This is the second appeal in this case. Eli v. Carter Oil Co., 126 Okla. 12, 257 P. 761. When the case was here on the first appeal, I concurred in the original opinion. On a study of the application for rehearing, when the case was here before, I came to the conclusion that a rehearing should be granted and that an opinion should be written which affirmed the judgment of the trial court. The Fifth Pan American Conference: A Proving Ground so advised some or all of the Justices who were then members of the court.
In my judgment that opinion is clearly wrong.
The land was allotted by an administrator of the deceased allottee, who had been appointed in the Northern District of the Indian Territory, and on the advent of statehood the administration proceedings were regularly transferred to the county court of Cherokee county. The estate was definitely and finally closed, and the administrator discharged by the county court of Cherokee county on the 22nd day of October, 1908. That order is as follows:
"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 hereinbefore referred to.
"Given under my hand this the 22nd day of October, 1908."
On the advent of statehood, both Cherokee and Adair counties, as well as other *Page 285 counties, were carved out of the territory formerly in the Northern District of the Indian Territory, and the allottee died in that territory which became Adair county. In my judgment, when the county court of Cherokee county closed the estate and discharged the administrator, the jurisdiction of that court was completely ended. In other words, after the discharge of the administrator, there were no administration proceedings pending anywhere, and, if, for any reason, it became necessary in the future to have an administrator appointed for the estate of deceased allottee, the proper county in which application should have been made for the appointment of such administrator would have been Adair county, the county in which the deceased allottee resided at the time of his death.
Shortly after the administration had been definitely and finally closed and the administrator had been discharged in Cherokee county, an application was made for the appointment of an administrator in the county court of Adair county. A year or so after that appointment, deeds were taken from the full-blood heirs of the deceased allottee, and such deeds were approved by the county court of Adair county. As pointed out in the opinion of the court, it was necessary that these deeds be approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee. When these deeds were taken, the administration proceedings were, and had for quite a while prior thereto been, pending in the county court of Adair county. It is my judgment that, at the time the application was made for the appointment of the administrator, the county court of Adair county had full and complete jurisdiction to make the appointment, and was in fact the proper court to make it. Under our statutes, the county court of Adair county had full jurisdiction to appoint administrators.
After the deeds had been regularly and properly approved by the county court of Adair county, oil and gas leases were purchased by certain of the defendants, possession of the property was taken, wells were drilled, and two or three hundred thousand dollars worth of oil had been produced from the premises, and settlement therefor was made in accordance with the deeds which had been approved by the Adair county court. Several years after the deeds under which defendants claim had been taken and approved by the county court of Adair county, and after the oil, both the royalty and working interest, had been sold and settlement made therefor, plaintiffs took deeds, for and upon a consideration of about $750 for both the land and the oil and gas that had been produced, from the same grantors who had executed the deeds, several years prior thereto, under which the defendants claim, and which deeds had been regularly approved by the county court of Adair county and under which the land had been developed for oil and gas purposes. Plaintiffs caused the deeds which they took to be approved by the county court of Cherokee county, and then brought suit against the defendants to recover the land and for an accounting for the oil produced therefrom. The trial court, after the case had been thoroughly presented to it, held that the county court of Adair county was the proper court to approve the deeds, and that the county court of Cherokee county had no jurisdiction to make the approval, and rendered judgment for the defendants. Under the facts presented by this record, it is my judgment that the district court was correct in so holding.
Even if the administration proceedings in the county court of Cherokee county had never been closed and were still pending at the time the administrator was appointed by the county court of Adair county — which is not the case — and the appointment of the administrator by the county court of Adair county was regular, and nothing appeared in the record to show a want of jurisdiction, and the deeds were approved by that court, and the defendants acted and relied upon that record and that appointment and were innocent purchasers under their deeds, then, under the doctrine announced by this court in the case of Burton v. Colley, 113 Okla. 265, 242 P. 185, the plaintiffs could not recover, for the reason that it would be a collateral attack upon the appointment of the administrator by the county court of Adair county, and, under the rule announced in that case, the collateral attack cannot thus be made. The third paragraph 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 State Court for the Southern District of the Indian Territory, and subsequently the county court of another county, the domicile of the minor, 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 *Page 286 first court, when nothing appears on the face of the record of the second court showing that the court acted without jurisdiction."
It is true that the Burton Case was one in guardianship. There can be no difference in principle between the appointment of a guardian and the appointment of an admimistrator. The rule in the guardianship case is clearly applicable to an administration proceeding, and the rule announced in that case should be followed herein if the facts in the case at bar were such as to make the rule applicable. However, the facts here are not such as will make that rule applicable, for the reason that the administrator had been discharged and the administration closed by the county court of Cherokee county before the administrator was appointed by the county court of Adair county.
We are not confronted by the question of whether we are now bound by the former judgment. However, after careful study, in my judgment, the facts disclosed by this record clearly bring this case within the rule announced by this court in the case of Powell v. United Mining Milling Co., 107 Okla. 170,231 P. 307, and announced as the law of this case in paragraph 1 of the syllabus written by Mr. Justice KORNEGAY.