WHITNEY v. SCHWABACHER

WHITNEY v. SCHWABACHER
1931 OK 234
298 P. 879
148 Okla. 303
Case Number: 19582
Decided: 05/05/1931
Supreme Court of Oklahoma

WHITNEY
v.
SCHWABACHER

Syllabus

¶0 1. Indians--Lien of Attorney Under Contract to Recover Full-Blood's Inherited Land--Necessary Approval of Contract by County Court.
An attorney employed by a full-blood Indian to recover an interest in land claimed by him through inheritance from his full-blood Indian wife, under a contract for a certain interest in the land in the event recovery be had, cannot, even though successful, without the approval of the contract by the county court, acquire an attorney's lien against the interest in the land recovered for his services.
2. Same--Subsequent Approval of Contract not Effective to Cut off Intervening Purchaser.
The subsequent approval by the county court of a contract of a full-blood Indian relating to his inherited lands will not, under the circumstances of this case under the doctrine of relation, relate back to the date of the execution and delivery of the contract, when such contract is taken in violation of federal statute, and thus cut off a subsequent purchaser who has taken a deed and had the same approved as provided by law.

Appeal from District Court, Seminole County; W. J. Crump, Assigned Judge.

Action by L. H. Schwabacher against E. W. Whitney and others. Judgment for plaintiff, and Whitney appeals. Affirmed.

W. C. Wood, for plaintiff in error.
Willmott, Roberts & Looney and H. Grady Ross, for defendant in error.

HEFNER, J.

¶1 This action was brought in the district court of Seminole county by L. H. Schwabacher against C. H. Aldridge, Lucy Aldridge, E. W. Whitney, and others to recover on a promissory note and to foreclose a real estate mortgage given to secure the same. The note and mortgage were executed by defendants Aldridge to the American Investment Company and by it sold and transferred to the plaintiff herein. Defendant Whitney claimed an interest in the premises by virtue of an attorney's lien and a deed from one Jonas Benden. The other defendants made no defense. The trial court rendered judgment in favor of plaintiff and denied Whitney's claim. Whitney appeals and contends that the judgment is contrary to law and not supported by the evidence.

¶2 The premises were allotted to Liddy Benden, nee Mitchell, a full-blood Seminole Indian. Upon her death, her husband, Jonas Benden, a full-blood Creek Indian, claimed a 1/3 interest in the premises as an heir of his wife, and brought an action in the district court to recover this interest. For this purpose he engaged as his counsel defendant Whitney and others and contracted to give them 1/2 of his interest therein in the event of recovery. This contract was not approved by the county court. Upon filing suit, counsel for Benden claimed a lien for their fee as provided in the contract, in the manner provided by statute. They were successful in the action and recovered judgment in favor of their client for 1/3 interest in the premises. Thereafter, and on the 7th day of June, 1915, Benden conveyed all his right, title, and interest in the premises to John W. Willmott. This conveyance was duly approved by the county court. Willmott thereafter conveyed to defendant C. H. Aldridge. On September 27, 1915, Benden conveyed to defendant Whitney and T. S. Cobbs an undivided 1/2 interest in the premises, which deed was also approved by the county court. Whitney in this action claims a 1/12 undivided interest through this deed and his attorney's lien.

¶3 It is clear that defendant acquired no right under his deed from defendant Benden, for the reason that the deed to Willmott was then on record and his right is, therefore, superior to the right of Whitney.

¶4 We are also of the opinion that defendant Whitney acquired no rights by virtue of his asserted lien. His contract was not approved by the county court, and he could, therefore, acquire no lien under the same against the premises in question for his services. Section 9 of the Act of Congress of May 27, 1908 (35 Stat. 315) provides:

"That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottees land; Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee."

¶5 The contract between defendant Whitney and his associates and Benden, not having been approved as required by this act, was ineffective for the purpose of predicating a lien against the premises, and the trial court ruled correctly in so holding. Pickens v. Gay, 121 Okla. 198, 249 P. 403.

¶6 It is, however, contended by defendant that the approval of his deed related back to the date of the contract and operated as an approval of the contract as of that date. This contention cannot be sustained. The doctrine of relation cannot be applied in the instant case, for the reason that Willmott, at the time of the approval of this deed, had already acquired and placed of record his deed from Benden, which deed was duly and regularly approved by the county court.

¶7 In the case of Canfield v. Jack, 78 Okla. 127, 188 P. 1040, in paragraph 6 of, the syllabus, it is held:

"In the instant case, Cacy takes a deed from two full-blood Indian heirs, places it of record, and continues in possession for more than a year before securing the approval of his deed by the county court. In the meantime, however, Cornelius takes a deed from the same parties to the same land and had the same approved by the county court. The record does not show that Cacy had ever intended to have his deed approved prior to the execution and approval of the Cornelius deed. He contended that as a matter of law his deed did not require the approval of the county court. Held, that the doctrine of relation is not applicable to the facts of this case wherein Cacy contends that the approval of his deed relates back to its execution and first delivery thus cutting off the intervening interest of Cornelius to the lands involved."

¶8 In the body of the opinion, at page 131, the court said:

"We do not believe that under the doctrine of relation an approval of a full-blood Indian's deed will relate back to its execution and first delivery when the same is taken in violation of statute, and thus cut off a subsequent purchaser who has taken his deed and had it approved as by law required."

¶9 Under the above authority, the doctrine of relation does not apply to the instant case.

¶10 The same authority also disposes of the question discussed by defendant that Willmott was a purchaser with notice.

¶11 We have examined the authorities cited by defendant to sustain his lien claim. We do not consider them applicable to the facts here presented.