Carter Oil Co. v. Eli

1932 OK 747, 23 P.2d 985, 164 Okla. 273, 1932 Okla. LEXIS 534

• Court: Supreme Court of Oklahoma
• Decided: November 22, 1932
• Docket: 20110
• Status: Published

Opinions

KORNEGAY, J.

This is a proceeding in error to review the action of the district court of Nowata county, decreeing an accounting in the original case of Taylor Eli et al. v. Carter Oil Co. et al., No. 5204 in said court. Tha]t case came to this court on proceeding in error to review the action of.Judge Baskin, who held that the plaintiff Taylor Eli and his eoplaintiffs, and T. C. Wilson, with whom they had made a contract to bring the suit, and R. B. Tucker were not entitled to the land involved, which was 80 acres of ground described as the E. % of the N. E. % of section 8, twp. 28 N., R. 15 E. This was what was known as a dead claim, that is, the allottee died after September 1, 1902, but before the allotting officers made the allotment. It was allotted in the name of Nancy Eli, who was a daughter of Taylor Eli and a sister to James Eli and a half-sister to Charlotte Muskrat

In order to secure an allotment for a dead person, it was necessary that some one should be appointed as administrator to make the selection, otherwise it was selected by the allotting commission. The applicable provisions are an Act of Congress of July 1, 1902, which was ratified by the Cherokee people on August 7, 1902, the provision being as follows:

“That the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such'administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and proper time, the Dawes Commission shall designate the lands thus to be allotted.”

These provisions can be found in the 32 U. S. Stat. at L., page 716. In accordance with a prevailing practice at the time, for the purpose of selecting the allotment, an administrator was appointed by the United States Court for the Northern District of the Indian Territory, sitting at Tahlequah. He selected the allotment, made final report to the court of having done so, and on August 27, 1906, that court made order, which, omitting caption, is as follows.

“Order of Court.

“And this cause coming on to be heard by the court upon the .final report of the administrator and the report and recommendations of the master in chancery thereon, and the court being fully advised in the premises doth order and adjudge that said report of the master in chancery be, and the same is hereby approved.

“It is ordered that upon filing proper receipt from Taylor Eli for the certificates of decedent’s allotment, or upon making proper proof that the same have been delivered to him, ¡the administrator be discharged, his bondsmen released, and the estate closed upon the payment of costs.

“Done at a regular term of said court, this Aug. 27, 1906.

“Luman F. Parker, U. S. Judge.”

The inventory returned by such administrator was verified April 17, 1905, and filed April 20, 1905, and showed the entire property of decedent to be the E. V2 of the N. E. XA of section 8, twp. 28 N., R. 15 E., here in controversy, and N. W. M of the S. E. Vé of section 18, twp. 18 N.,. R. 24 E. The first tract is located in Nowata county, the second in Adair county. The administrator’s final report, verified August 7, 1906, filed August 27, 1906, showed that the certificate of allotment had been delivered to the heirs, and there was nothing further for the administrator to do. Order of final discharge was made October 22, 1908, by the county court of Cherokee county, the order, omitting caption, being as follows:

“Order of Final Discharge.

“Whereas, on the 27th day of August, 1906, Hon. Luman F. Parker, Judge of the United States Court for the Northern District of the Indian Territory, made an order discharging the above-named administrator, on the filing of the allotment certificates for the allotment of the said Nancy Eli, deceased, and whereas said administrator files on this day the deeds from (the Cherokee Nation and the United States Government for the said allotment in this court,

“It is, therefore, adjudged, ordered, and decreed by the court that the said administrator be, and he is hereby discharged as administrator of said estate and his bond exonerated pursuant to the order hereinbe-fore referred to.

“Given under my hand this the 22nd day of October, 1908.

“J. T. Parks, County Judge.”

The record |that was before this court on the first appeal, case No. 17106 (126 Okla. 12, 267 P. 761), has been read in its entirety. Also the briefs have been read, and the opinion of the court deciding that case, which appears in the present case-made. It appears therefrom that the district court of Nowata county held that the conveyances that were approved by the county court of Cherokee county in 1924. relied on by the second grantees, Wilson and Tucker, were invalid, and that the conveyances approved prior thereto by the county court of Adair county were valid, and this court reversed its action and held that the proper court to approve a deed in this ease was the county court of Cherokee county. The conveyances covered the land and the right to the extracted oil. The effect of that reversal was to change the title to the land, and along with it to create a liability of the oil operators, who had been operating the land since 1916, to account to the administrator of T. C. Wilson, deceased, and to R. E. Tucker, who were joined as parties along with the Indian heirs, Taylor Eli, James Eli, and Charlotte Chuculate, nee Muskrat, the record showing that the administrator and Tucker were the real parties in interest, the others nominal.

The ease was’ remanded to the lower court for the accounting, which by agreement had been held in abeyance pending the time that this court passed upon the matters involved in the appeal. There were some applications for rehearing, and an application was made :to the Supreme Court of the United States for certiorari to certify up the record and the case went there. That court, however, on final consideration, held that the way the case was presented there was no federal question in it that the court would review. The opinion in the case is found in the 72 L. Ed. 994, and is a memorandum decision, and is as follows:

“The Carter Oil Company, J. Wood Glass, T. A. Calvert et al., Petitioners, v. Taylor Eli, James Eli, Charlotte Chuculate, etc., et al. (No. 496.)

“On writ of certiorari to the Supreme Court of the S|tate of Oklahoma.

“See same case below, 126 Okla. 12, 267 P. 761.

“Messrs. George S. Ramsay, Chester I. Long, James A. Yeasey, L. G. Owen, Walter Davison, George E. Chamberlain, and Peter Q. Nyce for petitioners.

“Messrs. Daniel Haden Linebaugh, John Barry, Norman E. Reynolds, Paul C. Williams, and Paul Pinson for defendants.

“April 23, 1928. Per Curiam: Dismissed for want of a federal question, in that the decision of the state Supreme Court could be sustained, and was sustained on non-federal grounds. Hammond v. Johnston, 142 U. S. 73 78, 35 L. Ed. 941, 942, 12 Sup. Ct. Rep. 141; Eustis v. Bolles, 150 U. S. 366, 370, 37 L. Ed. 1111-1113, 14 Sup. Ct. Rep. 131; Bilby v. Stewart, 246 U. S. 255, 257, 62 L. Ed. 701, 702, 38 Sup. Ct. Rep. 264; New York ex rel. Doyle v. Atwell, 261 U. S. 590, 592, 67 L. Ed. 814, 815, 43 Sup. Ct. Rep. 410; George O. Richardson Machinery Co. v. Scott, No. 198, October term, 1927, opinion announced February 20, 1928 (276 U. S. 128, 72 L. Ed. 497, 48 Sup. Ct Rep. 264.)”

Thus the court declined to interfere. The decisions relied upon for this opinion clearly demonstrate that, if possible to put the decision of the state court upon any ground other than a federal ground, duly relied on in the state court, the Supreme Court of the United States does not review. Its action left the decision of this court undisturbed.

The assigned reason of the opinion of the Supreme Court of Oklahoma was that the probate court of Cherokee county was the successor of the federal court, sitting at Tahlequah. and that as application had been made for letters of administration in the United States court prior to statehood, and letters of administration had been issued, that jurisdiction was thereby fixed in the Cherokee'county court to approve the deeds of the full-blood heirs to lands belonging to their ancestor that had been selected by the administrator.

The proceedings for the appointment of ,the administrator for the selection of the land are in part contained in the case-made. Pursuant to the orders of the United States court, the case was closed in the Cherokee county court, and the administrator discharged in October, 1908, and afterwards administration proceedings were had in Adair county, where deceased died. Prior to statehood, the Arkansas law was in force with reference to the appointments of administrators and executors. That law was in contemplation of Congress and the Cherokee people when they enacted the agreement of July 1, 1902. Under chapter 4, sec. 58, Indian Territory Statutes (Mansf. Dig. c. 1, sec. 1) which was adopted on the 2nd of May, 1890, the clerk of the court issued letters subject to confirmation by the court, if the court was not in session, and by section 59 (Mansf. Dig. c. 1, sec. 2) of that chapter it was provided that the letters should be granted in the court of the county in which the testate or intestate resided. Under see-' tions 63, 64 (Mansf. Dig. c. 1, secs. 6, 7), of that chapter there were limitations as to who could apply for letters of administration, with various provisions as to forfeiting the rights to administration, and there are provisions in section 86 (Mansf. Dig. c. 1, sec. 29) for different kinds’ of administration, one was with the will annexed and another was as administrator do bonis non (section 98, Indian Territory Statutes), and another during minority or absence, and there were requirements as to filing an inventory, giving notice to creditors and provisions for handling the lands' and for the sale of personal estate, with a requirement for settlement by the end of three years. See Indian Territory Sltatutés, sections 58 to 280.

The, opinion rendered by this court on the former hearing, speaking through Justice Branson, was reported in the Pacific Reporter with a statement of the concurrences, as follows: Phelps, Lester, Riley, Hunt, Clark, and Hefner. JJ. Mason, V. C. J., dissented. The ninth Justice was unaccounted for. In the official reports there are no dissents, and the same concurrences, and the other' Justices unaccounted for.

The administrator appointed by the United States court was not empowered to dispose of the land selected or to subject it in any manner to any claims, for the reason that the land was inalienable at that time, and descended directly to the heirs, and was not subject to administration in the fullest sense. The provision for approval is as follows :

“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.” Act Cong. May 27, 1908, sec. 9 (35 Stat. 315).

As applied to ¡the present case, it is clear that any jurisdiction that the United States court had over the settlement of the estate of the deceased allottee had by its own order long since passed before this act came into operation, the act being passed on the 27th of May, 1908, and becoming effective 60 days thereafter. Under the Oklahoma statute, in the event of the discharge of an administrator and the closing of the estate; without full administration, there could be what is commonly known as an administrator de bonis non. See sections 6486 and 6487, Revised Laws 1910 [O. S. 1931, secs. 1381-1382], There was an administrator appointed in Adair county after the administration was formally closed in Cherokee county in accordance with the order of the United States court. When that was done, there was no longer any jurisdiction in the county court of Cherokee county, as deceased never resided there and was a resident of the territory embraced in Adair county, in which part of her land was located, and there was no property in Cherokee county. Section 6193, Revised Laws 1910 [O. S. 1931, sec. 1069], which was in full operation, is imperative, and is in part as follows:

“6193. Venue of probate acts. Wills must bo proved, and letters testamentary or of administration granted:

“First. In the county of which the decedent was a resident at the time .of his death, in whatever place he may have died.”

Section 6195 [O. S. 1931, sec. 1071] is equally imperative as to the jurisdiction. Section 6197 [O. S. 1931, sec. 1087] was enacted while this matter was in the Adair county court.

Such was the view of everybody concerned in the matter. This view was held by the then county judge and subsequent county judges of Adair county, and it was held by the administrative office of the United States government having in charge the administration of Indian affairs. It-was so held and considered by the probate attorneys that were appointed at various times to assist in protecting the rights of the Indians. It was evidently so considered by the attorneys that were engaged in examining abstracts for persons in due course of business, that were buying lands of this hind. The principle was declared in Burton v. Colley, 113 Okla. 265, 242 P. 185, in a guardianship case. In that case the court says:

“Therefore, the county court of Love county had jurisdiction of the guardianship of the estate of the plaintiff, and so long as Ithis guardianship was pending, the jurisdiction of every other county court in the state to appoint a guardian for the plaintiff was excluded. DeWalt v. Oline, supra; Crosbie v. Brewer, supra; Baird v. England, 85 Okla. 276, 205 P. 1098; State ex rel. Monahawee v. Hazelwood, 81 Okla. 69, 196 P. 937; Parmenter v. Rowe, 87 Okla. 158. 200 P. 683.

“The county court acquiring jurisdiction of an Indian Territory guardianship, as successor to the United States court in the Indian ' Territory, exercises a jurisdiction clearly defined by the aforesaid constitutional provisions, and the Legislature recognized this jurisdiction, and beginning with the first session after statehood, enacted laws providing for the transfer of probate proceedings from one county court to another. (Sess. Laws 1997-08, pp. 205-212; Sess. Laws 1910, p. 37; secs. 6196-98, Rev. Laws, 1910.)

“If upon the creation of counties in that part of the state formerly comprising the Indian Territory, the domicile of the ward was in a county other than that to which his guardianship proceedings passed by virtue of the aforesaid constitutional provisions, the proper procedure was to transfer such proceeding- to the county of his domicile, as provided by Sess. Laws 1907-8. supra, or by appropriate action of the court to which such proceeding passed, terminate that guardianship before jurisdiction of another court is sought.”

The third subdivision of the syllabus is as follows:

“Where a county court of one county had acquired jurisdiction of the guardianship of a minor, as the successor of the United States court for the Southern district of the Indian Territory, and subsequently the county court of another county, the domicile of the minoi-, made an order appointing another guardian for said minor and ordered his real estate sold, and said real estate was sold to a purchaser in good faith, who relied upon the record of such court, such sale cannot be collaterally attacked on the ground of the exclusive jurisdiction of the first court, when nothing appears on the face of the record of the second court showing that the court acted without, jurisdiction. ”

Acting on that assumption, and at a time when no other court was contending for jurisdiction, and at a time when the proceedings appeared to be regular, and the administration proceedings were actually pending in Adair county and nowhere else, a- deed was procured from Taylor Eli, the father of the deceased allottee, which in due course was approved by the county court of Adair county. The language of the act in designating the court to approve is “having jurisdiction.” It might be true •that all tha-t there was left for that court to do would be to approve a deed made by the heirs of the intestate. That, of course, was the settlement of the estate as near as any court could come to it. Everybody acted on the idea that the county court of Adair county was the proper court. No person dissented.

Under that view, a man by the name of Ohesnut bought the interest of Taylor Eli in this land, and the conveyance was approved by the county court of Adair county, and later it was transferred to a man named Wilkerson, and then to Calvert and Glass, two of the defendants in this case. By other conveyances, approved by the county court of Adair county, Calvert and Glass succeeded to the title to all of the lands, subject to the oil and gas leases, under which the Carter Oil Company extracted the oil from the land beginning in the year 1916. The property had been • bought in regular course, and there appears no evidence of any overreaching in dealing with the heirs and procuring the deeds.

In 1924, T. C. Wilson, an attorney, associated himself -with R. E. Tucker, and bought the land from the heirs, and the conveyances were approved by the Cherokee county court. In the meantime, the amount of oil that had been produced amounted in value to approximately $300,-000, and the oil had been divided, the royalty being paid to the heirs and to their grantees in accordance with the conveyances made by the heirs and approved by the county court of Adair county.

A great many questions are discussed in the briefs here. Some on estoppel, some on limitations, and a good deal is said about champerty, but it occurs to us that the question that is decisive is, whether or not the deeds approved by the county court of Cherokee county in the year 1924 were valid. From the standpoint of the knowledge of the grantees of the prior rights of the other parties, there can be no doubt that they knew that the other parties had the first deeds from the heirs, and that the only ground that they could hope to prevail on was the fact that the first takers had their deed approved by the county court of Adair county, instead of the county court •of Cherokee county.

It would appear that Congress used terms advisedly when it provided for an approval by a court that had jurisdiction of the settlement of the estate. In the year 1926, Congress, in view of a perplexing variety of decisions, saw fit to make other provisions on the subject, and while the provisions are not applicable as controlling here, being enacted after the original proceedings were had, they are persuasive as to what the legislative body had in mind in the Act of 1908, as construed by the Legislature itself. Reference is here bad to the Act of April 12, 1926, 44 Stat. at L. 239, which amended section 9' of the Act of May 27, 1908, and the language used is that the death of any allottee of the Rive Civilized Tribes shall operate to remove all restrictions upon the alienation of the allottee’s land. One could scarcely argue that, though the word “shall” is used there, it meant to exclude those who had died theretofore from the operation of the statute. There Congress inserted a provision that the conveyance should not be valid unless “approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator,” the words “county court” being inserted therein in lieu of the word “court,” the words “having jurisdiction” being used just as in the former case. Evidently to be operative, the word “having” applies to the time when the approval is to be had, and is not limited to the county court having jurisdiction at the time of the passage of the act. Normally the county court in whose jurisdiction, measured ’territorially, the deceased had resided, would have the jurisdiction, as shown in the history of our decisions on the subject. The Act of April 12, 1926, is as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section 9 of the Act of May 27, 1908 (Thirty-fifth Statutes at Large, page 312), entitled ‘An Act for the removal of restrictions on part of the lands of allottees of the Five Civilized Tribes, and for other purposes,’ be, and the same is hereby, amended to read as follows:

“ ‘Sec. 9. The death of any allottee of the Five Civilized Tribes, shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, that hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from., an allottee of such lands shall be .valid unless approved by the county court having jurisdiction of the settlement, of the estate of the deceased allottee or testator: Provided further, that if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, bom since March 4, 1906, the homestead of sucb deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by tbe Secretary of the Interior for the use and support of such issue, during their life or lives, until April ’26, 1931; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from restrictions; if this be not done, or in the event the issue hereinabove provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free from all restrictions: Provided, that the word “issue” as used in this section shall be construed to mean child or children: Provided, further, that the provisions of section 23 of the Act of April 26, 1906, as amended by this act, are hereby made applicable to all wills executed under this section: And provided further, that all orders of the county court approving such conveyances of such land shall be in open court and shall be conclusive as to the jurisdiction of such court to approve such deed: Provided, that all conveyance by full-blood Indian.heirs heretofore approved by the county courts shall be deemed and held to conclusively establish the jurisdiction of such courts to approve the same except where more than one such conveyance of the same interest in the same land has been made by the same Indian to different grantees and approved by county courts of different counties prior to the passage of this act, and except that this proviso shall not affect and may not be pleaded in any suit brought before the approval of this* act.’

“Sec. 2. The statutes of limitations of the state of Oklahoma are hereby made and declared to be applicable to and shall have full force and effect against aP restricted Indians of the Five Civilized Tribes, and against the heirs or grantees of any such Indians, and against all rights and causes of action heretofore accrued or hereafter accruing to any such Indians or their heirs or grantees, to the same extent and effect and in the same manner as in the case of any other citizen of the state of Oklahoma, and may be pleaded in bar of any action brought by or on behalf of any such Indian, his or her heirs or grantees, either in his own behalf or by the government of the United States, or by any other party for his or her benefit, to the same extent as though such action were brought by or on behalf of any other citizen of said state: Provided, that no cause of action which heretofore shall have accrued to any such Indian shall be barred prior to the expiration of a period of two years from and after the approval of this act, even though the full statutory period of limitation shall already have run or shall expire during said two years’ period, and any such restricted Indian, if competent to sue, or his guardian, or the United States in his behalf, may sue upon any such cause of action during such two years’ period free from any bar of the statutes of limitations.

“Sec. 3. Any one or more of the parties to a suit in the United States courts in the state of Oklahoma or in the state courts of Oklahoma to which a restricted member of the ITive Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, as plaintiff, defendant, or intervener, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents, and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Givilized Tribes, and the United States may appear in said cause within SO days thereafter, or within such extended time as the trial court in its discretion may permit, and after such appearance or the expiration of said 20 days or any extension thereof the proceedings and judgment in said cause shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved. Duplicate original of the notice shall be filed with the clerk of the court in which the action is pending and the notice shall be served on the Superintendent for the Five Givilized Tribes, or, in ease of his absence from his principal office, upon one of his assistants, and shall be served within ten days after ihe general appearance in the ease of the party who causes the notice to be issued. The notice shall be accompanied by a certified copy of all pleadings on file in the suit at the time of the filing of the duplicate original notice with the clerk and shall be signed by the party to the action or his or her counsel of record and shall be served by the United States marshal and due return of service made thereon, showing date of receipt and service of notice. If notice is not served within the time herein specified, or if return of service thereof be not made within the time allowed by law for the return of service of summons, alias notices may be given until service and rehira of notice is had and in no event shall the United States be bound unless written notice is had as herein specified: Provided, that within 2U days after the service of such notice on the Superintendent for the Five Civilized Tribes or within such extended time as the trial court in its discretion may permit the United States may be, and hereby is, given the right to remove any such suit pending in a state court to the United States district-court by filing in such suit in the state court a petition for the removal of such suit into the said United States district court, to be held in the district where such suit is pending, together with the certified copy of the pleadings in such suit served on the Superintendent for the Five Civilized Tribes as hereinbefore provided. It shall then be the duty of the state court to accept such petition and proceed no further in said suit. The said copy shall be entered in the said district court of the United States within 20 days after the filing of the petition for removal and the defendants and interveners in said suit shall within 20 days thereafter plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in said district court, and such court is hereby given jurisdiction to hear and determine said suit, and its judgment may be reviewed by certiorari, appeal, or writ of error in like manner as if the suit had been originally brought in said district court.”

Evidently the national Legislature, in enacting the same, had in mind cases similar in some aspects to this one, probably Baird v. England, 85 Okla. 276, 205 P. 1098, and cases cited therein, and the case of Oklahoma Oil Co. v. Bartlett, 236 Fed. 488, because it provided that henceforth all of the orders of the county court, approving such conveyances, should be in open court, and should be conclusive as to the jurisdiction of the court to approve the deed, with a proviso, however, that conveyances theretofore made and approved by the county courts should conclusively establish the jurisdiction of such courts, except where there had been two conveyances approved by county courts of different counties, prior to the passage of this act, and further that the last provisio of section 1 should not affect and might not be pleaded in any suit brought before the approval of the act. The suit in question had been brought in 1924. However, there is one of the suits, that is involved here in which complaint is made, that was brought later. It is the one charging that the conveyances relied upon by Wilson and his associate were void, and obtained by overreaching, but it is not necessary to discuss that further, in view of what tlie admitted facts are in this case. Evidently the provision about notifying the United States authorities was operative on the accounting as made in the district court.

Briefs on behalf of the parties have been filed in this case by Taylor Eli, James Eli, Charlotte Chuculate, T. P. Wilson, administrator of the estate of T. C. Wilson, deceased, G. A. Wilson, Fannie C. Wilson, and R. E. Tucker, plaintiffs in error, against the Carter Oil Company, J. Wood Glass, F. A. Calvert, Louella P. Chesnutt, and Tidal Oil Company, defendants in error.

The journal entry of judgment shows that on the entry of the judgment now appealed from, Messrs. Linebaugh & Pinson, Reynolds & Williams, and John Barry, represented R. E. Tucker and the Wilsons, and that L. G. Owen represented the Carter Oil Company, and the Tidal Oil Company was represented by W. P. McGinnis, and that Glass and Calvert appeared for themselves.

A motion was filed in this court on the 27th of August, 1932, signed by Messrs. D. H. Linebaugh, Reynolds & Williams,, and John Barry, to dismiss the appeal of plaintiffs in error in No. 20110, which appears to be this ease, and the cross-appeals in No. 19818, 164 Okla. 302, 23 P. (2d) 1011, in which the appellants are Taylor Eli, James Eli, Charlotte Chuculate, T. P. Wilson, administrator of the estate of T. C. Wilson, deceased, G. A. Wilson, Fannie C. Wilson, and R. E. Tucker, and a brief has been filed in support thereof, it being stated at page 28 as follows:

“In conclusion, we respectfully suggest that the principal reason for this motion to dismiss is that we may direct the court’s attention to its opinion in Lone Star Gas Co. v. Parsons, et al., 159 Okla. 52, 14 P. (2d) 369,—the opinion being filed June 28, 1932— and the principle announced in that case.”

The case has been examined, but it is not applicable. The ground relied upon for dismissal is based on the fact that the appeal in this case is an attempt to impeach the final judgment, order, and decree of this court in ease No. 17106, and discussion is had of some of the cases relied on originally.

As applied to the trial judge in the present case, it was his duty to carry out the mandate of this court. However, it is claimed by the parties whose appeals • are sought to be dismissed that he did not do so. An inspection of the record is convincing that there is ground for the contention that he did not carry out the mandate of this court. Under that mandate some of the appellants would have been compelled to have accounted to the original plaintiffs for more than the amounts allowed.

A review of some of the authorities cited in the original brief of the appellants, whose appeals the appellees now desire to dismiss, are Wade v. Hope & Killings worth, 89 Okla. 64, 213 P. 549, and Powell v. United M. & M. Co., 107 Okla. 170, 231 P. 307, and several more are cited and commented on. The trial judge did not follow the mandate and the case should not be dismissed on motion. The motion to dismiss is accordingly denied.

As disclosed by this record, the deeds that Wilson and his associate relied upon were void, not being approved by the court then having jurisdiction of the settlement of the estate of the dead allottee, and if their title failed, they were not in a position to attack the title of the others. The question has been briefed here by the Garter Oil Company and Calvert and Glass and Louella Ches-nutt and Tidal Oil Company on the one side in this case. Similar briefs have been filed in case No. 19818. The counter briefs of Taylor Eli, James Eli, and Charlotte Chucu-late are in No. 19818, but we have examined them in view of the fact that No. 19818 is an appeal by nearly all of the parties to the case. Taylor Eli, James Eli, and Charlotte Chuculate are dissatisfied because under the rulings as against them, Wilson, administrator of T. C. Wilson, deceased, and his associates and R. E. Tucker will get all that there is, if the accounting made by the trial court is allowed to stand. Wilson, as administrator, is dissatisfied because under the accounting the portion coming to T. C. Wilson is to stand the repayment to Calvert and Glass of what they paid for the land, and the Tidal Oil Company and Louella Chesnutt are also complaining because of the accounting, and appear to have briefs in No. 19818. Carter Oil Company is dissatisfied, though it is not held accountable for the bulk of the oil extracted by it, for the assigned reason that the United States government is the one to sue for the oil extracted prior to the Wilson deeds.

In case No. 19818, the same parties that have prosecuted this appeal, No. 20110, are cross-petitioners, so that if this case is decided and the original case is held to have been rightly decided, an accounting passes out of the ease. We are confronted with the position, taken by the original defendant, that the former decision of this court, reversing the first case, was unjust and er roneous and should not be followed. If the jurisdiction in the Cherokee county court was lacking, that decision should not stand. The jurisdiction to approve the deeds relied on was in the Adair county court, and there appears no fraud or overreaching in the acquisition of the titles relied on by the original defendants. The question arises as to whether or not that decision should be allowed to stand under the doctrine of the “law of the case.” Numerous decisions there are wherein the courts have refused to review decisions on former appeals, under the rule that the doctrine of the “law of the ease” forbids. However, as applied to the present ease, this is a Supreme Court reviewing on a second appeal the action of the lower court that did not follow its mandate, and according to a well-recognized exception to the rule, in ease of gross injustice, the rule will not be applied so as to perpetuate injustice. Clearly, two wrongs should not be committed, but the first wrong should be remedied. It would be a misnomer to say this court has no right to undo a wrong and do what is right. By the laws of mathematics, the addition of two negatives will not ¡make a positive, and by the law of morals, two wrongs added will not make a right. There are several cases cited from this court in which it is so stated, and among others those hereinafter specifically referred to. Among others is Wade v. Hope & Killingsworth, 89 Okla. 64, 213 P. 549, where the second subdivision of the syllabus is as follows:

“The courts .uniformly hold that an appellate court may review and reverse its former decision in the same case where it is satisfied that gross or manifest injustice has been done by its former decision, or where the mischief to be cured far outweighs any injury that may be done in the particular case by overruling a prior decision. ”

The ease of Powell v. United Mining & Milling Co., 107 Okla. 170, 231 P. 307, expresses the doctrine in the first section of the syllabus, as follows:

“Where the judgment of a lower court has been reversed by this court upon an appeal by proceedings in error and the case remanded to the lower court for a new trial, the lower court, upon the second trial, is required to follow, as the law of the case, the judgment of this court therein rendered. On a second appeal in said case to this court, the decision of this court and. rules of law by it announced in its opinion on the first appeal constitute the law of the case as to all points decided in the first opinion, but this is not a cast-iron rule incapable of relaxation in any event. On a second appeal to this court, it may review and reverse its former decision in the same case, where it is satisfied that gross or manifest injustice has been done by its former decision, and will do so where the mischief to be cured far outweighs any injury that may be done in the particular case by overruling a prior decision, and especially where the party benefiting from the erroneous judgment, and in full reliance thereon, has not surrendered substantial and valuable rights which cannot be restored by the court.”

In the case of George v. Connecticut Fire Ins. Co., 84 Okla. 172, 200 P. 544, the court expresses the doctrine as follows:

“While the general rule is that the question decided by the Supreme Court on the former appeal becomes the law in the case in all its stages, and will not, ordinarily, be reversed on second appeal where the facts are the same, this court, in the case of Oklahoma City Electric Gas & Power Co. v. Baumhoff, 21 Okla. 503, 96 P. 758, stated:

“ ‘The courts uniformly hold that an appellate court may review and reverse its former decision in the same case where it is satisfied that gross or manifest injustice has been done by its former decision, or where 'the mischief to . be cured far outweighs any injury that may be done in the particular case by overruling a prior decision’. ”

One of the leading cases in this state on the subject of county expenses and county indebtedness carries an illustration of the recognition by the court of its duty to rectify a wrong that has been made in its former decision, in a different case between the parties, by reversing its former erroneous decision. There were two of the appeals. In the first one of the cases the sheriff, who had been compelled to keep his prisoners during the latter part of the fiscal year, the estimate having been expended and there being no funds to pay for keeping the prisoners, kept them notwithstanding. He presented his bill to the county commissioners, but not being authorized under the statute to allow the same, it was rejected. He proceeded then to go into the county court, which appears to have had jurisdiction, and the county court rendered judgment in his favor for the amount that was owing for keeping the prisoners. The county commissioners appealed to this court. The next year the same thing happened as to keeping prisoners. Instead of going into the county court, he went into the district court, and in that court his claim was repudiated and the sheriff took the appeal, so that this court had before it at the same time, between the same parties, the same legal question involved in two separate appeals.

The court reached the appeal that the county commissioners had made first, and proceeded to reverse the county court and disallow the claim. This was followed by a motion for rehearing, which in turn was disallowed, and also by a second application for rehearing, which was disallowed. Somo time after this a full court reached the appeal that the sheriff had taken from the district court. The case was argued, and in an opinion by Justice Hardy the law point was determined the other way. In the meantime (he mandate had gone down, but in view of the fact that the judgment secured by the sheriff had been reversed by this court, there was nothing left in 'the county court except the payment of costs when the decision in the second appeal was decided.

The result of the entire matter, however, was that after the appeal in the second case had been decided, a third application was made in the original case, which was No. 7464 in this court (Board of Com’rs of Craig County v. Smartt), the opinion in which was published in 158 Pac. 601, and which was withdrawn in an opinion by Chief Justice Owen, which can be found at page 159 of the 75th Oklahoma Report, and which being short is here quoted in full:

“OWEN, C. J. The question presented in this case is identical with that presented in Smartt v. Board of County Commissioners (No. 7737) 67 Okla. 141, 169 P. 1101, L. R. A. 1918C, 313. On authority of that case, the petition for rehearing will be granted, the opinion filed May 16, 1916 (published in 158 Pac. 601, L. R. A. 1916E, 892). withdrawn and the judgment of the lower court affirmed.

“RAINEY, PITOHFORD, McNEILL, and HIG'GINS, JJ., concur. SHARP, J., dissents. ”

This opinion was filed the 15th of July, 1919. The opinion that was withdrawn was filed on the 16th of May, 1916. The original judgment was affirmed and a second mandate so showing was sent to the court.

Other courts have had similar questions before them and have reasoned upon the matter, and for that reason we quote extensively from the opinion of the Kansas Supreme Court in the case of Henry v. A., T. & S. F. Ry. Co.. 28 L. R. A. (N. S.) page 10S8. wherein the reason for correcting mis t akes is given, as follows:

“The appellant contends that, as the testimony on which the judgment in question rests was exactly the same as upon (he earlier trial, the decision on the former appeal necessarily determines the result of this appeal, and requires judgment in its favor. If it be assumed that no new elements were brought into the case on the,second trial, it does not follow that the former decision, right or wrong, is conclusively binding upon (his appeal. Ordinarily, a question considered and decided on the first appeal is deemed to be settled, and, except for very cogent reasons involving palpable error, will not be re-examined on a second appeal. Some courts hold that a decision, whether right or wrong, is conclusive in all subsequent appeals, but what is called the Taw of the case’ is not an inflexible rule which requires a court to blindly reiterate a rule of law that is clearly erroneous. In Central Branch Union P. R. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 163, the court after stating generally the importance of stability and uniformity in the interpretation of the law, said: ‘We do not understand that the rule that a decision once made becomes, the established law of the case is a cast-iron rule, and incapable of relaxation in any event. Oases may arise in which it will be very clear that the first decision was erroneous; that not only in the case at bar will wrong result from adhering to the decision, but also other interests through the stale will be imperiled; hence we do not doubt the power of the court to reconsider and reverse a prior decision in the same case.’ In the late case of Missouri, K. & T. R. Co. v. Merrill, 65 Kan. 436, 59 L. R. A. 711, 93 Am. St. Rep 287, 70 Pac 358, it was insisted that a ruling on the first appeal, however incorrect, was conclusive on the second, but the court again refused to sanction the theory that it was required to readopt and repeat a decision founded in serious error. Mr. Justice Smith answered the contention that a decision once announced by the Supreme Court must be adhered to, by saying: ‘This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of the former case is shattered by the pressing weight of opposing authority, and that reason is against it.’ In Ellison v. Georgia R. & Bkg. Co., 87 Ga. 691, 13 S. E. 809, the learned Chief Justice Bleckley used (he following forcible language: ‘Some courts live by correcting the errors of others and adhering to their own. * * * Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to and repeated indefinitely, but the only treatment for a great and glaring error, affecting, the current administra tion of justice in all courts of original jurisdiction, is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for a Supreme Court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia, ruat coelum’.”

In Brewer v. Browning, L. R. A. 1918F, page 1185, the Mississippi Supreme Court had occasion to refer to 'the law of the case doctrine and to distinguish the idea of res adjudicata as applied to a Supreme Court on the second appeal. That court, in reviewing other authorities, says:

“We think courts are created and maintained and sworn to administer justice, and not to adhere strictly to arbitrary rules. When a rule of decision defeats justice or seriously impairs it, it should be departed from rather than followed. Rules are made to secure justice, not defeat it. We think the rule of ‘the law of the case’ is a good rule of practice, and should be followed, except in rare cases where the decision is manifestly and palpably erroneous, and to follow it would result in grave injustice being done. ”

And upon a suggestion of error, we find the following:

“We do not think the language used in our opinion: ‘When judicial construction is out of harmony with natural justice the judicial reasoning ' should withstand the most careful scrutiny and analysis before it should prevail,’ and ‘the courts are created, maintained, and sworn to administer justice and not to adhere strictly to arbitrary rules. When a rule or decision defeats justice or seriously impairs it, it should be departed from rather than followed,’ is such radical language as need frighten the members of the bar. There may be those who love consistency of utterance and of precedent more than they do the administration of justice, but in our opinion the courts were created solely for the purpose of administering justice. We recognize that precedents are valuable guides, and it is not our purpose to throw them aside entirely, and to proceed and blaze a new trail from our personal sense of right and justice. The decisions of the courts are not necessarily unchangeable, and it is the duty of the court to change a decision, if wrong in principle, and which leads to injustice and wrong.”

As applied to the facts in this case, we have this situation: The defendants in the original ease, and their respective grantors, had bought one-half of the land from the full-blood Indian heir, and had paid for it all that it was worth, so far as this record shows, at the time of the purchase. Oil was later discovered, and the barren blackjack hill with some rocky land at its base became very valuable for oil. One of the parties owning a one-fourth interest at that time was a minor, and an oil and gas lease was made which was approved by the county court of Adair county, where the minor lived and where guardianship was taken out. One of the heirs owning one-fourth interest became of age about that time, and an oil and gas lease was made by that full-blood heir, which was approved by the county court of Adair county. .Some years before this, the half interest that belonged to the father had by heirs been sold, under the supervision of the probate court of Adair county, in ithe territory of which court the ancestor had died prior to statehood. That proceeding was apparently regular, and the county court approved that deed. About eight years after the leases had been made and the oil had been discovered and a large part of it extracted, an attorney by the name of Wilson, in connection with a man by the name of Tucker, succeeded in getting from the heirs a deed for a half interest in the property as his fee for recovering the other half. Shortly thereafter, his associate bought the other half, though the grantors had more than three years prior thereto sold their interest in the property, and executed deeds with the approval of said court, said court exercising jurisdiction upon the ground of it being the court of the county in which the authority existed for the settlement of the estate of the deceased, and while no other court was claiming any jurisdiction of the matter. All heirs were of full age when they executed their deeds. At said time there was no proceeding pending elsewhere looking to the settlement of the estate.

About 16 years before this, an administrator had been appointed in the United States Court for the Northern District of the Indian Territory for the purpose of selecting an allotment, but that administrator had been ordered to be discharged by the court appointing him, and the estate had been closed by formal order in the year 1808 in Cherokee counity by the county court, the successor of the United States court. Sometime afterwards, application had been made to the county court of Adair county for letters of administration over the estate, evidently with a view of establishing heirship, to be followed later by one of the heirs who was an adult and desired to sell, disposing of his part. No party in interest appears to have objected' to the order of discharge. As there was no administration pending elsewhere at the time of [the application in Adair county, and as Adair county was the forum for the administration on the estate of the deceased, by reason of residence at the time of death, and also the location of the land therein as required by the 1910 laws, we are unable to see thait there were any valid legal objections to the authority of the Adair county court to approve the deeds relied on by the defendants in the case. If authority is needed to show loss of jurisdiction in the Cherokee county court, the case of Otero v. Otero et al., 90 P. 601, decided by the Supreme Court of Arizona, would be instructive. We are unable to see any valid reason for reversing the judgment of the lower court in the first instance, when the facts are considered as they existed and as shown by the record.

The brief of the plaintiff in error in this case discusses champerty, and some other points, but we do not think it essential to go into that, in view of the fact that the original claimants, by purchase of the land, were in undisputed possession, under deeds that we think were valid, when the suit was started. The briefs that have been submitted are lengthy, and in them there is complaint of a great many things that we do not deem it necessary to discuss, in view of the finding on the main branch of the case. The judge of the lower court endeavored to follow the ruling of the higher court on the former appeal on the accounting in some respects, all of which is complained of practically by all the parties concerned in the various cross-appeals that are found in No. 19818.

Under the above considerations, it is not necessary to inquire as to whether the action of the lower court, appealed from, in making the accounting, follows with accuracy the decision of this court or correct principles, as the foundation for its action fails. Its action on the accounting is in all things therefore reversed. The opinion rendered on the former appeal and reported in 126 Okla. 12, 257 P. 761, is overruled and withdrawn, and the decisions therein rendered, set aside, and the case as originally decided in the district court of Nowata county, being No. 5204, and brought here by proceeding in error in casé No. 17016, is in all things affirmed, and the entire costs of both appeals and in the court below will be taxed to the plaintiffs, Taylor Eli, James Eli, Charlotte Cthueulate, T. P. Wilson, aministrator of the estate of T. O. Wilson. and to R. E. Tucker. The costs accruing since G. A. Wilson and Fannie C. Wilson were made parties will be taxed to G. A. Wilson and Fannie C. Wilson and the others named above.

HEFNER, SWINDALL, and McNEILL, JJ., and BELL, Special J., concur. LESTER, C. J., CLARK, Y. C. J., and YOUNG, Special J., dissent. RILEY, J., not participating. CULLISON and ANDREWS, JJ., disqualified.