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23 F.(2d) 81

said by the Supreme Court in United States v. River Rouge Co., 269 U. S. 411, 421, 46 S. Ct. 144, 147 (70 L. Ed. 339):

was sustained on ground that allottees and patentees of lands involved were necessary parties, that there was defect of parties, and that bill was multifarious, and on appeal to Circuit Court of Appeals decree was reversed, and Supreme Court on appeal held that demurrer should be sustained on ground that bill was without equity, because conveyances were not executed in violation of restrictions on aliena tion, and thereafter District Court sustained demurrer and dismissed bill, without stating reasons, and no appeal was taken, such decree must be held to be decision on merits.

"The present case is not controlled by the provision of section 269 of the Judicial Code, as amended by the Act of February 26, 1919 [28 USCA § 391; Comp. St. § 1246], that in an appellate proceeding judgment shall be given after an examination of the entire record, 'without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.' We need not enter upon a discussion of the divergent views which have been expressed in various Circuit Courts of Appeals as to the effect of the act of 1919. It suffices to say that since the passage of this act, as well as before, an error which relates, not to merely tion, or suit between same parties or those in

formal or technical matters, but to the substantial rights of the parties-especially when embodied in the charge to a jury-is to be held a ground for reversal, unless it appears from the whole record that it was harmless and did not prejudice the rights of the complaining party."

Only enough of the evidence has been brought to this court to present and explain the assignments of error, so that the government has not met the burden of showing that the error was harmless or without prejudice.

For error in the instruction, the judgment of the court below is reversed, and the case remanded for a new trial.

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2. Judgment

572(1)—Judgment on demurrer is as conclusive as one on proof.

A judgment on demurrer is as conclusive as one rendered on proof.

3. Judgment ~572 (2)—Judgment of dismissal sustaining general demurrer is presumed to be on merits, and renders issues res judicata.

Judgment or decree of dismissal, without more, sustaining general demurrer, is presumed to be on merits, unless it is otherwise stated in decree of dismissal, and renders issues in case res judicata.

4. Judgment 572 (2)-Decree sustaining general demurrer in action by government to cancel conveyances by Indians and dismissing bill, held to be on merits.

Where government commenced action to cancel conveyances by Indians, and demurrer *Rehearing denied January 14, 1928.

23 F.(2d)-6

5. Judgment 540-Judgment on merits is absolute bar to subsequent action on same cause of action between same parties or their privies.

Where second action or suit is on same cause of action, judgment or decree on merits in first case is absolute bar to subsequent ac

privity with them, not only with respect to every matter which was actually offered and received to sustain demand, but also as to every ground of recovery which might have been presented.

6. Judgment 720-Where second case is on different cause of action, prior judgment in suit between same parties operates as estoppel only as to matters actually in issue.

Where second case is on a different cause of action, prior judgment or decree on merits in suit between same parties operates as an estoppel only as to matters actually in issue or points controverted, on determination of which judgment or decree was rendered.

7. Indians 18-Heirs of deceased Choctaw Indian allottee had equitable interest, which, in absence of restrictions, they could convey before patent.

Heirs of deceased Choctaw Indian allottee had equitable interest, which, in absence of restrictions, they could convey before patent was issued.

8. Indians 27 (2)—United States may invoke equity jurisdiction of federal courts to determine whether restrictions on alienation of Indian allottees have been violated.

United States is entitled to invoke the equity jurisdiction of federal courts to determine whether restrictions on alienation of Indian allottees have been violated.

9. Judgment 743(2)-Decree in action by government to cancel deed by claimed heirs of Indian allottee held bar to attack in ejectment cases on deed by those signing it.

Decree sustaining demurrer to government's action, under Act May 27, 1908 (35 Stat. 312), to set aside deed by claimed heirs of Choctaw Indian allottee and dismissing bill, held bar to attack in subsequent ejectment cases on deed of Indian allotment by those who signed it, since government had right to bring previous action to determine question of violations of restrictions, and there was substantial identity in the parties and their interests, and in rights asserted and result sought was the same, viz. setting aside deed to land in question and quieting title and establishing possession thereto.

10. Judgment 690-Decree in action by government representing Indian grantors, to cancel conveyance, did not bar ejectment action by heirs of niece of allottee, not signing deed, to recover land conveyed.

Decree dismissing bill in action by United States under Act May 27, 1908 (35 Stat. 312), representing Indian grantors whose convey. 'ances it was seeking to cancel, to set aside conveyance by claimed heirs of Choctaw Indian allottee, held not a bar to subsequent ejectment action by heirs of niece of allottee, where niece had not signed deed, to recover land conveyed, since their rights had not been adjudicated, and evidence to support cause of action stated by government would not prove cause of action in favor of heirs of niece, and therefore there could be no res judicata as to her.

Appeal from the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.

Action by W. A. Ledbetter and others against Elias Wesley, Jesse McGee and others, in which defendants filed cross-bill, and the United States intervened. From the decree, complainants and Jesse McGee and certain other defendants separately appeal. Affirmed.

W. A. Ledbetter, of Oklahoma City, Okl. (H. L. Stuart, R. R. Bell, and E. P. Ledbetter, all of Oklahoma City, Okl., H. A. Ledbetter, of Ardmore, Okl., and L. A. Ledbetter, of Idabel, Okl., on the brief), for appellants in No. 7765.

J. D. Lydick, Charles E. McPherren, Kittie C. Sturdevant, Irvin L. Wilson, and M. E. Jordan, all of Oklahoma City, Okl., for appellees in No. 7765.

Philos S. Jones, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the Unit

ed States.

M. E. Jordan and Charles E. McPherren, both of Oklahoma City, Okl. (J. D. Lydick, Irvin L. Wilson, and Kittie C. Sturdevant, all of Oklahoma City, Okl., on the brief), for appellants in No. 7766.

W. A. Ledbetter, of Oklahoma City, Okl. (H. L. Stuart, R. R. Bell, and E. P. Ledbetter, all of Oklahoma City, Okl., H. A. Ledbetter, of Ardmore, Okl., and L. A. Ledbetter, of Idabel, Okl., on the brief), for appellees in No. 7766.

Before KENYON, Circuit Judge and MOLYNEAUX, and JOHN B. SANBORN, District Judges.

KENYON, Circuit Judge. Two appeals are here involved. We consider both in this opinion. The facts are somewhat complicated, and relate to the allotment of Betty Wesley, a full-blood Choctaw Indian, roll No. 3391, who died October 10, 1903. On

the 18th day of December, 1903, Elias Wesley, Austin McGee, Jesse McGee, and Lizzie Thomas, purporting to be all the heirs of Betty Wesley, deceased, executed conveyances to W. A. Ledbetter and J. F. McClatchy and their heirs of the southeast quarter of section 32, township 4 south, range 2 west, in Carter county, Oklahoma, the same being a portion of the land selected and filed on by J. C. Smith, administrator of the estate of Betty Wesley, as her allotment. Selin McGee, who it is claimed was a niece of Betty Wesley, did not sign, said deed. She intermarried with Quitman Jones, and is known in this record as Selin Jones. She died on the 16th day of February, 1918, leaving as her heirs Quitman Jones (her husband), Preman Jones, Lucy Jones, and Levy Jones, her minor children.

In July, 1908, the United States commenced an action in the then Circuit Court of the United States for the Eastern District of Oklahoma against E. B. Henshaw and others, which was entitled, "In Equity, No. 327." This action by the government was in a general way for the purpose of canceling a large number of conveyances by

members of the Five Civilized Tribes of lands allotted to them; it being the theory of the government that the lands involved were restricted against alienation by the acts of Congress, and that the conveyances attacked had been executed in violation of said restrictions. The deed by Elias Wesley, Austin McGee, Jesse McGee, and Lizzie Thomas to Ledbetter and McClatchy was one of the transactions involved in the government's suit. A demurrer was filed to the government's complaint by Ledbetter, McClatchy et al., defendants, challenging the jurisdiction of the court, alleging that the bill failed to show such interest in the complainant as would entitle it to maintain the suit, that complainant had no capacity to maintain the same, that it was wholly devoid of equity, that there was a defect of parties and misjoinder, that the bill was multifarious, and that it did not disclose such a state of facts as would entitle complainant to recover. September 13, 1909, the United States Circuit Court for the Eastern District of Oklahoma sustained said demurrer. United States v. Allen et al., 171 F. 907. That court entered a decree as follows:

"On this 13th day of September, 1909, on consideration of the demurrers to this bill filed by the various defendants hereto, which were heretofore argued and submitted and by the court taken under advisement, the court now finds that the complainant has not such an interest in the matters involved

23 F.(2d) 81

in this cause as entitled it to maintain this action; that the various allottees and patentees of the lands involved in this action are necessary parties thereto, and that there is, therefore, a defect of parties; and that the bill is multifarious. It is the judgment of the court that for the foregoing reasons the demurrers should be sustained. It is therefore ordered that the demurrers herein, now being considered, be sustained, and the bill dismissed, at the complainant's costs."

An appeal was taken to this court, where the action of the trial court was reversed, and the case was remanded, with directions to proceed in accordance with the views expressed by this court. United States v. Allen et al., 179 F. 13. Appeal was taken to the Supreme Court of the United States by some of the parties interested to test the correctness of the decision of this court. That court grouped in a number of decisions the questions as to the various tribes-Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820, dealing with the conveyances of allotted lands made by members of the Cherokee Nation; Mullen v. United States, 224 U. S. 448, 32 S. Ct. 494, 56 L. Ed. 834, with the questions as to conveyances by the Choctaw Indians; Goat v. United States, 224 U. S. 458, 32 S. Ct. 544, 56 L. Ed. 841, with questions as to the Seminole Indians.

In the Mullen Case the Supreme Court, after reviewing the treaties and statutes with regard to the allotment of land to the Choctaws and the restrictions of alienation, announced its conclusion as follows: "We are therefore of the opinion that the bill is without equity as against the appellants for the reason that the conveyances were not executed in violation of any restrictions imposed by Congress, and that the demurrer should have been sustained upon this ground. It follows that, with respect to the appellants, the decree of the Circuit Court of Appeals must be reversed and that of the Circuit Court affirmed." The government's case remained in the Circuit or District Court after the reversal by this court, without any action thereon until after the decision in the Mullen Case. Some months thereafter the District Court of the United States for the Eastern District of Oklahoma, successor to the Circuit Court, sustained the demurrer and entered an order of dismissal as follows:

"On this, the 9th day of December 1912, came on to be heard the demurrer of the defendants, W. A. Ledbetter, J. F. McClatchy, W. B. Jansen, L. Fountain, W. L. Reed, Arthur Sinclair, Chas. F. Burden, C. S. Maupin, George Terry, H. R. Adams, Chas. P.

Lynch, V. Bronough, Betsy Folota, James and Eliza Alexander, Albert Click, The Roff Development Co., W. E. Caldwell, D. B. Lester, C. M. Joiner and J. B. Moore, W. H. Rickey, C. J. Ralston, and J. W. Hoffman to the bill of complaint herein, and after having heard the same, and being fully advised, it is considered, adjudged, and decreed that the demurrer be sustained and the bill dismissed as to said defendants at pages listed above."

On March 5, 1926, Jesse McGee, Sallie McGee, Quitman Jones, Preman Jones, Levi Jones, and Lucy Jones, full-blood Indians, commenced an action in ejectment in the District Court of the United States for the Eastern District of Oklahoma against the Continental Supply Company of St. Louis, Mo., for the purpose of recovering lot 14 of block 23 in the town of Wilson, Oklahoma, being a part of the southeast quarter of section 32, township 4 south, range 2 west, Carter county, Oklahoma. Plaintiffs in that action were represented by their attorneys, J. D. Lydick, Charles E. McPherren, Irvin L. Wilson, and M. E. Jordan. On April 1, 1926, the same plaintiffs, represented by the same attorneys, commenced an action in ejectment in the district court of Carter county, Oklahoma, against several hundred defendants, for the purpose of recovering all the southeast quarter of section 32, township 4 south, range 2 west, Carter county, Oklahoma, with the exception of said lot 14 of block 23 in the town of Wilson, which town had grown up and developed upon said land; this land being part of the allotment to Betty Wesley.

March 10, 1926, Elias Wesley, Jesse McGee, Sallie McGee, and Quitman Jones et al., made a deed of said southeast quarter of section 32, township 4 south, range 2 west, to Charles E. McPherren, one of the parties here, and also counsel, for the sum of $500 and other good and valuable consideration. Some arrangement as to the consideration, approved by the county judge of Pushmataha county, Oklahoma, was made with relation to McPherren's interest in the real estate for the use and benefit of Lydick, McPherren, and Wilson.

The present action was commenced April 7, 1926, in the United States District Court for the Eastern District of Oklahoma, by W. A. Ledbetter et al., complainants, against J. D. Lydick, Charles E. McPherren, Irvin L. Wilson et al. (a supplemental bill also being later filed, viz. April 15, 1926), seeking injunctive relief against the prosecution of the two ejectment actions before referred to. An answer and cross-bill were filed by defendants, and the United States inter

vened and filed plea on behalf of the heirs of Selin Jones. The United States District Court held the action could be maintained as ancillary to equity cause No. 327, before referred to, styled "United States of America, Complainant, v. E. B. Henshaw et al., Defendants," which had theretofore been determined upon demurrer in the District Court of the United States for the Eastern District of Oklahoma, the general theory of the action brought April 7, 1926, being that in said equity cause No. 327 the United States represented all the heirs of Betty Wesley and all members of the Choctaw Tribe, and not merely those who signed the deed; that the purpose of the action of the government was the cancellation of the deed to Ledbetter and McClatchy of December 18, 1903, and to oust Ledbetter and McClatchy and their grantees from possession of the land so conveyed-i. e., the allotment of Betty Wesley-and to restore it to the Indian owners and to set aside all other deeds, contracts, powers of attorney, or other instruments affecting the title of the land; that the judgment in said cause, sustaining the demurrer and dismissing the case, was res adjudicata of the issues involved in the ejectment suits.

It is the theory of the heirs of Selin Jones that the suit of the government related to and affected only those who signed the deed to Ledbetter et al.; that the United States represented only the Indian grantors whose conveyances it sought to cancel; that Selin Jones and her heirs have never had a day in court; and that the judgment in equity cause No. 327 cannot be res adjudicata as to them. The trial court held "that the decree in equity cause No. 327 is res adjudicata and constitutes a bar in favor of said W. A. Ledbetter and J. F. McClatchy, and all of the plaintiffs herein holding under deeds and conveyances executed by the said W. A. Ledbetter and J. F. McClatchy, and their grantees, in and to the above described tract of land, as against Elias Wesley, Austin McGee, Jesse McGee, Lizzie Thomas, Licksey McGee, and the said Charles E. McPherren, J. D. Lydick, Irvin L. Wilson, and M. E. Jordan, in so far as the said McPherren, Lydick, Wilson, and Jordan claim under the said Wesley, Austin, Jesse McGee, Lizzie Thomas, and Licksey McGee, and all other persons holding by or through deeds, contracts, or other conveyances exe. cuted by them; but the court holds as a matter of law that said decree in said equity cause No. 327 is not a bar or res adjudicata as against the said Quitman Jones, Freeman Jones, Lucy Jones, and Levy Jones in their claim as heirs of the said Betty Wesley, and

to own an undivided interest in and to the above described tract of land and whose ancestor was not a party to said deed in said equity cause No. 327."

Ledbetter et al. appeal from that part of the decree holding that the decree in equity cause No. 327 is not res adjudicata as against the claims of Quitman Jones, Preman Jones, Lucy Jones, and Levi Jones, heirs of Selin Jones. That appeal is No. 7765 in this court, and will be herein designated by that number. Jesse McGee, Sallie McGee, Elias Wesley, J. D. Lydick, Charles E. McPherren, Irvin L. Wilson, and M. E. Jordan appeal from that part of the court's decree holding that the judgment in equity cause No. 327 is a bar in favor of Ledbetter et al. against the claim of Elias Wesley, Austin McGee, Jesse McGee, Lizzie Thomas, and Licksey McGee (wife of Jesse McGee) in the ejectment suits. This appeal is No. 7766, and will so be designated in this opinion.

We follow the procedure of the trial court in considering this case as ancillary to equity cause No. 327, its purpose being to preserve the integrity of the judgment therein rendered. Appellants in No. 7766, which we first consider, insist that the judgment in equity cause No. 327 was not a final judgment on the merits, and consequently no bar to the prosecution of the ejectment actions brought by the appellants in the federal and state courts.

[1, 2] It is well settled that a judgment to be available as an estoppel must be on the merits. Sutton et al. v. Wentworth (C. C. A.) 247 F. 493; Hughes v. United States, 4 Wall. 232, 18 L. Ed. 303; Gould v. Evansville & Crawfordsville R. R. Co., 91 U. S. 526, 23 L. Ed. 416; Swift v. McPherson, 232 U. S. 51, 34 S. Ct. 239, 58 L. Ed. 499; United States v. Moser, 266 U. S. 236, 241, 45 S. Ct. 66, 69 L. Ed. 262. Likewise that a judgment upon demurrer is as conclusive as one rendered upon proof. Durant v. Essex Company, 7 Wall. 107, 19 L. Ed. 154; Alley v. Nott, 111 U. S. 472, 4 S. Ct. 495, 28 L. Ed. 491; Northern Pacific Railway Co. v. Slaght, 205 U. S. 122, 27 S. Ct. 442, 51 L. Ed. 738.

[3] While a dismissal for want of parties does not go to the merits of a suit and does not render the subject of controversy res adjudicata (St. Romes v. Levee Steam Cotton Press Company, 127 U. S. 614, 8 S. Ct. 1335, 32 L. Ed. 289), judgment or decree of dismissal without more, sustaining a general demurrer, is presumed to be on the merits, unless it is otherwise stated in the decree of dismissal, and renders the issues in the case res adjudicata (Indian Land & Trust

23 F.(2d) 81

Co. v. Shoenfelt et al. [C. C. A.] 135 F. 484; Fowler v. Osgood [C. C. A.] 141 F. 20, 4 L. R. A. [N. S.] 824; Hickey v. Johnson et al. [C. C. A.] 9 F.[2d] 498; Baker v. Cummings, 181 U. S. 117, 21 S. Ct. 578, 45 L. Ed. 776).

This court in Fowler v. Osgood, 141 F. 20, 24 (4 L. R. A. [N. S.] 824), has stated the rule as follows: "The demurrer for the reasons above stated was properly sustained. But the demurrer challenged the bill on nine other grounds, some of which went to the merits of the cause of action, and the decree is a general dismissal of the bill without any statement of the reason for it. A general judgment or decree of dismissal, without more, renders all the issues in the case res adjudicata and constitutes a bar to any subsequent suit for the same cause of action. Hence, when a court dismisses a suit upon some ground which does not go to the merits of the cause of action, but leaves them open to consideration in another court, or at another time, or in another way, the decree of dismissal must expressly adjudge that it is rendered for the specific reason upon which it is based, or must expressly provide that it is made without prejudice."

In the recent case of Hickey v. Johnson et al., 9 F. (2d) 498, this court held that a decree sustaining a demurrer and entering a judgment dismissing the bill of complaint is presumed to be a judgment on the merits. We do not understand the opinion in Hickey v. Johnson, supra, goes to the extent of holding, where the demurrer is sustained without specifying the grounds therefor, that if it clearly appear from the record that it is not on the merits, it will nevertheless be a bar in a succeeding case between the same parties on the same cause of action. The court refers to two leading cases on the subject, Northern Pacific Railway Company v. Slaght, 205 U. S. 122, 27 S. Ct. 442, 51 L. Ed. 738, and City of North Muskegon v. Clark (C. C. A.) 62 F. 694, and points out that "in both these cases the court had in mind a decision on demurrer from which it clearly appeared that the failure of plaintiff was due to the omission of an essential allegation and not to a determination of the merits." In Hickey v. Johnson et al., supra, the merits were involved in sustaining the demurrer.

[4] We do not think it clear from the record that the last decision on the demurrer was not on the merits. Judge Campbell originally sustained the demurrer to the government's complaint on three grounds: (a) That the various allottees and patentees of the lands

involved in the action were necessary parties thereto; (b) that there was a defect of parties; (c) that the bill was multifarious. Upon appeal to this court the decree was reversed, and upon appeal to the Supreme Court by some of the parties interested for the purpose of testing the ruling of this court it was held in the Mullen Case that a demurrer should be sustained to the bill as to the Choctaw Indians on the ground that it was without equity, for the reason that the conveyances were not executed in violation of any restrictions upon alienation. Reference to Judge Campbell's decision in 1909, sustaining the demurrer, sheds little light on the reason for sustaining the demurrer in 1912. After the Supreme Court had determined in the Mullen Case the applicable law, it would be presumed that the District Court would follow the law as laid down by the Supreme Court of the United States. Yet other reasons than the one suggested by the Supreme Court may have been in the mind of the District Judge. No attempt was made to amend the pleadings. No appeal was taken from the decision of the District Court. Its judgment sustaining the demurrer and entering a general order of dismissal ended the case.

In view of the decision of this court in Hickey v. Johnson, supra, and in Fowler v. Osgood, supra, the general decree of dismissal in equity cause No. 327 must be held to be a decision on the merits, unless we are to overrule the doctrine of these cases, as counsel for appellants strongly urge. The argument of appellants' counsel that these cases were erroneously decided, and should be overruled, is practically a concession that, unless so overruled, they are fatal to their claim that the decision on demurrer did not go to the merits. There is little to appeal to a court of equity in the suggestion to review and set aside the doctrine of these two wellconsidered cases in order to assist these highly speculative cases, brought 22 years after the deed sought to be set aside was made, and where an entire town had been built up on the land covered thereby, the successful termination of which suits would upset titles to hundreds of pieces of property improved at great expense by those who undoubtedly relied in good faith upon the soundness of their titles.

Appellants urge that, even if the judgment in equity cause No. 327 was a final judgment on the merits, the cause of action therein is not identical with that in the ejectment suits; hence that such judgment cannot be res adjudicata. In an able and ingenious argument special emphasis is placed on the

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