AfriGeneas Slave Research Forum
Davison v. Gibson - Creek Nation
(56 Fed. Rep. 443,U. S. App. —-.) DAVISON v. GIBSON. (Circuit Court of Appeals, Eighti Circuit. May 15, 1893.) No. 204.
1. Cosrucr or LAW5—-CREEK Nnrou —- Common LAW—- HUBBARD arm Wnrs. In a controversy which involves the right of a husband to the personalty of his deceased wife, both of them beingcitizens of the Creek nation, where there is no showing as to what was the law or custom of that nation applicableto thematter, itis errorto presume that the common law was in force therein, and to decide the controversy according to its rules. 2. sAME—LEX Font. Where such controversy is an action in theUnitedStates court fortheIndian Territory, the rule of decision, in the absenceof evidenceas to whatthe Creek law is, is the law of the forum, which, by Act May 2, 1890, is Manstleld's Digestoi’ the Laws of Arkansas. Pyeatt v. Powell, 2 G. C. A. 367, 51 Fed. Rep. 551, 10 U. S. App. 200, distinguished. 3. B uu-:—R etrr 'ro Gnowmo Cnors. Where the common law as to the right of the husband to the wife's property has never been adopted,orhas beenabrogated,thecrops producedon thewife's landarethe wif -‘s property, although the husband contributed his labor to their [)i'o(iii(:iion. 4. Coun'rs—Ru ss or DECISION. The court, in making up its opinion of thelaw of thecase,is notlimited inits researches to legal literature. It may consultworks on coilateralsciences orarts or history touching the topic on trial. and may appeal to the public archives. In Error to the United States Court intheIndianTerritory. At Law. Action of replevin by J . P. Davison, administrator of theestateof Julia Gibson,deceased, against EdwardGibson,inwhich therewas judgment fordefendant, andplaintiff brings error. Reversed. StatementbyCALDWELL,Circuit Judge:
Julia. Gibson was born a slaveinthe Creek nation in theIndianTerritory,Her master sold her to a slaveownerinMissouri,who took her to that su te, where she was held as a slaveuntil 1854,when hermotherpurchasedher freedom, and brought her backto the Greek nation. Duringthetimeshewas a slaveinMissouri sheand Edward Gibson,who was also a slave,sustainedtowards eachother therelation of husband andwife,so faras persons ina stateof slavery could sustain that relation. Havingbeenfreedas a result of thecivilwar,Gibson,the defendant inerror,wentto the Creek nation in 1865,andheandJuliaresumedtherelation of husband andwife, which relation continueduntil Julia’s death, on the29thof April,1891. By virtueof her residence in the Creek nation at thedateof thetreatyof June14. 1866,(14Stat. 785,) Juliaacquiredunderarticle2 of that treatyalltherights andprivilegesof a nativecitizen of the nation. Before Gibson went to the Creek nation, Julia. owned and occupied 40 acres of land in that country, given to her by her mother and brother. She also owned some personalproperty. Sheleftfour children surviving her, two of them not the children of the defendant,Gibson.Afterherdeath, Gibson.her husband, claimed the personalpropertyon thefarm, and took possession of the same. J. P. Davison. one of Julia's children, was appointed administrator of herestate, and brought this action of replevin against Gibson inthe United States court for the Indian Territory for the personal property, alleging that it belonged to the wife at the time of her death, andthat,as heradministrator,he was entitled to the possession of the same. There was a trial in the court below, and at the close of the evidence the court instructed the jury to return a verdict for the defendant, to which instructionthe plaintiflduly excepted. Therewas a verdict inaccordancewiththe instructionof the court, andjudgment thereon, andthe plaintiff sued outthis writ of e