W. C. Langford, as plaintiff, commenced this action in the district court of Jefferson county for possession of certain real estate located in said county and for damages for withholding the same, against the defendant, C. J. Longest. Judgment was rendered for plaintiff, from which defendant appeals.
One Mary E. Puckett was a citizen of the Choctaw Nation. She departed this life in the year of 1903, at which time she was the wife of G. N. Puckett. The said Mary E. Puckett, hereinafter referred to as the allottee, and the said G. N. Puckett had been married in due form of law about one year prior to the death of the said Mary E. Puckett. Their residence had been and was near Bokchita, in the southeast portion of the Choctaw Nation. To the said Mary E. and G. N. Puckett was born one child, who is now living. The said Mary E. Puckett was duly enrolled upon the final rolls of citizens of the Choctaw Nation prepared under and by virtue of the Curtis Act, as well as the subsequent acts of Congress governing the enrollment and allotment of lands of citizens of the Choctaw and Chickasaw Nations. At the time of the death of the said allottee, no selection had been made of the lands she would have been entitled to receive, had she lived but in the year 1904, G. N. Puckett, surviving husband of the said allottee, as administrator of her estate, made a selection in the name of the said Mary E. Puckett, of the lands so situated, as hereinabove indicated, for which certificate of allotment and patent were subsequently issued. The said Mary E. Puckett was the mother of several children by a former marriage, and the defendant Longest was in possession of an undivided part of the premises sued for, by reason of conveyances from certain ones of said children of the said Mary E. Puckett by her former marriage.
The right of recovery of the plaintiff is based upon the fact that he purchased from said G. N. Puckett, the husband, all his interest in said estate. He contends that the interest acquired from the said G. N. Puckett was an estate by curtesy, or an estate in said land for life, and the only question presented for decision in this case is whether or not the said G. N. Puckett inherited in said property an estate by curtesy.
This land was allotted in the name of Mary E. Puckett and vested in her heirs by virtue of the Act of Congress approved July 1, 1902, known as the Supplemental Agreement, governing the selection and devolution of land of this character. Section 22 of said act provides:
"If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement, and before receiving his allotment of land, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas."
In the case of Shultis v. McDougal, 95 C. C. A. Reports, page 615, the Circuit Court of Appeals had this act of Congress under consideration. After reviewing the history of the land of the Five Civilized Tribes and the allotment acts for the different divisions thereof, the court said: *Page 51
"In order to provide for all members of the tribe who were born subsequent to the beginning of the enrollment, the date of right to enrollment was twice set forward, the statute last quoted fixing the latest date. By reason of these facts, when the roll was completed, it contained more names than there were members in being. The roll, however, furnished the basis for the division of the tribal estate. Every person whose name was entered on the roll was entitled to an equal proportion of the tribal land and funds; but by reason of the fact that before actual distribution could be made, and even while the enrollment was in progress, some persons whose names were on the roll would die, the statute made provision for the disposition of the share of tribal property which would go to them if living. Such a provision was necessary. Otherwise there would have been a portion of the tribal property undistributed. It was never the intent, however, either of the tribe or of the federal government to grant to parties having a kinsman who had died before the actual making of the allotment additional lands as a bounty. These kinsmen got all their right to additional lands under and through the enrolled member who had died. Whether the ancestor was actually seized of the property or not in his lifetime was immaterial. It was the intent of the statute that the property should pass by the same right and in the same manner that it would have passed if the person enrolled had survived to receive his allotment. The tribe was not bestowing such land as a bounty, but was simply providing for the right of inheritance. Congress itself has construed this statute. Section 5 of the act (Act April 26, 1906, c. 1876, 34 Stat. 138) provides: 'That all patents or deeds to allottees in any of the Five Civilized Tribes to be hereafter issued, shall issue in the name of the allottee; and if any such allottee shall die before such patent or deed becomes effective, the title to the lands described therein shall inure to and vest in his heirs; and in case any allottee shall die after the restrictions have been removed his property shall descend to his heirs on his lawful assigns, as if the patent or deed had issued to the allottee during his life; and all patents heretofore issued, where the allottee died before the same becomes effective, shall be given like effect.' Here is an express declaration by Congress that the land shall descend to heirs the same as it would have descended if the patent or deed had issued to the allottee during his life, and it is declared that allotments for allottees who have died shall also thus descend. This interpretation by Congress of its own act leaves no room for doubt as to its intent."
In the case of Ned et al. v. Countiss, 84 Okla. 138,203 P. 168, this court, speaking through Mr. Justice Nicholson, in the second syllabus of said opinion says:
"The law of descent in force at the date of the certificate of allotment to a member of the Choctaw Tribe of Indians, is the governing law, and this law relates back to the death of the Indian entitled to take the allotment, and identifies the heirs as of that date, and such law should be applied as if the deceased had received title to his allotment and died seized thereof."
It is contended by the plaintiff in error that the said G. N. Puckett did not take an estate by curtesy in the land in controversy, for the reason that Mary E. Puckett was not actually seized of this particular tract of land at the time of her death. With this contention we cannot agree. Mary E. Puckett owned at the time of her death an undivided interest in all of the unallotted land in the Choctaw and Chickasaw Nations, and for the further reason that in construing this statute according to the authorities above cited, we must construe it as though she had died seized and possessed of this land.
It is next contended that chapter 49 of Mansfield's Digest does not specifically provide for curtesy, and that section 22 of the Act of Congress July 1, 1902, provides that said land shall descend according to chapter 49. Section 2534, chapter 49, Mansfield's Digest, provides:
"In all cases not provided for by this act, the inheritance shall descend according to the course of the common law."
It was the intention of Congress that land allotted under section 22 of the Act of Congress July 1, 1902, supra, should descend and vest in these persons entitled to receive the same, as if the allottee had died seized of said allotment. And it has been so held by this court. This is not a new question, but has been passed squarely on by this court in the case of Morris et al. v. Sweeney et al., 53 Okla. 163, 155 P. 537, by Mr. Justice Hardy, the first syllabus of which reads as follows:
"The surviving husband of a deceased full-blood Mississippi Choctaw Indian woman who was duly enrolled, but who died before receiving patent to her allotment, is entitled to curtesy in said lands, under the facts stated in the opinion."
In the body of the opinion the court says:
"This deed would convey whatever interest said Robert Sweeney at that time had in and to said lands. His wife having died before receiving her patent, and children having been born alive of the marriage, he would be entitled to an estate by curtesy in the allotment of his deceased wife. Johnson et al. v. Simpson, 40 Okla. 413 139 P. 129; Armstrong v. Wood (C. C.) 195 Fed. 137; Pierce et al. v. Ellis et al., 51 Okla. 710,152 P. 340. *Page 52
"In Cook v. Childs, 49 Okla. 321, 152 P. 88, it was held:
"'The surviving widow of a deceased member of the Choctow Tribe of Indians who died after his enrollment was finally approved, and before selecting his allotment. Where an allotment was afterwards selected in his name by an administrator, and patent issued therefor under the provisions of section 22 of the Act of Congress of July 1, 1902, commonly known as the 'Choctaw-Chickasaw Supplemental Agreement,' is entitled to dower in the lands selected by such administrator.'
"In that case the husband died after his enrollment was finally approved, and before selecting his allotment, and the wife was awarded dower in the lands selected by the administrator.
"By parity of reasoning in the instant case, the enrollment of the deceased, Arrah Ann Sweeney having been finally approved, her lands would descend in the same manner as they would have descended had patent issued during her lifetime, and her surviving husband, Robert Sweeney, would be entitled to curtesy therein, and his deed, being properly executed and approved, would be effectual to convey his interest. This question was not presented nor considered by the court in Criner v. Farve et al., 44 Okla. 618, 146 P. 10."
We, therefore, must conclude, in view of the authorities, supra, that G. N. Puckett, husband of Mary E. Puckett, an enrolled citizen of the Choctaw Nation, deceased, acquired an estate by curtesy in the land involved in this suit, and that his conveyance to the plaintiff, W. C. Langford, conveyed his interest therein, and that the judgment of the district court for possession of the premises sued for in favor of Langford based upon said conveyance is correct. And the same is affirmed.
NICHOLSON, C. J. and HARRISON, MASON, PHELPS, LESTER, HUNT, and RILEY, JJ., concur.