Williams v. Turnbull

• Decision Date: 19 December 1916
• Docket Number: 7849.
• Citation: 162 P. 770,65 Okla. 34,1916 OK 1033
• Parties: WILLIAMS v. TURNBULL.
• Court: Oklahoma Supreme Court

162 P. 770

65 Okla. 34, 1916 OK 1033

WILLIAMS v. TURNBULL.

No. 7849.

Supreme Court of Oklahoma

December 19, 1916

Rehearing Denied Jan. 30, 1917.

Syllabus by the Court.

In a suit to enforce the collection of a promissory note, where the answer and the evidence disclose that the consideration thereof was a sale of the improvements on and possession of lands held by the promisee in violation of Act Cong. July 1 1902, c. 1362, 32 Stat. 641, the judgment of the court denying recovery was proper, for the contract of sale was unlawful and void.

Where an act is absolutely prohibited by statute or is contrary to the public policy of the state, all notes or contracts given in furtherance of said act are null and void.

Commissioners' Opinion, Division No. 3. Error from District Court, Garvin County; F. B. Swank, Judge.

Action by S. L. Williams against Ryan Turnbull. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Blanton & Andrews, of Pauls Valley, for plaintiff in error.

Garrison & McArthur, of Pauls Valley, for defendant in error.

HOOKER C.

S. L Williams in December, 1912, filed a suit in the district court of Garvin county against Ryan Turnbull and another to recover a judgment upon a promissory note alleged to have been executed on the 1st day of April, 1909, for the sum of $854.84, due and payable one year after date. Ryan Turnbull filed an answer, which, following a general denial, asserts that the note sued upon was a renewal note executed by him to W. P. Bradley more than 90 days subsequent to the 25th day of September, 1902, and that the consideration of said note executed to Bradley was for improvements placed upon Indian lands situated in the Chickasaw Nation, which was then illegally held by Bradley as a member of the Choctaw-Chickasaw Tribes of Indians as being in excess of the value of 320 acres of average allottable land, which the said Bradley, his wife, or any of his minors were entitled to hold under the law as a member of said tribe, and that there was no consideration of said note, and for such reason said note was void. The reply filed to said answer asserts that while the note was a renewal of a former note of Ryan Turnbull to Bradley, that the same had been indorsed by Bradley to this plaintiff, and that Bradley was liable to the plaintiff upon his indorsement upsaid note, and that the said note with the indorsement of Bradley thereon was surrendered at the time of the execution of the new note, and after said note became due suit was instituted thereon, and at the instance and request of Ryan Turnbull the suit was dismissed, and time of payment extended one year.

The issue in this case is to determine whether the original note given by Ryan Turnbull to W. P. Bradley for the improvements aforesaid constituted a contract contrary to law and void, or whether the note was merely without consideration. It seems to be agreed here that, if the note was contrary to public policy and void, that the judgment of the lower court is correct.

Section 19 of an agreement between the United States and the Choctaw Indians, 32 St. at Large, p 642, is as follows:

"It shall be unlawful after ninety days after the date of the final ratification of this agreement for any member of the Choctaw or Chickasaw Tribes to inclose or hold possession of in any manner, by himself or through another, directly or indirectly, more lands in value than that of three hundred and twenty acres of average allottable lands of the Choctaw and Chickasaw Nations, as provided by the terms of this agreement, either for himself or for his wife, or for each of his minor children if members of said tribes; and any member of said tribes found in such possession of lands, who having the same in any manner inclosed after the expiration of ninety days after the date of the final ratification of this agreement, shall be deemed guilty of a misdemeanor."

The statute aforesaid makes it a misdemeanor for any member of the tribe to inclose or hold possession of in any manner by himself or through another directly or indirectly more land in value than 320 acres for himself, his wife, or for each of his minor children. Now then, is there any consideration for a note thus executed, or is the note contrary to public policy and void?

This court in the early case of Garst v. Love, 6 Okl. 46, 55 P. 19, said:

"In a suit to recover compensation for the pasturage of cattle under a contract which is alleged by the plaintiffs to provide for the defendant's turning his cattle into the * * * pasture of the plaintiffs, to be kept and cared for, and held by the plaintiff therein, and which pasture, it is alleged, is inclosed by a post and wire fence, paragraphs of the answer which state that this inclosure is maintained upon government land, to which the plaintiffs have no right or title, and which it is alleged they are holding exclusive possession of, for rental and speculation, to the exclusion of the defendant and other persons, thereby requiring the defendant to pay for the use thereof, and that the plaintiffs' said pasture is an unlawful inclosure of public lands, in violation of the provisions of the act of Congress of February 25, 1885, state a good defense, and it is error to sustain a demurrer thereto."

From the opinion of the above case we quote the following:

"In the case of Bank of United States v. Owens, 2 Pet. 527 , it was held that not only were contracts in violation of law and public policy void, but that the rule was extended to such as are calculated to affect the general interests and policy of the country. Now, while the contract in question may not be in direct violation of law and public policy, it does, if enforced, give to the plaintiffs a reward for their violation of this express statute of the United States, and furnishes the very remuneration that is so strong a temptation for its continued violation. We must dispose of this question before us from a broad and comprehensive standpoint, rejecting technical distinctions, whose only merit would be to defeat the statute, and hold all acts within the implied, if not the express, prohibition of the statute, which tend to aid its direct violation. Any other policy would be analyzing crime and distinguishing between illegalities in the unwitting aid of a continuing violation of the law."

In Dillon & Palmer v. Allen, 46 Iowa, 299, 26 Am....