Sharp v. Lancaster

TüRNER, J. (after stating the facts as above). It is contended, in effect, by plaintiffs in error that the court erred in sustaining the demurrer to their answer, because they say that prior to the execution and delivery by Zeke Moore to the United States Loan & Trust Company of the lease under which they claim, all restrictions upon the alienation of his lands, imposed by the act of Congress approved March 1, 1901 (Act March 1, 1901, c. 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 the act ratified June 30, 1902 (Act June 30, 1902, c. 1323, § 16, 32 Stat. 503), 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,” had been removed by that part of the act -of Congress approved April 21, 1904 (Act April 21, 1904, c. 1402, 33 Stat. 204), 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 *353 blood, except minors, are, except as to homesteads, hereby Te-moved.” And for that reason, and as their rights as assignees thereunder are admitted on demurrer, the same conveyed to them a good lease-hold title to the lands therein set forth, with right of possession thereto. On the other hand, it is, in effect, contended and the court in sustaining the demurrer, in effect, held that said act, approved April 21, 1904, removing restrictions on “aliemation” did not remove restrictions on leasing. Therein we think the contention untenable, and the court erred. In construing these acts we held, in the case of John G. Eldred et al. v. Okmulgee Loan & Trust Company, 22 Okla. 742, 98 Pac. 929, that by removing restrictions on “alienation” Congress intended to, and did, remove restrictions on leasing; that an oil, gas, and mineral lease was an “alienation” within the' meaning of those acts, and for that reason the same did not require the -approval of the Secretary of the Interior. Although not recorded, plaintiff and his grantor, having actual knowledge of the lease at the time of the' execution and delivery of the deed from Moore to plaintiffs grantor, as charged in the answer and admitted on demurrer, took subject to it. Griesler at al. v. McKennon, 44 Ark. 517; Brown v. Hanauer, 48 Ark. 277, 3 S. W. 27; Byers et al. v. Engles, 16 Ark. 543; 24 Am. & Eng. Enc. of Law, 131, and cases cited. The case is reversed and remanded, with instructions to overrule the demurrer and proceed in accordance with this opinion. All the Justices concur.