Reeves & Co. v. Sheets

• Decision Date: 08 September 1905
• Citation: 82 P. 487,16 Okla. 342,1905 OK 125
• Parties: REEVES & CO. v. SHEETS.
• Court: Oklahoma Supreme Court

82 P. 487

16 Okla. 342, 1905 OK 125

REEVES & CO. v. SHEETS.

Supreme Court of Oklahoma

September 8, 1905

Syllabus by the Court.

Where a party holds a lease of Indian lands which has been approved by the proper officers of the Interior Department, such lease containing a provision that the party holding the lease will not, at any time during the period for which the said lands and premises are leased, sublease, assign, lease, convey, or transfer any of his estate, interest, or term, or any part thereof, or sublet the same to any person without the consent thereto of the party of the first part and the approval of the same by the Secretary of the Interior, a subleasing of the same without the consent of the Secretary of the Interior is void, and conveys no right by such subleasing, and the sublease cannot be enforced. The doctrine of estoppel between landlord and tenant does not apply.

While a mortgage upon crops to be grown in the future may be valid, a mortgagor cannot create a lien upon property which he does not own at the time and in which he afterwards acquires no interest.

Error from District Court, Noble County; before Justice Bayard T Hainer.

Action by Reeves & Co. against John R. Sheets. Judgment for defendant, and plaintiff brings error. Affirmed.

J. W Quick and S. H. Harris, for plaintiff in error.

Green & Martin, for defendant in error.

BEAUCHAMP J.

This is an action in replevin, commenced by the plaintiff in error against defendant in error in the district court of Noble county, to recover the possession of a crop of wheat grown and harvested on the S.W. 1/4 of section 18, township 23 range 2 E. in the Otoe Indian reservation, at that time attached to Noble county for judicial purposes, in which the plaintiff claimed a special ownership and to be entitled to the possession thereof by reason of a certain instrument in writing, which reads as follows:

"Know all men by these presents: That C. Z. Spurlock, of the county of Kay and territory of Oklahoma, in consideration of the sum of eleven thousand five hundred forty-eight dollars to him in hand paid, the receipt whereof is hereby confessed and acknowledged, have and by these presents do grant, bargain, sell, assign, transfer, and make over unto J. R. Sheets all the following described property, to wit: All the farm leases held by C. Z. Spurlock in Otoe Reservation, O. T., and to include all crops raised thereon during the term of said lease. This mortgage to cover all rights owned or to accrue to the mortgagor, by rents or otherwise, including the S. 1/2 13, S.E. 14, S.W. 12, W. 1/2 S.E. 12, E. 1/2 N.E. 12, N.W. 12, all in T. 23 N., R. 1 E.; also S.W. 18, N.W. 19, S.E. 15, S.E. 27, all in T. 23 N., R. 2 E.--and all increase. All said property being owned by me and kept on the above-described premises and free from liens of every kind whatsoever. To have and to hold the same, forever: provided, and these presents are upon the express conditions, that, if the said mortgagor shall pay to the said mortgagee, or order, certain promissory notes, to wit: One for $5,319.27, dated Aug. 28, 1902, due July 1, 1903; One for $6,228.73, dated Aug. 28, 1902, due July 1, 1904--interest at 10 per cent. from date, then these presents and this transfer to be void and of no effect; but, in case of nonpayment of said sum of money or any part thereof at the time mentioned, or in case the said mortgagee, his agent, attorney, or assigns to take possession of said property and sell the same at public or private sale, after giving 10 days' notice thereof by posting up printed or written notices in five public places in Kay county, and to apply the avails of said property to the payment of the above indebtedness and the whole thereof, returning the residue to the mortgagor upon demand after paying said indebtedness and all costs, charges, and expenses of such taking, advertising, and selling, attorney's fee of $25.00 in case of commencement of foreclosure of this mortgage. And the said mortgagor hereby waives demand and personal notice of the time and place of sale. Witness my hand this 28th day of Aug. 1902. C. Z. Spurlock.

"Signed and delivered in presence of: F. W. Stone. R. A. Logue."

On June 18, 1902, the defendant, J. R. Sheets, W. C. Snodgrass, and C. Z. Spurlock executed certain notes to the plaintiff for the purchase of a threshing outfit. On August 28, 1902, Spurlock executed his notes to the defendants, Sheets, and to secure payment of these notes executed the instrument hereinbefore set out. The land described in the instrument was at the time Indian land, being an allotment of an Indian, Albert Green, under the control of an Indian agent and the Interior Department. The notes executed by Spurlock to Sheets, and the instrument set out given to secure the payment of the same, were on October 21, 1902, delivered to John Tracy, agent for Reeves & Co., to be held as collateral security for the payment of the notes of Sheets, Snodgrass, and Spurlock to Reeves & Co., with the following agreement: "Newkirk, O. T. Aug. 21, 1902. I have this day received of John R. Sheets two notes, dated Aug. 28, amount $11,548.00, given by C. Z. Spurlock; these notes to be held by Reeves & Co. till John R. Sheets pays the balance of his notes due Reeves & Co. that mature in 1902. John Tracy. J. R. Sheets."

February 15, 1901, Spurlock leased the land described in the mortgage from Albert Green, an Otoe Indian, for a term of three years from August 1, 1901, which lease was approved by the Department of the Interior on September 12, 1901. On May 4, 1903, this land was conveyed by deed to Frank E. Stone, which deed was approved by the Department of the Interior on May 19, 1903. The lease by Green to Spurlock contains the following provision: "That he [Spurlock] will not at any time during the period for which said land and premises are herein leased assign, lease, convey, or transfer any of his or their estate or term, or any part thereof, in the same, or the appurtenances thereto, or sublet the same, to any person or persons whomsoever, without the consent thereto of the party of the first part [the Indian] in writing being first obtained, and the same approved by the Secretary of the Interior." Spurlock turned the possession of the land over to Sheets in 1903, and in the fall of 1903 Sheets seeded the land to wheat, which crop he harvested in 1904. After the crop was harvested the plaintiff made demand for the same, and, possession having been refused, this suit was brought on June 27, 1904. Sheets gave a redelivery bond, and retained possession of the wheat. Upon the conclusion of the evidence, over the objection and exception of the plaintiff, the court directed the jury to find for the defendant. Motion for new trial was heard and overruled, and exceptions saved; and plaintiff in error brings the case here upon petition in error and case-made for review.

As will be seen from the facts as stated, the interest of Spurlock in the land at the time he executed the instrument in writing to Sheets was such as he derived from the lease executed by the Indian, Green, to him, and approved by the Secretary of the Interior; and this interest, by the express terms of the lease, and as expressly provided by statute, was nonalienable. See 26 State. 795, c. 383. This court held, in the case of Megreedy and Others v. Macklin and Others, 12 Okl. 666, 73 P. 293, that: "Where a party holds a lease of Indian...