in error for a new trial. ;

Wherefore, plaintiff in error pray- that said pen, pe so rendered

may be reversed, set aside and held for naught, and that a judgment

be rendered in favor of the plaintiff in error, Frank Reynolds, de-

creeing and adjudging him to be the legal and equitable owner of

the land in controversy, and directing and ordering the petition of

the defendant in error to be dismissed ; and prays that in the event

the Court does not deem it proper to render a judgment in this court,

that said judgment and decision of the trial court be reversed and

remanded to proceed in accordance with the judgment and opinion

of this court; and will ever pray.

F. E. RIDDLE,

Attorney for Plaintiff in Error.

HARRY HAMMERLY,

Guardian ‘Ad Litem.

«16 Filed May 19, 1913. W. H.-L. Campbell, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5136.

Ernet A. Reynoups, a Minor, Suing by and through Her Legal

Guardian, C. A. Reynolds, and Harry Hammerly, Guardian Ad

Litem, Plaintiffs in Error,

vs.

Lovis James, by His Legal Guardian, Dave Hill, Defendants in

Error.

Petition in Error.

The said Ethel A. Reynolds, and C. A. Reynolds, her legal

guardian, and Harry Hammerly, Guardian Ad Litem, plaintiffs in

error, complaining of said Louis James, and his next friend and legal

guardian, Dave Hill, defendants in error, in that the said defendant

in error at the March 1913 term of the Supreme Court sitting

within and for Grady County, Oklahoma, recovered a judgment, by

the consideration of said court, against the said Ethel A. Reynolds,

and her legal guardian, C. A. Reynolds, and the Guardian Ad Litem,

Harry Hammerly, plaintiffs in error, in a certain action then pending

in said court wherein the said Louis James, by his next friend and

legal guardian, Dave Hill, was plaintiff, and the said Ethel A. Rey-

nolds and her legal guardian, C. A. Reynolds, and Harry Ham-

merly, Guardian Ad Litem, were defendants. The original case

made, duly certified and attested, is hereto attached, marked “Ex-

hibit A” and made a part of this petition in error.

17 And the said Ethel A. Reynolds, and her legal guardian,

: C. A. Reynolds, and the said Harry Hammerly, Guardian Ad

Litem aver that there are errors in said record and proceedings, in

this to-wit:

10 HARRY F. HILL, ETC., ET AL. VS.

First. That the trial court erred in rendering judgment against

said plaintiffs in error and in favor of the defendant in error.

Second. That the trial court erred in admitting and considering

certain testimony offered on the part of the defendant in error.

Third. The trial court erred in not dismissing the petition of the

defendant in error and in not rendering judgment in favor of the

plaintiffs in error.

Fourth. The trial court erred in cancelling the patents of the

plaintiff in error and in decreeing and adjudging said plaintiff in

error holding the legal title to said land in trust for the defendant in

error.

Fifth. The trial court erred in holding that the Land Department

and the Secretary of the Interior committed error of law and gross

error of fact in the final decision awarding said land in controversy

to the plaintiff in error.

Sixth. The trial court erred in overruling the motion of the plain-

tiff in error for a new trial.

Wherefore, plantiff in error pray- that said judgment so rendered

may be reversed, set aside and held for naught, and that a judgment

be rendered in favor of the plaintiff in error, Ethel A. Reynolds,

decreeing and adjudging her to be the legal and equitable owner of

the land in controversy, and directing and ordering the petition of

the defendant in error to be dismissed; and prays that in the event

the Court does not deem it proper to render a judgment in this court,

that said judgment and decision of the trial court be reversed and

remanded to proceed in accordance with the judgment and opinion

of this court; and will ever pray.

F. E. RIDDLE,

Attorney for Plaintiff in Error.

HARRY, HAMMERLY,

Guardian Ad Litem.

18 Filed May 19, 1913. W. H. L. Campbell, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5137.

Wile Reynotps, Plaintiff in Error,

vs.

J. B. Hitt, by and Through His Next Friend and Legal Guardian,

Dave Hill, Defendant in Error.

Petition in Error.

The said Willie Reynolds, Plaintiff in error, complaining of said J.

B. Hill and his next friend and legal guardian, Dave Hill, defendants

in error, in that the said defendants in error at the March 1913 term

of the Superior Court sitting within and for Grady County, Okla

homa, recovered a judgment, by the consideration of said court.

COPY BOUND

FRANK REYNOLDS, ETC. 1l

Fl against the said Willie Reynolds, plaintiff in error, in a certain action

then et in said court wherein the said J. B. Hill, by his next

# friend and legal guardian, Dave Hill, was plaintiff, and the said

Willie Reynolds was defendant. The original case made, dul certi-

# fied and attested, is hereto attached, marked “Exhibit A” an made

fa part of this petition in error.

And the said Willie Reynolds avers that there are errors in said

F record and proceedings, in this, to-wit:

2. First. That the trial court erred in rendering judgment against

® said plaintiff in error and in favor of the defendant in error.

Second. That the trial court erred in admitting and considering

A certain testimony offered on the part of the defendant in error.

Third. That the trial court erred in not dismissing the petition

‘B of the defendant in error and in not rendering judgment in favor of

the plaintiff in error.

19 Fourth. The trial court erred in cancelling the patents of the

plaintiff in error and in decreeing and adjudging said plaintiff

in error holding the legal title to said land in trust for the defendant

in error. ‘

Fifth. The trial court erred in holding that the Land Department

and the Secretary of the Interior committed error of law and gross

error of fact in the final decision awarding said land in controversy

to the plaintiff in error.

Sixth. The trial court erred in overruling the motion of the plain-

tiff in error for a new trial.

Wherefore. plaintiff in error prays that said judgment so rendered

may be reversed. set aside and held for naught. and that a judgmen*

be rendered in favor of the plaintiff in error. Willie Reynolds. decree-

ing and adjudging him to be legal and equitable owner of the land

in controversy, and directing and ordering the petition of defendant

in error to be dismissed ; and prays that in the event the Court does

not deem it proper to render a judgment in this court, that said

judgment and decision of the trial court be reversed and remanded

to proceed in accordance with the judgment and opinion of this court

and will ever pray.

F. E. RIDDLE,

Attorney for Plaintiff in Error.

wa eeevr ree

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~~ = De

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) CLOSE IN CENTER

— ———

—y

12 HARRY F. HILL, ETC., ET AL. VS.

20 Filed May 19, 1913. W. H. L. Campbell, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5138.

Setpon Reynowps, a Minor, Suing by and through His Legal

Guardian, C. A. Reynolds, and Harry Hammerly, Guardian

Ad Litem, Plaintiffs in Error,

vs.

Lewis James, a Minor, by His Legal Guardian, Dave Hill, De

fendants in Error.

Petition in Error.

The said Seldon Reynolds, and C. A. Reynolds, his legal guardian,

and Harry Hammerly, Guardian Ad Litem, plaintiffs in error, com.

plaining of Lewis James, a minor, and his next friend and guardian,

Dave Hill, defendants in error, in that the said defendant in error

at the March 1913 term of the Superior Court sitting within and for

Grady County, Oklahoma, recovered a judgment, by the considera-

tion of said court, against the said Seldon Reynolds, and his legal

guardian, C. A. Reynolds, and the Guardian Ad Litem, Harry Ham.

merly, plaintiffs in error, in a certain action then pending in said

court, wherein the said Lewis James, by his next friend and legal

guardian, Dave Hill. was plaintiff. and the said Seldon Reynolds, and

his legal guardian, C. A. Reynolds and Harry Hammerly, Guardian

Ad Litem, were defendants. The original case-made, duly certified

and attested. is hereto attached, marked “Exhibit A” and made a part

of this petition in error.

And the said Seldon Reynolds, and his lege’ guardian, GC. A.

Reynolds, and the said Harry Hammerly, Guardian Ad Litem, aver

that there are errors in said record and proceedings, in this

to-wit:

21 First. That the trial court erred in rendering judgment

against said plaintiffs in error and in favor of the defendant

in error.

Second. That the trial court erred in admitting and considering

certain testimony offered on the part of the defendant in error.

Third. The trial court erred in not dismissing the petition of the

defendant in error and in not rendering judgment in favor of tke

plaintiff in error.

Fourth. The trial court erred in cancelling the patents of the

plaintiff in error and in decreeing and adjudging said plaintiff in

error holding the legal title to said land in trust for the defendant

in error.

Fifth. The trial court erred in holding that the Land Department

and the Secretary of the Interior committed error of law and“ gros:

error of fact in the final decision awarding said land in controversy

to the plaintiff in error.

COPY BOUND

eam

FRANK REYNOLDS, ETC. 13

Sirth. The trial court erred in overruling the motion of the plain-

iff in error for a new trial.

Wherefore, Plaintiff in error pray- tha said judgment so rendered

may be reversed, set aside and held for naught, and that a judgment

be rendered in favor of the plaintiff in error, Seldon Reynolds, de-

ereeing and adjudging him to be the legal and equitable owner of

the land in controversy, and directing and ordering the petition of

the defendant in error to be dismissed; and prays that in the event

the Court does not deem it proper to render a judgment in this Court,

that said judgment and decision of the trial court be reversed and

remanded to proceed in accordance with the judgment and opinion

of this court; and will ever pray.

F. E. RIDDLE,

Attorney for Plaintiff in Error.

HARRY HAMMERLY,

Guardian ad Litem.

22 Filed May 19, 1913. W. H. L. Campbeil, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 5139.

Frank ReyNoups, by and through His Legal Guardian, C. A.

Reynolds, and Harry Hammerly, Guardian Ad Litem, Plain-

tiffs in Error,

vs

J. B. Hit, by and through His Next Friend, Dave Hill and Legal

| Guardian, Defendants in Error.

Petition in Error.

The said Frank Reynolds, and C. A. Reynolds, his legal guardian,

and Harry Hammerly, Guardian Ad Litem, plaintiffs in error, com-

plaining of J. B. Hill, a minor, and his next friend, Dave Hill, de-

fendants in error, in that the said defendants in error at the March

1913 term of the Superior Court within and for Grady County, Ok-

lahoma, recovered a judgment, by the consideration of said court,

against the said Frank Reynolds, and his legal guardian, C. A.

Reynolds, and the Guardian Ad Litem, Harry Hammerly, in a

certain action then pending in said court, wherein the said J. B. Hill

by his next friend and legal guardian, Dave Hill was plaintiff, and

the said Frank Reynolds and his legal guardian C. A. Reynolds, and

Harry Hammerly, Guardian Ad Litem, were defendants. The

original case made, duly certified and attested, is hereto attached,

marked “Exhibit A” and made a part of this petition in error.

And the said Frank Reynolds, and his legal guardian, C. A.

Reynolds, and the said Harry Hammerly, Guardian Ad Litem, aver

that there are errors in said record and proceedings, in this, to-

wit: -

;

CLOSE IN CENTER

ce

14 HARRY F. HILL, ETC., ET AL. VS.

23 First. That the trial court erred in rendering judgment

against said plaintiffs in error and in favor of the defendant

in error.

Second. That the trial court erred in admitting and considering

certain testimony offered on the part of the defendant in error.

Third. The trial court erred in not dismissing the petition of the

defendant in error and in not rendering judgment in favor of the

plaintiff in error. ;

Fourth. The trial court erred in cancelling the patents of the

laintiff in error and in decreeing and adjudging said plaintiff

in error helding the legal title to ala land in trust for the defendant

in error.

Fifth. The trial court erred in holding that the Land Department

and the Secretary of the Interior committed error of law and gross

error of fact in the final decision awarding said land in controversy

to the plaintiff in error.

Sixth. The trial court erred in overruling the motion of the plain-

tiff in error for a new trial.

Wherefore, the plaintiff in error prays that said judgment s0

rendered may be reversed, set aside and held for naught, and that

a judgment be rendered in favor of the plaintiff in error, Frank

Reynolds, decreeing and adjudging him to be the legal and equi-

table owner of the land in controversy, and directing and ordering

the petition of the defendant in error to be dismissed; and prays

that in the event the Court does not deem it proper to render a judg-

ment in this court, that said judgment and decision of the trial court

be reversed and remanded to proceed in accordance with the judg-

ment and opinion of this court; and will ever pray.

F. E. RIDDLE,

Attorney for Plaintiffs in Error.

HARRY HAMMERLY,

Guardian ad Litem.

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COPY BOUND

FRANK REYNOLDS, ETC.

Evidence Introduced on Behalf of Plaintiff.

Petition pages — to — and exhibits — to “Q” inclusive... .

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Judge's a ee POPP ATU TTLET TTT

Filed April 19, 19138. W. L. Melton, Clerk Superior Court.

Filed Apr. 21, 1913. S. L. Newman, Clerk District Court, Grady

County, Okla.

CLOSE IN CENTER

16 HARRY F. HILL, ETC., ET AL. VS.

25 In the Supreme Court of the State of Oklahoma.

Appealed from the Superior Court Within and for the County of

Grady, State of Oklahoma.

Frank ReyNnotps and Harry Hammerty, His Guardian Ad

Litem, Defendant Below, Plaintiffs in Error,

vs. ;

Harry Hix, a Minor, Suing by His Next Friend and Natural

Guardian, Dave Hill, Plaintiff Below, Defendant in Error,

Nature of Cause: Suit for Possession of Land.

Appearances:

For plaintiff below: Bond & Melton & Stewart, Cruce & Gilbert

For defendant below: F, E. Riddle & Harry Hammerly,

Before Hon. Will Linn, Judge.

Case-Made,

G. U. McKinney, Reporter.

26 In the Superior Court within and for Grady County, State

of Oklahoma.

No. 399.

Harry F. H111, a Minor, Suing by His Next Friend and Natural

Guardian, Dave Hill, Plaintiff,

vs.

Frank ReEyNotps, a Minor, Defendant.

Case-Made.

Be it remembered, that heretofore, to-wit on the 12th day of

March, 1912, the plaintiff commenced this action against the de

fendant herein, by filing in the Superior Court within and for Grady

County, State of Oklahoma, his petition, which said petition was in

words and figures as follows, to-wit:

G. U. McKinney, Reporter.

* ~

mca

COPY BOUND ¢

or

FRANK REYNOLDS, ETC. 17

27 (Filed April 19, 1918. W. L. Melton, Clerk of Superior

Court. )

In the Superior Court Within and for Grady County, State of

Oklahoma.

No. 399,

Harry F. Hitt, a Minor, Suing by Next Friend and Natural

Guardian, Dave Hill, Plaintiff,

vs.

Frank ReyNotps, a Minor, Defendant.

Petition.

The plaintiff suing by his next friend and natural guardian, Dave

Hill, represents that he is a minor, a member of the Choctaw Tribe

of Indians by blood and entitled to an allotment as such, and that

Dave Hill is his father and natural guardian. For cause of action

against the defendant the plaintiff alleges and states.

&

That on July 13, 1903, Charles A. Reynolds appeared at the

Chickasaw Land Office and made application under the act of Con-

gress commonly known as the Choctaw-Chickasaw supplemental

Agreement, for the north half of the south east quarter of section

thirty-two, township seven north, range six west, together with other

lands as the allotment selection for his minor son, Frank Reynolds,

and same was by the commission to the Five Civilized Tribes set

apart to said minor as a portion of his allotment selection.

Il.

That thereafter on August the 13th, 1903, Nellie B. Hill appeared

at the Chickasaw Land Office and made application under said

Supplementary Agreement to have nid land set apart to her

28 minor son, Harry F. Hill as a portion of his allotment selec-

tion and the same having been heretofore selected as herein

stated said commission refused to allow said application.

III.

That on September 26th, 1903, Harry F. Hill by his mother Nellie

B. Hill, filed at the Chickasaw Land Office his complaint alleging

that said lands were improved and under cultivation and that he

was the owner of the improvements thereon and entitled to select

and file on same as a part of his allotment. A copy of said contest

complaint is hereto attached and made a part hereof and marked

a

SLOSE IN CENTER

es

18 HARRY F. HILL, ETC., ET AL. VS.

IV.

That on April 27th, 1904, said allotment contest was called for

trial and on the foilowing day thereafter said trial was concluded

and taken under advisement by said commission and that thereafter

on January the 3rd 1905 said commission rendered its decision in

said contest case awarding said lands to said Harry F. Hill. A copy

of said decision is hereto attached and made a part hereof and

marked “Exhibit B.”

V.

That on February, the 8th, 1905, the contestee filed an appeal

to the Commissioner of Indian Affairs and on December 11th, 1906,

said acting commissioner of Indian Affairs rendered his decision in

said contest case affirming the decision of said commission thereto

fore rendered, A copy of said decision is hereto attached, and made

a part hereof and marked Exhibit “C.”

29 VI. |

That an appeal was taken from the decision of the Commissioner,

of Indian Affairs to the Secretary of the Interior and that on Febru-

ary 6th, 1907, the Secretary of the Interior affirmed the decision of

the Commissioner of Indian Affairs awarding said land to the said

Harry F. Hill and that thereafter patents were issued to the said

Harry F. Hill to said land. Copies of said patents and said decision

are hereto attached and marked Exhibits “D” and E. F.” That

thereafter a motion for rehearing and a review was filed before the

Secretary of the Interior and on a hearing thereof the acting secre

tary attempted to recall and vacate the departmental decision of

February 6th, 1907, and the former decision of the Commissioner

of Indian Affairs and the Commissioner to the Five Civilized Tribes

and that after rendering said opinion the Acting Secretary recom-

mended that the Department of Justice institute suit to cancel said

patents, that jurisdiction might be restored, and that thereafter the

United States filed suit to cancel same, and that thereafter by agree-

ment with the Department said patents were surrendered to the

Department for cancellation with the understanding that said Harry

F. Hill, contestant, should have a hearing before the department and

that thereafter the acting Secretary of the Interior rendered his

decision awarding said lands to said Frank Reynolds. A copy of

said decision is hereto attached and made a part hereof and marked

“Exhibit F.” That thereafter the contestant by his attorneys filed

a motion for rehearing and review, which motion the department

refused to hear or entertain. A copy of the decision of the Depart-

ment refusing to hear said motion is hereto attached and made a

part hereof and marked “Exhibit G.”

VII.

The department in rendering its decision of May the 9th

30 1911, awarding the lands in controversy to the conteste

committed gross mistake of fact in the following findings, to

ae EE

COPY BOUND

FRANK REYNOLDS, ETC. 19

I.

The department erred in its decision of May the 9th, 1911 in find-

ing as a fact that Blassengame conveyed the land involved to Brimage

prior to the time Blassengame was denied citizenship by the judg-

ment of the Choctaw-Chickasaw Citizenship Court on December

17th, 1902, and that subsequent to that time Brimage, who was a

citizen of the Choctaw Nation conveyed the land to Reynolds.

Il.

The department in its decision of May the 9th, 1911, erred in

holding as a fact that there was nothing in the record to show that

C. L. Campbell was a citizen by intermarriage of the Chickasaw Na-

tion.

Til.

‘The department erred in its decision of May the 9th 1911, in

| finding as a fact that the lands involved in said contest were not a

part of the home place. *

IV.

The Department erred in its decision of May the 9th, 1911, in

finding as a fact that the guardian Tuttle assigned to each of the

Campbell minors their proportionate share of the land comprising

their father’s estate when said minors reached the age of majority

and in finding that the widow was given undisputed control of

various tracts.

31 V.

The department erred in its decision of May the 9th, 1911, in

finding as a fact that practically all the land in controversy in Jan-

uary 1899 was uncultivated and used mainly if at all for grazing

purposes, and in finding that the field of sixty to seventy-five acres

was broken up but not in cultivation and in nding that said field

could not be definitely located, and in finding that the location of

the fences on the lands involved could not be fixed by the evidence,

and in finding that the fences on the land in controversy formed

no part of the continuous scheme of improvements.

v1.

The department erred in holding as a fact that Blassengame and

his grantees owned the improvements on and were in possession of

about eighty acres of land in contest case 235 as the record shows

that no citizen of the Choctaw or Chickasaw Nation had ever had

_ possession of said land save the Campbell’s estate, Holmes Campbell

and Dave Hill. A transcript of the testimony taken at the trial of

said allotment contest case is hereto attached and made a part hereof

and marked “Exhibit H.”

LOSE iN CENTER

———

HARRY F. HILL, ETC., ET AL. VS.

Vil.

The department in its decision of May the 9th, 1911, erred in its

conclusions of law as follows, to-wit:

1

The Department in its decision of May 9th, 1911, erred in its

conclusion of law, and the Court of Pontotoc County in which the

will was probated had no jurisdiction and that the officers of said

Court were prohibited from performicg any acts as such under the

provisions of Section 28 of the Aci of Congress of June the

32 28th, 1898.

Il.

The Department in its decision of May 9th, 1911, erred in its

conclusion of law that said certified copy of the will of C. L. Camp-

bell, deceased, the Judgment of probate and the appointment and

ualification of J. H. Tuttle as guardian were not admissible in evi-

ence because such instruments were only certified to by the officers

of the Indian Court, whose power to act had been taken away by

Section 28 of the Act of Congress of June the 28th, 1898.

III.

The department in its decision of May the 9th, 1911, erred in its

conclusion of law in holding that the bill of sale from Holmes Camp-

bell and J. H. Tuttle to Dave Hill was insufficient to convey any

right to Hill.

IV.

The Department in its decision of May the 9th, 1911, erred in its

conclusion of law in holding that the contestants took no right to

the lands involved by virtue of the several conveyances and that

this contest must be decided upon other grounds disregarding the

claims of contestants and contestees by virtue of the conveyances

relied upon by them as a right to select said land.

LF

The department in its decision of May the 9th, 1911, erred in its

conclusion of law in holding that the claims of the guardian J. H.

Tuttle and the heirs of G. L. Campbell deceased, to the land in con-

troversy were dormant and that the lands had been abandoned.

33 VI.

The Department in its decision of May the 9th, 1911, errea in its

conclusion of law in holding that said guardian and heirs had no

right to the possession of the land and said improvements thereon

which they could convey.

| FRANK REYNOLDS, ETC.

VIL.

The Department by its decision of May the 9th, 1911, erred in its

conclusion of law in holding that the contestees could question the

validity of the conveyance made by the guardian to Dave Hill on the

ground that the sale as made by said guardian was not ordered or

approved by the Probate Court and that by reason thereof said con-

veyance was invalid,

; Vir.

The Department in its decision of May the 9th, 1911, erred in its

conclusion of law in holding that the possession of the land in con-

troversy and the improvements thereon could only be transferred

by guardian under order of the Probate Court and that a sale and

transfer thereof would only be valid after approval and confirma-

tion by such court. +

That the Department after its decision of May the 9th, 1911, issued

patents to the lands involved, that said patents were signed by the

Governor of the Chickasaw Nation and the Principal Chief of the

Choctaw Nation and approved by the Secretary of the Interior, re-

corded in the office of the Commissioner to the Five Civilized Tribes,

delivered to the Contestees and recorded in the office of the Register

of Deeds in Grady County, State of Oklahoma in Book — at Page —

and that said patents cast a cloud upon the title of the plaintiff.

34 X.

Defendant alleges and states that prior to the institution of said

contest case there was a suit pending in the United States District

Court within and for the Southern District of the Indian Territory

at Chickasha involving the right to possession to said land, that said

case was prosecuted for the use and benefit of this plaintiff to the

Supreme Court of the State of Oklahoma and a judgment rendered

by said Court for the possession of said land and on return of the

mandate from said court this plaintiff was placed in possession of

all that part of said land which he had not previously held posses-

sion of.

XI.

That upon the facts established without dispute at the hearing

before the Department, its officers fell into an error in the construc-

tion of the law applicable to the case which caused them to refuse

to issue said patents to the plaintiff herein and to give them to the

defendant and that, through gross mistake they fell into a misap-

prehension of the facts proved before them which had the like effect,

that under the facts established by the evidence as shown by the

record and the law applicable ther-to patents to said lands should

have been issued to the plaintiff.

Plaintiff states that he is the owner of and in the actual possession

22 HARRY F. HILL, ETC., ET AL. VS.

of the following described lands and premises situated in Grady

County, State of Oklahoma, to-wit:

The north half of the southeast quarter of section thirty-two, town-

ship seven north, range six west, and that said defendant claims title

in and to said land and premises adverse to the title of this

35 plaintiff by virtue of the issuance of said patents as aforesaid.

Wherefore, plaintiff prays that the court decree that the

defendant hold the title in trust for the plaintiff and that plaintiffs

claim and title to the land and premises is valid and perfect and

that said defendant has no right or title therein and that the title

of plaintiff be quieted in said premises and that the defendant be

perpetually enjoined from setting up or asserting any title or interest

in said lands and premises adverse to this plaintiff, and for such

other relief as may be equitable and proper and for the costs of this

action and will ever pray.

(Signed) STUART, CRUCE & GILBERT,

Attorneys for Plaintiff.

(Signed ) BOND & MELTON,

Attorneys for Plaintiff.

Petition endorsed: Filed Mar. 12, 1913. W. L. Melton, Clerk of

Superior Court.

(Herewith follows copies of exhibits attached to said petition.)

Department of the Interior,

Commission to the Five Civilized Tribes,

Chickasaw Land Office.

Chickasaw Allotment Contest No. 236.

J. B. Hut, a Minor, by His Mother and Natural Guardian, Nellie

B. Hill, Contestant,

vs.

Frank Reynotps, a Minor, Contestee.

Land in controversy: N./2 of S. E./4 of N. E./4 S./2 of N.

E./4 of N. E./4 8. W./4 of N. E./4, Section 32, township 7, north

Range 6 west of the Indian Meridian, containing 80 acres.

FRANK REYNOLDS, ETC.

86 With which are consolidated

Chickasaw Allotment Contest No. 237.

J.B. Hm, a Minor, by His Mother and Natural Guardian, Nellie

B. Hill, Contestant,

vs.

Wire Reynops, a Minor, Contestee.

Land in Controversy: N./2 of the N. E./4, Section 7 North,

Range 6 West, of the Indian Meridian, Containing 80 acres.

Chickasaw Allotment Contest No. 238.

Harry F. Hm, a Minor, by His Mother and Natura] Guardian,

Nellie B. Hill, Contestant,

vs.

Frank Reynotps, a Minor, Contestee.

Land in Controversy: N./2 of the S. E./4, Section 32, Town-

ship 7 North, Range 6 West of the Indian Meridian, containing 80

acres.

Exuisir B.

Chickasaw Allotment Contest No. 239.

Lewis JaMEs, a Minor, by His Legal Guardian, Dave Hill,

' Contestant,

vs.

SeLpan Reynoxps, a Minor, Contestee.

Land in Controversy: W./2 of the S. W./4, Section 33, township

7 north, Range 6 west of the Indian Meridian, containing 80 acres.

and

Chickasaw Allotment Contest No. 240.

Lewis James, a Minor, by His Legal Guardian, Dave Hill,

Contestant,

vs.

Erne. A. Reynotps, a Minor, Contestee.

Land in Controversy: N./2 of the N. E./4 of the N. W./4 W./2

of the N. W./4 Section 33, township 7 north, range 6 west of the

Indian Meridian, containing 100 acres.

Appearances :

For Contestants: Their Guardian, Dave Hill, and Counsel, Bond

& Melton.

For Contestees: Their Guardian, Charles 0, Reynolds and Coun-

sel, Holding & Bailey.

24 HARRY F. HILL, ETC., ET AL. VS.

37 Findings and Decision.

After an investigation of the records of the Commission and due

consideration of the pleadings and evidence in this consolidated case,

the commission finds as follows:

Statement of Record.

The records of the Commission show:

That J. B. Hill, Harry F. Hill, and Lewis James, the contestants

in this consolidated contest, are citizens by blood of the Choctaw

Nation, and that Frank Reynolds, Willie Reynolds, Seldan Rey-

nolds and Ethel A. Reynolds, the contestees in this consolidated con-

test. are citizens by blood of the Chickasaw Nation, and that each is

ae a to an allotment of the lands of the Choctaw and Chickasaw

ations.

That on July 13, 1903, Charles A. Reynolds appeared at the

Chickasaw Land Office and made application for the land in con-

troversy in Chickasaw allotment contest No. 236, together with other

lands, for his minor son, Frank Revnolds, the contestee in said con-

test, and that the same was by the Commission set apart to him as a

portion of his allotment selection.

That on August 13, 1903, Nellie B. Hill appeared at the Chicka-

saw Land Office and made application to have the land in contro-

versy in Chickasaw Allotment contest No. 236 set apart to her minor

son, J. B. Hill, as a portion of his allotment; and the same having

been theretofore selected, as herein stated, the said Nellie B. Hill

was so notified by the Commission, and the commission refused to

allow her said application.

That on September 26, 1903, the contestant J. B. Hill, by his

mother, Nellie B. Hill, filed herein his complaint, duly verified, in

_ which it is stated:

38 The contestant, Nellie B. Hill, states that J. B. Hill is —

years of age and a citizen of the — Nation. That on the

13th dav of August, 1903, she made application to the commission

to the Five Civilized Tribes at the Tishomingo Land Office to take

in allotment for J. B. Hill the N. 4S. E. 4% N. E. 4 and S. &%

S.E.4%N.E.4%&S. W.4N. E. % Section 32, Township seven

north, range six west, and it appeared of record that on the 13th day

of July, 1903, the said tract of land was selected by Chas. O. Rey-

nolds for Frank Reynolds.

The contestant further states that all of said land is in a state of

cultivation, and that the only improvements situated thereon consist

of fences, etc., that contestant was on the said 13 day of July, 1903,

and is now, the owner of the improvements on said land, and was

then and is now entitled to take, select and file on the same as a

part of the allotment of J. B. Hill.

Wherefore, contestant prays that J. B. Hill be permitted to take

in allotment the tract of land described herein.

That on February 4, 1904, this cause was set for trial on March

— an

FRANK REYNOLDS, ETC. es

%4, 1904, at 9 o'clock A. M., and notice of contest and suimmons

was issued to contestee.

That on February 12, 1904, return of notice of contest and sum-

mons was filed, showing service on Frank Reynolds, the minor con-

testee, on February 9th, 1904, by delivering a copy thereof to Charles

A. Reynolds, who had said minor in charge.

That on March 24, 1904, this cause was called for trial, and by

agreement of the parties, continued to April 11, 1904, at 9 o'clock

A. M.

That on April 11, 1904, this cause was called for trial; upon mo-

tion —— continued to April 27th, 1904, at 9 o’clock

39 That on April 27th, 1904, this cause was called for trial;

both parties appeared by counsel and announced ready for

trial. By agreement, Chickasaw Allottment contest Nos. 237, 238,

939 and 240 were consolidated with this contest; whereupon this

cause, as consolidated was heard in part, and by agreement con-

tinued to April 28th, 1904 at 9 o’clock A. M.

That on April 28, 1904, this cause was called for trial, both

parties appeared by counsel, whereupon the hearing of this con-

solidated cause was resumed and concluded and taken under advise-

ment by the commission.

That on June 27, 1904, the contestant filed brief, showing ser-

vice of the same by a copy on the attorneys of record for contestee,

on June 27, 1904.

That on August 29, 1904, the contestee filed brief, showing ser-

vice of the same by a copy on the attorneys of record for contestant,

and the same, by agreement, was submitted without reference to

the time in which it was filed.

That on July 13, 1903, Charles A. Reynolds appeared at the

Chickasaw Land Office and made application for the land in con-

troversy in Chickasaw Allotment contest No. 237, together with

other lands, for his minor son, Willie Reynolds, the contestee in

said contest, and the same was by the Commission set apart to him

as a portion of his allotment selection.

That on August 13, 1903, Nellie B. Hill appeared at the Chicka-

saw Land Office and made application to have the land in contro-

versy in Chickasaw Allotment Contest, No. 237 set apart to her minor

son, J. B. Hill, as a portion of his allotment: and the samé having

been theretofore selected, as herein stated, the said Nellie B. Hill

§ was so notified by the Commission, and the Commission refused to

allow her said application.

40 That on September 26, 1903, the contestant, J. B. Hill,

by his mother, Nellie B. Hill. filed herein his complaint,

duly verified, in which it is stated:

“The contestant, Nellie B. Hill states that J. B. Hill, is — years

-of age and a citizen of the — nation. That on the 13th day of Au-

gust, 1903, she made application to the Commission to the Five

Civilized Tribes at the Tishomingo land Office to take in allotment

for J. B. Hill, the N. 14, N. E. 4 Section 32, Township 7 North,

Range six west, being eighty acres, and it appeared of record that

26 HARRY F. HILL, ETC., ET Ad. VS.

on the 13th day of July, 1903, the said tract of land was selected

by Chas. O. Reynolds for Willie Reynolds, minor.

The contestant further states that all of said land is in a state

of cultivation and that the improvements situated thereon consist

of a two room boxed house, sheds, fences, etc., all of the reasonable

value of three hundred dollars; that contestant was on the said 13th

day of July, 1903, and is now the owner of said improvements,

and was then and is now entitled to the immediate possession of

said lands, and entitled to take, select and file on the same as a

part of the allotment of J. B. Hill.

Wherefore, contestant prays that J. B. Hill be permitted to take

in allotment the tract of land herein described.”

That on February 4, 1904, this cause was set for trial on March

24, 1904, at 9 o’clock A. M., and notice of contest and summons

issued to contestee.

That on February 12, 1904, return of notice of contest and sum-

mons was filed, showing service on Willie Reynolds, the minor

contestee, on February 8, 1904, by delivering a copy of the same to

Charles A. Reynolds. who had the said minor in charge.

That on March 24. 1904, this cause was called for trial,

41 and, by agreement of the parties, continued to April 11,

1904, at 9 o’clock A. M.

That on April 11, 1904, this cause was called for trial, and upon

motion of contestant, continued to April 27, 1904, at 9 o’clock A. M.

That on April 27, 1904, this cause was called for trial, both parties

appeared by counsel, and, by agreement, this cause was consoli-

dated with Chickasaw Contest No. 236.

That on July 13, 1903, Charles A. Reynolds appeared at the

Chickasaw Land Office and made ar lication for the land in con-

troversy in Chickasaw Allotment contest No. 238, together with

other lands, for his minor son, Frank Reynolds, the contestee in

said contest, and the same was by the Commission set apart to him

-z a portion of his allotment selection.

That on August 13, 1903, Nellie B. Hill appeared at the Chicka-

saw Land Office and made application to have the land in con-

troversy in Chickasaw Allotment Contest No. 238 set apart to her

minor son, Harry F. Hill, as a portion of his allotment; and the

same having been theretofore selected, as herein stated, the said

Nellie B. Hill was so notified by the Commission, and the Com-

mission refused to allow her said application.

That on September 26th, 1903, the contestant, Harry F. Hill by ,

his mother, Nellie B. Hill, filed herein his complaint, duly verified,

in which it is stated:

“The contestant, Nellie B. Hill, states that Harry F. Hill is —

years of age and a citizen of the — Nation. That on the 13th day

of August, 1903, she made application to the Commission to the

Five Civilized Tribes at the Tishomingo Land Office to take in

allotment for Harry F. Hill the N. %, S. E. %4, Section 32, town-

ship seven north, range six west, and it appeared of record

42 that on the 13th day of July, 1903, the said tract of land was

selected by Chas. O. Reynolds for Frank Reynolds.

COPY BOUND

FRANK REYNOLDS, ETC. 27

The contestant further states that about seventy acres of said

land is in a state of cultivation and the balance in pasture; that

the improvements on said land consist of fences, etc., that the

contestant was on the said 13th day of July, 1903, the owner of the

improvements situated thereon, and was then and is now entitled

to the immediate possession of said land, and entitled to take, select

and file on the same as a part of Harry F. Hill’s allotment.

Wherefore, contestant prays that Harry F. Hill be permitted to

take in allotment the tract of land herein described.”

That on February 4, 1904, this cause was set for trial on March

24, 1904, at 9 o’clock A. M. and notice of contest and summons

was issued to contestee.

That on February 12, 1904, return of notice of contest and sum-

mons was filed, showing service on Frank Reynolds, the minor

contestee on February 9, 1904, by delivering a copy thereof to

Charles A. Reynolds, who had said minor charge.

That on March 24, 1904, this cause was called for trial, and, by

— of the parties continued at April 11, 1904, at 9 o’clock

That on April 11, 1904, this cause was called for trial and upon

ote of the contestant, continued to April 27, 1904, at 9 o’clock

That on April 27, 1904, this cause was called for trial, both

parties appeared by counsel and announced ready for trial and by

agreement, this cause was consolidated with Chickasaw allotment

contest No. 236.

43 That on July 13, 1903, Charles A. Reynolds appeared at

the Chickasaw Land Office and made application for the land

in controversy in Chickasaw Allotment Contest No. 239, together

with other lands, for his minor son, Seldan Reynolds, the con-

testee in said contest. and the same was by the Commission set

apart to him as a portion of his allotment selection.

That on August 13, 1903, Dave Hill appeared at the Chickasaw

Land Office and made application to have the land in controversy

in Chickasaw Allotment Contest Case No. 239 set apart to his minor

ward, Lewis James, as a portion of his allotment; and the same

having been theretofore selected, as herein thé said Dave Hill was

go notified by the Commission, and the Commission refused to al-

_ low his said application.

That on Sentember 26th. 1903, the contestant, Lewis James, by

his lecal guardian, Dave Hill, filed herein his complaint, duly veri-

fied in which it is stated.

“The contestant Dave Hill states that Louis James is — years

of age and a citzon of the — Nation; ‘That on the 13th day of

~ Auoust. 1903, he made application to the Commission to the Five

Civilized Tribes at the Chickasaw Land Office to take in allotment

for Louis James the W. 14, S. W. 14, Section 33, Township seven

North, Range six west, and it appeared of record that on the 13th

day of July 1903. the said tract of land was selected by one Chas.

0. Reynolds for Sheldan Reynolds.

The contestant further states that all of said land is in a state

Toe ee

CLOSE IN CENTER

ee

98 HARRY F. HILL, ETC., ET AL. VS.

of cultivation and that the imnrovements situated thereon con.

sists of fences, etc., that the contestant was on the said 13th day of

July, 1903, and is now the owner of the improvements on said land,

ahd was then and is now entitled to the immediate posses.

44 sion of the same, and entitled to take, select and file on said

land as a part of Louis James’ allotment.

Whetefore, contestant prays that Louis James be permitted to take

in allotment the tract of land herein described.”

That on February 4, 1904, this cause was set for trial on March 24.

1904 at 9 o’clock A. M., and notice of contest and summons was

issued to contestee. .

That on February 12, 1904, return of notice of contest and sum.

mons was filed, showing service on Seldan Reynolds, the minor con

testee, on February 9. 1904, by delivering a copy thereof to Charle

A. Reynolds, who had said minor in charge.

That on March 24, 1904, this cause was called for trial and b

= of the parties, continued to April 11, 1904, at 9 o’cloe

That on April 11, 1904, this cause was called for trial and upon

motion of contestant, continued to April 27, 1904, at 9 o’clock A. M

That on April 27, 1904, this cause was called for trial, both partie

appeared by counsel and announced ready for trial, and, by agree

sg gg cause was consolidated with Chickasaw Allotment contes

0. 236.

That on July 13, 1903, Charles A. Reynolds appeared at the Chick

asaw Land Office and made application for the land in controversy

in Chickasaw Allotment Contest No. 240, together with other lands

for his minor daughter, Ethel A. Reynolds, the contestee in sai¢

contest, and the same was by the Commission set apart to her as ¢

portion of her allotment selection.

That on August 13, 1903, Dave Hill appeared at the Chickasay

Land Office and made application to have the land in con

45 troversy in Chickasaw Allotment Contest No. 240, set apar

to his minor ward, Lewis James, as a portion of his allotment

and the same having been theretofore selected, as herein stated, thi

said Dave Hill was so notified by the Commission, and the Commis

sion refused to allow his said application.

That on September 26, 1903, the contestant, Lewis James, by hi

legal guardian, Dave Hill, filed herein his cimplaint, duly verified

in which it is stated:

“The contestant, Dave Hill, states that Louis James is — years 0

age and a citizen of the — Nation. That on the 13th day of August

1903, he made application to the Commission of the Five Civilizec

Tribes at the Chickasaw Land Office to take in allotments for Lewi

James the N. % N. FE. 4 N. W. 4 and W. 1% N. W. 4 Section 33

Township seven north, range six west, and it appeared of record tha

on the 13th day of July, 1903, the said tract of land was selected by

Chas. 0. Reynolds, for Ethel A. Reynolds.

The contestant further states that there is located on the abov

_ described lands one boxed house, sheds and out-houses and fence

of the reasonable value of two hundred dollars; that about ninet

acres of said lands is in a state of cultivation and the balance i

es ee = -- kee

COPY BOUND

we

FRANK REYNOLDS, ETC. 2?

pasture; that the contestant was on the said 13th day of July and is

now the owner of said improvements on said lands and was then

and is now entitled to the immediate possessiea of the same and en-

titled to take, select and file on said land as a part of Louis James’

allotment. r

Wherefore, contestant prays that Louis James be permitted to

take in allotment the track of land herein described.”

That on February 4, 1904, this cause was set for trial on

46 March 24, 1904, at 9 o’clock A. M. and notice of contest and

summons was issued to contestee.

That on February 12, 1904, return of notice of contest and sum-

mons was filed, showing service on Ethel A. Reynolds, the minor

contestee, on February 9 1904, by delivering a copy thereof to

Charles A. Reynolds, who had said minor in charge.

That on March 24, 1904, this cause was called for trial and by

agreement of parties, was continued to April 11, 1904, at nine o’clock

A. M.

That on April 11, 1904, this cause was called for trial, and upon

motion of the contestant was continued to April 27, 1904, at nine

o'clock A. M.

That on April 27, 1904, this cause was called for trial, both par-

ties appeared by counsel and announced ready for trial, and, by

aoe = cause was consolidated with Chickasaw Allotment con-

test No. ‘

Findings of Fact and Conclusions.

The evidence in this consolidated case shows that the land in con-

troversy was a part of a large tract of land enclosed about twenty-five

years ago by one C. L. Campbell, and was controlled by him until

his death; that said Campbell died in the year 1896, leaving sur-

viving him his widow and five minor children ; that prior to his death

he- executed his last will and testament, by the terms of which he

devised and bequeathed to his widow, Sallie L. Campbell, and to his

five children, Mont, Holmes, Lawrence, John and Rex among other

property, the improvements on all the lands of which he died pos-

sessed, share and share alike, the widow to take a child’s part.

The will further provides that W. L. Sawyer was to be appointed

administrator of the estate, and that James H. Tuttle should

47 be appointed guardian of the persons and estates of testator’s

minor children; that the administrator and guardian was

each to enter into a good and sufficient bond in double the amount

of the value of the property coming into their hands, which bonds

were to be approved by the court. The will shortly after the death

of testator, was admitted to probate in the probate court of the county

of Pontotoc, Chickasaw Nation, Indian Territory, and the bonds of

Sawyer and Tuttle were filed and approved.

By further and other clauses in said will and testament, the widow,

Sallie L. Campbell was to be given her pro rate share of the estate

as soon after the death of testator as convenient, and the guardian

was to have full charge of the property and funds of the minor heirs

until they arrived at the age of their majority. As each became of

Cat

CLOSE IN CENTER

a

a

age, he was to be given his pro rata share, and three of the boys have

since become of age and have been apportioned their shares of the

property. Two of the heirs are still mizors and have not received

control of their property, and the guardian has never been dis

charged.

The improvements on the land in controversy were no part of the

improvements set aside to Sallie L. Campbell, or which she elected

to select, but it appears from the evidence that she, on the 21st da

of January, 1899, transferred for a valuable consideration to one’ J,

W. Blassengame, a court claimant, all her right title and interest in

and to the land in controversy, together with other lands. About

one month thereafter, said Blassengame took possession of the land

and he and his grantees have remained jn possession the greater por

tion thereof since the date of his entry thereon. The balance of the

land, being a part of the N. % of the S. E. 4 of Section 32 and the

W. % of the S. W. % of the S. W. % of section 33, has been for

nearly two years in the possession of Dave Hill, the father of two of

the minor contestants herein and the legal guardian of the

48 other one, he having purchased the possessory title to same,

as hereinafter set forth, and also from Holmes Campbell, to

whom same had been awarded on his reaching majority, as a portion

of his share of his father’s estate.

‘The number of acres in this /and described tract which had been

in possession of Dave Hill need not be determined, as the contest

will be decided on other grounds, and the conclusions reached will

include all of the lands in suit. :

On November 18, 1902, James H. Tuttle, as guardian of the minor

heirs, joined by the surviving widow of C. L. Campbell, then the wife

of one Dr. Minter, and joined also by the adult heirs of said C. L.

Campbell, executed and delivered to said Dave Hill a certain bill of

sale, transferring to him all of the improvements on the land in

controversy.

After his purchase as aforesaid, Hill demanded possession of the

premises from Blassengame, and on the refusal of Blassengame t

deliver possession, Hill instituted his suit in ejectment against Blas

sengame in the United States District Court for the Southern Distrid

of the Indian Territory, on November 25, 1902, which suit has no

yet been proceeded to judgment. P

On December 10, 1902, Blassengame transferred by two certain

bills of sale the controverted land to John W. Brimage, a citizen by

intermarriage. Brimage failed to pay the agreed consideration for

said lands and later, to-wit, on the 6th day of March, 1903, he, al

Blassengame’s request, transferred said premises to Charles A.

Reynolds, the father and guardian of minor contestees herein.

Contestants base their right to have the controverted land set apar

to them as portions of their allotment selections by reason of the pur

chase from James H. Tuttle, et al., on November 18, 1902, and all

that the sale to Blassengame by Sallie L. Campbell conveyed no tith

as she had no title therein to convey.

49 Contestees show purchase from Mrs. Campbell, and shor

that they have been in possession for over four years of all the

land in controversy with the exception of the land heretofore show?

an HARRY F. HILL, ETC., ET AL. VS.

_—— - a

COPY BOUND

FRANK REYNOLDS, ETC. ;

to be in the possession of Hill. They maintain that by this sale

title passed and maintain that even though the sale by Mrs. Camp-

bell to Blassengame was not good, yet so far as the contestants are

concerned, the property has been abandoned, and contestees being

in possession and being the first to file thereon, should be

awarded the land. They further maintain, that under the laws of

the Chickasaw Nation, Tuttle, as guardian, could not dispose of the

rty without authority and approval of the court, and Tuttle

admits that he did not procure authority and that the sale was not

roved. They maintain that the sale was void. They also main-

tain that the land was a part of an excessive holding.

It is shown from the evidence that Blassengame knew at the time

he purchased from Mrs. Campbell that the premises belonged to the

Campbell estate, and that the last will and testament of said Camp-

bell dividing said estate was then being probated. It is shown

that Tuttle, as soon as he learned of the sale by Mrs. Campbeli,

notified Blassengame that the premises were in his control, as

guardian, and that he (Blassengame) could not retain possession of

the same. It is shown, also, that Brimage knew of the claims of

Tuttle prior to the time he purchased said land from Blassengame.

It is also shown that Reynolds, the father of the minor contestees

herein, was aware of the fact that suit in ejectment had been brought

against Blassengame at the time he purchased from Brimage and

Blassengame. No trickery or fraud can be alleged. Blassengame

and his grantees went into possession with their eyes open and were

prepared to fight for the land.

The lands were not a part of an unlawful holding, as at

50 _— the time Tuttle, et al., sold to Dave Hill, the ninety days’ lim-

| itation after the ratification of the Choctaw-Chickasaw Agree-

ment (32 Stat. L., 641) had not expired. It was the privilege of all

B excessive holders to dispose of their excess holdings during the ninety

days.

The lands were not abandoned, as they were entered upon by

Blassengame without the consent or connivance of Tuttle and the

heirs of-the Campbell estate interested therein, and possession was

retained by Blassengame contrary to the express demand of Tuttle,

asguardian, Tuttle was not required to institute proceedings in court

to maintain the interest of his wards in the land. Both the Atoka

Agreement (30 Stat. L. 591), and the Choctaw-Chickasaw treaty

(32 Stat., L. 641) contain provisions that the Commission to the

Five Civilized Tribes shall have authority to settle all controversies

arising relative to the right to select certain tracts of land in allot-

ment.

The law of the Chickasaw Nation that two years’ absence and non-

control constitute an abandonment, is not now in force. It is not

binding upon the Commission. The Commission, however, considers

this law in its decision in so far as it indicates the usages and cus-

toms of the citizens of the Chickasaw tribe. The rule will not apply

in this case. The improvements were the property of minors, and

BH possession was at all times retained by Blassengame and his grantees,

F contrary to the will and consent of Tuttle, the legal guardian.

|

J

CLOSE IN CENTER

TT

32 |

HARRY F. HILL, ETC., ET AL. VS.

It is contended that the sale made by Tuttle as guardian of the

minor heirs is void for the reason that Tuttle was not authorized to

make the sale and the sale was not confirmed by the court.

The improvements on land in the Indian Territory which is sub-

ject to allotment partakes of the nature both of personalty

51 and of real property. The interest of a citizen in the im.

provements on lands to the extent of his allotment, carrying

with it a right of occupancy and the right to select his allotment so

as to include such improvements. is no more than a personal inter.

est. The interest of the same citizen in the improvements on iand!

in excess of his allotment, and which he does not desire to take in

allotment, and which he had the right to dispose of within ninety

days after the ratification of the last agreement (supra) is a personal

property interest.

In this case, the Campbell estate consisted of some ten or fifteen

thousand acres of land. Each of his six heirs could select one allot

ment. By an Act of Congress they were given ninety days to dis

pose of the improcements on all Jarids in excess of the amount which

they could allot. This excess partoc!. of the nature of personal prop-

erty, and the law as to the sale of personal property would apply.

This being true, it was not only the right of the guardian but aiso

his duty, to dispose of any improvements owned by his wards on

land in excess of their allottable shares within the time limited by

law. Under the law of Arkansas as to guardian and ward, the sale

of the personalty of his ward by the guardian is not prohibited by

statute. No prohibition being placed on such sale by statute or by

express order of the court, it comes within the scope of the powers of

the guardian. The conveyance to Hill signed by the adult heirs and

by Tuttle, as guardian, must be considered good. The guardian

had authority to make the sale. His bond is the protection of the.

minor heirs in case the sale was made for an inadequate consider-

ation.

The conveyance by Mrs. Campbell passed no title. She had none

to convey. She had accepted her pro rata share of the premises. She

took the home place, upon which there were valuable improve

52 ments. She had taken three allotments out of the land.

Blassengame knew that the land was a part of the Campbell

estate. He cannot now set up that he was an innocent purchaser.

It is true that Blassengame has placed valuable improvements on

the land, but he had had the land for four years and has paid no

rent therefor, and he has undoubtedly been fully compensated for

such improvements. Brimage and Reynolds knew of the claim of

Tuttle to the land, and cannot be said to be innocent purchasers.

The Commission is therefore of the opinion that the land in con-

troversy should be awarded to the contestants.

Judgment.

It is, therefore, the judgment of the Commission that the north

half of the southeast quarter of the northeast quarter, the south half

of the southeast quarter of the northeast quarter, and the southwest

COPY BOUND

eat iene en

) FRANK REYNOLDS, ETC. 33

quarter of the northeast quarter of section thirty-two, township seven

north, range six west of the Indian Meridian, containing eighty (80)

acres, and being the land in controversy in Chickasaw Allotment

Contest No. 236, be awarded to J. B. Hill, minor contestant thereon ;

that the north half of the northeast quarter of Section thirty-two,

township seven north, range six west of the Indian Meridian, con-

taining eighty (80) acres and being the land in contre ’ in Chick-

asaw Allotment Contest No, 237, be awarded to J. B. Hiu, ,ainor con-

testant therein ; that the north half of the southeast quarter of section

thirty-two, township seven north, range six west of the Indian

Meridian, containing eighty (80) acres, and being the land in con-

troversy in Chickasaw Allotment contest No. 238, be awarded to

Harry F. Hill, minor contestant therein; that the west half of the

southwest quarter of Section thirty-three, township seven north, range

six west of the Indian Meridian, containing eighty (80)

58 acres, and being the land in controversy in Chickasaw Allot-

ment contest No. 239 be awarded to Lewis James, minor

contestant therein; that the north half of the northeast quarter of

the northwest quarter and the west half of the northwest quarter of

» Section thirty-three, township seven north, range six west of the

Indian Meridian, containing one hundred (100) acres, and being

the land in controversy in Chickasaw Allotment Contest No. 240, be

awarded to Lewis James, minor contestant therein; and that the

records of the Chickasaw Land Office be made to conform in all

things to this decision.

TAMS BIXBY, Chairman.

I. B. NEEDLES, Commissioner.

C. R. BRECKENRIDGE, Commissioner.

Dated this 3rd day of January, 1905.

Copy.

DEPARTMENT OF THE INTERIOR,

Orrice or INDIAN AFFAIRS,

Wasuineton, December 11, 1905.

Refer in reply to the following land:

. W. Hitt, a Minor, by His Mother and Natural Guardian, Nellie B.

Hill, Contestant,

vs.

Frank Reynotps, a Minor, by His Father and Natural Guardian,

Chas. O. Reynolds, Contestee.

Chickasaw Allotment Contest No. 236.

Land in controversy: The N./2 of 8. E./4 of N. E./4, the S./2

of 8. E./4 of N. E./4 and 8. W./4 of N. E./4 of Sec. 32, Twp. 7 N.,

R. 6 West, containing 80 acres. :

38—337

rie.

CLOSE iN CENTER

co

34 HARRY F. HILL, ETC., ET AL. VS.

J. B. Hutt, a Minor, by His Mother and Natural Guardian, Nellie B,

Hill, Contestant,

vs.

Wixure Reynoxps, a Minor, by His Father and Natural Guardian,

Chas. O. Reynolds, Contestee.

Chickasaw Allotment Contest No. 237.

Land in controversy: The N./2 of the N. E./4 of Sec. 32; Twp. 7

North, Range 6 West, containing 80 acres.

54 Harry F. Hit, a Minor, by His Mother and Natural Guard-

ian, Nellie B. Hill, Contestant.

vs.

Frank Reynops, a Minor, by His Father and Natural Guardian,

Chas. O. Reynolds, Contestee.

Chickasaw Allotment Contest No. 238.

Land in controversy: The North half of the southeast quarter

Sec, 32, Twp. 7, Range 6 west, containing 80 acres.

Ex. C.

Lovis James, a Minor, by His Legal Guardian, Dave Hill, Con-

testant, |

vs. |

Suetpan Reyno.ps, a Minor, by His Father and Natural Guardian

Chas. O. Reynolds, Contestee. |

Chickasha Allotment Contest No. 239.

Land in controversy: The W./2 of the S. W./4 of Sec. 33 T. 7 N.

Range 6 West, containing 80 acres.

Lewis James, by His Legal Guardian, Dave Hill, Contestant,

vs.

Ernet A. Reynoups, a Minor, by Her Father and Natural Guar

ian, Chas. O. Reynolds, Contestee. —

Chickasha Allotment Contest No. 240.

Land in Controversy: The N./2 of the N. E./4 of the N. W./4 an

the W./2 of N. W./4 of Sec. 33 T. 7 N., R. 6 W., containing 10

acres,

Commissioner to the Five Civilized Tribes, Muskogee, Indian Ten

tory.

Siz: This office is in receipt of the communication of the Commi

sion of March 25, 1905, transmitting the record on appeal in Chie

COPY BOUNI

<a ttnceee nen natn on

FRANK REYNOLDS, ETC. 85

asaw Allotment contest No. 236, consolidated, entitled Hill vs. Rey-

nolds.

The record shows that the contestants, J. B. Hill, Harry W. Hill

and Lewis James are citizens by blood of the Choctaw Nation, and

the contestees are citizens by blood of the Chickasaw Nation,

55 and that each is entitied to an allotment of the lands of the

Choctaw and Chickasaw Nations.

Charles O. Reynolds appeared at the Chickasaw Land Office on

July 13, 1903, and made application for the land in controversy

in Contest No. 236, together with other lands, for his minor son,

Frank Reynolds, the minor contestee in said contest, and the same

was set apart by the Commission to him as a portion of his allotment

selection.

Nellie B. Hill appeared at the Chickasaw Land Office August 13,

1903, and made application to have the land in controversy in Chick-

asaw Allotment Contest No, 236, set apart to her minor son, J. B.

Hill, as a portion of his allotment, and the same having been there-

tofore selected, as above stated, the said Nellie B. Hill was so notified

by the Commission and her application disallowed.

September 25, 1903, J. B. Hill, minor contestant, by his mother,

Nellie B. Hill, filed herein his complaint duly verified, in which

it is stated.

The contestant Nellie B, Hill, states that J, B. Hill is — years

of age and a citizen of the — nation. That on the 13th day of

August, 1903, she made application to the Commission to the Five

Civilized Tribes at the Tishomingo Land Office to take in allotment

for J. B. Hill, the N./2 S. E./4 N. E./4 and 8./2 8. E./4 N. E./4

and 8S. W./4 N. E./4 Section 32, Township seven north, range six

west and it appeared of record that on the 1-th day of July, 1903,

the said tract of land was selected by Chas, O. Reynolds, for Frank

r Reynolds,

The contestant further states that all of said land is in a state of

cultivation and that the only improvements situated thereon consists

Bt of fences, etc., that contestant was on the said 13th day of July, 1903,

and is now, the owner of the improvements on said land, and was

then and is now entitled to the immediate possession of the same,

and entitled to take, select and file on the same as a part of

56 the allotment of J. B. Hill.

Wherefore, contestant prays that J. B. Hill be permitted

to take in allotment the tract of land herein described.

February 4, 1904, this cause was set for trial on March 24, 1904,

pat 9 o’clock a. m., and notice of contest and summons was filed with

the commission showing service on Frank Reynolds, the minor con-

@ testee, on February 9, 1904 by delivering a copy thereof to Charles

ya O. Reynolds, the person having said minor in charge.

This cause was called for trial on March 24, 1904, and by agree-

ment of the parties, continued to April 11, 1904, at 9 o’clock a. m.,

on which date it was again called, and on motion of the contestant,

was continued to April 27, 1904, at 9 o’clock a. m.

; Similar proceedings were had in Contests Nos. 237, 238, 239 and

240, to April 27th, 1904, except as to names of the parties and

D CLOSE IN CENTER

oe

36 HARRY F. HILL, ETC., ET AL. VS.

the descriptions of the lands in each case, which differences are fully

get out in the caption hereof, and on which date, by agreement of the

parties, these cases were consolidated with Chickasaw Allotment Con-

test No. 236.

This cause, as consolidated above, was called for trial on April

27th, 1904, both parties appeared by counsel and announced ready

for trial, whereupon this cause was heard in part, and continued

to April 28, 1904, at 9 o’clock a. m., on which date the cause was

again called for trial, both parties appeared by counsel and the hear-

ing was resumed and concluded, and the cause taken under advise-

ment by the Commission.

The contestant filed brief on June 27, 1904, showing service by

a copy on the attorneys of record for contestee on the same date.

The contestee filed brief on September 1, 1904, showing service

" of same by a copy on the attorneys of record for contestant,

57 and by agreement it was submitted without reference to the

time in which it was filed.

The commission to the Five Civilized Tribes rendered its decision

in the cause on January 3, 1905, and awarded all the land in contest

to the contestants, and on January 7, 1905, notice of decision was

issued and served on the attorneys of the parties by registered mail,

and the contestees allowed thirty days within which to appeal.

Contestees filed an appeal on February 8, 1905, showing personal

service of a copy thereof on the attorneys of record for the contestants

ont February 4, 1905. Contest’ sets out thirteen assignments of

error on the part of the Comm’ sion on which he asks a reversal ¢

the decree and judgment repaered on January 3, 1905, as follows:

1. The Honorable Commission to the Five Civilized Tribes erred}

in finding upon the evidence.

2. The Honorable Commission to the Five Civilized Tribes erred

in their finding under the law.

3 For error of the Commission in finding that the conveyane

from Mrs. C, L. Campbell to J. A. Blassingame was void and without

validity.

4. For error of the commission in holding that Mrs. C. L. Camp

bell had selected as her complete pro rata share and allotment, land

other than conveyed to Blassingame.

5. For error of the Commission in finding that said lands conveyet

to J. W. Blassingame were the legal and lawful holdings of said

Campbell estate.

6. The Commission erred in considering the will of C. L. Campbell

deceased, no evidence being introduced to show the validity of saic

will, and no proper authentication of said will being made.

7. The commission erred in holding that the Chickasa

58 laws had no application to the adjudication of these contests

8. The commission erred in holding that personal prope

of an estate may be disposed of at the will of the guardian.

9. The Commission erred in holding that the conveyance by J.

Tuttle vested any rights in contestant Hill.

10° The Commission erred in finding that the said lands conveyed

to the said Hill were surplus holdings of any heir of the said Camp

COPY BOUND |

——

FRANK REYNOLDS, ETC.

bell estate, and that any heir of said estate had not selected their legal

and lawful surplus. : :

11. The Commission erred in holding that any rights vested in

said Tuttle by reason of said area ame

12. For error of the Commission in holding that Blassingame was

not an innocent purchaser.

13. The Commission erred in finding that any other land had

ever been assigned to Mrs. Campbell, the surviving widow.

14. The contestant filed a reply to said appeal on March 8, 1905,

showing personal service of a “es | thereof on the attorneys of reco

for contestee on March 2, 1905. March 21, 1905, contestant filed his

brief and argument in support of same, showing personal service —

a copy thereof on the attorneys of record for contestee on March

20, 1905.

Contestant filed motion to dismiss contestee’s appeal on September

18th, 1905, for the reason that it was not filed within the time al-

lowed by the rules, which motion was served on the attorney for

contestee on the same date.

Contestee filed reply to said motion to dismiss appeal on September

21, 1905, showing service on Bond & Melton, contestant’s attorneys

) of record by registered mail on September 21, 1905.

59 The record shows that contestee filed his appeal with the

Commission on February 8, 1905, whereas his time was up on

February 7, 1905. There is an affidavit in the record showing that

the appeal was deposited in the post-office at Chickasha, Indian

Territory, in the forenoon of February 5, 1905, which day was

Sunday, and that there are mails leaving the Chickasha post-office

on Sunday afternoon that should reasonably reach Tishomingo the

following day. The appeal itself shows that Bond & Melton acknowl-

edged service of same on February 4, 1905, so that contestant was

in no way hampered, inconvenienced or delayed because of the

fact that the appeal did not reach the files of the Commission until

February 8, 1905. The object and purpose of rules of practice is

to expedite business, and in order to accomplish their purpose and

not work a hardship are to be construed in a reasonable and just

manner. On the showing made in this case, it would seem that

contestee’s attorney used due diligence in preparing his appeal, and

that contestant was served within the time allowed by rule, and that

contestee’s attorney might reasonably have expected same to reach

the Commission in due course of mail within the time allowed. Un-

der the circumstances shown in this case, it would be a hardship

to strictly construe the rule and shut him out of his right to be heard

on his appeal. The motion to dismiss is accordingly denied.

The contestant bases his right to be allotted this land on the

ground of being the owner of the improvements thereon; that he

is the owner of said improvements by virtue of a quit-claim deed

executed to his father, Dave Hill, by James H. Tuttle, M. T. Camp-

bell, Sallie L. Minter, L. A. Campbell and Holmes Campbell, on

November 18, 1902, for a consideration of $1600; that James

60 H. Tuttle was the guardian of the minor heirs of one C, L.

Campbell deceased, and signed said quit-claim deed as such

iy ores

CLOSE IN CENTER

HARRY F. HILL, ETC., ET AL. VS, <a

— while those heirs who had attained their majority since

. L. Campbell’s decease, viz: L. A. Campbell and Holmes Campbell

signed in order to convey their interest in said estate, while the

widow, now Mrs. Sallie Minter, signed her interest in said land away,

- by joining in this quit-claim deed; that said James H. Tuttle wag

in fall and absolute control of all of said land as such guardian,

and holding same in trust for the widow and heirs of the aforemen.

tioned C. L. Campbell, deceased.

Contestee claims the land in contest by virtue of the ownershi

of the improvements thereon, having purchased same on March é

1903, from one John W. Brimage, who had purchased from J. W,

Blassingame, December 10, 1902, and Blassingame derived his

title from S. L. Campbell, the widow of C. L. Campbell, by quit

claim deed executed January 21, 1899. Contestee also denies the

right of Tuttle to control or convey said lands at the time he did so.

convey to Dave Hill, and further that said lands were a part of the

excess holdings of C. L, Campbell, deceased, and consequently

public domain. :

The evidence shows that the land in controversy was a part of a

large tract of land that had been segregated from the public domain{

and enclosed some twenty-five years before the hearing of one (,

L. Campbell, and was in his possession and control up to the time

of his death in October 1896; that at his deceased he left survivin

him his widow, Sallie L. Campbell, and five minor children, fe

two married daughters; that prior to his death he executed his last

will and testament and devised and bequeathed to his widow, Sallie

L. Campbell, and to his five minor children all the improvements

on the lands of which he died pessessed; share and share alike, the

widow to take a child’s part; that the will appointed one W.

61 L. Sawyer, administrator of the estate and James H. Tuttle

guardian of the persons and estates of’ the minor children,

both to enter into bonds in double the amount of the value of the

property to come ino their hands, and said bonds to be approved by

the court; that shortly after Campbell’s death his will was probated

in the probate court of the County of Pontotoc, Chickasaw Nation,

Indian Territory, and the bonds of Sawyer and Tuttle were filed

and approved, and they entered upon their duties.

Contestee does not argue or cite any authorities in support of his

first, second, eighth, tenth, eleventh, and thirteenth assignments 0

error, or in any manner show whereby any error was committed

by the Commission, and it is presumed that he does not rely on these

assignments as cause for reversal. The third assignment is not sup4

ported by the case of Tucker v. Daniels, Creek Contest No. 499,

the facts in the case under consideration being entirely different

from the facts in the case of Tucker v. Daniels, To the sixth

assignment of error it is sufficient to say that a true copy of ¢,

L. Campbell’s will is a part of the record of the case, duly authenti-

cated by the hand and act of the clerk of the Probate Court, which

was sufficient especially when no objection was interposed therets

at the time of the hearing.

The evidence shows that at the time of the hearing, the widow,

pa NIE Ns as

COPY BOUI

FRANK REYNOLDS, ETC.

now Mrs. S. L. Minter, had received per pro rata share of the entire

estate, and that she and her husband and his daughter had used the

same for allotments. The improvements on the land in controversy

were not a part of the improvements set apart to Mrs. Campbell as

her pro rata share. The evidence is that Mrs. Campbell at the time

she conveved to Blassingame was working this land with her teams,

but as a tenant of the estate, and that she paid rents to the

62 guardian in the way of a division of the corn that was grown

4 on the place, and that the guardian “O. K.ed.” the contracts

she made with her subtenants. and was in full control of all the estate

lands, doing the renting, selling and managing of the proceeds as

such guardian, There was no error in the finding that Mrs. C. L.

Campbell, (Mrs. Minter had selected her full pro rata share and

allotment of lands, other than those conveyed to Blassingame.

_It was not error for the Commission to find that the lands, sold

to J. W. Blassincame were the legal and lawful holdings of the

Campbell estate. for the reason that at the time Tuttle, Mrs. Sallie

L. Minter. M. T. Campbell, 1. A. Campbell and Holmes Campbell

sold and quit claimed to Dave Hill, the time limit of ninety days

allowed _to dispose of excessive holdings had not expired (32 Stat.

641.) It was the privilege of all excessive holders to dispose of their

excessive holdings during this ninety days. It was not only the

privilege, but in this case it became the duty of Tuttle to dispose of

said improvements for the benefit of his minor wards.

Section 24 of the Act of Congress, approved July 1, 1902, (32

Stat. 641) confers exclusive jurisdiction on the Commission to the

Five Civilized Tribes to determine from all matters relating to allot-

ment of lands, and it is not bound by the Chickasaw laws in mak-

ing such allotments, and so committed no error in not recognizing

~ such Chickasaw laws as binding on it in passing on matters relating

~ to these allotments.

Contestee’s ninth assignment is that the Commission erred in

holding that the conveyance of J. H. Tuttle vested any right in con-

testant Hill, and his eleventh assignment of error in holding that

Tuttle had any rights by reason of his guardianship, may be con-

sidered together. Contestee contends that there is no Chickasaw

or Choctaw law providing for the appointment of guardians

63 for minors, simply as minors. The Chickasaw law did pro-

vide for the appointment by the County Judge of guardians

for orphan children that are not of age, while it is commonly under-

) stood the word “orphan” means a child who has been bereaved of

both father and mother, the term may legally apply to such person

as has lost only one of his parents, and this would seem to be a

case where such a construction should be placed upon it. Such

was undoubtedly the construction placed upon the term by the Pro-

bate Court of Pontotoe County, when it appointed Tuttle such guard-

ian for the minor heirs of C. L. Campbell. The rights and duties

of a guardian attached to James H. Tuttle by virtue of his appoint-

ment as such by the Probate Court of Pontotoc County, Chickasaw

Nation. Did he have authority as such guardian of the minor

D CLOSE IN CENTER

ee

40 HARRY F. HILL, ETC., ET AL. VS,

heirs to sell the improvements located on the controverted land?

If the property be real property, he could not sell without an order

from Court. The interest of a citizen in the improvements on lands

to the extent of his allotment, carrying with it, as it does, the right

of occupancy and the right to select his allotment so as to include

his improvements, it more than a personal interest. But the interest

of the same citizen to improvements on land in excess of what he

desires to allot and which he had the right to dispose of within

the ninety days after the ratification of the Supplemental Agree

ment, is a personal property interest.

The Campbell estate consisted of something over ten thousand

acres of land. The heirs had all selected or designated their allot-

ments. Congress gave them ninety days to dispose of the improve

ments on the excess. The improvements could be sold, or in the

case of fences and buildings could be removed from the land. The

excess partook of the nature of personal property, and the law as

to the sale of personal property would apply. It was the duty

64 of the guardian to dispose of these improvements during the

ninety days allowed for doing so. There being no prohibi-

tion placed on a guardian’s sale of the personalty of his ward by

statute or by express order of the court appointing him, it was within

the scope of his powers and authority as a guardian to make such

sale, and the quit-claim deed to Hill, signed by the adult heirs and

by- Tuttle as guardian of the minor heirs, must be considered

good. Tuttle will have to account to the minor heirs for their

share of the proceeds when he settles with them and asks for his

discharge by the court appointing him, and his bond is the pro

tection of the minor heirs for any failure to do so or any inadequacy

of consideration.

.Was Blassingame an innocent purchaser? The evidence shows

that he knew at the time he purchased from Mrs. Campbell that the

premises belonged to the Campbell estate. It is further shown that

as soon as he learned of the sale by Mrs.,Campbell, Tuttle notified

Blassingame that he was in control of the premises as guardian, and

that Blassingame could not retain possession. It is shown that

Blassingame went into possession not later than February 15, 1899,

and that he was notified by Tuttle’s foreman, Ladd, that he could

not hold the land within from thirty to fifty days after going into

possession. This would bring his notice at farthest, early in April,

1899, and the evidence shows that he paid $270. of the consideration §

money on June 7, 1899. Brimage also knew of Tuttle’s claim prio

to his purchase from Blassingame. The evidence further show- that

Reynolds, the father of the minor contestees herein knew that a

suit in ejectment had been instituted against Blassingame. Blass-

ingame and his grentees went into possession with their eyes open

and were prepared to fight for the land, and neither Blassingamé

nor his grantees can be said to be innocent purchasers.

65 This office is of the opinion that no error was committed

by the Commission to the Five Civilized Tribes and that the

decision and judgment should be and the same is, hereby affirmed.

COPY BOUND

FRANK REYNOLDS, ETC, 41

You are —— to give the interested parties notice hereof,

und to advise them of their right of further appeal.

Very respectfully,

C. F. LARRABEE,

Acting Commissioner.

6 Department of the Interior,

Washington.

Consolidated Chickasaw Allotment Contest.

No. 236.

|. B. Hrxt, a Minor, by His Mother and Natural Guardian, Nellie

'B. Hill, epee

‘RANK REYNOLDs, a Minor, by His Father and Natural Guardian,

Charles O. Reynolds, Contestee.

Land in Controversy: N./2 S. E./4; 8./2 S. E./4 N. E./4 and

. W./4 of N. E./4 of Section 32, T. 7 N., R. 6 W. containing 80

eres,

No. 237.

. B. Hitz, a Minor, by His Mother and Natural Guardian, Nellie

B. Hill, Contestant,

. ¥,

VitL1E Reynoups, a Minor, by His Father and Natural Guardian,

Charles O. Reynolds, Contestee.

Land in Controversy: N./2 N. E./4 Sec. 32, T. 7 N., R. 6 W.,

ontaining 8 acres.

No. 238.

Jarry F. Hitt, a Minor, by His Mother ‘and Natural Guardian,

Nellie B. Hill, Contestant,

v.

RANK REYNOLDS, a Minor, by His Father and Natural Guardian,

Charles O. Reynolds, Contestee.

Land in Controversy: N./2 8. E./4 See. 32, T. 7, R. 6 W., con-

ining 80 acres.

CLOSE IN CENTER

42 HARRY F. HILL, ETC., ET AL. VS.

Exuisit F.

No, 239.

Lewis James, a Minor, by His Legal Guardian, Dave Hill,

ee

Canpan RrEYNOoLps, a Minor, by THis Father and Natural Guardian,

Charles O. Reynolds, Contestee.

Land in Controversy: N./2 S. W./4 Sec. 33, T. 7 N., R. 6 W,

containing 80 acres.

No. 240.

3 _ Lewis James, by His Legal en Dave Hill, Contestant,

Eruer A. ReyNoips, a Minor, by _ Father and Natural Guardian,

Charles 0. Reynolds, Contestee.

Land in Controversy: N./2 N. E./4 N. W./4 and W./2. N. W./4

Sec. 33, T. 7 N., R. 6 W., containing 100 acres.

67 On Review.

This is a contest instituted on behalf of J. B. Hill, Harry F. Hil

and Lewis James, minor Choctaws, whose degree of Indian blood

respectively, is 1/32, 1,/32 and 1/4, against Frank, Willie, Seldan

and Ethel Reynolds, minor Chickasaws, whose degree of Indian

blood is 1/4 each, to determine the right to select in allotment five

tracts in the Chickasaw Nation, described above, embracing 420 acres

of land.

A decision was rendered by the First Assistant Secretary of th

Interior February 6, 1907, in favor of the members of the Hil

family. On review, this decision was recalled and vacated and prio

decisions of the Commissioner of Indian Affairs and the Commis

sioner to the Five Civilized Tribes were reversed by a decision ren

dered by the Acting Secretary August 21, 1907. While the matte

was under review, tribal patents were inadvertently issued convey

ing the land in question in the Hill children. Subsequently, a sui

was instituted in the proper United States Court to have these in

struments set aside and, after various proceedings, which need no

be detailed, a consent decree was entered cancelling the patents, with

the understanding by all concerned that the case should again b

heard and decided upon its merits by the Department. The cas

was resubmitted at length by both seatiia, orally and by brief, an

is not ready for final decision.

The contestants claims these lands by reason of priority of pos

session and ownership of improvements. Contrary to this, the cop

testees rely on priority of application, in addition thereto and claim

ecennsitieninniniaoaee a

COPY BOU!

a lean ceeennce

FRANK REYNOLDS, ETC. 43

a better title to the improvements and a greater right to the posses-

gon of the land than their opponents.

The lands in controversy lie between the forks of East

68 Bitter and West Bitter creeks, and include the major por-

tions of the east half of section 32 and the contiguous lands

comprising part of the west half of Section 33, all in township 7

north, range 6 west of the Indian Meridian. West Bitter Creek

s in a southerly direction near the western limits of these

tracts, East Bitter Creek flowing also to the south, does not touch

any of them being approximately one half mile to the east. The

Chickasaw-Purcell road runs in a general easterly and westerly di-

rection, near or through the northern portion of the land.

These lands were once a part of a much larger tract known as

the C. L. Campbell farm which embraces 12,000 to 15,000 acres in

the Chickasaw Nation and extended over a considerable portion of

the adjacent and near-by sections. Cambell, a white man, having

married a woman of part Indian blood, occupied or claimed these

lands for a number of years prior to his death which occurred in

1896. He used the major portion of the land for grazing but re-

duced some 1200 or 1500 acres to cultivation. The Campbell home

place and the buildings were in the N. E./4 of said section 33,

considerably east of the main body of the land in controversy.

North of the home place lay the extensive tract which is referred

to in the records as the “North Pasture.”

At the original hearing (April 27, 1904) the contestants offered

in evidence in writing purporting to be a copy of the will of C. L.

Campbell, and a copy of the minutes of the Chickasaw (Indian)

court confirming the appointment of W. L. Sawyer, as administra-

tor, and J. H. Tuttle, as guardian, certified to be true copies thereof

by the Probate Clerk of Pontotoc County, Chickasaw Nation, under

date of April 25, 1904; the Contestees excepted because of

69 (1) failure to show that the original of the will could not be

furnished, and (2) lack of proper authentication or certifica-

tion. This exception will be considered in a subsequent connection.

By this will Campbell, disposed of his personal property and cer-

tain lands claimed by them to his wife and five minor children.

Share and share alike. Other property, “of whatsoever kind” (ex-

cept household furniture and wearing apparel) “not herei-before

mentioned,” he bequeathed to his wife and children (including

two adult daughters) in equal shares, Apparently the adults were

to receive their shares, wholly or in part, within one year after the

testator’s death, and the minors’ interests were to be held in trust

by the guardian.

After the death of Campbell his widow and minor children, con-

tinned to occupy the old Campbell home. In 1899 she again mar-

ried a white man, a Doctor Minter, with whom she continued to re-

side at the same place.

Upon allotment of tribal lands under the agreement of 1902, Mrs.

Minter selected the lands including the Campbell home as her allot-

ment. Nearby lands, constituting a part of the Campbell holdings,

rere selected as the allotments of Dr. Minter and a daughter. Other

[ID CLOSE IN CENTER

oe

44 HARRY F. HILL, ETC,, ET AL. VS.

Campbell lands were allotted to certain of her children, while stil]

other portions were disposed of and the proceeds used to provide al

lotments elsewhere for other members of the family.

January 21, 1899, Mrs. Campbell, prior to her marriage to Dr,

Minter, executed a quit-claim deed or bill of sale conveying to one

J. W. Blassingame her right, title and interest in and to the posses

sion of two tracts of land (formerly held or claimed by her deceased

husband), together with the improvements thereon. This transac.

tion marks the origin of the claims of the Reynolds children,

70 Blassingame paid $250 for the first of these tracts which is

described in the bill of sale as the “Campbell North Horse

Pasture,” which is north of the land in controversy and not a part

of it, and also north of the Chickasha-Purcell road. The second

tract, which does embrace the lands involved in these contracts,

with additional lands bordering it on the east, list south of said road

and nearly east of West Bitter Creek, and is described in the instru.

ment of conveyance as follows:

One section to be taken out of the northwest corner of her (Mn.

Campbell’s) tract of land. Beginning on the east bank of West

Bitter Creek, about one hundred years south of the Chickasha and

Purcell road, thence south one mile, thence east one mile, thence

north one mile, thence west one mile to the place of beginning.

The consideration for the land so described was to be certain cat

tle, but the sum of $270 was finally paid in lieu thereof.

Blassingame entered into possession of these tracts in February

or March, 1899, and held the same until December 10, 1902, dur.

ing which time he made valuable improvements thereon. On the

date last named he executed a bill of sale conveying his interest in

the land obtained from Mrs. Campbell, together with the improve.

ments, to one John W. Brimmage, for a consideration of $1500,

Brimmage assigned to C. A. Reynolds who desired the land for his

children, the contestees herein. He paid Blassingame $500 in

money and gave his note for $1000 which was paid later in full.

It is.impossible to make a finding as to whether C. L. Campbell

complied with the requirements of the intermarried laws of

71 the Chickasaw Nation necessary to confer citizenship.

Were he now an applicant for enrollment the case would

necessarily be remanded for completion of the record.

September 7th, 1897, a decision was rendered by the United

States Court for the Central District of Indian Territory admitting

James W. Blassingame and his four children to enrollment as citi-

zens by blood, and his wife as a citizen by intermarriage of the

Chickasaw Nation. This decree was rendered under the act of June

10, 1896 (29 Stat. 321) which declared that the judgments of the

United States Courts in such cases should be final. This decision

remained undisturbed until after Blassingame transferred to Brim-

mage. The Choctaw-Chickasaw citizenship court rendered a decree

December 17, 1902, in the test case of J. T. Riddle et al. setting

aside and vacating the decision of the United States Courts in all

such cases, Thereupon Blassingame transferred his case to the

Citizenship Court for trial de novo with the result that on Februs

eee a

COPY BOUND

| ena

FRANK REYNOLDS, ETC. 48

29, 1904, he was denied enrollinent by said court. Brimmage and

olds are both intermarried whites, with Indian children.

he next conveyance to be considered is the basis upon which

rests the claim of the contestants. November 18, 1902, J. H. Tuttle

(as guardian of John and Rex Campbell, minors) Mrs. Minter,

(formerly Mrs. Campbell) and her sons, M. T. A. A. and Holmes

Campbell, executed a bill of sale purporting to convey to Dave Hill,

father of the contestants, substantially the same premises as those

described in the bill of sale from Blassingame to Brimmage, i. e.,

the lands in controversy, with the improvements thereon, together

with other lands lying east and north,

December 24, 1902, H. E. (Holmes) Campbell, adult son of Mrs.

Campbell, and J. H. Tuttle joined in a bill of sale purport-

72 ing to convey to the said Dave Hill the north half of the

southwest quarter, and the north half of the southeast quarter

(two eighty-acre tracts) of said section 32, with the improvements

thereon. The latter tract only is a part of the land» ‘» controversy.

The consideration for the conveyance of November 5, 1902, was

to be $1600, which remained unpaid at the time of the hearing;

that for the conveyance of December 24, 1902, was to be $750, all

but $225 of which has been paid. Neither convevance was made

under authority of, or confirmed by, any court.

Litigation resulted from the claims based upon the conveyances

made by members of the Campbell family. Tuttle stated that he

did not himself give notice to Blassingame to quit possession but

wrote to his foreman, Geo. Ladd, “To tell him that he could not

have the land.” Ladd testified that in the spring of the year that

Blassingame entered into possession he told Blassingame that Mr.

Tuttle wanted him to get off the land.

Mr. R. Bond, attorney for contestants, testified that Mr. Tuttle

and Doctor Minter came to the office of ITolding and Bond (his

firm) and requested them to bring suit; that they notified Blass-

ingame and his son to quit possession; that Dr. Minter was to fur-

nish the funds for the suit; but that the funds were not furnished

and the suit was never instituted. Witness further states that this

occurred, “to the best of my recollection”, in 1899 of 1900. — .

J. W. Blassingame, Mrs. Campbell’s first grantee, testified that

he never received any notice from Ladd to quit possession: that

three years after he acquired the place he received a written

73 notice from Holding and Bond claiming the land; that no

suit was instituted by them.

November 25, 1902, suit in ejectment was filed by Hill against

Blassingame. This occurred one week after the bill of sale to Hill

was executed by Tuttle and members of the Campbell family.

Answer was made by Blassingame and by Reynolds on behalf of

his children. Apparently nothing was done from 1902 until some-

time after the inadvertent issue of patents to the Hill family to-

wards prosecution of this suit. Thereafter plaintiffs obtained a

judgment on the ground that they were the owners of the title to

the land. Later the patents were cancelled, as before noted.

Pertinent to the facts in this case — certain laws and treaty pro-

= « we

CLOSE IN CENTER

a

46 HARRY F. HILL, ETC., ET AL. VS.

visions which have been carefully considered but will not, by re

son of the space required, be set forth in full. They are: Th

Chickasaw Tribal Acts of October 7, 12, 12 and 19, 1876 (Chick

saw Law Book 1899 pp. 57, 81, 73, 144) relating, respectively to th

making of wills, the descent of property, the duties and powers o

guardians and the disposition of the estates of deceased Chickasaws

the act of Congress of May 2, 1890 (26 Btat., 83, 94, 95) puttin

Mansfield’s Digest of the Statutes of Arkansas, 1884. in force ij

Indian Territory generally, except as to Indian citizens; the act o

June 7, 1897 (30 Stat. 85) making said statutes applicable to al

persons therein, irrespective of race; section 28 of the act of Jun

28, 1898, (30 Stat. 495, 504) abolishing all tribal courts in India

Territory and depriving the officers thereof of all authority in con

nection therewith; section 29 of said act of June 28, 1898, an

section 70 of the act of July 1, 1902, (32 Stat., 641) giving pa

ents precedence over guardians in the selection of allotments fq

minor Indians. Article 1 of the treaty of 1855 providing that eae

Choctaw and Chickasaw should have an equal interest in th

74 tribal lands, Article XV of the treaty of 1866 (14 Stat., 769

providing a tentative plan of allot-ing 160 acres to each cit

zen; the Chickasaw acts of September 24, 1887, October 11, 1892

and October 28, 1889 (Law Book 1899, pp. 199, 200, 292, 243

relating respectively to what constituted a valid claim to Chickasa

lands and the abandonment thereof, defining what should be.

lawful fence and providing a penalty for fencing land for pasturage

and sections 17 and 18 of said act of June 28th, 1898, and section

19 and 20 of the act of July 1, 1902, supra relating to excessiy

holdings and providing penalties therefor.

Much of the Campbeli farm was inclosed for pasturage purpose

The cultivated portion did not exceed 1200 or 1500 acres. Th

evidence fails to show that any improvements were added to the lan

either by Mrs. Campbell or by Tuttle, or by any of the Campbe

children aiter the death of C. L. Campbell. The fields constitutin

the home place, and probably (prior to 1899) some of the land

now in controversy, were cultivated by her workmen or by tenant

Her testimony is in conflict with that of Tuttle as to who receive

the rents from the land last mentioned. She claims that she let ot

the lands and received the rents. He claimed that he still @

pects to get the rents from her. It may be held, however, wit

reasonable certainty that, during the period Blassingame was i

possession, i. e., from January 1899 to December 1902, there was 1

serious effort to dispossess him.

Tuttle claims that when the minors became of age he assigne

to each his share of the land comprising his father’s estate and thi

the widow was given independent control of various tract

75 The most that can be inferred from his testimony is th

lands lying somewhere north and east of West Bitter Cree

were placed at the disposal of Mrs. Campbell and that other land

south of that creek were held by him for the minor Campbells, bu

Mrs. Minter testified positively that no assignment was made to tb

heirs of the lands due each, It appears no act of Tuttle’s, by

cee ES = ne ae

COPY BOUN

FRANK REYNOLDS, ETC. 47

renting the land or disposing of the interest of the heirs therein,

yas ordered or confirmed by any court, either of the Chickasaw

Nation or the United States, and every indication points to the con-

dusion that during the time he was supposed to act as guardian

matters were allowed to drift merely, to take such course as best

they might, without any special control by him, pending the allot-

ment of the land.

The witnesses gave their testimony more than five years after

Mrs. Campbell conveyed to Blassingame, and, as a result, their

datements are in a degree indefinite and conflicting, but it appears

that practically all of the land in controversy was at that time (Jan-

vary 21, 1899) uncultivated, used mainly, if at all, for grazing

purposes. ‘I'wo fields of 12 or 15 acres each, and probably one of

35 acres had been reduced to a state of cultivation, but seemingly

not separately fenced.. A fourth field of 60 to 75 acres was men-

tioned as being located within a pasture fenced to itself with a four-

wire fence, “broke up” but not under cultivation. None of these

fields, particularly the last, can be definitely placed with respect

to the lands embraced in any one of these contests. It further

rs that there was an extreme outside fence around said pasture

mich probably conformed substantially to the square mile de-

scribed in Mrs. Campbell’s bill of sale to Blassingame; also

76 that there was another fence running along a creek, not

named. Neither the condition or the exact location of these

fences can be fixed by the evidence, but it may be inferred that the

“extreme outside fence” passed diagonally through the western edge

and perhaps skirted the northern border of the lands which are

the tracts now covered by the several contests, without conforming

to the government survey, passing finally beyond and to the east of

all or nearly all of said lands. The fields referred to above were

detached tracts forming no part of a continuous scheme of improve-

ment.

~ Tuttle’s exercise of dominion or control of the lands in controversy

seems to have been limited, after Blassingame entered into possession

to these fields, and even as to them it does not appear that he did

more than to request his attorneys to have the rents sued for in the

suit which was contemplated in 1899 but never instituted.

During the period these lands were held by Blassingame valuable

improvements were made upon them consisting of building, fences,

wells and cultivation, including the drainage of a considerable acre-

age. Blassinghame estimated the value of these improvements to be

$2500.00. As the contestants, in their contest affidavits, swear to the

existence of much improvements well distributed over the several

tracts and as Hill admitted that the land was practically all in culti-

vation when Tuttle and Mrs. Minter conveyed to him in 1902, this

phase of the matter need not be discussed in detail.

Viewing this controversy first from the standpoint of the several

conveyances referred to above, what conclusion follows as to the right

of the claimants by reason thereof? The bill of sale of January 21,

1899, to Blassingame, was executed by Mrs. Campbell only.

Assuming that her interest in the tracts conveyed was derived

from C. L. Campbell, either by will or by inheritance, and

) CLOSE IN CENTER

a

HARRY F. HILL, ETC., ET AL. VS.

that said lands properly and lawfully constituted a part of his de

scendible estate, it would have been necessary to a complete convey-

ance of the right of possession for the other members of the Campbell

family to join with her in the bill of sale unless there was an assign.

ment of these particular lands to her as her part of the estate. But

she testified there was no assignment of individual interests.

Even if it should be held that there where a family of Indian

citizens in occupation of tribal lands is deprived by death of the

father, particularly if he has a noneitizen white man, the right of

possession passes to the surviving mother, with sole power of dispos-

tion, without recognition of any separate right in the children, stil]

there would be grave doubt as to whether Mrs. Campbell had such

an interest in this land in 1899 more than two years after husband's

death, as would entitle her to convey. This because of lack of

affirmative showing of compliance, either by herself or her husband,

with the tribal laws referred to above relating to the making of law.

ful claims on the public domain, the abandonment thereof, the con

struction and maintenance of fences, and the fencing of lands for

pasturage purposes only.

Mrs. Campbell (as S. L. Minter) was also one of the grantors whofl

joined in the conveyance of November 18, 1902, to Till, but her

act must be regarded as murgatory for she had already transferred

her right to the same land to Blassingame for a valuable considere

tion. J. H. Tutle, claiming to act for the minors, John and Rex

Campbell, also signed this bill of sale. But his act was not authorized

or confirmed by any court, Even under the Chiekasaw law, it would

have been necessary, had the Indian Probate Court been empowered

to act, to secure the consent of the court (see Section §

78 Chickasaw Act of October 12, 1876, supra) but the power of

the tribal judges to act was absolutely taken away by section

28 of the act of Congress of June 28, 1898, also referred to above,

which abolished the tribal courts and provided that no officer of such

courts should “thereafter have any authority whatever to do or per-

form any act theretofore authorized by law in connection with said

courts.”

If Tuttle had proceeded under the laws of Arkansas, as published

in Mansfield’s Digest, 1884, it would have been necessary for him to

comply with the various provisions therein relative to the duties o

guardians, but there is no evidence, or even a claim, that he did so.

It follows that no force can be attached to the bill of sale insofar as it

purports to convey the interests of said minors. Moreover, it is neces

sary to hold in this connection that the copy of the alleged will of

Campbell and of the minutes of the court showing the appointment o

Tuttle were not properly admitted in evidence for the reason that th

same were certified only by an officer of the Indian Courts. This cor

clusion is also based on section 28 of the act of June 28, 1898.

In absence of proper evidence of a will, and proceeding upon the

theory that C. L. Campbell died intestate, it must also be held (con-

trary to the terms of the alleged will) that the two adult daughters

of C. L. Campbell succeeded upon his death to a child’s share in his

whole estate. This being true it was necessary, to pass good title

assuming Campbell had a descendable interest in the extensive holq

— PTY HTT: sen ri28

PA ‘ aN A RIE IN EES Re Saar eet

COPY BOUND

FRANK REYNOLDS, ETC. 49

ings claimed by him, for them also to join in the conveyance of No-

‘yember 18, 1902, but they failed to do so. This defect in parties

also applies to the Campbell bill af sale to Blassingame.

There remains to be considered the bill of sale of December 10,

1902, from J. H. Tuttle and Holmes Campbell to Dave Hill

79 + which affected the lands now in controversy as to the 80 acres

covered by contest No, 238. There is nothing in this instru-

ment to show that Tuttle acted in a representative capacity, and it

issubiect generally to the objections to the bill of sale of November

18. 1902. pointed out above.

The department is of opinion that the defects and irregulari-

ties in these bills of sale, executed by or on behalf of the .nembers

of the Campbell family, are so vital as to render extremely doubtful

any claim of right or title based thereon and that the controversy

must therefore be determined upon more substantial grounds if a

just and fair conclusion is to be reached.

Primarily the right of possession to Indian communal lands is

based upon actual occupation. And where an Indian has acquired

special interest in a portion of the lands of his tribe by such means

and has materially enhanced the value of such land by placing im-

provements on the same, or has invested his means in improvements

placed thereon by others, it is the unwavering policy of the Depart-

ment to recognize and protect his equitable interest rather than to

turn the land over to another having a mere nominal title thereto,

particularly where the person having the obvious right was first to

apply for the land.

Applying this standard to the present situation, what are the rights

of the Hill family in these lands? There are three small tracts

to which Hill asserts special claim of right, which may or may

not be identical with the fields referred to hereinbefore. Two of these

(said to con:ain from 12 to 15 acres each) are a part of the land in-

eluded in thie bill of sale of November 18, 1902, from Tuttle and

members of the Campbell family, neither of which is shown to have

been fenced as a spearate inclosure. One of them is located by Hill

in the southwest corner of the N. E. 4 of section 32 and is a

80 part of the 80 acres embraced in contest No. 236; the other,

according to his testimony is in the southwest corner of the

8. W. 4 of section 33, and constitutes a part of the 80 acres covered

by contest No. 239.

The possession which he claims to have held of these two tracts,

aggregating perhaps 25 acres, was of a constructive nature only,

acquired more than three years after the origin of Blassingame’s

claim thereto, and based upon the right supposed to aceure by reason

of the irregular and incomplete bill of sale last referred to above.

There can be no doubt of the correctness of this conclusion in view

of Hill’s admission that he had never put any improvements upon

the place obtained through that bill of sale, or received any rents

therefrom.

In view of the shadowy claims of the Hill children to these two

tracts, it cannot be held they have a paramount right to prevail in

contests Nos. 236 and 239, particularly as each is only about one-sixth

the area of the lands affected by said contests respectively.

) CLOSE IN CENTER

se

50 HARRY F. HILL, ETC., ET AL. VS. )

The third tract to which Hill lays special claim, said to contaig

30 or 35 acres, is a part of the 80 acres in contest No. 238, being

portion of same lying west of West Ritter Creek. He bases his ciaim

to this, as well as to the whole of said 80 acres, upon the defectiyg

and imperfect bill of sale ex--uted December 10, 1902, by J.

Tuttle and Holmes Campbell. Hill testified that he caused a feng

to be placed around this 30 or 35 acre tract (the west part of th

eighty) January 1, 1903, which was nearly four years after Blasin.

game acquire the same and subsequent to the latter’s transfer

Brimmage. The character of this fence is now shown but, in view

the brief time within which jt was evidently constructed, it may

be questioned whether it had the element of strength and pe

manence necessary, according to numerous decisions of the |

ment, to constitute a bona fide improvement. Six m

81 after this fence was constructed contestees made applicati

for the lands in controversy. ;

In the opinion of the Department this small tract was an integm

part of the lands long occupied and improved by Blasingame, asi

compact farm unit, and that the right acquired by Reynolds by

investment could not be swept aside by Bill’s late and unwarran

assertion of right. |

There was a fourth tract, vaguely referred to in the testim

which, it is alleged, was fenced by itself and lay somewhat within

large pasture, but it is impossible to locate this field with respectt

any particular contest.

As these small tracts are outlying portions of the old Camp

place, it seems to be necessary in this connection to repeat the ruli

heretofore made by the Department that, while remote tracts even

not highly cultivated or thoroughly subdued, may be treated as

part of the farm to which they are appurtenant and, in a conte

case, be disposed of as an inseparable part of it, but that such ou

lying tracts cannot be held to be the nucleus of an independent allo

ment right. Blakeney v. Bishop, decided May 31, 1907, (M. 60

A. A. C, 278).

Much of the deeming force of the arguments for contestants |

dependent upon the impression conveyed that in some way the hei

of C. L. Campbell, particularly the minors, will be deprived of the

inheritance if the selection of the contestees are allowed to stan

But there is no real force in this suggestion. The Campbell fami

for many years enjoyed tle benefits of the vast acres of land claime

by C. L. Campbell, much of which was unquestionably held in d

regard and defiance of the laws of the Chickasha Nation and tl

United States? If Campbell was holding 15,000 acres at tl

82 time of his death, the average amount then held for ea

member of the family, including the two adult daughte1

was more than 1600 acres, i. e. approximately five times the avera

number of acres allotted to each citizen of the tribe. The cultivat

portion of his holding included about 1200 or 1500 acres. It follor

therefore that the part to which the family probably had a substa

tial claim was absorbed by their allotment selections which were pri

cipally made either directly therefrom or from other lands acqui

COPY BOUN

FRANK REYNOLDS, ETC. 51

the proceeds obtained by sale of their interest in parts thereof.

ke lands now in controversy are not needed for the allotment of any

ne of the Campbell family.

“Nor should it be overlooked that, save the conveyance of Mrs.

mpbell in 1899 to Blasingame, it does not appear that any attempt

us made by Tuttle or members of the Campbell family to comply

that portion of the act of June 28, 1898 supra making excessive

ings illegal and providing a penalty therefor. From and after

gexpiration of the nine months allowed Indian citizens under that

to dispose of such holdings it was unlawful for them to hold

sore than their approximate share of the tribal lands. True the said

tof July, 1902, did give an extension of ninety days, beginning

September 25, 1902, to dispose of excessive holdings in order

protect owners of bona fide improvements, but it was certainly not

ed to permit Indian citizens to revive and reassert claims long

t, after others had entered into possession of and highly im-

ed the lands once claim- by them.

The fact that Blasingame was finally denied enrollment militates

no way against the justice of contestees’ claims. They invested

ir means in improvements made by him and succeeded to his pos-

sessions. Moreover, his right to occupy and improve Indian

lands was legally perfect as he and the members of his family

had the status of citizens of the Chickasaw Nation by a decree

the United States Court rendered under an act of congress which

ided such decrees should be final.

In reviewing this case the Department has been particularly im-

with the failure of the contestants to show affirmatively a

ior right to the land. The burden of establishing such right

upon them, as plaintiffs, but they have failed to make out a case

n their behalf. Independently of such failure, it is evident that

» disturb the allotment made to the Reynolds Children would not be

ight,

Therefore the Department adheres to its decision of August 21,

907, and the lands embraced in said contests numbered 236, 237,

38, 239 and 240 are hereby awarded respectively to Frank Rey-

lds, Willie Reynolds, Frank Reynolds, Seldan Reynolds and Ethel

Reynolds, the contestees therein. ;

(Signed ) FRANK PIERCE,

First Assistant Secretary.

) CLOSE IN CENTER

—————

HARRY F. HILL, ETC., ET AL. YS.

Department of the Interior.

Commission to the Five Civilized Tribes.

Chickasaw Allotment Contests Nos, 236, 237, 238, 239, & 240.

Chickasaw Land Office.

April 27, 19

No, 236.

Neti B. Hitz, for Her Son, J. B. Hill, Minor, Contest

vs.

Cuas. O. Reynoxps, for Frank Reynolds, Minor, Contestee,

No. 237.

Nettie B. H111, for Her Son, J. B. Hill, Minor, Contestant,

vs.

Cuas. O. Reynoxps, for Willie Reynolds, Minor, Contestee. |

No. 238.

Neue B. Hit1, for Her ae J. B. Hill, Minor, Contestant,

Cuas. O. Reyno.ps, for Frank Reynolds, Contestee.

No. 239.

Dave Hutu, for His Ward, Louis James, Contestant,

vs.

Cuas. O. Reynoxps, for Sheldon Reynolds, Contestee.

Exuisit F,

No. 240.

Dave Hut, for His Ward, Louis James, Contestant,

vs.

Cuas. O. Reynoxps, for Ethel A. Reynolds, Contestee.

Land in Controversy. j

Contest No. 236—N./2, S. E./4 and §./2 of S. E./4, N. E./48

S. W./4 N. E./4, Sec. 32 T. 7 N., R. 6 W.

Contest No. 237—N./2, N. E./4, Sec. 32, T. 7 N. R. 6 W.

Contest No, 238—N./2, S. E./4, See. 32, T.7N. R. 6 W.

Contest No. 239—W. /2, S. W fs , Sec. 33 T. 7 N. R. 6 W.

Contest No. 240—N. /2, N. E./4, N. W./4 and W./2, N.

Sec. 33, T. 7 N. R. 6 W.

’

Appearances.

COPY BOUNI

FRANK REYNOLDS, ETC. 53

Statement of Mr. Bond, of Counsel for Contestants.

The counsel for Contestants expect to show in this case that about

ty or twenty-five years ago C. L. Campbell, now deceased, segre-

id the land in controversy from the public domain and was in

session of same and controlled the same until his death, some-

me in 1896; that under his last will and testament he willed a

hild’s part of his land to his wife, Mrs. Sallie Campbell, and the

maining part of the land belonging to him was willed to his minor

vir, That J. H. Tuttle was appointed guardian of the minor

irs, of said C. L. Campbell, and under the will and his letters of

wardianship took possession and assumed control of the land in

mtroversy for the minor heirs of said C. L. Campbell. That in

pe year 1902, the said Tuttle, as guardian of the minor heirs of said

Fampbell, executed a quit-claim deed to the said premises in con-

roversy, to one Dave Hill. That the said Tuttle signed the said

ed as guardian for the minor heirs of said Campbell, and those

irs who had reached the age of majority since the death of said

lampbell also signed said quit-claim deed, and that Mrs. Sallie

inter, the wife of said C. L. Campbell, also signed said deed. We

ther state that Dave Hill, the grantee in this deed, purchased the

nd in controversy for the purpose of allot-ing his minor heirs upon

me, and claims title to said land by reason of said purchase and

hough the said quit-claim deed. We expect to show further that

he said testamentary guardian had absolute and full control of the

tire land of deceased C. L. Campbell, and he was to hold the same

in trust for the widow and heirs of said C. L, Campbell, who were

oshare equally in the same.

ui Statement of Mr. Bailey, of Counsel for Contestees.

The contestee, answering the allegations of the contestant herein,

my each and every allegation made therein except those herein-

ter admitted. The contestee admits that one C. L. Campbell,

ow deceased, at some time, which said date is unknown to con-

tee was in possession of the land herein sued for; and that the

id Campbell did at some time during the year 1896 die, leaving

will in which the home and certain other parts of his estate and

gregated lands were willed to his widow, Mrs. S. L. Campbell,

ho is now Mrs. S. L. Minter. Contestee further states that during

he year 1899 the said Mrs. S. L. Campbell, now Mrs. Minter, sold

» one J. A. Blasingame the lands herein sued for, for a valuable

onsideration, and that immediately thereafter the said J. W. Blass-

ngame, who was a citizen of the Chickasaw or Choctaw Nation, went

into the possession and control of said land, and remained in the

xclusive, full and complete control of said land until during the

ter part of the year 1902, or early part of 1903, when he sold

he said land to one Brimmage, a citizen of the Chickasaw or Choe-

aw Nation by birth; and that afterwards the said Brimmage trans-

eee

) CLOSE IN CENTER

54 HARRY F. HILL, ETC., ET AL. VS.

ferred for a valuable consideration all his rights, title and interes

in and to the said lands to the Contestees herein; and that Cha

O. Reynolds purchased this land as his legal and lawful allotment

for himself and minor children, whose names are contained j

the complaints herein filed. Contestee further states that. at th

time of the purchase of the land herein sued for by the said J. ¥

Blassingame from the said Mrs. S. L. Campbell now Mrs. 8. ]

Minter, the said lands were in the full and complete control of th

said Mrs. Minter by further reason of her agreements with on

Tuttle, who acted as guardian of the minor children of said C. ]

Campbell, deceased. Contestee further states that the said Mr

Campbell executed to the said Blassingame a quit-claim dee

87 and bill of sale for the said lands, and that at the time

the execution of said deed the lands herein sued for we

unimproved other than a small amount of broken land on the tra

conveyed by said Mrs. Campbell. Contestees further deny th

one Dave Hill, who claims to have purchased the lands herein su

for. ever purchased the said lands, or has ever exercised any co

trol or possession over the said lands, Contestees further state th

if the said Mrs. S. L. Minter and one Tuttle and the heirs of 1

said C. L. Campbell did execute to one Hill a quit-claim deed f

the lands herein sued for the said heirs were without any authori

of right or control over the said lands; that they and each of the

were in the full control of their legal and lawful allotments, a

considerable excess holders. That the said Tuttle could not execu

any valid deed as guardian of these childern to the lands her

sued for, and that the said Mrs. Campbell had already surrender

all her rights, title and interest for a valuable consideration to ¢

said J. W. Blassingame, under whom Contestees claim the la

herein sued for. Contestees further show that at the death of t

said C. L. Campbell, he was holding large bodies of land, amout

ing in the aggregate to perhaps 8,000 or 10,000 acres, and that ea

and all of his heirs have taken their allotments: from land in t

possession of said C. L. Campbell at the time of his death.

88 Testimony.

Dave Ht, a witness for the Contestants herein, having been fi

duly sworn, testified as follows:

Direct examination.

By Mr. Bond:

State your name to the Commission?

T sign my name Dave Hill.

Your age?

Thirty-seven.

Your post office address?

Chickasha, Chickasaw Nation.

And your citizenship?

mormed Chootam citi

PO>ororeo

ce “ee a

COPY BOUN

FRANK REYNOLDS, ETC. 55

-Q This is an action, Mr. Hill, brought by you for your ward

louis, James, and your minor sons, J. B. Hill and Harry Hill. Are

acquainted with the land in controversy?

A. Yes sir.

Q. How old is your son J. B. Hill?

A. He will be seven years old in September.

Q. How old is your son Harry Hill?

A. He is five years old.

-Q How old is your ward Louis James?

A. He is ten or eleven, I couldn’t say positively just as to the age.

Q. Mr. Hill, how did you acquire title to these premises in con-

troversy ?

A. I bought it from Jim Tuttle.

Q. Did he execute a quit claim deed?

A. Yes sir.

Q. Have you the deed in your possession?

A. Yes sir.

89 By Mr. Bond: We desire to have this deed (offering deed )

made a part of the record and marked “Exhibit A.”

Q. This deed is also signed by M. T. Campbell, Mr. Hill? Is he

ason of C. L. Campbell, deceased?

A. Yes sir.

| Introduction of deed objected to by counsel for Contestees for the

reason that no interest is shown in any of the parties making same.

Q. Do you know whether or not M. T. Campbell has reached the

age of majority?

A. Yes sir.

Q. How old is he?

A. I don’t know—26 or 27 years old.

Q. This deed is also signed by Holmes Campbell. Is he a son of

C. L. Campbell, deceased?

A. Yes sir.

Q. Is he of age?

A. Yes sir.

Q. This deed is also signed by S. L. Minter. Is she the widow of

C. L. Campbell, deceased?

A. Yes sir.

Q. This deed is also signed by L. A. Campbell, do you know

whether or not his disability has been removed?

. I don’t understand the question.

Who is L. A. Campbell?

Son of Mrs, Campbell; Mrs. Minter now.

Son of C. L. Campbell deceased?

Yes sir.

Do you know whether he is a married or single man?

. He is married.

Q. Does the land described in this quit-claim deed in-

90 clude the lands in controversy in this action?

= _A. It includes all of it but 80 acres.

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56 HARRY F. HILL, ETC., ET AL. VS.

Q. From whom did you purchase this 80 acres that this dea

does not include? i

A. I purchased it from Holmes Campbell and Tuttle.

Objected to as incompetent, immaterial and irrelevant.

Q. Have you the deed to that land?

A. Yes sir. (Witness produces deed.)

Mr. Bond: We ask that this deed be made a part of the record

and marked “Exhibit B”’.

Q. I will ask you to look at this deed, Mr. Hill, and describe the

eighty acres conveyed by this deed that is also in controversy in this

action.

A. The 80 acres in controversy on this piece of land, there is, |

suppose 30 or 35 acres of it on the west side of West Bitter, and 3

or 45 on the east side of West Bitter. This land on the west side has

never been in the possession of no one else but the Campbell estate

and _— Hill. It is the north half of the southeast quarter of Se

tion 32.

Q. Then, if IT understand you correctly, West Bitter Creek runs

through the north half of the southeast quarter of Section 32?

A. Yes, sir.

Q. Practically dividing that 80 acres into two equal parts?

A. There is a little more on the east side than on the west side.

The east side the Campbell estate and Hill has had possession of

ever since it has been put in cultivation. The west side I have had

— and rented and tended since the first day of January, 1903,

enced.

Q. I will ask vou, Mr. Hill. about how many acres are there in

contest between the minor heirs of yourself and those of Reynolds,

without the Morean piece?

A. A little over 400 acres.

91 Q. How much of this land are you now in possession of?

A. T am in possession of something like 125 or 130 acres—

something like 110 acres.

Q. Who is in possession of the remaining part of it?

A. Mr. Reynolds I guess. Twelve or thirteen acres right here in

the southwest corner of the northeast quarter of Section 32 is in my

possession ; then here is a piece, now, down in this corner, 12 or 15

acres, in the southwest corner of the southwest quarter of section 33

that has been in my possession ever since the 18th day of November

1902.

Q. Did you make any attempt Mr. Hill, after you purchased this

land to secure possession of the same.

A. Yes sir.

Q. What did vou do?

A. T went and told Mr. Blassingame that T had bought the land

from the Campbell estate and that I wanted him to get off of it

and give me possession.

Q. Was he in possession of it at that time?

A. Yes sir.

Q. What did he state?

POAT RAN PR LOES IAT OT ee e

ao ses oS

COPY BOUNI

FRANK, REYNOLDS, ETC. 57

A. He said he wouldn’t do it. I told him we would bring suit for

,

Objected to as incompetent and irrelevant.

Cross-examination.

By Mr. Bailey:

Q. Mr. Hill, how long have you lived near these lands that are

in litigation here?

A. I have lived somewhere near them for something like three

0. How long have you been acquainted with the Campbell farm?

A. T have been acquainted with it three years and over.

92 Q. Do you know Holmes Campbell?

A. Yes sir.

Q. How old is he?

A. I judge something like 24 years old.

Q. Is he a married man?

A. No sir.

Q. Do you know Mont Campbell?

A. Yessir...

Q. How old is he?

A. Something like 26 or 27.

Os Mrs. S. L. Minter is the widow of C. L. Campbell, deceased, is

e?

A. Yes sir.

Q. Do you know L. A. Campbell?

A. Yes sir.

Q. How old is he?

A. T could not tell you, only he is a married man.

Q. Are there any other Campbell children?

A. Two more.

Q. What are their names?

A. John and Rex.

Q. How old are they?

A. I judge one of them is eighteen and the other probably is six-

teen. ;

Q. Do you know where Mont and Holmes and L. A. Campbell

and Rex and John Campbell lived at this time?

A. Bud Campbell lived on the south end of the old Campbell

place.

Q. Which one do you call Bud?

A. 1, A. Campbell.

Q. Where does Mont Campbell live?

A. Four miles east of Chickasha.

93 Q. Where does Holmes Campbell live?

A. T couldn’t tell you where his home is.

Q. On the old Campbell place?

A. I couldn’t tell you whether it is on the old Campbell place;

he stays at Mont’s part of the time and at the old lady’s part of the

me.

a ..

TO now where he

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58 HARRY F. HILL, ETC., ET AL. VS.

A. Yes sir.

Q. Where?

A. They claim their home at the old lady Minter’s on the old

Campbell place.

Q. Do you know how much land C. L. Campbell was holding

there at the time of his death?

A. No sir, I do not.

Q. Do you know how much the Campbell estate is holding there

at this time?

A. No sir, I do not.

Q. Have you no idea?

A. Not much of an idea.

—. How much in your best judgment?

A. I don’t suppose they are holding anything to exceed their allot-

ments.

Q. You don’t know how much they are holding?

A. No sir, I don’t know how much they are holding.

Q. When you went up there in that section three years ago, who

- Oat time was in control of the lands that are now in litigation

ere?

. Blassingame.

Mr. J. W. Blassingame?

. Yes sir, I think he was.

Was he living on this land at that time?

. No sir.

94 Q. His tenants were there?

A. Yes sir.

Who was in possession of that place the next year?

. Blassingame, I suppose.

Who was in possession the next vear?

T suppose Blassingame was there in possession of it; I know

Charlev Reynolds was in possession the next year.

Q. When did you first set up your claim to any part of that land?

A. On the 18th day of November, 1902.

Q. That is when you claim to have purchased it from Mr. Tuttle

and the members of the Campbell family?

A. Yes sir.

Q. Who was in possession of the land at that time?

A. T suppose J. W. Blassingame was in possession of it.

Q. You have not been in possession of that land since that time

_ have you?

A. Part of it, I am. ‘

Q. What part of it are you in possession of?

A. I am in possession of the north half of the southeast quarter

of section 32. I am in possession of 12 or 15 acres of the northwest

quarter of Section 33, I am in possession of 12 or 15 acres of the

northeast quarter of section 32, in the southwest corner.

Q. That little strip there is just the land that is west of the creek?

Are you in possession of all that is below the creek there?

A. Yes sir; about 12 or 15 acres in each piece.

Q. That is all you are in possession of?

A. No sir; 80 acres more.

O>o>

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COPY BOUN

FRANK REYNOLDS, ETC.

Q. When did you take possession of that?

A. I took possession on the 1st day of January 1903.

Q. How did you get possession?

95 a9 It was turned over to me by Holmes and Mont Camp-

11.

Q. Is it not a fact that you went down there and by force, or over

the protest of the tenants in possession of the place at that time, con-

structed a fence there?

. No sir.

. You did construct a fence across there, did you not?

No sir.

Who did?

I think it was Holmes Campbell.

It was put there at your request was it not?

T don’t know as it was.

Were you not there with them at that time?

No sir.

You didn’t go about there?

I was over there the day they went up there.

Did you not know that the fence was being put there?

. Yes sir.

_ Is it not a fact that your possession there was contested during

the entire time the crop on that 80 acres was being grown?

A. I don’t think it was.

Q. Were you not aware that the land belonged to Mr. Reynolds

and that he would claim the rent on that 80 acres?

A. No sir. (Continuing answer:) Mr. Reynolds said the day he

come out there that he wouldn’t claim that piece of ground inside

of that fence, the first day he was out there.

Q. You did not know the fence was going to be put there? .

A. Yes sir.

Q. And you requested it to be put there?

A. I guess you might just as well say I did.

Q. That is all the land. you are in possession of on that place.

A. Yes sir.

96 Be — never was in possession of any other land on that

ace

A. No sir, except what I have described.

Q. Have you attempted to move the cropt and collect the rents;

they never have paid you any rents?

§ No sir; they piled up the rents for me and Mr. Reynolds

hauled them off.

Q. Then you are not in possession of 135 acres on that place,

are you?

A. Of 135 acres? ;

Q. You are not in possession of the 135 acres that Mr. Reynolds

is contesting for?

A. I am in possession of about 110 acres.

Q. That includes the 80 acres that Holmes and Mont Campbell

had fenced off?

A. That was only part of it fenced off.

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60 HARRY F. HILL, ETC., ET AL. VS.

Q. Who had been in possession of the 80 acres previously?

A. Blassingame had been in possession of 35 or 40 acres and the

Campbell estate the balance of it.

Q. Was the land in cultivation?

A. Yes sir.

Q. Who was in possession of it the year before it was fenced?

A. The Campbell estate was in possession of it—35 or 40 acres,

and Blassingame 35 or 40.

Q. How much did you pay for that land?

A. Seven hundred and fifty dollars, that is for the full quarter

section ; there are eighty acres there that are not in this contest.

Q. You paid seven hundred and fifty dollars for the entire quar-

ter section did you?

A. For the entire quarter section.

Q. What did you pay Mont Campbell?

97 A. I didn’t pay Mont Campbell anything.

Q. How much did you pay for the land that you pur-

chased from Tuttle and the Campbell heirs?

A. Sixteen hundred dollars.

Q. How much land was there in cultivation there at that time?

A. It was pretty much all in cultivation—something like 60

acres,

Q. What improvements were there on that land at that time?

A. There were a couple of renters’ houses, two granaries, crib or

something like that—barn.

Q. The place was pretty well improved was it not?

A. Tolerably, yes.

Q. Practically the entire tract of land was in cultivation?

A. Yes sir.

Q. Have you ever put any improvements on that place?

A. T have not.

Q. Have you ever received any rents off of that place?

A. I have not.

Q. Have you ever exercised any control over that place?

A. No sir; I have tried to collect the rents and the rents were

piled up there for me.

Redirect.

By Mr. Bond:

Q. Who piled the rents up for you, Mr. Hill?

A. Pat Ellis.

Q. What became of these rents?

A. Mr. Reynolds had them hauled off. I had contracts with all

those men before Mr. Reynolds ever came in possession.

Q. Did you have rental contracts with all the tenants on that

place?

A. Yes sir.

Contestee- objects unless contracts are produced.

98 Q. You say that Mr. Reynolds filed on a portion of your

land and that neither Blassingame nor Brimmage nor Rey-

FRANK REYNOLDS, ETC. 61

nolds nor anyone else had been in possession of — except the Camp-

bell estate and yourself?

A. Yes sir.

Q. Did you not receive rents off that land?

A. Yes sir. I received all the rents off this 80 acres that he has

filed on and all the rents off these two blocks of 12 or 15 acres each;

there never was any contest against it.

+ Q. Mr. Hill, I believe you stated that you had possession of this

place and that you filed suit against Blassingame?

A. Yes sir.

Q. In what court did you file it?

A. In the United States Court.

Q. Where?

A. At Chickasha.

Recross.

By Mr. Bailey:

Q. When did you file that suit?

A. I think that suit was filed on or about the 25th day of Novem-

ber, 1902; I think that was the date.

Q. You filed suit for ejectment?

A. Yes sir.

Q. You bought this property, you say, on the 18th day of No-

vember?

A. Yes sir.

Q. When did you give him notice to move?

A. Loe him notice to move, I think somewhere about the 20th

or 25th.

Q. About the time you filed the suit?

A. Yes sir, on the same day.

99 Q. Was this sixteen hundred dollars ever paid?

A. Paid by note.

Has it not been paid yet?

No sir.

To whom is that note payable?

. Payable to J. H. Tuttle.

Has this seven hundred and fifty dollars ever been paid?

. All the seven hundred and fifty dollars has been paid, but

two hundred and twenty-five dollars.

Q. How was that paid?

A. It was paid in checks, money and one horse put in on it.

Q. It was paid along in installments—piecemeal?

A. Yes sir.

Q. You don’t know Mr. Hill whether any court has ever approved

the deed you have here from Mr. Tuttle, do you?

A. No, I do not.

>POPOPO

62 HARRY F. HILL, ETC., ET AL. V8.

os James H. Tuttle,

i 5

James H. Turrze, a witness for the Contestants herein, having

been first duly sworn, testified as follows:

Direct examination.

By Mr. Bond:

Mr. Tuttle, will you state your name to the Commission?

James H. Tuttle.

Your age?

. Forty-two.

Your pose office address?

Minco.

Are you a citizen of either the Choctaw or Chickasaw Nation?

. Chickasaw. |

. By inter-marriage?

A. Yes sir.

100 Q. Is your wife a daughter of C. L. Campbell deceased? |

A. My second wife was, yes sir.

Q. Did C. L. Campbell execute a will and testament before he

ied?

OProrerere

Objected to by contestee-.

Q. Were you ever appointed guardian of the minor heirs of

C. L. Campbell?

A. Yes sir.

Q. Are you the guardian of

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Transcript of Record — Hill v. Reynolds · 242 U.S. 361 | Frix