Eldred v. Okmulgee Loan & Trust Co.
| Decision Date | 01 December 1908 |
| Citation | 98 P. 929,22 Okla. 742,1908 OK 246 |
| Parties | ELDRED et al. v. OKMULGEE LOAN & TRUST CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A lease is an "alienation of lands," within the intent and meaning of Act April 21, 1904, c. 1402, 33 Stat. 204.
[Ed Note.-For other cases, see Indians, Cent. Dig. § 45; Dec Dig. § 16. [*] ]
Error from the United States Court for the Indian Territory Western District, at Muskogee.
Action by the Okmulgee Loan & Trust Company against John G. Eldred and others. Judgment for plaintiff, and defendants bring error. Reversed.
On December 29, 1906, Okmulgee Loan & Trust Company, defendant in error, plaintiff below, sued J. G. Eldred and A. W Leonard, plaintiffs in error, defendants below, in the United States Court for the Indian Territory, Western District, at Muskogee, to clear its title to the W. 1/2 N.W. 1/4 section 9, township 12 N., range 14 E., I. M., in the Creek Nation, and in its amended complaint, in substance, states: That it is a domestic corporation; that the land is a portion of the allotment of Mary Jackson, a citizen of that nation; that she was a Creek freedman, and as such, on the 16th day of August, 1906, received a patent therefor, from the Principal Chief of said nation; that on said day she for a valuable consideration, by warranty deed, sold the same to plaintiff, who since that time has been in possession as owner thereof in fee; that on July 10, 1905, said Mary Jackson, formerly Lewis, with her then husband, Webster Lewis, made, executed, and delivered to defendant J. G. Eldred an oil and gas mining lease, covering said premises, and thereby undertook to convey to him all the oil and gas rights under and within said land, who, on July 23, 1905, sold and assigned an undivided three-fourths interest in said lease to A. W. Leonard, and filed as an exhibit a copy thereof, and charged that the same had never been approved by the Secretary of the Interior, and was void; that defendants are asserting an interest in said premises by virtue of said lease, which they had caused to be duly recorded, and are seeking to take possession of the premises for the purpose of prospecting for oil and gas, which they have no right to do; that the oil and gas rights reserved to the lessor are of great value; that the claim of defendants constitute a cloud on plaintiff's title, and pray that the same be set aside and the title quieted. To this there was a general demurrer, which the court overruled; and, defendants electing to stand thereon, a decree was entered, declaring said lease void because not approved by the Secretary of the Interior, and for that reason a cloud upon plaintiff's title, and removing the same, and plaintiff's title to said land quieted, to all of which defendants excepted, and have prosecuted their appeal to the United States Court of Appeals for the Indian Territory, and the same is now before us for review, as successors of that court, by virtue of the terms of the enabling act.
James L. Allen, for plaintiffs in error.
Moore & Noble, N. A. Gibson and George S. Ramsey, for defendant in error.
A. L. Beatty, amicus curiae.
It is contended by plaintiffs that the court erred in overruling their demurrer, for the reason that, prior to the making of her lease to Eldred, all restrictions upon the alienation of the lands of Mary Jackson, imposed by the act of Congress approved March 1, 1901 (chapter 675, § 10, 31 Stat. 850), which reads: "Lands allotted to citizens hereunder, shall not in any manner whatsoever, or at any time, be incumbered, taken or sold to secure or satisfy any debt or obligation contracted or incurred prior to the date of the deed to the allottee therefor, and such lands shall not be alienable by the allottee, or his heirs, at any time before the expiration of five years from the ratification of this agreement, except with the approval of the Secretary of the Interior," and Act June 30, 1902, c. 1323, § 16, 32 Stat. 503, ratified August 8, 1902, which reads: "Lands allotted to citizens shall not, in any manner whatever, or at any time, be incumbered, taken or sold to secure or satisfy any debt or obligation, nor be alienated by the allottee or his heirs, before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior"-were removed by that part of the act of Congress, approved April 21, 1904 (33 Stat. 204, c. 1402), which reads: "And all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of indian blood, except minors, are, except as to homesteads, hereby removed"-and for that reason said lease was valid and binding, and should not have been removed as a cloud upon plaintiffs' title. By defendant in error it is contended that, construing said sections with section 37 of the act approved March 1, 1901 (31 Stat. 871, c. 676), which reads: "Creek citizens may rent their allotments when selected, for a term not exceeding one year, and after receiving title thereto, without restrictions, if adjoining allottees are not injured thereby," etc.; and with section 17 of the act approved August 8th, which reads: ...
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