The Indian Chieftain. (Vinita, Indian Terr.), Vol. 14, No. 10, Ed. 1, Thursday, November 7, 1895 Page: 1 of 4
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1
THE INDIAN
CHIEFTAIN.
CHIEFTAIN PUBLISHING CO.
VINITA INDIAN TERRITORY THURSDAY NOVEMBER 7 1S95.
VOL. XIV. NO. 10
t
HEAVY
NOW IS YOUR CHANCE. Now is your time to buy you a good heavy suit of Winter Clothing for
$5.00 worth 10.00 and a still nicer one for 8.00 worth 15.00 at any store in the town. Now is your
time to buy an overcoat for good winter service for 3.00 that other dealers ask 8.00 for and a good
heavy long winter Ulster for 6.00 that is good value for 12.00. A fine Chinchilla Ulster that is made of the
very best of all Wool Chinchilla in light and dark and lighter colors for lo.oo that would be cheap at 18.00.
Boys' overcoats for good hard school service worth 3.06 for 1.98 and a real good one made of all wool ma-
terial for 3.50 that you would consider a bargain at 7.0 ages 13 to 18 Heavy winter suits for 1.98 that us-
ually sell for 4.00; a better one for 3.00 that will stand all the hard wear a boy can possibly give it and will
be cheap at 5.00. Men's heavy wool underwear at 44c worth 7c; Men's calf-skin lined gloves for 29c worth
Joe; Aen's heavy winter caps for 25c worth 50c black silk plush and silk lined for 6!c that sells for 1.25;
heavy woolen overshirts for 65c formerly sold at 1.00.
Thousands of Articles that will do you
These prices may sound very low to a good many especially to territory residenters for thev
are accustomed to paying high prices for what they wear but it is a fact that we MUST
- CLOSE OUT to quit business. We can't wait for profits. YVF MUST SELL IN THE
NEXT FEW WEEKS. We will allow large discounts to merchants or consumers on
large bills. To satisfy yourself come and see; bring this ad with you and see if they are not
according to our statements.
We have a lot of the Common Sense Trunks the best Trunk made
that we will sell at 50c on the dollar in bulk or at retail.
SHOW CASES AND MIRRORS AND OTHER FIXTURES FOR SALE CHEAP.
Model Clothing Boot and Shoe House.
Quitting Business in Vinita.
ALL SIGNS OF TROTH.
They Are Borne by ThU Veracious Tale of
a Bear Qont la Dixie Lduid.
While tne ordinary black bear U a
vegetarian there are those who insist
that it does not object to making' a
dinner off a fat pig a young lamb or
a nursling calf. 'Lige Jennings had
lost at sundry times a half dozen fine
shouts and when a prize short-horn
calf was missing he decided that a
bear which had been seen twice or
thncejnthe swamp was the culprit.
le prevailed upon a half dozen neigh
bors to accompany nim on what he re
solved should be a hunt of utter exter-
mination of all bears in the neighbor-
hood so that henceforth lambs shoats
and calves might lie down in peace to
sleep with none to make them afraid.
No less than a half score of reliable
dogs were proenrred for the occasion
and with great resolution they were
started forth on the hunt the men
having previously taken stations at
some distance apart along the wind-
ing paths of the swamp. Each one
had a quart bottle of whisky as a stim-
ulator of courage and a guard against
the assaults of miasma. All were de-
termined that bruin should die if it
took a week.
However as events transpired their
powers of endurance were not to be put
to so great a test. The dogs had scarce-
ly disappeared from sight when their
leader sent out a ringing note an-
nouncing he had discovered the path
of the supposed robber of flocks and
herds. Every man had recourse prompt-
ly to his bottle of spirits and then
looked to his gun. Sharp quick and
fierce the deep baying of the hounds
rang out upon the stillness of the deep
forest of the Virginian swamp country
while anxious expectancy was in the
breasts of seven pale and perspiring
men.
Suddenly there was "heard the deto-
nation of a gun followed by a loud
shriek of human agony and then an-
other report. Palpitating hearts made
a rush for the direction of these sounds
and onc after another six men came
up to the spot chosen by 'Lige whom
they found extended upon the ground
in a dead faint. Eubblnjr and whisky
soon brought him to when he told a
long and disjointed story which sim-
mered down amounted to this:
He heard a rushing sound in the
bushes a crunching of twijs and a
rustling of leaves when there appeared
before him a huge bear; "big as a eler-
f unt" 'Lige declared. It saw him and
1mmediatelyrose upon its hind legs
coming to a halt.
"My han's trim'led so that durn ef
the lef han' bar'l dedn't go plum off
'thouten my techin' the trigger. Then
the blame critter fell down 'pon his
all-fours 'n' made to'rds me p'intedly
n I fell down 6cairt e'enamos' tu
death bekais he was a-blowin' smoke
outen his month n fire outen his eyes.
I reckon the secont bar'l goedoff when
I tembled down."
The mishap consumed considerable
time because of 'Lire's circumlocutory
style and the reminiscences his adven-
ture called up among the others. Great
nervousness was evoked and whisky
was resorted to again and again to al-
lay this feeling.
Finally it was decided that too much
time had been lost as the cries of
the dogs were so distant that
they could scarcely be heard. 'Lige
concluded he was not qualified for
leader and nominated lleria Stulpins
for the succession. This was silently
acquiesced in and all pressed forward
in great haste Beria leading by virtue
of his newly acquired position.
1Vll with Ttt.mi '
SUITS AND OVERCOATS
Are Sold at the Model's
Quitting Sale by the hundreds.
drinks the hunters overlooked the fact
that they no longer heard the dogs;
but this did not appear to disturb
them or if it did they said nothing
about it. Time passed and more
spirits were taken until very little of
the latter remained.
Presently Beria still leading gave a
sudden "hist" which caused every one
to come suddenly to a stand or reel
rather; for all of the party were now
very drunk. Then Beria with awe-
struck face indicated a dark object in-
distinctly outlined in the bushes. Hur-
riedly whispering he bade them make
ready with him ind upon his signal a
fusillade was kept up for several sec-
onds. Some of the boys then mani-
fested a disposition to run; but as
they were too drunk concluded thero
was possible safety in numbers.
After the smoke cleared away they
waited for some demonstration but
Jiearing none tfcey reloaded their
weapons and cautiously drew near to
the object of their aim. They quickly
brought up standing and then regard-
ed one another with looks of ineffable
horror.
They hadkilled the mother of 'Lige's
missing calf an Imported beast of
much value.
There are occasions when silence Is
more golden than the most eloquent
speech and dumb and benumbed the
seven miserable wretches turned away
from the spot. To their amazement
they discovered that they were but a
little distance from the highway and
only thirty or forty rods from 'Lige's
house. Jnst as they emerged from the
swamp they met little Benny Howcom
a bow-legged weazen-faced chap who
had begged permission to go upon the
hunt but had been refused by 'Lige
who declared that he wanted men only
for such danger.
In one hand Benny bore a rifle ana
in the other the fore paw of a bear
from which the drops of blood were
still oozing.
"I seed a mon'strous b'ar up a gum
tree back yander boys wid er lot er
dawgs yelpln' 'round 'n' I shooted
him. Mebbe some er yer alrhongry
ernou?h fer b'ar meat ter wanter buy
some." Chicago Tribune.
The Seasoning of Stone
Stone like lumber requires season-
ing. Stone is often spoken of as the
synonym of solidity "as solid as a
rock" we say but as a matter of fact
stone is very far from being solid. A
cubic foot of the most compact granite
for Instance weighs about one hun-
dred and sixty-four pounds while the
cubic foot of iron weighs four hundred
and sixty four pounds. This shows
that in between atoms which compose
the mass of the most enduring stone
there exists much space for air mois-
ture etc This seasoning of stone
prior to use for building purposes has
been well understood by the architects
of all ages but in the modern rush of
the nineteenth century building too
little attention has been paid to It.
Xow it enters into calculations of
every good architect. Scientific Amer-
Teacher "Tommy what do you
understand the author to mean when
he says that riches and poverty are
merely relative?" Tommy "I guess
he means that some has rich relatives
and some has poor ones." Indianap-
olis Journal.
I love tbe coming vomim
I love be pretty ways;
With music and with sweetness
Sbe fills my fleeting days.
I kiss her laughing dimples
And stoke her balr of gold.
For my dainty coming woman
Is only four years old.
Trill h
Good these
.Cold Days go at Proportionate Prices.
A WHISPERING MINE.
Through It 2Inrflerons Plotters ITere
1 rustrntrtl Sumo Yenrs Ago.
On the western slope of the main
range of the Rocky mountains in Sum-
mit and Grand counties the legend of
the "Whispering Mine" booked at the
land office as the "Mountain Chief" is
often referred to. As related by D. L.
Stockton one of the old-timers the
legend runs as follows:
Far up on the sunny side of Grassy
mountain one of the vast chains that
forms the continental divide there
stanes a tumble-down cabin once the
happy home of a prospector and his
little family. Overgrown by vines and
nearly hidden by spruce shrubs
one would little think of it as of
more than ordinary Interest. Like
Its human counterparts it may
have been the participant in many
thrilling incidents though its present
condition gives no indication of such
scenes. It was In 1S72 that Will Demp-
sey while prospecting in the vicinity
located a promising-looking prospect
on Grassy and by doing the required
amount of assessment work developed
the mere prospect into a very promis-
ing property. Indications were such
that he was induced to put in the win-
ter at the mine. As soon as he had
worked his assessment upon various
other properties Dempsey returned to
the Mountain Chief as he had chris-
tened it and built a small cabin to
which he soon removed his family. In
preparing a place for his cabin he en-
countered a jutting cliff from which
he blasted enough to allow room for
the foundation of his homo upon
a bench of the mountain. A prim-
itive chimney was built against
the wall of rock at the rear and as soon
as the work was completed Dempsey
brought his wife and two children and
a few belongings to keep him company
during the long winter that would
soon shut them up as between steel
bars. In preparing meals the patient
wife noticed a strong draught of air
coming from the rocks on one side of
the fireplace. This current of air she
found useful in stimulating a slow fire
and when not wanted the crevice was
shut up by placing a small stone In the
opening.
Winter with its glassy glare soon
ruled supreme over nature's dcmaln
and during the dull months no com-
munication could be had with the out-
side world. Dreary steady toil on the
part of the husband had broken the
grasp of nature on the hidden treas-
ure and various pannings and
simple tests had shown him that
he had encountered a rich grade
of ore in the claim. Spring with her
bewitching smiles had again charmed
Dame Nature and aroused her from
her sleep. The spruce and the pine
took on a brighter hue. Thesnow had
slowly relinquished its chilly grasp.
The camp-robber bird had resumed its
last summer's haunts and the magpie
uttered discordant notes from the
neighboring trees. Dempsey with full
faith In Ills coming good fortune went
to the nearest mining camp to send
specimens of his quartz to capitalists
of Denver and to replenish his supply
of food. During his absence from the
mountain the children happy in the
springtime freedom romped and played
upon the hillside chased each othei
through and among the spruces as
happy and contented children do. The
day following her husband's departure
Mrs. Dempsey was preparing a meal
and had the stone removed from the
crevice when she was surprised to
hear the children laughing and talk-
ing. Going to the door she could not
see them nor tell from what direc
tion their voices came. Giving the
subject no further thought she took
the water pail and went for a supply
to the sprinpr a few hundred yards be-
low the cabin. At the spring she
found the two children who informed
the mother that they had been there
for the past hour. She then decided
that the crevice was in some way con-
nected with the locality of the spring.
Beyond speaking of the matter to her
husband upon his return no attention
was given to the discovery until the
crevice brought notice of impending
peril to her husband.
During the husband's presence in the
little mining camp the news of a rich
mining strike having been made by
him leakctl out and reached the ears
of several of that class of men who
take more pains to steal from others
than to accumulate by honest work.
After a long consultation a party
of five left the camp with the inten-
tion of taking the claim from Dempsey
by force. Arriving on the slope of
Grassy mountain they carefully mado
their way to the spring. The hour was
almost noon and they waited for
Dempsey to leave the claim and to go
to his cabin for dinner when they pro-
posed to quietly enter the tunnel and
by a show of force keep the owner from
asserting his rights. Seated about the
spring tliey spoke In low tones of their
plans and the trick they were about to
play upon the unsuspecting prospector.
The housewife was engaged In prepar-
ingthe noonday meal and taking away
the stone from the crevice she was
startled on hearing strange voices
and the name of her husband
mentioned. Breathlessly she lis-
tened and gradually she compre-
hended the plot as the speakers
continued to expatiate upon the de-
tails of their intended raid. As the
plot became plain she knew that only
prompt action upon her part would
save her husband. Taking down the
Winchester and the cartridge belt
from the wall and leading her two
children she hurried from the cabin to
the tunnel just in time to meet her
husband as he started for dinner. She
hastily told of the news that had been
communicated through the crevice.
To make a barricade of the mining tim-
bers on the dump was the work of but
a few moments and with his wife and
children In the tunnel out of harm's
way he patiently waited the first
move of the enemy. The visitors sat
impatiently at the spring un-
til 'nearly one o'clock with-
out seeing any signs of the
miner when they decided to slip Into
the tunnel and wait there until he re-
turned. The party stole forward and
as they clambered up the dump of
broken rock they were met by a rapid
and telling fire from the prospector's
repeating rifle that killed two of the
party and wounded another. A hur-
ried retreat alone saved the survivors
and although- the dead were interred
at the place where they met their fate
none of the attacking party were ever
after heard from. The Mountain Chief
was afterward disposed of for a sum
that enabled Dempscj' to purchase a
small ranch In the Grand valley where
he has since resided. St. Louis Globe-Democrat.
A Veil Stocked.
With her sweet pensive faco
she
camo and sat beside her father.
"1'apa" she whispcreJ "Alfred and
I are two souls with but a single
thought."
The old man stroked the golden hair.
"My child" he said reassurcdly
don't be discouraged; that's one more
than your mother and I had when we
were married." I'ick-Me-Up.
A FAR REACHING OPINION.
JUDGE SrniNUEU REVIEWS THE
HATES ADM IMSTRATIOX CASE.
An Important Opinion Which Touches
the Title to Improvements in the
CIiero'Keo Nation and Incidentally
Clearly Defines tho Status of the
Adopted Citizens.
In the matter of the administration of the
otatoof J. V. Hayos.deccased:
Hutching & Wnlrond. attorneys for the
petitioner.
T. 1". Winchester attorney for tho admin
istratrix.
The facts in this case are briefh
as follows: J. V. Hayes was form-
erly a citizen of the United Stales
and while being such a citizen of
the United States he married in
the state of Georgia and there were
three children born to him of such
marriage; one of whom is the pe-
uuoner in mis case ms wile a
citizen of the United States having
died he removed to the Cherokee
nation and was soon afterward
married to a Cherokee woman
woman by blood. Three child-
ren were born tp him during
tins marriage Alter acquiring
considerable property m the Cher
okee nation estimated at about
eighty thousand dollars in value
n we mciuae me value 01 all im
provements on real estate and
having carried on a large business
as farmer and merchant for sever-
al years ho died leaving his Cher-
okee wife as his widow and three
children by her and bis three chil-
dren bi his first wife who was a
citizen of the United States. His
wife was appointed administra-
trix by this court. In her sched-
ule of property she did not return
the value of any buildings used by
him in his business as a merchant
such as gin houses nor did she re-
turn any agricultural improve-
ments which were upon the lands
her husband held during his life-
time she having been advised by
her counsel that all improvements
upon real estate passed to the heirs
and not to the administratrix. The
petitioner in this case one of the
children of his first marriage has
filed her petition asking for a fur-
ther accounting by the administra-
trix as to the improvements upon
the lands which he occupied at the
time of his death. Mr. N. B. Max-
ey was heretofore appointed a
special master and commissioner
for the purpose of ascertaining
what property if any which was
owned by J. V. Hayes in his life-
time had been scheduled and what
had not been and to report both
his finding of fact and conclusions
ot law to the court. Such report
has been made and counsel for
both the administratrix and the
petitioner take certain exceptions
thereto all of which have been
duly considered.
It appears that the deceased J.
V. Hayes was at the time of his
death an adopted citizen of the
Cherokee nation that he was
adopted by his intermarriage with
his last wife who was Cherokee by
blood. Section five of the amend
ments to the constitution of the
Cherokee nation adopted in ISG6 is
in part as follows:
Section .": All native lorn Cher-
okees. all Indians and whites 1cj.m!1' mem-ln'i-
ot the nation liy adoption and al freed-
men etc. shall lie taken and
deemed to lie cltUensof the Cherokee nation.
By virtue of this constitutional
provision the status of the deceas-
ed was fixed by the constitution of
the Cherokee nation as that of a
citizen thereof and as such he was
to be equal with other Cherokees
under the constitutionjgovernedby
the same laws; enjoying the same
rights; possessed of the same im-
munities and entitled to tho same
protection. Opinion of United
States court of claims March 4
1S93 in the case of Moses Whit-
mire trustee for the freedmen of
the Cherokee nation vs. the Cher-
okee nation and the United States
Mss. p. 5.
The deceased therefore having
been a citizen by adoption of the
Cherokee nation was in all res-
pects so far as his estate was con-
cerned in the same condition as
other citizens ot the Cherokee na-
tion and entitled to the same rights
of holding property as other citi-
zens in the Cherokee nation.
The learned counsel for the ad-
ministratrix has submitted numer-
ous authorities in support of the
position which he takes in this
case and also a brief in manuscript
of his argument. Ho calls atten-
tion of the court to some legal fea-
tures ot the case which he states in
his brief as follows:
l'lrst The lands In the Cherokee nation lie-
long to the Cherokee nation In fee. Tho
laneuagcof the patent Is "to have and to
hold the same together with all the rights
firlvileges anil appurtenances thereto lie-
onglng to the said Cherokee nation forever:
subjivt to Ik" dl vested or rather to revert to
tin- Culled Mates upon the extinction of the
nation or the abandonment of the land.
cc patent laws of Cherokee nation 421. et
see.
isccond The land is held In common: that
Is. each citizen Is a tenant In common with
every otliercltlzeii. but the title Is a fee
simple title Const. Art. 1 i-ec 2 page 11
Hi. Amendment to Art. 1. Sec 2. p. 31. 11).
Third -The Improvements made on said
land and In tiossession of the citizens of the
nation are the exclusive anil Infeaslblenron-
ertynf the citizens resectlvely who made
iiicmormay ngnuuiiy uo in possession oi
them; provided that the citizens of the na-
tion possessing exclusive and indefeasible
right to their improvements as expressed In
this article sliall Mssess no right or power
to dispose of their Improvements in any
manner whatever to the Cn It cd Mates indf-
x Idual states or to Individual citizens there
of. Const. Art. 1. tec 2.
To the same effect only more
pointed is Sec. 700 p. 351 pro-
hibiting the sale of farms or other
improvements to any person ex-
cept a bona fide citizen of the Cher-
okee nation.
ronrth-The hoiisc.farm and other improve-
ments arv exempt from sale under evens
t Ion. s. iii. (p. Ml) am) "All Improvements
shall lie exempt from tho p ivment of the
debts against any estate and In the admin-
istration of estates where there Is a surviv-
ing wife or husband or minor child or child-
ren all the proKTty exempted by law from
execution shall likewise lie exempted from
the payment of debts against tin estate
and shall Ik at once turned over to the sur-
vlv ln-r parent or guardian for useof the fam-
ily. r-ec.:WMp.a;i).
Council for the administratrix
after quoting the forgoing provis-
ions from the constitution and
laws of the Cherokee nation pro
ceeds to point out the difficulties
which present themselves when we
contemplate the handling of this
property as we handle other prop-
erty belonging to an estate which
we term personal property. He
further state-:
If these Improvements or farms or gin
houses or dwell Ins houses or alto-ether are
personal property then in the case at bar we
have an anomalous state of alTaris. The
debts are all paid and the residue is for dis-
tribution. Tart of the heirs (distributees)
cannot take and hold tho estate part can
so in order to distribute the estat must be
sold and Inasmuch as none but citizens of
the Cherokee nation can buv. anil Inasmuch
as part of the distributees are Cherokees. the
value or me estate is exceedingly precarious.
He then proceeds to point out
tne uiiicuuies wnicn present tnem-
selves when tho court shall under-
take to distribute this estate on the
basis that these improvements are
personal property.
Numerous authorities were cited
by counsel for the administratrix
in reference to the distribution of
estates and the distribution of per-
sonal and real property.
But we respectfully submit that
the court is not now confronted
with the difficulties to which coun-
sel advert. The case at bar is one
of administration and has not yet
reached the point when orders for
distribution and final settlement
of the estate are to be made. The
question now before the court is
one of proper administration and
presents the questien as to what
property the administratrix in this
case shall schedule and account for
in her capacity as administratrix.
Acting under the advice of her
counsel sho has treated up to this
time all of the improvements
whether for agricultural or frade
purposes as a part of the realty
and has only scheduled such per
sonal property as live stock.stocks
of goods in stores and moneys due
the estate. The commissioner and
special master heretofore appoint-
ed by this court has submitted an
able and elaborate report after an
exhaustive examination in which
he presents both the facts and his
conclusions as to the law of the
case. He has reached the conclu-
sion that the administratrix should
schedule the value of the gin
houses and other improvements
used in the carrying on of his busi-
ness as a merchant but is of the
opinion that improvements for
purposes of agriculturo are a part
of the realty but are not personal
property which she is required to
schedule or account for to this court.
The controlling question in the
ca?e is as to whether any of the
improvements placed on tbe lands
occupied by the deceased at tbe
time of his death are real estate or
personal property or what if any
of such improvements are person-
al property.
What Is real property?
In the Knglsh cocuncn law property Is di-
vided into two classes real ana personal.
Real property l such ns has tho character-
istic of Immobility or permanency of loca-
tion as lauds and rights Issuing out of
land. I'ersonal property Is every species of
property which does not have the alxm
mentiond characteristics. Tiedeman on Ileal
Property p. 1.
All real property or things real are said to
lie comprehended under the terms "lands"
tenements and hcrcdlamcnts. Land Is the
soil of the eartli and includes everything
erected upon Its surface or which Is buried
beneath It. lb. p. i.
At common law and generally: "Under
the term -land' are Included the buildings
made so under t he doctrino of accession and
tho trees and other things growing
upon the land under the doctrine of acquisi-
tion by production as well as the minerals
which may no tmtRiUKMi in the earth." lb.
Fixtures are those things which personal In
their nature become realty by reason of
uicir annexation to tne son such annexa
tion being made ny someone having an in
terest In the soil. They are removable or not
according to the circumstances of each case
lb. p. a.
Where the person who erected the fix-
tures has a permanent estate In the land
such as a fee. tho legal maxim 'Quldiiuld
ilantatursolo. solo credit applies to the
ullest extent nualitied onlv bv the rule that
the annexation must be of a permanent
character. lb. p. 1.
All annexations of a permanent characler
pass with tho realty respectively to the heir
vendee and mortgagee and cannot In- re
moved by the executor vendor or mortga-
;or. I Ills Is the general rule. Hut between
andlortl and tenant when a nucstlou arises
as to fixtures placed on the land by tho ten
ant i uiuri; uuvrui ruie is iuiiuwcu. 1 licicn-
ant Is permitted to remavo a fixture which
falls within one Of these classes even though
lirmly tlxed to the soil one of the follow-
Itnr classes namelv: Trade fixtures np-rl-
cultural fixtures and fixtures for domestic
use and convenience. Th tendency of tho
law at the present day is to permit the ten-
ant to remove all fixtures he may attach to
the soil which come under onu of these clas
ses and wnicn can tie removed without perm-
anent Injury to the premises. 111. pp. Tandf.
The clear tendency of modem authority
seems to give pre-eminence to the ques-
tion of Intention to make the article a perm-
anent accession to the trvchold. and other
tests seem to derive their chief value as evi-
dence of such Intention. Ewell on Fixtures
!; McDonald vs. Micpard. 25 Kansas. 1V2;
Eaves vs. Kstes. II) Kansas. 311; illnkkey &
Egery Iron Co. vs. lllack. TO Me.. 473: .Morris
vs. French 1W Mass.. SX; Yates vs. Mullen.
1 Iml.. 277; 10 L. Kens. Annotated p. TSi
Where it is the mutual Intention of tiarties
that the title ton building erected on the
land of another shall remain in the builder
such building will be a chattel. Mayor vs.
NewholT.(N.J..May2i iwu). Mere physical
annexation docs not make the thing annex-
ed a fixture; and tho Intention to annex
whether rightfully or wrongfully. Is tiie
legal criterion. Vail v s. eav er. 1J2 Pa. 3i3;
Hill Vs. Sewald.M l'a. 271; Mvger vs. l'ettlt.
P.i 7: Morris' App. S l'a.. MS.
A building erected on another's land bv
permission and treated by ail the owners of
tne nuiliiiugas well as t lie owner or the land
as personal nronortv. Is subject to sale and
mortgage as personal property. Ilrowu vs.
Corblii.Iil Intl.. VO.
1 lie question whether fixtures erected for
the purposes of trade are or aro not remova-
ble by Hie tenant docs not depend upon the
form or size of the building; whether It lias
i brick louudatloii or not or Is one or two
.torles high or has a brick or other chimney.
The sole question is whether It Is designed
for tne purpose ot trade or not. in .is
vs. l'.ickanl.2;LT. S.. 2 I'et.. 137 (7 Law Edi-
tion. 371).
The parties concerned may by agreement
In due form give tu fixtures the legal char-
acter of realty or nersonaltv at the Irtmtlnti.
and the law will respect and enforce their
understanding whenever the rights of third
parties will not lio prejudiced. A structure
ereetis! by tenant for years of whatever size
or material. It may lie rcmov ed though erect-
ed and used for purposes of agriculture or
niauuiaciuru. uasnuuru oil ileal rrouerty.
Vol. 1 p. 131.
It will be seen from these and
other athorities which might be
cited that all kinds of buildings
whether for purposes of agricul-
ture manufacture or trade may be
erected upon land and still retain
the characler of personal property.
Tho criterion bv which to deter
mine whothcr the buildings and
tholr fixtures aro a part of the
realty or arc personal property
depends upon the intention of the
parties that is the intention of
tho owner of the soil and of the
person who erects the buildings.
If they enter into an agreement
by which the buildings are to be
regarded as personal property the
law will so regard them and carry
their intentions into effect. Let
us consider therefore what is the
intention of the Cherokee nation
and the owner of the improve
ments put upon lands belonging to
tho nation. That intention-is de-
rived from Sec. 2 of Art. 1 of the
constitution of the nation which is
as follows:
Sections. The lands of tho Cherokee na-
tion sliall remain common property; but the
Improvements made thereon and In posses-
sion of the citizen of the nation aro the ex-
clusive and Indefeasible property of the citi-
zen respectively who made or may rightfully
be In possession of them; provided that the
citizens of tho nation possesses exclusive and
Indefeasible right to their Improvements as
expressed In this article shall possess no
right or power to dispose of their improve-
ments In any manner whatever to the United
btates individual states or to Individual
citizens thereof etc
This article of the Cherokee
constitution was quoted in the
brief of the counsel for the admin-
istratrix and is relied upon by him
in connection with other provisions
of the constitution and of the laws
of the nation as presenting insur-
mountable difficulties in the way
of the distribution of the property
oftheestats in question. But I
have quoted it for a different pur-
pose. I desire to call attention to
the peculiar and expressive lang-
uage of this article. The words
exclusive and indefeasible are
are especially significant. An in-
defeasible title is a title which can-
not be defeated. It means in this
connection that the owner of the
improvements on Cherokee lands
cannot without his consent be de-
feated as to his title or deprived of
his property. The Cherokee na-
tion has placed it beyond its power
to take to itself this property or to
permit others to despoil him of it.
The word "exclusive" has also a
very marked significance in this
connection. Who is excluded
from ownership of these improve-
ments? It is undeniable that the
owner may alienate or sell his im-
provements to a citizen of the
Cherokee nation. Hence other
citizens of the Cherokee nation are
not excluded from owning improve-
ments on land. But the United
Stales individual states and indi-
vidual citizens of states are abso-
lutely excluded by the terms of
the article. But the Cherokee na-
tion is clearly and unmistakably
excluded from owning improve-
ments on the lands of the nation.
As the nation which owns the soil
is excluded from the ownership of
the improvements and as the
owner of such improvements has a
title which cannot be defeated in
such improvements it follows that
the ownership of the improve-
ments and the land is forever
separated by tbe mutual agreement
of all tbe parties concerned. The
improvements therefore upon tbe
lands of the Cherokee nation can-
not be owned by the owner of the
soil and if they cannot be owned
by the owner of the soil they are
forever to remain as personal prop-
erty. This is the intention of the
parties and as this criterion by
which the character of realty and
personalty is stamped upon the
lands and improvements the land
upon the one hand and realty and
the improvements upon the other
are personal property.
If a man by permission of another erect a
house upon another's land. It will. If the
builder have no estate In the same he tho
personal property of tho builder. Washburn
on Ileal Property p. 3; Aldrich vs. Parsons.
6 X. II. 5V; Osgood vs. Howard 6 Greene
4."2; Itussel vs. Klchards. 1 Falrf- t2; Ash-
mun vs. Williams. 8 Pick. 402; Doty vs. Gor-ham5PIck-..lS7;
Dame vs. Dame. 38 X. II.
42; and cases cited p. 431; Mott vs. Palmer.
1 Comst.. 571; Uogers vs. Woodbury 15
Pick. 156.
The rule here laid down by Mr.
Washburn is so well sustained by
all the authorities cited in this
opinion that it may be regarded as
the law governing in such cases.
Applying tnis rule to tne case
under consideration we find that
the owner of the land in question
was tbe Cherokee nation and that
the nation was by a constitutional
provision forever excluded from
asserting any ownership in the
buildings and" other improvements
on the land; that the buildings and
other improvements were the ex-
clusive and inefeasible property of
the person who built or made
themjthat the builder of the build-
ings and other improvements had
no estate in the land; and that the
consent of all parties concerned
was given to such separate owner-
ship. Under such conditions the
buildings and other improvements
are the personal property of the
person who builds or makes them;
that the builder of the buildings
and other improvements had no
estate in tho land; and that the
consent of all parlies concerned
was given to such separate owner-
ship. Under such conditions the
buildings and other improvements
are the personal property of the
person who builds or makes them.
And therefore all the buildings
and other improvements in con-
troversy in this case whether for
the purpose of agriculture or for
trade or manufacture passed on
the death of the intestate to the
administratrix and not to his heirs;
and it is the duty of the adminis-
tratrix to schedule the same and
to fully account to this court for
them and to hold and to dispose
of the same subject to and under
the orders of tnis court.
Counsel of the administratrix
cites in his brief See. 504 of the
laws of the Cherokee nation which
is as follows:
se ."ink All Improvements shall lie ex-
empted from tho payment of debts against
any estate anil In the administration of es-
tates where there Is a surviving wife or hus-
band or minor child or children all the
property exempted by law from e.x-
eutlon shall likewise lie exempted from tho
payment of debts against an estate and shall
bat once turned overtu the surviving pa-
rent or guardian for use of tho family.
This section has reference to tho
final settlement of estates in the
Cherokee nation and the time for
its consideration and proper inter-
pretation by this court has not yet
arrived. But in this connection
it may not be premature to call at-
tention to the provisions of sec
tion 31 of the act of May 2 1890
relating to the Indian Territory. 1
quote from that section:
Proceedings to subject such pro
(Im-
provements made on lands owned
iv an In-
dian nation.) to tho p
ian nation.) to tho payment of Judgments
may be by petition of which
lay be by petition of
elitor shall have notl
tne juuzm
zment
rlirlnal
debtor shall have notice as In
the original
suit. If on the hearing the court shah be
satisfied from the evidence that the Judg-
ment debtor is the owner of Improvements on
real estate subject to the payment of said
Judgment tho court may order the same sold
and theproceeds orso much thereof as may
be necessary to satisfy said Judgmeet and
costs applied to the payment of said Judg-
ment. Such order for sale of improve-
ments can only be made in cases
wherein attachments are provided
for so far as the section to which
I have referred provides. But the
right ot congress to subject im-
provements on lands in an Indian
nation to sale for the payment of
debts is clearly stated and recog
nized and should there be any con-
flict between the laws of the Unit-
ed States and those of the Cherokee
nation the laws of the United
States must prevail. 01 course in
all such sales citizens of the na-
tion only would have right to pur-
chase the improvements. But it
is important in this connection to
note the fact that congress has
given its opinion in this act to the
effect that all such improvements
are personal property and are
subject to sale or execution as
such.
As stated heretofore the ques-
tion now before the court is not
one of distribution but one of ad-
ministration and being a question
of administration I am of the opin-
ion that the administratrix should
5chedule all improvements on
lands which were in the posses-
sion of the deceased at the time of
his death and account the court
for their value and for the rents
and piofits accruing from the same.
Having thus stated the conclu-
sion of law to which j have ar-
rived it will be necessary to refer
the report of the special master
back to him with instructions to
ascertain all improvements not re-
ported upon in his first report and
the value thereof and all rents
and profits which have accrued
from the same aince the death of
the intestate or were uncollected
at that time. The special com-
missioner will also ascertain
whether the item of $1600 which
he charged against the adminis-
tratrix was the result of a mistake
in her accounts and whether she-
had not already accounted for that
amount instead of the $1.60 which
appeared in the body of her re-
port. He is also instructed to re-
port more specifically upon the
value of the services rendered by
Jefferson Hayes brother and
Oscar Hayes son of the deceased
and report whether their services
were required as clerks or
employes in managing the
stocks of goods in question and if
he should find that their services
were so required and that they
were not employed to attend to
matters merely of administration
he will make a proper reenmmend-
at;on for their compensation or af-
firm the recommendation already
made by him. Upon the question
of attorney's fees for attorneys em-
ployed by the administratrix I am
in some doubt as to whether the
services to which reference was
made in the special commission-
er's report can under Section 203
of Majsfield's Digest be a charge
upon the estate. But as this es-
tate is very large and as there was
a large amount of indebtedness
and as there were many compli-
cated questions which it was evi-
d nth' impossible lor the admin
istratrix to solve and adjust with
out tne aid ot counsel 1 am of tbe
opinion that counsel fees should be
allowed but express no opinion at
this time as to the amount which
the administratrix should expend
for this purpose and charge to the
estate. Whatever has been paid
out by her for this purpose may
remain as an unadjusted account
until her settlement when the
court can decide before any dis-
tribution lakes place to the per-
sons by whom the charges for at-
torney's fees incurred by the ad-
ministratrix and those incurred by
the petitioner in this case and
which may be incurred hereafter
should be borne.
It appears from the report of
the special commissioner that the
administratrix loaned the estate
about $16000 and that of this sum
five thousand dollars was used for
the purpose of paying a debt
against the estate which was draw-
ing ten per cent interest. Sha
therefore charged the estate ten
per cent interest upon this amount
of $5000 which she advanced
until it was repaid by the sale of
property. I am of the opinion
that as she advanced this money
for the benefit of the estate in
which she herself was interested
and her own children as well and
that as s-he could not contract with
herself as to the interest which
she should receive she is entitled
only to that rate of interest which
money draws when no interest is
agreed upon which is six per cent
per annum. The recommendation
of the commissioner in this matter
is approved and in all other mat-
ters except as otherwise indicated
in this opinion.
It is therefore ordered by the
court that the report of the f-pecial
commissioner be referred back to
him with the instructions to pro-
ceed at once to obtain the infor-
mation which may be necessary in
order to enable him to submit a
final report to the court in accord-
ance with the law of the case as
contained in this opinion and that
such final report be submitted by
him on or before the first Tuesday
of December next at Muscogee.
1
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Marrs, D. M. The Indian Chieftain. (Vinita, Indian Terr.), Vol. 14, No. 10, Ed. 1, Thursday, November 7, 1895, newspaper, November 7, 1895; (https://gateway.okhistory.org/ark:/67531/metadc71410/m1/1/: accessed April 25, 2024), The Gateway to Oklahoma History, https://gateway.okhistory.org; crediting Oklahoma Historical Society.