Hawkins v. Klein

• Decision Date: 12 October 1926
• Docket Number: Case Number: 16631
• Citation: 1926 OK 819,255 P. 570,124 Okla. 161
• Court: Oklahoma Supreme Court
• Parties: HAWKINS et al. v. KLEIN et al.

1926 OK 819

255 P. 570

124 Okla. 161

HAWKINS et al. v. KLEIN et al.

Case Number: 16631

Supreme Court of Oklahoma

Decided: October 12, 1926

Syllabus

¶0 1. Indians--Statutory Authority of Quapaw Allottee to Make Business or Mining Lease. Under Act of Congress approved March 2, 1895 (28 Stat. at L. 907) as amended by Act of Congress approved June 7, 1897 (30 Stat. at L. 62-72), an Indian within the limits of the Quapaw Agency is authorized to make a mining or business lease upon allotted lands for a term not to exceed ten years, unless the Department of the Interior has, by some affirmative action with reference to the individual Indian, taken away the right conferred by the congressional act referred to, to make such lease.

2. Landlord and Tenant--Death of Lessor--Forfeiture of Lease for Breach of Covenants--Necessity for All Heirs to Join in Election to Forfeit and Notice. Where a lessor dies leaving several heirs, all the heirs must concur and unite in an election to enforce a forfeiture on account of the breach of entire and indivisible covenants; and no one of the heirs, by virtue of his cotenancy only is authorized to act for his cotenants in enforcing a forfeiture; and an election to forfeit by one of the heirs only, or notice of forfeiture by one heir only, is insufficient to accomplish a forfeiture; but all must join in the election and notice.

3. Same--Sublease--Additional Rights Acquired by Sublessee from Owners not Induring to Benefit of Sublessors. Where the only relationship of H. to K. and associates was that of sublessee under them, and while in such relationship H. acquired additional rights in the property from the owners, held, that H. was not the confidential agent of K. and associates; and further held, that any such additional rights acquired by H. do not inure to the benefit of K. and associates.

4. Judgment Sustained.

Record held to support the judgment.

O. F. Mason, for plaintiffs in error.

Vern E. Thompson and M. W. Hinch, for defendants in error.

SHACKELFORD, C.

¶1 The first contention of the plaintiffs in error is that the mining lease executed by Charles Dawes and his wife, Minnie Ball Dawes, under which lease the plaintiff. Elmer E. Klein, claims, is invalid and void because the property, covered by the lease was a part of the Indian allotment of Minnie Ball Dawes, a restricted Quapaw Indian woman, and her restrictions had not been removed, nor the lease authorized or approved by the Secretary of the Interior; and that without such action by the Secretary of the Interior, she (Minnie Ball Dawes) was not legally authorized to execute the character of lease secured by W. A. Moses. They contend that Minnie Ball Dawes, a duly enrolled Quapaw Indian within the limits of the Quapaw Agency, received the lands as a part of her allotment, subject to restrictions against alienation thereof for a period of 25 years, as provided by Act of Congress approved March 2, 1895 (28 Stat. L. 907). The act referred to, as amended by Act of Congress approved June 7, 1897 (30 Stat. L. 62-72), is as follows:

"That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their lessees and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided, that whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him."

¶2 It seems that under this congressional act, Minnie Ball Dawes, an Indian woman within the limits of the Quapaw Agency, was authorized to lease her land for mining purposes or a term of ten years, unless it had been made to appear to the Secretary of the Interior that by reason of age or other disability she was unable to manage her allotment; if so, then the leasing was within the discretion of the Secretary of the Interior. It seems that this act gave authority to the allottee to convey mining rights by lease not exceeding ten years, unless it was or had been made to appear to the Secretary of the Interior that the allottee was incapable of managing her allotment. The question here is, Had the Secretary of the Interior taken the leasing of this land for mining purposes out of the control of the allottee, Minnie Ball Dawes?

¶3 The plaintiffs in error seem to rely upon section 11 of the regulation issued by the Department of the Interior in January, 1907, for an affirmative answer to this question, asserting that she is listed as an incompetent in said section 11. In this section of the regulations, a number of Indians are listed as incompetents; and the defendants in error admit that this Indian woman (Minnie Ball Dawes) is included in the list. After further consideration by the Department of the Interior of the competency of the Indians listed, it seems that further regulations were promulgated by the Department and the list revised, and the individual Indians classified, and Minnie Ball Dawes was not included in the list of incompetents. This revised classification seems to have been made in the latter part of 1907. It seems that Minnie Ball Dawes was permitted to lease her land without interference by the Department of the Interior until as late as about April, 1918, when she was declared to be "incompetent with respect to mining and business leases." The order is dated April 5, 1918. There seems to be no intimation in the order that the order should operate retroactively, even if the Department is clothed with power to make the order retroactive. From this last order Minnie Ball Dawes herself appealed to the Department of the Interior to again classify her as competent, and in her appeal she calls attention to the lease contract made with W. A. Moses by way of showing her ability to transact her own business affairs.

¶4 We conclude, upon this record, that on the 16th day of May, 1916, Minnie Ball Dawes was regarded by the Department of the Interior as competent to execute the mining lease she made in favor of W. A. Moses on said date, and that her status of competency remained until the Department of the Interior made the incompetency order against her as of April 5, 1918. Approval by the Department of the Interior was not essential to make the said lease contract a valid lease, under the circumstances appearing in this record.

¶5 The second contention made is that the Dawes-Moses lease was forfeited; and that the findings of the trial court that the lease was not forfeited, but was in force and effect, are against the clear weight of the evidence. The Dawes-Moses lease provided what should constitute grounds of forfeiture, and how forfeiture should be accomplished. The grounds of forfeiture consisted in failing to mine, pay royalty allow examination of the books, failure to keep the books in proper form, to refuse examination of the mining premises, or to fail to perform the conditions of the contract, all as provided in the lease. The means of forfeiture provided for are:

"The parties of the first part may declare this lease forfeited by serving notice upon the party of the second part, either in person or through the mail at the last known address of the party of the second part, heirs or assigns, stating that said lease has been forfeited, and thereupon may take immediate possession," etc.

¶6 Thus, grounds of forfeiture must, in fact, exist, and the notice be given. This lease contract was made on the 16th day of May, 1916, and Minnie Ball Dawes and Charles Dawes were parties of the first part, and W. A. Moses was party of the second part in the execution of the lease. Minnie Ball Dawes, one of the parties of the first part, died on about the 4th of February, 1919, leaving as her sole heirs at law Charles Dawes, her husband, and Beatrice Peters Schapp, and Juanita Alma Dawes, her daughters. From the death of Minnie Ball Dawes these, her heirs, were in the position of owners of the rights acquired by parties of the first part in the Dawes-Moses lease. The record tends to show that on the 24th day of June, 1920, a forfeiture notice was issued by Charles Dawes alone, addressed to W. A. Moses, Elmer E. Klein, Harry H. Hawkins, and some 12 other parties named in the notice, calling the attention of these parties to a certain provision in the lease, as follows:

"That mining shall be carried on in good faith continuously and shall not be suspended at any time to exceed ten days in any two consecutive calendar months, without written permission of the lessors or their agent"

--and to the further provisions of the lease that if the conditions of the lease have not been complied with, the lessors-are authorized to take immediate possession without notice to quit or demand for possession and notifying the parties named that the lessee and assigns have "wholly failed to mine said land in good faith or in any manner provided by said contract," and further notifying the parties "that the said lessors have elected to and have re-entered upon the said lands and all mining rights under said lease are declared forfeited and canceled." The notice is signed "Charles Dawes," and acknowledged by him; and the notice is filed of record as of the 24th of June, 1920, and recorded. The evidence tends to show that copies of this notice were mailed to the parties named in the notice at their last known addresses. This is the notice of forfeiture upon which the defendants Hawkins and Dawes rely. The court found such notice to be insufficient. If this notice was insufficient, there seems to have been no forfeiture. It seems from this record that the land involved was...