P. 368. 138 F.2d 985, reversed. CERTIORARI, 321 U.S. 758, to review the affirmance of a judgment which, in a suit removed from a state court to the federal court and in which the United States intervened, quieted title to lands in the respondent here.
"(11) By the Act of June 14, 1918, supra, Congress entrusted to courts of the state having jurisdiction to partition lands generally the function of determining in a judicial proceeding in partition whether the land shall be sold, and if so to order the sale, and provided that when such a sale is made it shall constitute a removal of the restrictions against alienation. Where the state court determines in such a proceeding that the land shall be partitioned and sold free of restrictions, it acts in part as the selected agency in giving effect to the will of Congress. Parker v. Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954; United States v. Hellard, supra [10 Cir., 138 F.2d 985] * * *."
When the defendants relied upon the sheriff's deed issued in pursuance of judgment of the state court in the partition proceedings, the appellees here, joined by the Government, replied that the said deed was void and conveyed no title because the United States was not a party or given notice of the partition proceedings. The trial court gave judgment in accordance with the decision of this court in United States v. Hellard, 138 F.2d 985. During the pendency of an appeal to this court, the United States reversed our decision in the Hellard case, and we accordingly reversed this case with directions to proceed in accordance with the decision of the Supreme Court in the Hellard case without prejudice however to the right of the appellees there (appellants here) to produce evidence in support of their contention that the participation of the United States probate attorney in the partition proceedings operated to effectively bind the United States to the state court judgment. On remand and in pursuance of our mandate, the trial court, after hearing, concluded that the participation of the United States probate attorney in the partition proceedings did not operate to bind the United States to the judgment.
And where the proceedings in an action for partition are regular in every respect, the judgment is final and a conveyance executed pursuant to its provisions passes title free of restrictions. United States v. Hellard, 10 Cir., 138 F.2d 985. As we have already said, this land was restricted against alienation, without the approval of the appropriate county court; and the deeds executed by Barnett Simpson and Pearl Fisher were wholly ineffective because not approved and therefore failed to convey any interest in the land.
As this case progresses along its course, it becomes more difficult. The first judgment entered herein on January 19, 1944, after the opinion of the Circuit Court in United States v. D.B. Hellard, 10 Cir., 138 F.2d 985, was in favor of the defendants. After the decision of the Supreme Court in United States v. D.B. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326, the Government filed in the Circuit Court a motion to reverse the judgment herein and remand to this Court for further proceedings not inconsistent with the opinion of the Supreme Court in the Hellard Case; which motion was granted by the Circuit Court.