The Chickasha daily express. (Chickasha, Indian Territory [Okla.]) 1899-current, 1913-05-22
Supreme Court Holds Sale Of Sur
plus Of Intermarried Citizen
Allotment Valid; Previous
Contract Void
AFFECTS A NUMBER
OF PENDING CASES
Point First Decided in District Court
Of Grady County Over Year
Ago Syllabus Of The
Opinion by ROssiter

In an opinion handed down by the
state supreme court Tuesday the de-
cision of Judge Bailey in the district
court Of Grady county is affirmed III
an Indian land case that is similar to
numerous other suits that are pending
in the courts Of eastern Oklahoma
counties.
The plaintiff was Newt Casey, an
intermarried Indian citizen, and the
defendants were John G. Lewis and b. |
L. Bingham Judge Bailey decided
the case in favor Of tae defendants
over a year ago and the plaintiff ap-
pealed to the high court
1t is brought out in the facts that
Casey agreed to sell to Lewis his sur
plus allotment and after he had filed
he executed deed To Lewis and Sc
cured a consideration for the sale Of
the land Later Lewis sold the land
to Bingham and then Casey brought
suit for the recovery Of it claiming
that the deed to Lewis was void.
The court held that although the
contract for sale, made prior to taking
the allotment, was void and not en-
forceable, the conveyance after the
land was allotted and consideration
was valid
The opinion in the case was written
by Judge Rossiter Barefoot & Car
michael and C. NJ. Fechheimer repre-
sented the defendants in the case. The
syllabus Of the opinion is as follows;
Syllabus
/ /. A contract by an intermarried
member Of the chickasaw tribe Of In.
dians. to sell a portion Of his surplus
allotment when he should have filed
the land. made before he filed, but
subsequent to the act Of April 2l,
1904, which provided chat @all the re.
strictions unon the alienation Of lands
Of all allottees Of either Of the Five
Civilized Tribes Of Indians who are
NOT Of Indian blood, except minors.
are, except as 10 homesteads, hereby
removed. wal not valid.
2 Where a member by intermar-
riage OF the Chickasaw tribe Of Indians
subsequent to the act Of April 2f, 1904,
but prior to filing on the land, en-
tered into a contract to convey his
surplus when he should have filed, and
received a portion OF the considera-
ton, and after he had filed executed
a warranty deed as stipulated in the
contract and received the appraised
value Of the land, the deed was valid,
conveyed title to the grantee therein,
Notwithstanding the previous. invalid
contract.
3. The provision Of the act Of April
q, 1904 that every deed executed
before or for the making OF which
a contract or agreement was entered
into before the removal or restrictions,
be and the same is hereby declared
J void, was not not retroactive and did
not affect deeds executed prior to its
passage.
The provision Of section 8 Of the act
Of May Il. 1906, THAT any attempted
! alienation or incumbrance by deed
! mortgage, contract to sell, power Of
attorney or other instrument Of
method Of encumbering real estate
made before or after the approval d
this act, which affects the title Of tn,
land allotted to the allottees Of til,
Five Civilized Tribes prior to the re
moYal OF the restrictions therefrom
and also any lease Of such restricted
land. made in violation of law befor,
or after the approval Of this act, shal
! be absolutely null and void" does no
d affect deed made after the restriC
a tions were removed and the land Filed
+ Tor an adequate consideration paid d
the time OF its execution, though til
b grantor, prior to filing on the land ha
t entered into a contract to convey {
the grantee.