38

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the case.

follow the cattle or the proceeds thereof into the hands of any one except an innocent purchaser for value, as was held in Keys Commission Co. v. Beatty, supra, rather than to

DOYLE, P. J., and ARMSTRONG, J., base the liability upon the proposition of

concur.

(60 Okl. 242)

agency, as was done in Keys Commission Co. v. Miller, supra, yet however that may be, the ultimate liability of the commission com

C. M. KEYS COMMISSION CO. v. ROBI-pany for the price of these cattle is definitely

NETTE. (No. 7018.)

(Supreme Court of Oklahoma. Sept. 19, 1916.)

(Syllabus by the Court.)
CORPORATIONS 414(6)-POWERS AND LIA-
BILITIES-REPRESENTATION BY AGENT.
The same as in Keys Commission Co. v.
Miller (No. 7017) 157 Pac. 1029.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1645; Dec. Dig. 414(6).]

Commissioners' Opinion, Division No. 2. Appeal from County Court, Oklahoma County; John W. Hayson, Judge.

Action by J. Robinette against the C. M. Keys Commission Company. Judgment for plaintiff, and defendant appeals. Affirmed. Hainer, Burns & Toney, of Oklahoma City, for plaintiff in error. W. H. Zwick, of Oklahoma City, and Abernathy & Howell, of Shawnee, for defendant in error.

BURFORD, C. This was an action brought by J. Robinette against C. M. Keys Commission Company to recover the purchase price of certain cattle sold to the defendant through one Gay, alleged to be the agent of the commission company, and paid for with a draft drawn on the commission company by The commisGay, which was dishonored. sion company denied the agency of Gay and its liability to the plaintiff. There was a trial to a jury and judgment for the plaintiff in the full amount claimed, from which judgment the commission company brings error, alleging that there was no sufficient proof of the agency of Gay or of any other fact establishing a liability against the company.

established by the two cases to which reference is above made.

Judgment affirmed.

PER CURIAM. Adopted in whole.

(61 Okl. 49) PADGETT v. TRENT et al. (No. 4175.) (Supreme Court of Oklahoma. Sept. 12, 1916. Rehearing Denied Sept. 30, 1916.)

(Syllabus by the Court.) PUBLIC LANDS 39(8)-TOWN-SITE COMMISSION-PATENTS.

A patent issued through the Town-Site Commission of the Creek Nation is impervious to attack in a court of equity, unless the Commission was induced to issue it to the wrong party by an erroneous view of the law or by a gross or fraudulent mistake of facts.

A. The petition examined, and held to state facts sufficient to constitute a cause of action. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 95-99; Dec. Dig. 39(8).]

Commissioners' Opinion, Division No. 3. Error from District Court, Muskogee County; R. C. Allen, Judge.

Action by J. E. Padgett against W. C. Trent and others, Trustees of the School District of the City of Muskogee, Okl., and the Board of Education of the City of Muskogee, Okl. Judgment for defendants, and plaintiff Reversed and remanded. brings error.

A. A. Richards, of Tulsa, and B. B. Wheeler, of Muskogee, for plaintiff in error. Irwin Donovan, of Muskogee, for defendants in error.

RITTENHOUSE, C. This action involves the title to block 209 in the city of Muskogee, The case is not distinguishable upon the Okl., alleged to be of the value of $35,000. facts or the propositions of law involved The tribal deed or patent for this block was from C. M. Keys Commission Co. v. H. R. Mil- issued to the trustees of the school district ler, 157 Pac. 1029 (not yet officially reported). of Muskogee, Ind. T. The petition, to which In fact the cattle in the instant case were a demurrer was sustained, contains 98 closesold through the same party, at about the ly typewritten pages, setting out the facts, the same time, shipped in the same car, paid for text of the various laws of Congress and in the same manner, and the relation of Gay Arkansas affecting the title to the block in to the commission company depended upon controversy, the correspondence between the the same facts as in the case of Keys Com-government officials, and all the pleadings mission Co. v. Miller, supra. The case is and evidence before the Creek Town-Site also closely akin, both upon the facts and the Commission and the Secretary of the Interipropositions of law, to C. M. Keys Commistion Co. v. Beatty, 42 Okl. 721, 142 Pac. 1102. The discussion of the questions involved as set out in these cases render any further That Jane Dolman, a Creek Indian by statement of the facts or of the propositions of law in this case unnecessary. Although in blood, was enrolled under the name of Elizathe judgment of the writer it is sounder rea- beth Jane Dolman, opposite No. 2932, as 51 soning to base the liability of the commission years of age in 1898. That about the year company upon the right of the seller of the 1882, in accordance with the tribal laws and cattle the purchase price being unpaid-to customs, she took possession of a tract of

or, and their decisions thereon relative to the application of plaintiff to have the block in controversy scheduled to him.

The essential facts as alleged are:

land, consisting of about 60 acres, then being an unoccupied portion of the Creek domain, inclosing the same with a wire fence and erecting a residence thereon, and from that time until the sale thereof continued to use, occupy, till, cultivate, and raise crops there

on.

That all of said land was within the limits of the town site of Muskogee, as surveyed and platted by the first Muskogee Town-Site Commission. That block 209 constituted a portion of the tract of land so enclosed. That the Missouri, Kansas & Texas Railroad was constructed through what is now the city of Muskogee in 1872, and the tract of land so taken in possession by Jane Dolman was within three miles of said line of railroad. That the National Council of the Creek Nation enacted a tribal law (Perryman's Constitution and Laws of the Creek Nation 1890, § 1, art. 4, c. XII), which was as follows:

THIRD.

Schedule of Appraisement of Lots in Muskogee,
Indian Territory.

"All citizens of this nation having improvements or residence on the line of any railroad, within three miles distance of the same, on either side, and all citizens who may hereafter make improvements or build residences on the same shall have the exclusive right to a claim of one square mile of land to each and every Lot. family."

That Jane Dolman was in the exclusive possession of said tract of land, and the owner and holder of the improvements thereon on March 18, 1898, when the town of Muskogee was incorporated and said tract of land inclosed within its corporate limits. That on June 28, 1898 (chapter 517, 30 Stat. 495), when the Curtis Act became a law, she was in the exclusive possession and owner and holder of the improvements on said and. That section 14 of said act provided: "That owners and holders of leases or improvements in any city or town shall be privileged to transfer the same."

That on November 10, 1898, Jane Dolman, for a valuable consideration, sold the occupancy and right of possession to and improvements upon the land, now designated as block 209, to A. H. Sharum, which was evidenced by a written bill of sale, and Sharum went into possession thereof, remaining in

1

209

FOURTH.

Department of the Interior, Town-Site Commission's
Schedule of Appraisement.

Town of Muskogee, in Creek Nation, Indian
Territory.

Lot Block
No. No.

209

FIFTH.

Schedule of Appraisements.

20

possession until March 31, 1899, when he sold Department of the Interior, Town-Site Commissior ◄ and delivered to J. E. Padgett, plaintiff herein, his occupancy and right of possession to and improvements upon said land, and that the said Padgett immediately entered upon and took possession of said land.

The plaintiff bases his claim of title upon that part of section 13 of the Original Allot- Lot No. ment Agreement (chapter 676, 31 Stat. 861), which reads as follows:

"Also any person who had at the time of signing this agreement purchased any lot, tract, or parcel of land from any person in legal possession at the time, shall have the right to purchase the lot embraced in same by paying one-half of the appraised value thereof, not, however, exceeding four acres.'

There were five different schedules made of the lot in controversy by the three successive town-site commissions, as follows:

Town of Muskogee, in Creek Nation, Indian
Territory.

Improvements.

Block
No.

Owner.

Character and
Remarks.

209 School District of Mus-
kogee.

It is further alleged:

That the first Muskogee Town-Site Commission was appointed in April, 1899, and that the incorporated town of Muskogee had

no authority to receive or hold the title to real estate for school purposes, as the school district of Muskogee had been organized and established in 1898, and as the corporate limits of Muskogee had been extended, after which time the town of Muskogee and the school district of Muskogee constituted and represented different areas and population. That there was no provision of law, either in the Curtis Act or in any other law, authoriz ing or empowering said commission to reserve or schedule either to the town of Muskogee or the school district any portion of said town site for school purposes. That the Secretary of the Interior, on April 21, 1899,

instructed the commission that:

"You will set apart for the use of all schools, churches, parsonages, charitable institutions, and other public buildings the lots or blocks within the town of Muskogee that may be now actually occupied and used by such institutions, and you need not appraise either the lands thus reserved for this purpose, nor the improvements thereon."

or establish his rights in and to said block. That the third schedule of appraisement was made by the commission and approved by the Secretary of the Interior on August 10, 1901, bearing the words, "School Public use." That section 20 of the Creek Allotment Agreement, under which the third schedule and approval was made, reads as follows:

"20. Henry Kendall College, Nazareth Institute, and Spaulding Institute, in Muskogee, may purchase the parcels of land occupied by them, and so designated upon the plat of said town, or which may have been laid out for their use at one-half of their appraised value, upon conditions herein provided; and all other schools rated towns in the Creek Nation may, in like and institutions of learning located in incorpomanner, purchase the lots or parcels of land occupied by them."

That said block was occupied by no school or institution of learning, either on March 8, 1900, when said Creek Allotment Agreement was signed, or on March 1, 1901, when said agreement was ratified by Congress, or on That block 209 was not actually occupied May 25, 1901, when said agreement was ratified by the Creek Nation, or at any time said or used for school purposes, and had never been so used, but was then in the undisputed award and schedule was made by said compossession of plaintiff; that in July, 1899, mission or approved by the Secretary of the one or more of the commissioners, together Interior, and had never been, at any such with certain members of the school board, times or prior thereto, occupied by any school selected block 209 for school purposes, which or institution of learning, by the city of was not then being occupied or used for Muskogee, or by the school district of Musschool purposes. That the first schedule was kogee; all of which facts, both as to the law made showing block 209 was not appraised, and the occupancy of said block, were not but bearing the inscription "Public." That in only well known to said Muskogee Town-Site May, 1900, the same commission made a sup- Commission at the time said award and plemental schedule of appraisement reciting schedule were made, but also to the Secretary the words "School Public use." That on of the Interior at the time he approved the same. That said block 209 was so awarded June 28, 1901, the second Muskogee TownSite Commission was appointed, but no rules and scheduled by said commission with the and regulations were ever made, issued, or full knowledge that its action in so doing was promulgated relative to the surveying, plat-in violation and contravention of law, and ting, and disposal of town lots, nor relating to contests therefor, as provided by the terms of the act of May 31, 1900, and the Creek Allotment Agreement, until August 29, 1904. That block 209 contained less than four acres. That in July, 1901, plaintiff was more than 21 years of age and a resident of Muskogee. That on said date plaintiff did not own and never had owned or claimed any other land or lots within said town site. That in July, 1901, plaintiff appeared before the second Muskogee Town-Site Commission, presented the conveyances from Jane Dolman to A. H. Sharum and from Sharum to plaintiff, and claimed the right to have said block awarded and scheduled to him under the terms of the Creek Allotment Agreement, requesting the commission to investigate his rights to said block and to award and schedule the same to him. That thereupon the commission returned said deeds to plaintiff, and informed him that said block had not been appraised, but the Creek Town-Site Commission plaintiff had been reserved for public purposes. That filed a written application to have said block the same was not awarded or scheduled by awarded and scheduled to him, setting out in said commission to any person, corporation, full the basis of his claim, and asking that or body corporate, and consequently plaintiff he be permitted to institute a contest before

with the express purpose and fraudulent in-
tent on its part, and the members thereof, of
securing the reservation of said block for
school purposes, for much less than its fair
appraisable value. That said block was not
separately appraised by the second Muskogee
Town-Site Commission. At the end of said
schedule there appeared:

Area in acres, parks, etc., 56 acres @ $20.00.. $1,120-00
Area in acres, cemeteries, 81 acres @ $20.00.. 1,620 00

That there was nothing in said schedule disclosing the fact that said block 209 was included in the 56 acres designated as "parks, etc." That before the plaintiff had learned that said block was included therein the second Muskogee Town-Site Commission had been abolished, and the Creek Town-Site Commission had been appointed and authorized to do and perform all acts necessary and proper under the law relative to the town site of Muskogee. That after the appointment of

acre.

We therefore respectfully recommend the approval of this schedule.

and to said block. That after a hearing the approved June 30, 1902, provides for the paycommission refused to entertain jurisdiction, ment for parks at $20 per acre, but leaving the holding that they had no jurisdiction or pow-viously provided by the original agreement; disposition of school property the same as preer to revise or change in any manner the therefore, in order to finally dispose of the schedules prepared by the former commis- town-site matters at this place, this supplesions or to schedule and award the block to mental schedule is prepared in order to prop erly show these lots to the city of Muskogee. plaintiff, no matter what his rights were, and No payments have ever been made by the city that, if plaintiff had any rights to said block, of Muskogee covering this property, as this he must present his claims to the second commission has not notified them that they Muskogee Town-Site Commission for adjudi- would be permitted to pay. Therefore, in view of the fact that it was originally contemplated cation, and that said Creek Town-Site Com- that the town should pay $20 per acre, the apmission refused to inquire into the merits praisement of each tract has been increased so thereof or to permit plaintiff to institute a that, when 50 per cent. is paid under the provicontest. That the Creek Town-Site Commis-ize an amount for each tract equal to $20 per sions of section 20, the Creek Nation will realsion kept no minute book or record of their proceedings, and its files and papers have been lost or destroyed and cannot be found. That in May, 1902, plaintiff went before the The Indian inspector forwarded to the SecIndian agent at the Union Agency at Musko-retary of the Interior this schedule, which gee, the officer designated to receive payment was approved November 1, 1902. Plaintiff on lots in Muskogee, and informed him that then alleges: said plaintiff desired to pay for said block 209, but was informed that the same had not been appraised, and that thereupon plaintiff tendered $140 in gold coin as the fair appraisement and value of said block at the time the townsite of Muskogee was appraised, which tender was refused. That thereafter, but prior to October 18, 1902, the Creek Town-Site Commission prepared and certified to what they termed a schedule of certain blocks in the town site of Muskogee, which were designated on the schedule of the second Muskogee Town-Site Commission as school property, which schedule and the certificate

thereto are as follows:

Department of the Interior, Town-Site Commission's
Schedule of Appraisement.

Town of Muskogee, in Creek Nation, Indian
Territory,

acre;

Upon the original schedule of the appraise ment of the town site of Muskogee the above property was simply set aside for school purposes and appraised jointly with the parks at $20 per acre. There not being any provision in the Original Agreement for the payment of parks, it was expected when the original schedule was prepared that the town would be allowed to purchase the parks and also pay $20 per acre for the land set aside for the school purposes. The Supplemental Agreement with the Creek Nation, ratified by the act of Congress

That, when the schedule was made by the Creek Town-Site Commission and approved by the Secretary of the Interior, the city of Muskogee had no right, power, or authority under the law to buy, own, hold, or possess real estate for school purposes, and neither the Creek Town-Site Commission nor the Secretary of the Interior had any authority under section 20 of the Creek Allotment Agreement to award or schedule sald block for school purposes to the incorporated city of Muskogee, and that their actions in so doing were null and void. That on November 15, 1902, the plaintiff, who was then in total ignorance of the schedule approved by the Secretary on November 1, 1902, forwarded a verified application to the Secretary of the Interior asking for a rehearing, which petition was referred to the Indian inspector for the Indian Territory for investigation and report. The same was thereupon referred to the Creek Town-Site Commission by the inspector, and the commission held a hearing commencing January 28, 1903, at which evidence of numerous witnesses was heard. On March 13, 1903, under instructions from J. W. Zevely, Indian inspector, the Creek TownSite Commission made a. new award and schedule of block 209 in the town site of Muskogee, which is as follows:

Department of the Interior, Town-Site Commission's
Schedule of Appraisement.

Town of Muskogee, in Creek Nation, Indian
Territory,