Chouteau v. Klapmeyer

75 P. 1009, 68 Kan. 829, 1904 Kan. LEXIS 200

• Court: Supreme Court of Kansas
• Decided: March 12, 1904
• Docket: No. 13,536
• Status: Published

Opinion

Per Ouriam:

This was an action in ejectment brought by Benjamin C. Obouteau against William KLapmeyer and others, the present owners, to recover possession of the northeast quarter and the northeast quarter of the northwest quarter of section 27, township 13, range 25, in Johnson county, Kansas. Judgment was for defendants.

Cyprian Chouteau, a white man, married a Shawnee Indian. The plaintiff in this action is the issue of that marriage.

In September, 1856, while plaintiff was a minor, his father was adopted into and regularly enrolled as a member of the Shawnee tribe of Indians. In 1856 and 1857, for the purpose of allotting the Shawnee lands, a tribal roll was made, upon which appears the following: “Number in family, 1; name, Benjamin 0. Chouteau; age, 20.” After this roll was completed, and in 1857, the tribal lands were allotted. The father of plaintiff caused the lands in controversy to be allotted to Benjamin. On December 28, 1859, a patent was issued to Benjamin for this land. In 1853 Benjamin left the tribe and went to California. During the first two years of his absence he corresponded with his people occasionally, but thereafter he was not heard from and was given up as dead In 1867 Cyprian Chouteau, as the only heir, believing Benjamin to be dead, sold this land for $1200. The land has been occupied ever since by the owners, and by mesne conveyances the title thereto is now in defendants, who are in possession.

The deeds executed by Cyprian Chouteau were in all respects in conformity with the -law and the rules of the department of the interior, and were approved by the secretary of the interior. In 1877 or 1878 the plaintiff returned to his father’s home, in Jackson county, Missouri. His father informed him of the land transaction, and paid him a portion of the money received therefor. Plaintiff then went to the Indian Territory and settled near Vinita. where he has ever since resided. Cyprian died in 1879, leaving a valuable estate. His widow was the administratrix, and she testified that, in 1880, when she paid the plaintiff his share of his father’s estate, amounting to about $8700, she also paid him an additional sum of $500, being, the balance due him from the sale of the real estate in question.

The present action was brought in 1901, more than thirty-four years after Cyprian had sold the land, twenty-four years after Benjamin had been informed thereof and had received a part of the proceeds of the sale, and twenty-one years after be bad received from his fathers estate the balance due from the sale of such lands.

The facts of this case bring it within the principles announced in Dunbar v. Green, 66 Kan. 557, 72 Pac. 243. Upon the authority of that case, the judgment of the court below is affirmed.