US Marshall, Schoolmaster, and Railroad Agent
Life of Paden Tolbert
US Marshall, Schoolmaster, and
Railroad Agent
The eldest of eight children born to James Russell Tolbert and Elizabeth Miller, Paden Tolbert grew up in Griffin, Georgia during Reconstruction. The Tolbert family had been well off prior to the American Civil War, his father James had graduated from the University of Georgia and studied law in Tennessee before becoming a journalist. His family lived in Macon and Atlanta during the war while his father reported for the Atlanta Constitution and afterwards tried his hand at farming in Pike County but was unsuccessful at it. In 1880, his father sold the family estate in Griffin and traveled by train to Clarksville, Arkansas where he became successful in growing peach trees and introducing the Elberta peach.
Tolbert became a schoolmaster in Johnson County for a time before pursuing a career as a law enforcement officer. He traveled to Fort Smith and, at age 22, became a deputy U.S. Marshal under "The Hanging Judge" Isaac Parker. Prior to this, he had married his childhood sweetheart Lucy Rose Turner and moved their family to the Indian Territory shortly after becoming a deputy marshal. His brother John would also become a deputy marshal at Fort Smith and the two would briefly work together. Another deputy he was partnered with was Bud Ledbetter who together hunted down many notorious outlaws in the Indian Territory. He was one of the leading deputy U.S. Marshals in the Indian Territory during the 1880s and 90s and often worked with other well-known lawmen of his time including Bud Ledbetter, Heck Thomas and Bill Tilghman. He and his brother John Tolbert were both deputy marshals under "The Hanging Judge" Isaac Parker.
One of many young deputies first used by Judge Parker in the U.S. District Courts in Fort Smith and Muskogee, Tolbert was part of a legendary generation of U.S. Marshals that also included J.H. Mershon, A.J. Trail, Heck Bruner, Sam Sixkiller, Wes Bowman and Bass Reeves. A reputation for courage and devotion to service, Marshal Leo E. Bennett stated that he considered Tolbert to be "one of the bravest men that he ever had on the force".
Tolbert and G.S. "Cap" White led the 16-man posse who rode after Ned Chrstie, amongst whom were Heck Thomas, Bud Ledbetter and his brother John Tolbert, after Christie was charged with the murder of deputy marshal Daniel Maples. While the rest of the posse stocked up on extra weapons including rifles, revolvers and small-arms ammunition, This group was dispatched to Coffeyville, where they obtained a three pound cannon. Hauling the cannon in a wagon, the party returned to the scene. They hurled thirty balls into the fort without effect before finally breaking the cannon. According to legend, this was the only time until Waco when the government used artillery on a citizen. Paden Tolbert and his posse met with Deputy Marshals Smith and Johnson at Baron Fork, IT, Heck Bruner and Copeland at Summer's Post, IT, and John Tolbert and his group of Deputies (that probably include Lewis "Ab" Allen) at Fort Smith, AR. The siege lasted two days and involved dynamite and a cannon to destroy the hideout; this was the only time a cannon was used on civilians by U.S. law enforcement officers. Tolbert and Ledbetter are also credited with foiling the infamous 1894 train robbery at Blackstone Switch which led to the capture of Nathaniel "Texas Jack" Reed and his gang as well as the capture of the Jennings Gang in 1897.
On the morning of November 2, 1894, Tolbert and the rest of the posse surrounded the near impregnable wooden fortress known as the "Rabbit Trap" in the Going Snake District, a mountainous region of the Cherokee nation (near present-day Talequah, Oklahoma). Christie had successfully fought off previous attempts to apprehend him for well over a year before their arrival. After cannonfire and over 2,000 bullets fired at the double-tiered log fortification proved ineffective, it seemed that this would again be the case.
As night fell, Tolbert and the others set to work on
building a portable barricade. Using the charred rear axle
and wheels from the
burned out
lumber wagon used to
assault the
fort the previous month,
they built
and
mounted a thick wall
from scrap-oak timbers and loaded with rails. Finally,
six
sticks of dynamite was brought
out and used to breach
the
fort's
walls.
Sometime near midnight, Tolbert helped
push the wagon towards the cabin along
with White, Charley
Copeland, Bill
Ellis and Bill Smith. While Christie and his
partner
attempted to fight off
Paden's group from the
second story
gunports, the
rest of the posse
provided
covering fire until the men were close enough to
dynamite
the south wall of the
house. Although surviving the explosion, Christie
made a
run for the surrounding woods
but was gunned down
by
Tolbert and
others. Two years later,
Tolbert and several other U.S.
Marshals were contacted by
the
American Express Company to request protection
because
they had received
information of a suspected holdup from
one of their
agents in Dallas. On November 13, 1894,
Tolbert and
Ledbetter were aboard
the
express car along with Sid
Johnson,
Frank Jones and as many as
three Pinkerton
detectives. The train was
moving at top speed when
it was
stopped by Nathaniel
"Texas
Jack" Reed and his gang.
Although
calling on the lawmen to
get out of the
express
car, Tolbert
and the others refused to surrender and instead began
firing at them. The gunfight continued for over an
hour
and a half until one of
Reed's
men,
Charley Belstead, was
killed.
Reed then ran towards the
passenger
car, carrying
dynamite
with him, and tried to blow the express car. Failing
this,
he instead held up the
passenger car. Erroneously
reported
killed as he
and his men made their
getaway, Reed
was nevertheless wounded by Ledbetter. The
failure of this
attack resulted in a
manhunt for the fugitives and the eventual
capture of
Reed.
Fort Smith Museum of History. As was often the case, U.S. deputy marshals
pose with the outlaw, Ned Christie, they had
captured and
killed. Christie's
corpse leans against a board, third
from the left.
In mid-July 1897, Tolbert and Ledbetter again rode together to bring in members of the Jennings Gang, brothers Alan and Frank Jennings. During their search, they learned that "Al Jennings and other parties ... who were going about in the Northern District of the Indian Territory under assumed names". Tolbert and Ledbetter were sent after them with a warrant for their robbery of a post office at Foyll in Cherokee territory. They stayed on their trail for some time before tracking them to the Spike S ranch and, along with several others, surrounded the hideout. After a brief gunfight, they chased them a distance of 60 miles before apprehending them together with Pat and Morris O'Malley. (Jennings Gang (1897) - Comprised of Al and Frank Jennings, former Doolin Gang member, Little Dick West, and brothers Morris and Pat O'Malley, the short-lived gang operated only a few months making several failed train robbery attempts in 1897. After blowing up a railroad car that held a safe, and finding no "booty" for their efforts, they robbed the train passengers. A few weeks later, they robbed a store, making off with just $15. The Jennings and O'Malley brothers were soon arrested and sent to jail. Little Dick West remained on the "lamb" until the next year, when he was killed on April 8, 1898, by Deputy U.S. Marshals in Logan County, Oklahoma Territory.)
After a successful 12 year career, Tolbert retired and became a special officer for Fort Smith and Western Railroad. After only a few months, he became ill from congestion of the lungs and sent to Hot Springs, Arkansas to recover. However, his condition did not improve and he died in Weleetka, Oklahoma on April 24, 1904 and was buried in Oakland Cemetery near Clarksville, Arkansas four days later. Following his death, his widow was appointed honorary postmistress of Padeen, a town in the Indian Territory named after her husband.
As well as having the town
of Paden, Oklahoma named in his honor, his family were the
first to introduce
Elberta
peaches
to Clarksville,
Arkansas and
for which the city remains
famous.
The following is an actual court
document from the Oklahoma State
Court Network on hid
widow:
Lucy
TOLBERT et al. v. STATE
BANK OF
PADEN.
1911
OK 482
121 P.
212
30 Okla.
403
Case
Number: 1245
Decided:
11/18/1911
Supreme Court
of
Oklahoma
Cite as: 1911 OK 482, 30 Okla. 403, 121 P. 212
TOLBERT et al.
v.
STATE BANK
OF PADEN.
Syllabus
¶0 1. MORTGAGES--Foreclosure--Waiver of
Appraisement. In a foreclosure suit
on a note and
mortgage,
wherein
appear the words "appraisement waived," it is
error to
order the sale of the
property before the
expiration of
six months from
the date of the
judgment.
2. SAME--Foreclosure--Sale--Waiver of
Appraisement.
The fact that
property, to be sold under
execution based
on judgment of
foreclosure,
was appraised, does not render
valid a sale made of such
property,
before the expiration
of six months
from the date of
judgment, where
appraisement was
waived in the note and mortgage upon
which the judgment
was
based.
3. PROCESS--Service by
Publication--Affidavit--Knowledge of
Defendant's
Residence. An affidavit
for service by publication, which alleges
the defendant to
be a nonresident of
this state, and that
due diligence has
been
used, and summons cannot be
served
on defendant in this state, together with
other
allegations required by law,
is sufficient, without stating specifically
the facts as
regards the diligence
used. But in such case
where it is
shown by
defendant in a motion to
quash
service, and is not contradicted, that the
plaintiff when
the affidavit was
made, and publication had, knew that defendant
was not a
nonresident of this state,
and that she actually
resided
in
Oklahoma
county in this state, although the
affidavit was sufficient in form, yet it was,
on such
showing of uncontroverted
facts, voidable, and ought to have been
quashed.
4.
SAME--Publication--Affidavit by Attorney.
An attorney in a
case
may make the affidavit required for
service by publication, although not
specifically
authorized to do so in
the statute authorizing such affidavit. And
to make same
he does not have to
bring himself within the
limitations
of sec.
5613, Comp. Laws 1909 (St.
Okla. 1893,
sec. 3951).
Error from District Court, Okfuskee County; John Caruthers, Judge.
Action by the State Bank of Paden against Lucy Tolbert and others. Judgment for plaintiff, and defendant, Lucy Tolbert, brings error. Reversed.
Geo. B. Denison, for plaintiff in error
J. B.
Patterson and C. T.
Huddleston, for
defendant in
error
BREWER, C.
¶1 This suit was brought by the State Bank of Paden, defendant in error, plaintiff below, against Lucy Tolbert et al., plaintiffs in error, defendants below, in the district court of Okfuskee county, on January 22, 1909. It was brought for judgment on a promissory note and to foreclose a certain real estate mortgage on town lots therein described. Personal service of summons was had on John L. Bruce, a junior mortgagee, and service by publication was had as to the defendant Lucy Tolbert. The defendant Bruce does not complain of the judgment rendered in the court below and will not be given further consideration herein. There was judgment in the court below against the defendant Lucy Tolbert for the amount sued for. A lien was impressed upon the lots in controversy, and they were ordered sold. After execution had been issued on the judgment and the sale had been had, the defendant learned of the proceedings and appeared in court specially, and filed various pleadings, among them being one to quash and set aside the service by publication for various grounds therein stated. This being overruled, and the sheriff having filed return of the execution and sale of the property, she then filed objections to the confirmation of the sale, alleging that the judgment was void, and giving a number of reasons why the sale should not be confirmed. Her objections to the confirmation of the sale were overruled by the court, and on the 26th day of October, 1909, the sale was in all things confirmed and approved by the court, and the sheriff was ordered and directed to execute to the purchaser at such sale deed to the property. The defendant filed motion for rehearing on the motion to confirm sale, alleging various errors of law. This was overruled, exceptions saved, and the case brought here for review.
¶2 There are, as has been suggested, a number of questions raised in this case, some of which will not be necessary to consider in view of the conclusions we have reached. In the grounds set up by the defendant as a reason why the sale should not be confirmed are the following:
"That it appears by the said petition that there was a contract in this case by which the said defendant had waived appraisement, and therefore the decree should have provided that no order of sale should issue until after six months from the rendition of such decree."
¶3 The note sued on in this case contains the following provisions: "And the several makers, sureties, and indorsers hereto hereby waive appraisement," etc. The mortgage executed simultaneously with the note and as security therefor contained the following provisions: "All rights of homestead, appraisement and redemption provided by the laws of Indian Territory are hereby waived by the mortgagor."
¶4 Section 5978, Comp. Laws 1909, provides as follows:
"That if the words 'appraisement waived,' or other words of similar import, shall be inserted in any deed, mortgages, bonds, notes, bill or written contract hereafter made, any court rendering judgment thereon, shall order as part of the judgment that the same, and any process issued thereon, shall be enforced, and that land and tenements may be sold thereunder without appraisement; and such judgment, and any process issued thereon, shall be enforced, and sale of land and tenements made thereunder, without any appraisement or valuation being made of the property to be sold: Provided, that no order of sale or execution shall be issued upon such judgment until the expiration of six months from the time of the rendition of said judgment. (St. Okla. 1893, sec. 4346.)"
¶5 The judgment of the district court ordering foreclosure and sale of defendant's property contains the following clause:
"It is therefore considered, ordered, adjudged, and decreed by the court that the plaintiff's debt above mentioned be, and the same is hereby, decreed to be a lien on the real estate herein mentioned; that the equity of redemption of the defendant Lucy Tolbert in and to said property be, and the same is hereby, forever barred and foreclosed; and that, if said debt be not paid within sixty days from the date hereof, said real estate be, and the same is hereby, ordered to be sold by the sheriff of Okfuskee county, Oklahoma," etc.
¶6 This judgment was rendered on May 28, 1909, and it appears that on July 17, 1909, execution was issued out of the clerk's office to the sheriff to sell the property on said judgment. It appears that on October 5th the sheriff filed return of sale of the property involved showing that he had had the same appraised, and also showing that it had sold for as much as two-thirds of its appraised value. On October 6, 1909, the objections of the defendant to the confirmation of the sale were argued to and taken under advisement by the court, and later, on October 26, 1909, the objections to the confirmation of the sale were overruled and denied. The sale was approved and confirmed and deed ordered to issue.
¶7 In this case these questions are squarely presented: Can a mortgage creditor sell property under a mortgage, where the right of appraisement has been waived by the debtor, before the expiration of six months after judgment of foreclosure, by having the property appraised? And, is a judgment of the court in such case ordering a sale within six months period valid? We believe both questions must be answered in the negative. In both the note and mortgage in suit appraisement is waived. This clause is a material part of the contract between the parties. Under the statute, supra, permitting the waiver by a debtor of his right to an appraisement of his property before sale, where it is done, the creditor obtains the right to sell the property under judgment without any appraisement, and therefore regardless of how much or how little it may bring. But the debtor, when he surrenders this right to the creditor, obtains one himself--a right that is oftentimes more valuable than the one he surrenders. He knows when he contracts in his mortgage that no appraisement will be required that in case he cannot pay the debt when due, if suit is brought, "no order of sale or execution shall be issued upon such judgment until the expiration of six months from the rendition of the judgment." It will not do to say that the property was in fact appraised, regardless of the waiver, and he has been protected. The creditor cannot by his own election change the contract between them. This right given the debtor is quite analogous to the right of redemption from mortgage or execution sales, and the right of redemption in such cases has been held to be a vested right. Turk v. Mayberry (not yet officially reported), 121 P. 665; Brine v. Hartford F. Ins. Co., 96 U.S. 627, 24 L. Ed. 858; Orvis v. Powell, 98 U.S. 176, 25 L. Ed. 238; Swift v. Smith, 102 U.S. 442, 26 L. Ed. 193; Mason v. Life Ins. Co., 106 U.S. 163, 1 S. Ct. 165, 27 L. Ed. 129; Parker v. Dacres, 130 U.S. 43, 9 S. Ct. 433, 32 L. Ed. 848.
¶8 It has been often held by the courts that in cases where appraisement has not been waived, and the statute requires property to be sold for not less than two-thirds of its appraised value, that a sale for less than two-thirds is absolutely void. Capital Bank v. Huntoon, 35 Kan. 577, 11 P. 369; De Jarnette v. Verner, 40 Kan. 224, 19 P. 666; Gantly v. Ewing, 44 U.S. 707, 11 L. Ed. 794; Collier v. Stanbrough, 47 U.S. 14, 12 L. Ed. 324; Smith v. Cockrill, 73 U.S. 756, 18 L. Ed. 973.
¶9 In the case of Reynolds v. Quaely, 18 Kan. 361, it is stated in the syllabus:
"Where appraisement is waived, the defendant is entitled to a stay of execution for six months, and a judgment which authorizes the sale of real estate without appraisement and gives a stay of execution for only twenty days is erroneous"--citing Bashor v. Nordyke Co., 25 Kan. 222; Pierce v. Butters, 21 Kan. 124.
¶10 In the case at bar the defendant was allowed sixty days to pay the judgment, but the execution was issued before that period had elapsed.
¶11 In the case of Pierce v. Butters, 21 Kan. 124, the syllabus reads:
"Where a mortgage contains the words 'appraisement waived,' and the judgment rendered thereon orders the immediate sale of the mortgaged property, held, that the judgment is erroneous."
¶12 We conclude that the order of the court authorizing sale in this case after sixty days, and the execution issued thereon and the sale of the property, and the order confirming the sale and ordering deed to issue are erroneous.
¶13 The defendant in her motion to set aside and quash the service in this case alleged, and urged here, that the affidavit filed by plaintiff, upon which publication was had, is defective for the reason that it was made by plaintiff's attorney, and no showing made justifying an attorney for plaintiff to make same. This contention has been decided adversely to defendant by this court. Spaulding v. Polley, 28 Okla. 764, 115 P. 864.
"That the service was void because the affidavit for same stated that defendant was a nonresident of the state when in truth and fact she was a resident of the state, and of Oklahoma county at the time the affidavit was made, and while the notice was being published, and that this fact was well known at the time by the plaintiff."
¶14 The defendant introduced proof in support of her motion, and it was proven, and was not contradicted, that at the time the attorney filed the affidavit alleging defendant to be a nonresident of this state, and while the notice was being published, the cashier and managing officer of plaintiff bank knew that defendant was not a nonresident, and that she resided in Oklahoma City. And that defendant during said period of time was in correspondence with plaintiff bank, and that the fact that it had sued her, or that publication was being made for her, was never disclosed, and that she never knew of the suit until after judgment had been rendered against her, when she promptly filed her motion to quash service.
¶15 The plaintiff is a resident of Okfuskee county, and if its cashier and managing officer had been called upon to make the affidavit, he could not have truthfully made it, therefore he would not have made it. He knew where she was and that personal service could be had on her. The plaintiff bank knew what its cashier and managing officers knew.
¶16 Is this affidavit sufficient? In form it is, taken as a whole, under the decisions of this court. Ballew v. Young, 24 Okla. 182, 103 P. 623, 23 L.R.A. (N. S.) 1084; Washburn v. Buchanan, 52 Kan. 417, 34 P. 1049. But when you analyze it in the light of the admitted facts, is it? It states that diligence has been used, and defendant cannot be found. This would not be sufficient for service on a resident of the state, for the reason that the facts of what diligence was used are not set up. Cordray v. Cordray, 19 Okla. 36, 91 P. 781; Nicoll v. Midland Saving & Loan Co., 21 Okla. 591, 96 P. 744. But it also states defendant to be a nonresident. This, so far as form goes, dispenses with the necessity of stating the facts as to the diligence used. Ballew v. Young, supra; Washburn v. Buchanan, supra; Spaulding v. Polley, supra. But when this statement was made in the affidavit the plaintiff knew defendant was not a nonresident. Then, the affidavit being insufficient in form, considered independently of the allegation of nonresidency for the reason stated, ought it to be held sufficient because of the incorporation in it of a statement plaintiff knew to be untrue?
¶17 This presents a rather peculiar situation, and, so far as we have been able to investigate, without exact precedent, and we have come to the conclusion that, the affidavit and publication being sufficient on its face, the service is not void, but that, under the facts shown upon a motion to quash by defendant, it was voidable, and ought to have been set aside.
¶18 For the reasons stated this cause must be reversed, with directions to the district court to proceed in accordance with this opinion.
¶19 By the Court: It is so ordered.
¶20 All the Justices
concur.
A MARSHALL DEAD
----------------
PADEN
TOLBERT, NOTED DESPERADO CATCHER, DIED AT
WELEETKA
------------------
OFFICER WITH A
RECORD
------------------
Led in Capture of Jennings
Gang and Assisted in
the
Wiping Out
of Numerous Bands of
Outlaws
Special to The
Oklahoman
Muskogee, I.T.,
April
27--Paden Tolbert, one of the most moted of
Indian
Territory deputy marshals,
died at Weleetka yesterday of
congestion of
the lungs, at the age of 34
years.
Tolbert had been
in
the service for 12
years, until a few months since when
he resigned and became a special officer
for the Fort
Smith & Western
railroad. He went on the marshal's force
when he was
22 years old, and was a
partner of Bud
Ledbetter, the two
having
passed through some of the
hottest fights that occurred during the stirring
days
from
*92 until the
present.
Marshal Bennett states that he considered
him
one of the
bravest men that he
ever had on the
force.
it was
Tolbert and
Ledbetter that
surrounded
the Jennings gang at the "Spike S" ranch and
after
shooting a house all to pieces drove the
bandits out
and
captured them after
a
chase of
sixty miles, arresting Al
and Frank Jennings and Pat and
Morris
O'Malley. This
occurred
in *97 and the Jennings
gang was one of the most
noted in Indian
Territory history.
Tolbert
and
Ledbetter were together
when Ned
Christie was killed in
his fort at
"Rabbit Trap" in the
Cherokee
nation.
Christie was
wanted for murder. He went into the mountains
near
Welling and there built a
fort. It was a stout
log
house
filled with
port holes on every side, and from
this he stood off every posse of officers
that tried to
capture him for a
year. Finally a small cannon was taken out
and
placed on the mountain side and
an attempt was made to
destroy the house,
but it was
unsuccessful.
Tolbert
and Ledbetter went out with a
posse and
surrounded the
cabin,
Christie fought them off
until finally a wagon was loaded
with rails and
pushed up towards the house. The rest
of the
possee
protected the men
pushing the
wagon by
raining a storm of bullets into the
portholes on that side
of the house
and when the men were close enough they
synamited
the house.
When the house was blown up
Christie ran
out and was
shot down.
This
same pair
of officers were on the M.K.&T. train when
it was held
up at Wybark in '94 and
Texas Jack and Charley Belstead were
killed. At that
time the
railroads had to keep U.S.
men on all their
trains running through the territory on
account of train robberies. This
time Tolbert and
Ledbetter were in
the express car. The train was running
at full speed
when the robbers threw
a switch in front of
it and ran it
in on a
siding on which were some
box cars,
intending to wreck it. The engineer
stopped the
train but beforeit came
to a standstill the robbers opened
fire. The fight
that followed
was one of the most
desperate in the history
of railroading. It lasted
for
an hour and forty minutes.
Texas Jack
and
Charley Balstead were
killed, the other robbers
escaping. The hold-up
men riddled the passenger
coaches
with bullets and some of
the passengers were
injured. Failing to dislodge the
officers from the express car, they
crawled up under the
cars and
threw
sticks of dynamite into the door.
Holes were
blown in the floor
of both the express and
baggage cars,
but the
officers were not injured
and
continued to shoot. When Balstead and Texas
Jack
were killed the others
ran.
Source: Daily Oklahoman Archives,
printed April 28, 1894 on Page 8
Transcribed by
Linda
Craig