Capps v. Hensley

• Decision Date: 02 March 1909
• Docket Number: Case Number: 885 Ind Ter T
• Citation: 23 Okla. 311,100 P. 515,1909 OK 41
• Parties: CAPPS et al. v. HENSLEY.
• Court: Oklahoma Supreme Court

1909 OK 41

100 P. 515

23 Okla. 311

CAPPS et al. v. HENSLEY.

Case Number: 885 Ind Ter T

Supreme Court of Oklahoma

Decided: March 2, 1909

Syllabus

¶0 1. GUARDIAN AND WARD--Indians--Leases--Validity. A lease, executed by a natural guardian who has not submitted himself or his actions to a court having jurisdiction, nor executed a bond, nor procured an order to lease, is void as to such infant, at his or the option of those who legally represent him.

2. LANDLORD AND TENANT -- Leases -- Adoption. Where, in such a case, after the death of the infant, the natural guardian, being the father and sole heir, recognizes the tenant holding thereunder by accepting from him the money for the rent of the premises, such action on his part will constitute an affirmance or adoption of the contract, and create of it a binding and enforceable obligation between them.

Maxey & Runyan, for appellants.--Adoption or affirmance of a voidable lease by acceptance of rent: Oregon Ry. Co. v. Oregon Ry & Nav. Co., 28 F. 505; Golding v. Brennan, 67 N.E. 239; Eureka Co. v. Baily Co., 11 Wall. 491; Gold Minco v. Nashville Bank, 96 U.S. 644.

Benj. Martin, Jr., for appellee.--The natural guardian could not make a valid lease of ward's land without authority of court: Indian Land & Trust Co. v. Shoenfelt, 79 S.W. 134, 135 F. 484; Mansfield's Dig., ch. 23.

Appeal from the United States Court for the Western District of the Indian Territory, at Muskogee; William R. Lawrance, Judge.

Ejectment by Gertrude Hensley against James R. Capps and others. Judgment for plaintiff, and defendants appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma. Reversed and remanded.

This is an action in ejectment, brought by Gertrude Hensley as plaintiff against James R. Capps, Coley Capps, and A. Jack Howard, defendants, in the United States Court for the Western District at Muskogee. The case was tried before the court without a jury on the pleadings and an agreed statement, which presented substantially the following facts: On August 23, 1902, Gertrude Samuels was the only child of James Samuels and her mother, Nellie Samuels, and was a minor of about 12 years of age. These people were Creek freedmen. On that date an agricultural lease was made by the father, as natural guardian of the land and allotment of his said child, to Anthony Crafton, for a term of five years, which lease was afterwards assigned to the Muskogee Development Company, which was the owner of the same, at the time of the institution of this action. This lease was not approved by any court, nor recorded until the 9th day of January, 1905. The said minor child, Gertrude Samuels, died February 14, 1903. The agreed statement of facts then states that "after the death of the said Gertrude Samuels, the said James Samuels continued to receive the rents from the lessees of said premises." Then follows a statement showing that there was paid by the said lessees, and received by said James Samuels, on March 6, 1903, $ 100; March 7, 1903, $ 5; September 4, 1903 $ 5; September 28, 1904, $ 20. The allotment deeds to the lands were issued by the Principal Chief of the Creek Nation on the 5th day of August, 1904, and approved by the Secretary of the Interior on the 9th day of September following, and were delivered to James Samuels on the 1st day of April, 1905. The controversy out of which this suit arose grew out of the sale of this land by the father and mother, who conveyed by warranty deed on September 1, 1904, the east half of the quarter section to the plaintiff, Gertrude Hensley. At the time of the said conveyance Howard and Capps, two of the defendants were in possession of the land as tenants of the holders of the lease. The grantee under the deed knew that they were in possession, but did not know whose tenants they were. On the 4th day of April, 1905, the said grantors conveyed by a quit claim deed, to the plaintiff, the whole quarter section above described, and at the time of receiving this deed she knew of the lease executed to Anthony Crafton, and the assignment thereof. The plaintiff has not demanded, nor have the lessees paid, any rent to her for the land. The only lease executed or delivered on which the defendants rely is the one from the father above mentioned.

The court, after considering all of these facts, found for the plaintiff, and rendered judgment granting her immediate possession, and damages for the use and occupation of the premises in the sum of $ 420 and costs. A motion for new trial was duly filed, overruled, and exception saved, and an appeal lodged in the United States Court of Appeals of the Indian Territory, and the same now comes to us for our consideration by virtue of our succession to that court.

Maxey & Runyan, for appellants

Benj. Martin, Jr., for appellee

DUNN, J.

¶1 Counsel for plaintiff in error in their brief take the position that section 35 of the Creek Agreement, passed and approved by Congress on March 1, 1901, c. 676, 31 Stat. 871, and afterwards ratified by the Creek nation, commonly known as the "original agreement," gives to Creek parents, as the natural guardians of their minor children, the right to lease the lands allotted to them without the intervention of any court, and that when such leases were made, they were prima facie valid and legal. Counsel for defendant in error meet this by the authority of the cases (Indian Land & Trust Co. v. Shoenfelt, 5 Indian Terr. 41, 79 S.W. 134, and Pilgrim v. McIntosh et al. [Ind. T.] 104 S.W. 858), which hold generally that a lease by a natural guardian who has not submitted himself and his actions to a court having jurisdiction, nor executed a bond, nor procured an order to lease, is void.

¶2 The first of these cases (Indian Land & Trust Co. v. Shoenfelt) was carried to the Circuit Court of Appeals, and there reversed (135 F. 484, 68 C.C.A. 196) on other grounds than the one of interest here. So that, so far as the principle involved in this case is concerned, it may be considered as an expression of the judgment of the Court of Appeals of the Indian Territory on the proposition. That case grew out of the action of the United States Indian agent acting on behalf and in the interest of a minor, under the statute which gave such official power to place a minor in possession of his lands when they were held under contract "not obtained in conformity to law." The second case was one where Pilgrim sought to enjoin the regular appointed guardian and the United States Indian agent from interfering with him in his possession of the lands of a minor, which he held under a contract made with the natural guardian. So it will be seen the defendants in each case were proceeding to protect the interests of, and acting for the minor, and the court held that as against the minor, the contracts of lease presented which had been made by the natural guardian were void. The basis for the conclusion to which the court came was that the statutes of Arkansas relating to guardians and minors were controlling, and were neither repealed nor their controlling force defeated by any subsequent treaty or federal legislation.

¶3 In our judgment a proper understanding of the rule enunciated by the court in those two cases goes no further than to hold the contracts entered into by the natural guardians void when in conflict with the interests of the minor, as represented by the government or a legally appointed guardian; that is, that they were void or not enforceable as against the minor. A contract entered into by a minor himself with an adult, is not void as to the adult, except on the same grounds that would make it void between two competent contracting parties. Infancy is a plea personal to the infant, and is not available to one dealing with him, but in reference to such contracts, "the words 'void' and 'voidable' are often loosely used, and much confusion has resulted therefrom. 'Void' is so frequently employed in the sense of 'voidable' as to have almost lost its primary significance; and, when it is found in a statute, judicial opinion, or contract, it is generally necessary to resort to the subject-matter or context in order to determine precisely what meaning is to be given to the word." 29 Am. & Eng. Ency. of Law, 1065; Pearsoll v. Chapin, 44 Pa. 9; Hammon on Contracts, § 155. In keeping with the quotation from the Encyclopedia of Law, supra, and with special applicability to the question before us, Mr. Hammon in his work on Contracts, supra, speaking to this subject says:

"The courts are not always discriminating in the use of the terms 'voidable' and 'void' and that the word 'void' is often used where 'voidable' is more or less obviously meant. This want of discrimination will be found to occur in many of the cases in terms holding an infant's contract to be void. A majority of these cases appear to establish only that the contract cannot be enforced against the infant or some other collateral point equally consistent with its being merely voidable, except when they show distinctly that the contract is voidable, and not void. In any event, by the weight of authority both in America and in England, the doctrine that an infant's contracts may be absolutely void does not prevail, and, subject to one exception, his contracts are valid if he elects to treat them so when he comes of age."

¶4 In the case at bar the infant could not have made this contract so that it would be binding as against herself, by reason of lack of competency or power. The rights of majority had not been conferred, nor had they been attained. Hence she was not competent under the law to deal in this way with her landed estate. Neither could the natural guardian deal with this estate, for that the power had not been vested, and in either event a contract of this character, made by the infant or by the natural guardian, would be voidable or void at the instance...