First State Bank of Hewitt v. Lowery

Supreme Court of Oklahoma

First State Bank of Hewitt v. Lowery

1919 OK 59, 178 P. 983, 72 Okla. 115, 1919 Okla. LEXIS 322

CourtSupreme Court of Oklahoma

DecidedFebruary 25, 1919

Docket8891

StatusPublished

Cited by5 cases

This text of 1919 OK 59 (First State Bank of Hewitt v. Lowery) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First State Bank of Hewitt v. Lowery, 1919 OK 59, 178 P. 983, 72 Okla. 115, 1919 Okla. LEXIS 322 (Okla. 1919).

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Opinion

OWEN, J.

This action was brought by defendants in error to recover certain lands allotted to Jos. H. Lowery, Ohoctaw Indian of one-eighth blood, and held by Caudill under conveyance from the allottee. The bank claims title to the land under execution •<ale on a judgment rendered against the allottee. Judgment, below was for the plaintiffs. The bank brings the case here.

The question necessary for determination is whether the lands allotted to a one-eighth Choctaw Indian may be sold on execution after he becomes of age, to satisfy a judgment rendered against him during his minority.

Under the provisions of section 4, Act of' Congress May 27, 1908 (35 Stat. L. 312, c. 199), this land was not liable for this claim against the allottee which arose prior to remoyal of restrictions. Mike v. Bank of Commerce, 71 Okla. 190, 176 Pac. 398; Barnard v. Bilby, 68 Okla. 63, 171 Pac. 444.

It is contended by counsel that under section 1 of that act this land was free from any restrictions within the meaning of the act. With this we do not agree. Section 6 of the act provides that property of minor allottees shall be subject to the jurisdiction of the probate courts of the state, and no provision is made for the sale of lands held by minors except through probate proceedings. It has been repeatedly held in effect that minority is a restriction upon alienation of such lands within the meaning of this act, and that such lands can only be conveyed by a guardian authorized in a proper proceeding in the county court. McKeever v. Carter, 53 Okla. 360, 157 Pac. 56; Tiger v. Read, 60 Okla. 106, 159 Pac. 499; *116 Eagan v. Ingram. 58 Okla. 766, 161 Pac. 225; Barnard v. Bilby, supra; Crow v. Hardridge, 73 Oklahoma, 175 Pac. 115; Etchen v. Cheney, 235 Fed. 104, 148 C. C. A. 598.

The judgment of the lower court is affirmed.

Ail the Justices concur.

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OWEN, J.

This action was brought by defendants in error to recover certain lands allotted to Jos. H. Lowery, Ohoctaw Indian of one-eighth blood, and held by Caudill under conveyance from the allottee. The bank claims title to the land under execution •<ale on a judgment rendered against the allottee. Judgment, below was for the plaintiffs. The bank brings the case here.

The question necessary for determination is whether the lands allotted to a one-eighth Choctaw Indian may be sold on execution after he becomes of age, to satisfy a judgment rendered against him during his minority.

Under the provisions of section 4, Act of' Congress May 27, 1908 (35 Stat. L. 312, c. 199), this land was not liable for this claim against the allottee which arose prior to remoyal of restrictions. Mike v. Bank of Commerce, 71 Okla. 190, 176 Pac. 398; Barnard v. Bilby, 68 Okla. 63, 171 Pac. 444.

It is contended by counsel that under section 1 of that act this land was free from any restrictions within the meaning of the act. With this we do not agree. Section 6 of the act provides that property of minor allottees shall be subject to the jurisdiction of the probate courts of the state, and no provision is made for the sale of lands held by minors except through probate proceedings. It has been repeatedly held in effect that minority is a restriction upon alienation of such lands within the meaning of this act, and that such lands can only be conveyed by a guardian authorized in a proper proceeding in the county court. McKeever v. Carter, 53 Okla. 360, 157 Pac. 56; Tiger v. Read, 60 Okla. 106, 159 Pac. 499; *116 Eagan v. Ingram. 58 Okla. 766, 161 Pac. 225; Barnard v. Bilby, supra; Crow v. Hardridge, 73 Oklahoma, 175 Pac. 115; Etchen v. Cheney, 235 Fed. 104, 148 C. C. A. 598.

The judgment of the lower court is affirmed.

Ail the Justices concur.

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1919 OK 59, 178 P. 983, 72 Okla. 115, 1919 Okla. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-state-bank-of-hewitt-v-lowery-okla-1919.

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