Date: 09-23-2014

Case Style: Tom Handle v. Virginia Fishinghawk, et al.

Case Number: CV-2014-13

Judge: J. Jeffrey Payton

Court: District Court, Adair County, Oklahoma

Plaintiff's Attorney: Jessie Huff Durham

Defendant's Attorney: Rex Earl Starr

Description: Stilwell, Adair County, Oklahoma - Tom Handle sued Virginia Fishinghawk on a quite title theory alleging:

COMES NOW the Plaintiff, Tom Handle, and for cause of action against the Defendant, alleges and states:
1. That the Plaintiff is an owner of and in actual possession of the following described real property situated in Adair County, Oklahoma, to wit:
NE NE NW; N2 SE NE NW, Section 34, Township 16 North,
Range 24 East, Adair County, Oklahoma (“subject property”)
2. The subject property was a portion of the lands allotted to Annie Adair, Full Blood Cherokee Indian Roll No. 19190, from the lands of the Cherokee Nation.
3. Thereafter, the subject property was purchased by Thomas Adair, Full Blood Cherokee
Indian Roll No, 15561, with funds held in trust for Thomas Adair by the Secretary of the
Interior and was conveyed to the said Thomas Adair on a Special Form Warranty Deed
dated July 3, 1920, and approved by the Superintendent of the Five Civilized Tribes on
September 8, 1920. See Exhibit A attached.
4. By operation of Federal law, the subject property remained restricted and tax exempt in the hands of Thomas Adair, and a Certificate Designating Property Exempt from
Taxation was filed thereon in the records of the Adair County Clerk on February 2, 1945, at Book 74, Page 136.
5. Thomas Adair died intestate on or about September 30, 1950, possessed of the subject property. His heirs were determined by Journal Entry of Judgment dated November 29, 1966, in Adair County Case No. 4649, to be the following persons who inherited the subject property in the shares shown:
Wife Maria Adair, Full Blood Cherokee #19113 1/3
Son Isaac Adair, Full Blood Cherokee #28574 2/21
Son John B. Adair, Full Blood Cherokee NE 2/21
Son Sam B. Adair, Full Blood Cherokee NE 2/21
Son Snow Adair, Full Blood Cherokee NE 2/21
Dtr Maggie Adair, Full Blood Cherokee NE 2/21
Dtr Sallie Adair, Full Blood Cherokee NE 2/21
Dtr Irene Adair, Full Blood Cherokee NE 2/21
The subject property remained restricted and tax-exempt in the hands of the said heirs in accordance with Federal law.
6. In Adair County District Court Case No. 8707, the above-listed heirs partitioned the lands of Thomas Adair, and by Final Decree dated October 14, 1968, the subject property was partitioned to Maggie Handle (aka Maggie Adair). Said Final Decree was filed in the records of the Adair County Clerk November 27, 1968, at Book 131, Page 154. By operation of Federal law, the subject property remained restricted and tax exempt in the hands of Maggie Handle.
7. On March 15, 1999, a Warranty Deed was executed by Jeanette Handle, which deed purported to convey the subject property to Shelley Coldwell Goodnight. Said Warranty Deed was filed in the records of the Adair County Clerk on May 27, 1999, at Book 312, Page 352. The said Warranty Deed was not approved in accordance with Federal law and should be cancelled and held for naught.
8. Maggie Handle died on or about the 8th day of January, 2000, leaving the following heirs-at-law who inherited the subject property in the shares shown:
Son Tom Handle, % Cherokee Non-Enrolled V2
Dtr Jeanette Handle, FB Cherokee Non-Enrolled V2
The subject property remained restricted and tax-exempt in the hands of the said heirs in accordance with Federal law.
9. On June 12, 2012, a County Treasurer’s Resale Deed was issued by Janice Brewer, Adair County Clerk, and filed of record at Book 483, Page 412. The said Resale Deed purported to convey the subject property to Virginia Fishinghawk. The said Resale Deed is void having been issued in violation of Federal law and should be cancelled and held for naught.
10. On July 6, 2012, a Warranty Deed was filed in the records of the Adair County Clerk at Book 484, Page 169, executed by Virginia Fishinghawk, which deed purported to convey the subject property to Virginia Fishinghawk, Trustee of the Virginia Fishinghawk Trust dated the 2’ day of July, 2012. The said Warranty Deed clouds title to the subject property and should be cancelled and held for naught.
11. On January 11, 2014, notice was served on Virginia Fishinghawk, Individually and as Trustee of the Virginia Fishinghawk Trust Dated July 2, 2012, pursuant to the NonJudicial Marketable Title Procedures Act, Tit. 12 Okla. Stat. 2013 § 1141.1 et seq. (“NJMTPA”), to execute a curative instrument to clear title to the subject property. The requested curative instrument was not executed and no other response to the said notice was received.
12. On January 21, 2014, pursuant to notice also served in accordance with the NJMTPA, Shelley Coidwell Goodnight executed a Quit Claim Deed conveying all her right, title, and interest in the subject property to Maggie Handle, her heirs successors, and assigns. Said deed was filed in the records of the Adair County Clerk at Book 500, Page 869.
13. Plaintiff and Jeanette Handle, together with their authorized lessees and permittees, are in actual, open, peaceful, and exclusive possession of the subject property.
14. Defendant Virginia Fishinghawk, Individually and as the Trustee of the Virginia Fishinghawk Trust dated July 2, 2012, claims some right, title, or interest in the subject property by virtue of the Resale Deed described in paragraph 9 above and the Warranty Deed described in paragraph 10 above, adverse to the title of Plaintiff and Jeanette Handle, which claims constitute a cloud upon Plaintiffs title and Defendant has no right, title or interest therein.
W-IEREFORE, premises considered, Plaintiff prays for judgment against Defendant declaring that Defendant has no right, title, or interest in the subject property, and that she be barred and enjoined from asserting any right, claim or interest therein, and for damages, expenses, costs, and attorneys fees, in accordance with the NJMTPA and for such further relief as this Court deems just and equitable.

Outcome: and said lands remained restricted and tax-exempt in the hands of Maggie Handle in accordance with Section 1 of the Act of August 4, 1947, 61 Stat. 731, and Section 2 of the Act of June 14, 1918,40 Stat. 606.
JOURNAL ENTRY OF JUDGMENT
NOW on this2”day of September, 2014, the above-entitled cause comes before the Court having been duly set for disposition on this date by Order dated August 15, 2014, which Order was duly served upon counsel for the defendant, Plaintiff appears by and through his attorney, Jessie Huff Durham, Office of the Tulsa Field Solicitor. Defendant appears by and through her attorney Rex Earl Starr.
Having examined the pleadings and records on file in this action and being hilly advised in the premises, the Court FINDS:
1. That the following described property is a portion of the restricted lands of Maggie Handle (aka Maggie Adair), now deceased, having been partitioned and allotted to her by Final Decree in Adair County District Court Case No. 8707:
NE NE NW; N2 SE NE NW, Section 34, Township 16 North,
Range 24 East, Adair County, Oklahoma (“subject property”)
2. That the Plaintiff is a presumptive heir of Maggie Handle (aka Maggie Adair).
3. That on June 12, 2012, a County Treasurer’s Resale Deed was issued by Janice Brewer, Adair County Clerk, and filed of record at Book 483, Page 412. The said Resale Deed purported to convey the subject property to Virginia Fishinghawk. The said Resale Deed is void having been issued in violation of Federal law on non-taxable lands, and should be cancelled and held for naught.
4. That on July 6, 2012, a Warranty Deed was filed in the records of the Adair County Clerk at Book 484, Page 169, executed by Virginia Fishinghawk, which deed purported to convey the subject property to Virginia Fishinghawk, Trustee of the Virginia Fishinghawk Trust dated the 2nd day of July, 2012.
5. That the presumptive heirs of Maggie Handle (aka Maggie Adair) together with their authorized lessees and permittees, are in actual, open, peaceful, and exclusive possession of the subject property, and have been continuously in possession of the subject property since the said Resale Deed was issued.
6. That Defendant Virginia Fishinghawk, Individually and as the Trustee of the Virginia Fishinghawk Trust dated July 2, 2012, claims some right, title, or interest in the subject property by virtue of the Resale Deed described in paragraph 3 above and/or the Warranty Deed described in paragraph 4 above, adverse to the title of the lawful heirs of Maggie Handle (aka Maggie Adair), which claims and deeds constitute a cloud upon the title of the lawful heirs of Maggie Handle (aka Maggie Adair) and said claims and deeds should be determined void and invalid, canceled, and held for naught.
IT ES THEREFORE ORDERED, ADJUDGED, AND DECREED BY THE COURT that
the Findings of the Court as hereinabove set forth be and they are hereby made the decree and judgment of this Court; and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the
County Treasurer’s Resale Deed filed of record in the Office of the Adair County Clerk at Book
483, Page 412, and the Warranty Deed filed of record in the Office of the Adair County Clerk at
Book 484, Page 169, are hereby declared void, invalid, canceled and held for naught.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the Defendant Virginia Fishinghawk, IndivIdually and as the Trustee of the Virginia Fishinghawk Trust dated July 2, 2012, has no interest in the subject properly by reason of any recorded instrument, possession, or otherwise, and that all claims which said Defendant may claim to such an interest be and they are hereby canceled and held for naught; and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the Defendant herein, and all persons claiming under her, adversely to the Plaintiff or the lawful heirs of Maggie Handle (aka Maggie Adair), deceased, be and they are hereby forever bned and enjoined from setting up, asserting or claiming any tight, title or interest in or to the real property herein described or any part thereof.

Plaintiff's Experts:

Defendant's Experts:

Comments: