The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 475
xiv, 992 p. ; 23 cm.View a full description of this legislative document.
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UNITED STATES V. BOYLAN 4rD
(256 )
(5) That Chapman Schenandoah was entitled to an undivided four
fortieths of same, subject to the inchoate dower interest of his wife.
(6) That Isaac Honyost had no interest therein.
A sale was decreed by interlocutory judgment on the report that
partition could not be made without great prejudice, etc., and said
Charles R. Coville was made referee to sell, and it was decreed that
the sale should be for cash.
Neither the United States, nor the state of New York, nor the com-
missioner of Indian affairs or of the Oneida Indians, was made a
party to the suit or proceedings.
The referee to sell sold the premises for $725, and made and filed
his report; but Mr. Justice Lyon, at Special Term, refused to con-
firm the sale and direct final judgment, on the ground "that no title
to or estate or interest whatever in the lands sought to be partitioned
in the action is or at any time has been vested in the plaintiff, and that
the plaintiff has not and never had the right to maintain an action for
partition of said lands," and an appeal was taken to the Appellate Di-
vision, which reversed his order and remitted the matter to the Spe-
cial Term, which directed a confirmation and the giving of a deed to
the purchaser. This reversal was on the ground solely that Judge
Lyon's order was a reversal of the referee, who was appointed to hear
and determine, and that defendant's remedy was by appeal. The
merits were not passed upon. See Boylan v. George, 133 App. Div.
514, 117 N. Y. Supp. 573.
The findings of the referee are contrary to the evidence in this case.
Thereupon a final judgment was entered August 3, 1909, confirming
the sale and directing "that said referee execute to the purchaser upon
such sale a conveyance of the property sold." The name of the pur-
chaser is not disclosed or stated in such judgment. This judgment
also directed the disposition of the proceeds of sale as follows: To
the referee, $25; to the plaintiff's attorney, including an extra allow-
ance of $36.25, the sum of $303.78; to the plaintiff, on her costs on
appeal, $89.15; the whole sum to which defendants were entitled, and
the balance, to the plaintiff, $307.07. The plaintiff was also awarded
a judgment for deficiency on costs awarded of $6.05. Then, it is
claimed, all interest of these Oneida Indians in these lands was ex-
tinguished. The referee's deed, executed September 22, 1907, re-
cites that the sale was made to the plaintiff, Julia Boylan, and the
deed was executed and delivered to her.
This final judgment, describing the real estate, also directed as fol-
lows:
"It is further ordered, adjudged and decreed that the said purchaser be let
into possession of said property, and that any of the parties to this action who
may be in possession of said premises or any part thereof, and any person
who since the commencement of this action has come into the possession of
said property sold, or any part thereof, deliver possession thereof to said pur-
chaser on production of the referee's deed of said premises."
The Indians in possession of the premises and occupying them re-
fused to leave or vacate and surrender possession, and a writ of as-
sistance was'granted by the Supreme Court November 20, 1909, by
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38827/m1/489/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.