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proposition that the United States, in view of the decision in the Mullen Case, had no capacity to sue on behalf of the full-blood Indian heirs, and therefore no question could have been determined in the case. Equity cause No. 327 was brought under authority of the Act of May 27, 1908 (35 Stat. c. 199). Its purpose was to recover back for the Indians, or their heirs, the titles which had been attempted to be conveyed. There is no question of bad faith on the part of the government in bringing the same. The conveyance of December 18, 1903, to W. A. Ledbetter and J. F. McClatchy, of the allotment of Betty Wesley by Elias Wesley, Austin McGee, Jesse McGee, and Lizzie Thomas, claiming to be the sole heirs of Betty Wesley, was therein challenged.

[5, 6] The general principles applicable to the doctrine of res judicata are well understood. The difficulty ofttimes arises in their application. In United States v. Moser, 266 U. S. 236, 241, 45 S. Ct. 66, 67 (69 L. Ed. 262), they are stated as follows: "The scope of their application depends upon whether the question arises in a subsequent action between the same parties upon the same claim or demand or upon a different claim or demand. In the former case a judgment upon the merits constitutes an absolute bar to the subsequent action. In the latter case the inquiry is whether the point or question presented for determination in the subsequent action is the same as that litigated and determined in the original action." Likewise, in Baltimore Steamship Company et al. v. Phillips, 274 U. S. 316, 319, 47 S. Ct. 600, G02 (71 L. Ed. 1069), "The effect of a judgment or decree as res judicata depends upon whether the second action or suit is upon the same or a different cause of action. If upon the same cause of action, the judgment or decree upon the merits in the first case is an absolute bar to the subsequent action or suit between the same parties or those in privity with them, not only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented. But if the second case be upon a different cause of action, the prior judgment or decree operates as an estoppel only as to matters actually in issue or points controverted, upon the determination of which the judgment or decree was rendered." Stanton Tp. et al. (C. C. A.) 190 F. 310; United States v. California & Or. Land Co., 192 U. S. 355, 24 S. Ct. 266, 48 L. Ed. 476. The government's bill in equity cause No. 327 was based on the theory that the deed

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in question violated restrictions against alienation, in that it was made without the approval of the Secretary of the Interior. This provision, however, as to the approval by the Secretary of the Interior of conveyances by heirs of the full-blood, was not in existence when said deed was made. It was a part of the Act of April 26, 1906 (34 Stat. c. 1876), and its purpose evidently was to close the open season for securing conveyances from full-blood heirs of allottees of the Five Civilized Tribes. The issue as to said deed in the ejectment cases is that at the time of the execution thereof the lands were owned by the Choctaw Tribe of Indians in common and had not been allotted, and that the deed was invalid for the reason that the grantors had no alienable interest in the land. In the cross-complaint in this case appellants allege "that the sole and only issue raised and presented by said bill of complaint in said equity cause No. 327, in so far as the same affected the lands of Betty Wesley, deceased, was whether or not the instrument shown on page 19 of said bill of complaint was void by reason of having been executed prior to the issuance of the patent to the lands therein described."

[7] There is some question as to just when the selection of Betty Wesley's allotment was made. The deed to Ledbetter et al. states, "The same being a portion of the lands selected and filed on by J. C. Smith, administrator, as the allotment of the said Betty Wesley." Apparently the allotment had been selected prior to the deed, but the certificate was not issued until a short time thereafter, and the patent was not issued until 1908. However, there was an equitable interest which in the absence of restrictions the owner could convey. Mullen v. United States, 224 U. S. 448, 457, 32 S. Ct. 494, 56 L. Ed. 834. The ejectment actions therefore strike at the Ledbetter deed on account of alleged violations of restrictions on alienation, and the government's bill does likewise. The essential relief sought is the same; i. e., the setting aside of the deed of December 18, · 1903, to Ledbetter et al. and obtaining the property back for the Indians who had signed it. There was identity in the thing sued for, in the cause of action, in the relief demanded and in the parties, provided the United States was authorized to represent the Indians who had signed said deed. [8] That the United States is entitled to invoke the equity jurisdiction of the federal courts to determine whether restrictions upon alienation of Indian allotments have been violated is not debatable. West Side Irr. Co.

23 F.(2d) 81

v. United States (C. C. A.) 246 F. 212; Central Nat. Bank of Tulsa, Okl., v. United States (C. C. A.) 283 F. 368, 372; Minnesota. v. Hitchcock, 185 U. S. 373, 385, 22 S. Ct. 650, 46 L. Ed. 954; Marchie Tiger v. Western Investment Co., 221 U. S. 286, 31 S. Ct. 578, 55 L. Ed. 738; Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820; Bowling & Miami Investment Co. v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080; La Motte et al. v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410; Privett et al. v. United States et al., 256 U. S. 201, 41 S. Ct. 455, 65 L. Ed. 889.

The statutes contain many restrictions upon alienation of land of allottees and their heirs by members of the Five Civilized Tribes. Some relate to the alienation of the homestead allotment; others to what is known as surplus lands; others to full bloods; some to mixed bloods; some to transfer with approval of the Secretary of the Interior; others to transfers with approval of the probate court. The Act of May 27, 1908, provided that no conveyance of any interest of any full-blood Indian heir in the land of an allottee of the Five Civilized Tribes should be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee. That provision did not exist, however, at the time the deed in controversy was executed. Congress made a special appropriation in this act of $50,000 to be used by the Attorney General in payment of expenses of suits brought at the request of the Secretary of the Interior to recover back Indian lands in the Eastern judicial district of Oklahoma.

We refer to these various restrictions merely to point out that there was a complexity of confusion when the government brought equity cause No. 327 as to just what, if any, restrictions were applicable to deeds made by heirs of allottees of the Five Civilized Tribes. Undoubtedly the Secretary of the Interior having charge of these matters and the law officers of the government believed there were restrictions violated in the alienation of such lands as those which had been allotted in the name of Betty Wesley after her death, as provided by 32 Stat. c. 1362, § 22, and so equity cause No. 327 was brought. The question involved was a justiciable one. Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820.

In the government's complaint it pleaded: "Your orator further shows that all of the tracts of land hereinafter described are situated in the Eastern district of Oklahoma, was land of the Choctaw Tribe, and was at the

time of the execution and recording of the deeds and other instruments of writing set forth in paragraph numbered six hereof, allotted lands of the Choctaw Tribe which had been inherited by full-blood Indians of said tribe, namely: The persons mentioned in paragraph 6, as granting or transferring the same." This allegation, which for the purpose of the demurrer must have been taken as true, proved fatal to the government's case, in view of the subsequent holding of the Supreme Court in Mullen v. United States, 224 U. S. 448, 32 S. Ct. 494, 56 L. Ed. 834.

If equity cause No. 327 had been tried out, instead of having been determined on demurrer, the same result would have been arrived at, as it would have appeared that the grantors in the Ledbetter deed were full-blood Indian heirs. That the determination was on demurrer makes the judgment no less effective, and that judgment settled the question that the transfer was not in violation of restrictions. If the government had no capacity to bring this case then it was not a proper party, and nothing could have been determined therein. The government was mistaken in its theory as to restrictions upon alienation, but that does not establish the fact that it had no capacity to bring the action. It is not similar to the situation presented in Murray v. Pocatello, 226 U. S. 318, 324, 33 S. Ct. 107, 108 (57 L. Ed. 239), where the court said, "Of course if the court was not empowered to grant the relief whatever the merits might be, it could not decide what the merits were," nor to House et al. v. Mullen, 89 U. S. (22 Wall.) 42, 22 L. Ed. 838, where the court held that, if a bill was dismissed for misjoinder of parties, it settled nothing, and concluded neither party upon the merits of the matter in controversy.

The leading case relied on by appellants is United States v. Waller, 243 U. S. 452, 37 S. Ct. 430, 61 L. Ed. 843. By what is known as the Clapp Amendment of 1906 and 1907 (34 Stat. 353, 1034) lands in the White Earth Reservation, allotted and patented in trust to an adult mixed-blood Indian, belonged to him, with rights and incidents of full ownership, including the right of alienation. An action was brought by the United States to set aside a certain deed on the ground that it was procured by fraud. It was held that the United States could not maintain such action, and the court uses the language that the United States was without capacity to bring the action for the benefit of the Indians named. See, also, Brader v. James, 246 U. S. 88, 94, 38 S. Ct. 285, 62 L. Ed. 591. The Waller Case was not an action based upon

violation of restrictions upon alienation. It was an action to set aside a deed because of fraud. With this the government had nothing whatever to do, as Congress had given to the mixed-blood Indians of the White Earth Reservation the right to dispose of the lands in question. Nor do we see that Bowling v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080 (also relied on), establishes the proposition contended for by appellant, The government had authority to bring equity cause No. 327 to protect its wards, and the court had jurisdiction therein to determine all questions as to restrictions upon alienation. The judgment therein was an adjudication as to all restrictions pleaded, or which might have been pleaded and determined, in that case, and concludes the parties, as is said in United States v. California & Or. Land Co., 192 U. S. 355, 24 S. Ct. 266, 48 L. Ed. 476 (syllabus), "as to all media concludendi or grounds for asserting the right, known when the suit was brought." Bissell v. Spring Valley Township, 124 U. S. 225, 8 S. Ct. 495, 31 L. Ed. 411; Gunter v. Atlantic Coast Line, 200 U. S. 273, 26 S. Ct. 252, 50 L. Ed. 477; Northern Pacific Railway Co. v. Slaght, 205 U. S. 122, 27 S. Ct. 442, 51 L. Ed. 738.

[9] As we hold that the government had the right to bring equity cause No. 327 to determine the question of the violation of restrictions, and further that there is substantial identity in the parties and their interests and in the rights asserted, and as the result sought is the same, viz. setting aside the deed. of December 18, 1903, to Ledbetter et al. by the claimed heirs of Betty Wesley to the land in question, and quieting title and establishing possession thereto, it follows that the judgment therein being on the merits, is a bar to the attack in the ejectment cases upon the deed of Betty Wesley's allotment by those who signed the same. Sapulpa Petroleum Co. et al. v. McCray (C. C. A.) 4 F. (2d) 645; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; United Shoe Machinery Corporation et al. v. United States, 258 U. S. 451, 42 S. Ct. 363, 66 L. Ed. 708.

As to the heirs of Selin Jones, the case is quite different. The vital question there is whether or not the government in equity cause No. 327 represented these heirs. The object of that action, as is clear from a study of the allegations of the complaint, was to set aside a vast number of conveyances made by allottees of Indian lands and their heirs. The government was trying to protect weak and helpless Indians from the wiles of the

superior white race, and rescue them from the clutch of speculators. The bill does contain statements tending to show that the United States attempted to represent members of the tribes, allottees and their heirs, but it represented them to cancel the deeds, contracts, powers of attorney, etc., affecting title to the lands. The Heckman Case, supra, relied on by appellants, holds that the Indian grantors, being represented by the government, were not necessary parties, and that the representation of the Indians by the gov ernment was complete. That is not a holding that the government represented all Indians, whether within the purview of the relief sought or not. The Supreme Court in the Heckman Case, page 445 (32 S. Ct. 434), said: "When the United States instituted this suit, it undertook to represent, and did represent, the Indian grantors whose conveyances it sought to cancel." All Indians of this class were represented by the government whether made parties or not. The government has designated in the bill, as interpreted by the Supreme Court, the Indians it represented, and those were the Indian grantors and their heirs whose conveyances it sought to have canceled, and none others. A study of the bill filed by the government convinces that such was its intention. We refer to some of the allegations thereof:

"Fourth. Your orator further shows that all of the tracts of land hereinafter described are situated in the Eastern district of Oklahoma, was land of the Choctaw Tribe, and was at the time of the execution and recording of the deeds and other instruments of writing set forth in paragraph numbered 6 hereof, allotted lands of the Choctaw Tribe which had been inherited by full-blood Indians of said tribe, namely: The persons mentioned in paragraph 6, as granting or transferring the same.

"Fifth. Your orator further shows that each of the deeds, mortgages, leases, contracts of sale, powers of attorney, and other evidences of title to or incumbrances upon tracts of land as hereinafter set forth, was secured by defendants in defiant, willful and open violation of law, and of the duty which rested upon this nation and every member thereof, and for the purpose of unlawfully incumbering said lands allotted to members of the said Choctaw Tribe of Indians, all of whom, under the treaties and laws of the United States, were without power or authority to sell, alienate or incumber said lands in any manner whatsoever. And your orator further shows that by filing for record and causing to be recorded the said deeds and

23 F.(2d) 81

other instruments of writing, each of the defendants herein named has unlawfully obtained for himself an apparent title or in

terest.

"Sixth. And your orator further shows that among said transactions were those hereinafter under this sixth heading set forth. [The deed to Ledbetter et al. was one of those set forth in this paragraph.]

"Seventh. Your orator further shows that it is informed and verily believes, and therefore charges the fact to be, that the defendants herein named and each of them has heretofore unlawfully secured from the members of said Choctaw Tribe of Indians other unlawful deeds, conveyances, mortgages, powers of attorney, and contracts, for and about said allotments, which the said Indians and freedmen had no authority to sell, alienate, dispose of, contract about, or incumber in any manner.

"Eighth. And your orator further shows that, in addition to the instruments of writing hereinbefore mentioned and specified, upward of four thousand other instruments of writing, of a nature similar to those hereinbefore set forth, purporting to convey or to encumber or to affect the title of lands located within the Eastern judicial district of Oklahoma, and duly allotted to members of the Five Civilized Tribes, or belonging to said tribes, have been executed and placed on record by the defendants herein.

"Ninth. But that the court should order the said several deeds and in struments of writing herein specified and described to be surrendered and delivered up for cancellation and the record purged of the same; that the court should order the defendants to discover all facts relating to their possession other than those particularly mentioned conveyances, mortgages, powers of attorney, and contracts in their possession other than those particularly mentioned and described in this bill, in order that the same may be canceled.

"Tenth. Your orator further shows that it has joined in this bill of complaint numerous defendants for the purpose of avoiding a multiplicity of suits to recover the possession of the said lands for the benefit of the said tribes and members thereof and tor the purpose of avoiding multiplicity of suits to enjoin each of the several defendants herein from continuing to occupy the said lands and from taking any further deeds or other instruments of writing purporting to convey the title to said lands, and a multiplicity of suits to have the deeds and instruments of writing which they have induced the said

members to make ordered surrendered and delivered up for cancellation and the record purged thereof."

The demands for relief also show that the purpose of said bill was to reach conveyances made in violation of restrictions:

"First: That this honorable court by its decree shall adjudge and declare that the said several leases, deeds, instruments of conveyance and incumbrances described in paragraph numbered 6 of this bill, to be void and of no effect as instruments of conveyance, and that the same be canceled and annulled and altogether held for naught and that the title to the lands therein described be held and decreed to be in the allottees or their heirs, subject to the terms, conditions and limitations contained in the treaties, agreements and laws of the United States." (Italies ours.)

It is alleged in paragraph 4 of the bill that "defendants were advised by the appearance of their grantors that they were such full-blood Indians." Certainly the appearance of grantors of said land would not advise the defendants of the appearance of those who were not grantors. The demurrer also recognizes the purpose of the bill. Paragraph 6 thereof refers to "each grantor named in the bill.”

It is true the bill asks that rights to possession shall be declared to be in the Indians of the tribes, and that defendants should be ousted from possession. That is the only allegation that might in any way have affected Selin Jones or her heirs, but possession is incidental to the main relief, and we think the possession sought was possession for those who had made grants of their lands. Selin Jones had made no conveyance. She had violated no restrictions. The basis of the action brought by the United States was that the deed made by certain heirs of Betty Wesley to Ledbetter et al. was void by reason of the alleged fact that the lands sought to be conveyed were restricted lands. How could this affect any question as to Selin Jones' interest in the lands or the question of her heirship? Had the government succeeded in its action it would have left Selin Jones exactly where she was before the action started. Nothing would have been accomplished for her benefit unless possibly some incidental matter of possession, although it is doubtful if in that action her rights could in any wise have been determined as between herself and other heirs. Certainly there was no effort to bring about such result. The evidence to support the cause of action stated by the government in equity cause No. 327

would not prove a cause of action in favor of the heirs of Selin Jones, and, if not, there certainly could be no res adjudicata as to her. Harrison v. Remington Paper Co. (C. C. A.) 140 F. 385, 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314; Water, Light & Gas Co. v. City of Hutchinson (C. C. A.) 160 F. 41, 19 L. R. A. (N. S.) 219; Privett et al. v. United States et al. (C. C. A.) 261 F. 351. [10] The government was not attempting to represent any one in equity cause No. 327 except the Indian grantors whose conveyances it was seeking to cancel, and as Selin Jones or her heirs, as heirs of Betty Wesley, were not in that class they have not had their day in court, and their rights have been in no way adjudicated. The holding of the trial court that the decree in cause No. 327 was not a bar or res adjudicata as against Quitman Jones, Preman Jones, Lucy Jones, and Levi Jones to their claim as heirs of

Betty Wesley to an undivided interest in the tract of land in question was correct.

We agree with the conclusion of the trial court as to the questions involved in both appeals, and its judgment and decree is affirmed.

FAKES v. GIRAND.

Circuit Court of Appeals, Fifth Circuit. December 21, 1927. No. 5182. Bankruptcy 314(6)-Trustee cannot be required to pay taxes assessed against property set aside to bankrupt as exempt (Bankr. Act 1898, § 64, as amended by Act May 27, 1926 [II USCA § 104]).

Under Bankruptcy Act 1898, § 64, as amended by Act May 27, 1926 (11 USCA § 104), trustee in bankruptcy cannot be required to pay taxes against property set aside to bankrupt as exempt, since it forms no part of bankrupt estate, and such equity as there may be in property over and above valid liens belongs to bankrupt.

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.

In the matter of the bankruptcy of Albert Perry Fakes. Order of the referee directing W. D. Girand, trustee, to pay certain taxes was reversed by the District Court, and the bankrupt petitions to superintend and revise. Affirmed.

E. L. Harwell and R. W. Haynie, both of Abilene, Tex. (Wagstaff, Harwell & Wag

staff, of Abilene, Tex., on the brief), for petitioner.

W. D. Girand, of Abilene, Tex., trustee, pro se.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. This case is brought up in the form of a petition to superintend and revise in matter of law, but will be treated as an appeal under section 24b of the Bankruptcy Act of 1898, as amended by the Act of May 27, 1926 (11 USCA § 47[b]). Petitioner was adjudicated bankrupt December 13, 1926, and surrendered two certain pieces of real estate, one of which he claimed as a business homestead and the other as a residence homestead, under the laws of Texas.

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The city of Abilene filed a claim for taxassessed against the said property, amounting to $127.50, and asked that it be paid by priority. The referee found that the property claimed as a business homestead was of the reasonable value of $25,000, and was incumbered with valid liens in the sum of $20,000, leaving an equity of about $5,000, and that the residence homestead was of the reasonable value of $7,000, and ordered the trustee to pay the taxes, on the theory, apparently, that they should be paid because of the equity of the bankrupt in the property. On appeal to the District Court the order of the referee was reversed, and the case is here for a review of the order of the District Court.

Under the law as it was prior to the amendment of section 64 of the Bankruptcy Act of 1898 by the Act of May 27, 1926 (11 USCA § 104), which amendment was in effect when petitioner was adjudicated bankrupt, there were decisions both ways as to the duty of the trustee to pay the taxes on exempt property and other property not administered in the bankruptcy proceedings. These cases, which it is unnecessary to quote, are no longer applicable, as the amendment of 1926 has made a change in the law, which must be given effect. Section 64 now reads as follows:

"(a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality, in the order of priority as set forth in paragraph (b) hereof: Provided, that no order shall be made for the payment of a tax assessed against real estate of a bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court."

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