eration, however, is one affecting the mode of
exercising the jurisdiction conferred, and is
not pertinent to the inquiry whether the Leg-1.
islature intended to confer it.

The order of the district court is affirmed.

DAVIDSON ▾. ARDMORE STATE BANK. ceased ancestor, such heirs took the title by in

[Ed. Note.-For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. 15(2).] 5. INDIANS -VALIDITY.

15(2)-LANDS-CONVEYANCES

the fact that the land descended to the heirs Principal Chief of the Creek Nation. On the free of all restrictions on alienation, except the part of the plaintiffs in error, it is claimed disability of minority. that tract No. 1 was allotted to Moses Coney February 2, 1900, or some four months before his death. The record discloses that on the day last named, Moses Coney made formal application to allot said tract, though it does not appear that his selection was acted upon, or approved by the allotting commission, or that a certificate of selection issued until May 24, 1901. We will therefore consider, as the trial court found, that the entire allotment made in the name of Moses Coney was set apart in his name and right by the Commission to the Five Civilized Tribes, after his death.

A conveyance by an adult full-blood Indian heir, of inherited allotted lands, made August 9, 1907, was, as to a portion of the lands attempted to be conveyed, approved by the Secretary of the Interior April 13, 1911, pursuant to the act of April 26, 1906. On September 25, 1908, said heir sold and conveyed said land to a third party, and on October 6, 1908, said sale and conveyance was approved by the county court having jurisdiction of the settlement of the estate of the deceased ancestor, as provided in section 9 of the act of May 27, 1908, c. 199, 35 Stat. 312. Held, that the rights of the second purchaser having intervened, and the first deed being without force until approved, the subsequent approval thereof was without effect upon the title of the grantee in the second deed. [Ed. Note.-For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. 15(2).] 6. INDIANS

15(2)-LANDS-TITLE-EQUI

TABLE RIGHTS. The conveyances through which the intervenor claimed an equitable title to lands as against both the grantee named in the deeds, and his subsequent grantee, not being approved by the Secretary of the Interior except as to a part of the lands, and that after the rights of third parties had attached, the equitable rights of said intervener, being dependent thereon, must fall with the legal title.

[Ed. Note.-For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. 15(2).]

Hardy, J., dissenting.

Error from District Court, Tulsa County; L. M. Poe, Judge.

Action by Lilly Jackson through her guardian W. C. Horton, against J. S. Moffett and others, and Nellie B. Conley, as administratrix of the estate of H. T. Conley, deceased, intervened. From a judgment for the intervener, the defendants other than Mack McCoy, bring error. Reversed.

C. C. Herndon and Martin, Bush & Moss, all of Tulsa, for plaintiffs in error. Biddison & Campbell, of Tulsa, for defendants in error.

SHARP, J. Moses Coney, a full-blood adult Creek Indian, died intestate in the month of June, 1900, leaving him surviving, as his sole heirs at law, Jennie Hickory and Tom Coney, both of whom were full-blood Creek Indians. Subsequent to the death of Moses, and on different dates, there was allotted in his name the following described and numbered tracts of land: Tract No. 1, consisting of lots 1, 2, and 3 in section 13, township 19 north, range 12 east, allotted May 24, 1901; tract No. 2, consisting of the east 7.03 acres of lot 1, section 14, township 19 north, range 12 east, allotted February 25, 1904, and tract No. 3, consisting of the E. 2 of the N. E. 4 of section 27, township 19 north, range 13 east, allotted August 22, 1902. Patents to said lands thereafter issued to "the heirs of Moses Coney, deceased," by the

As to tract No. 1, both the allotment and the death of Moses Coney occurred within the period during which section 11 of the Curtis Act (Act June 28, 1898, c. 517, 30 Stat. at L. 495, 497) was in force in the Creek Nation, by the terms of which the Commission was directed, upon the completion of the citizenship rolls and the survey of the lands of the tribe, to "proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof, as shown by said roll, giving to each, so far as possible, his fair and equal share thereof," with reservations not here involved. That part of the allotment, therefore, comes within the category of allotments confirmed by the Original Creek Agreement (Act March 1, 1901, c. 676, § 6, 31 Stat. at L. 861, 863). Tracts numbered 2 and 3 were allotted pursuant to section 28 of the Original Creek Agreement, which provided that if any enrolled citizen died on or subsequent to the 1st day of April, 1899, before receiving his allotment of land and distributive share of the funds of the tribe, "the lands and moneys to which it would be entitled, if living, shall descend to its heirs" and which act was amended by the Supplemental Agreement of June 30, 1902 (32 Stat. at L. 500, c. 1323), effective August 8, 1907, in respect to the law controlling its descent.

The title and claim of the intervener, Nellie B. Conley, as administratrix of the estate of her deceased husband, H. T. Conley, depends upon the validity of two certain deeds executed by Jennie Hickory, one of the heirs of Moses Coney, deceased, to John R. Skinner, which deeds are dated, respectively, July 24, 1907, and August 9, 1907. April 13, 1911, the Secretary of the Interior, pursuant to the act of April 26, 1906 (34 Stat. at L. 137), approved the conveyance of Jennie Hickory to tract No. 1. As to the remaining tracts, it does not appear that the approval of the Secretary of the Interior to any conveyance thereof was procured. Prior to the approval of the Secretary of the deed to tract No. 1, and on the 25th day of September, 1908, Jennie Hickory, joined by her husband, conveyed her interest

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by consanguinity, and succeeded to his rights at his death. That the children of Moses Coney did not take their title by purchase is, we think, settled by both the decisions of this court and the federal courts in cases arising in this state. Barnett v. Way et al., 29 Okl. 780, 119 Pac. 418; Divine v. Harmon et al., 30 Okl. 820, 121 Pac. 219; Rentie et al.

v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Washington v. Miller, 235 U. S. 422, 35 Sup. Ct. 119, 59 L. Ed. 295; McDougal v. McKay, 237 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001; Woodward v. De Graffenried, 238 U. S. 284, 35 Sup. Ct. 764, 59 L. Ed. 1310.

ferent general classes of estates, as they exist at common law.

"Methods of acquiring, and of losing, a title to estates in things real, are adduced by our law to two," it is said in Blackstone's Commentaries, § 201: "Descent, where the title is vested in a man by the single operation of the law; and purchase, where the title is vested in him by his own act or agreement."

Of titles by descent, the author in the same section says:

in and to tract No. 1 to L. L. Lewis, which his heirs; because they were related to him said sale and deed was, on the 6th day of October, 1908, approved by the county court of Tulsa county, as the deed of a full-blood Indian heir conveying inherited lands. July 21, 1909, Lewis conveyed his interest in said land to the plaintiff in error, Moffett, and it is under this latter chain of title that Moffett defended against the claim of the intervener. We may, here dismiss from consideration v. McCoy, 35 Okl. 77, 128 Pac. 244; Shulthis the land described as tract No. 2, as it does not appear that this tract was included in either of the deeds to Skinner. As the title of the administratrix, Nellie B. Conley, de pends entirely upon the validity of the deeds of conveyance made to Skinner, and as she is seeking to impress a trust upon the lands [2] It may be helpful, however, to a comas against both Skinner and Moffett, it was plete understanding of the nature of the incumbent upon her, in asserting an equitable title acquired by Jennie, to look to the autitle to an interest in said lands, to first show thorities classifying and defining the difthat those against whom she sought relief acquired under their conveyances the legal title; for if the deed from Jennie Hickory to Skinner was made in contravention of a controlling statute, and hence void, neither Skinner nor his grantee, Moffett, would have any title against which a decree could be enforced, and this without regard to the nature of relations or character of the arrangement that may have existed between Conley and Skinner, in the latter's purchase of the land. [1] It is first urged by the defendant in error that Jennie Hickory acquired her title to the lands allotted in the name of her deceased father, not by inheritance, but by purchase, and for that reason section 22 of the act of April 26, 1906 (34 Stat. at L. 137), requiring that all conveyances to inherited lands by heirs who are full-blood Indians are subject to the approval of the Secretary of the Interior, has no application. We have already seen that section 28 of the Original Agreement authorized allotments of the character in question to be made, and that it was there provided that lands to which the enrolled citizen, if living, would be entitled, "shall descend to his heirs" according to the Creek laws. Technically Jennie Hickory and her brother took their title directly from the tribe. The title taken, however, was not in their own right, or by reason of their own enrollment, but in the right of their deceased ancestor and by reason of his tribal enrollment. Moses Coney was one of the units counted in determining into how many allottable parts the tribal domain should be divided, and therefore was one of those to whom it was contemplated an allotment should be made. Levindale Lead & Zinc Co. v. Cole

whereby a man on the death of his ancestor "Descent or hereditary succession is the title acquires his estate by right of representation, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately so descending to the heir, is in law called the upon the death of the ancestor; and an estate, inheritance."

Speaking of title by purchase, the author, in section 241, says:

"Purchase, perquisite, taken in its largest and most comprehensive sense, is thus defined by Littleton: The possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred." In this case it is contradistinguished from acquisition by right of blood, and includes every other method of comwherein the title is vested in a person, not by ing to an estate, but merely that of inheritance, his own act or agreement, but by the single operation of the law."

In Coke's Commentary on Littleton, 18b, the author says:

"A purchase is always intended by title, and most properly by some kind of conveyance either for money or some other consideration, or freely of gift; for that is in law also a purchase. But a descent, because it cometh merely by act of law, is not said to be a purchase; and accordingly the makers of the act of Parliament in 1 II. 5 ca. 5, speaks of them that have lands or tenements by purchase or descent of inheritance."

"Property of lands by descent is," says Lord man, 241 U. S. 432, 36 Sup. Ct. 644, 60 L. Ed. Bacon, "where a man hath lands of inheritance, and dieth, not disposing of them, but leav1080. The allotment selected and made sub-ing it to go (as the law casteth it) upon the heir. sequent to his death was made in satisfaction This is called descent of law." Bacon, Law of the right which he, as one of the enrolled Tracts, 128. citizens and allottable units of the tribe, had in his lifetime. The heirs took their title, therefore, not because of their enrollment as tribal citizens alone, but because they were

In Washburn's Real Property, § 1824, it is said that in one thing all the writers agree, and that is considering that there are two modes only, regarded as classes, of acquiring

he or his legal representatives neglected to do so. It, therefore, is obvious that his heirs took the title to the proportionate share of the tribal lands to which he was entitled, not by purchase, but by inheritance. It is necessary, therefore, only to determine the right, if any, of his heirs to alienate or convey the lands thus inherited by them. It is well settled by both the decisions of this court and of the Supreme Court of the United States that Creek allotments, made on behalf of deceased members of the tribe under the authority of section 28 of the Original Agreement, or of sections 7 and 8 of the Supplemental Agreement, passed to the heirs free of restrictions upon alienation, except the disability of minority. Rentie v. McCoy, 35 Okl. 77, 128 Pac. 244; Deming Inv. Co. v. Bruner Oil Co., 35 Okl. 395, 130 Pac. 1157; Bilby v. Gilliland, 41 Okl. 678, 137 Pac. 687, 139 Pac. 988; Skelton v. Dill, 235 U. S. 206, 35 Sup. Ct. 60, 59 L. Ed. 198; Adkins v. Arnold et al., 235 U. S. 417, 35 Sup. Ct. 118, 59 L. Ed. 294; Woodward v. De Graffenried, 238 U. S. 284, 35 Sup. Ct. 764, 59 L. Ed. 1310.

[3] The conveyances involved and brought under review were made subsequent to the passage of the act of April 26, 1906 (34 Stat. at L. 137), and were not (except as will be hereafter more fully shown) approved by the Secretary of the Interior, as provided by section 22 of said act. Is the section applicable to allotments made to the heirs of a deceased member of the tribe? By the plaintiff in error it is insisted that it is, while the defendant in error contends that it was not the purpose of the act to impose restrictions on unrestricted lands, and that hence section 22 has no application. The section in part provides:

"That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent."

pose of Congress may not be defeated. Woodward v. De Graffenried, supra; United States v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L Ed. 1192. Or, as said in Levindale Lead & Zinc Mining Co. et al. v. Coleman, 241 U. S. 432, 36 Sup. Ct. 644, 60 L. Ed. 1080:

"The provisions of the allotment act must be construed in the light of the policy they were obviously intended to execute. It was the policy relating to the welfare of Indians, wards of the United States. strictions against alienation 'evinces the conThe establishment of retinuance, to this extent, at least, of the guardianship which the United States had exercised from the beginning'' (citing cases).

Her knowledge of land values, of transactions in respect to the disposition thereof, and her dependency in general, was not made to rest, nor did it depend in any respect, upon the fact that the land was or was not allotted in the lifetime of her father.

In Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615, Andrew J. Berryhill was the son of George Franklin Berryhill, a member of the Creek Nation, of mixed blood, and Clementine Berryhill, his wife, a noncitizen of that tribe. Andrew was born on the 6th day of May, 1901, and died in November following. At no time during his life was he entitled to enrollment as a member of the tribe, or to an allotment of his property. After his death, by the terms of the Supplemental Agreement, it was provided in section 7 that children of his class should be placed on the rolls. After enrollment of the deceased child an allotment in his right was made, and on June 5, 1906, the father and mother conveyed the lands so allotted to the McKays. It was contended that the deed was void, because at the time of its execution the grantors were without legal capacity to make such a conveyance. Both parties based their right upon section 22 of the act of April 26, 1906. It was urged that the land in question was not "inherited" land, answering which claim it was said:

tion, while technically right, is substantially
"For reasons already explained, that conten-
wrong. The scheme of the statute clearly in-
dicates that the land was to be regarded the
same as if it had been inherited. No sound rea-
erwise than they would have been treated if
son can be adduced for treating these lands oth-
Andrew J. Berryhill had survived long enough
to receive the allotment.
The lands
lands obtained by inheritance, and the statute
here in question fall under the same policy as
should be held to apply thereto.
therefore, had power to make the deed to the
Berryhill,
McKays."

Moses Coney belonged to the class named. His daughter, Jennie, was an adult heir of a "deceased Indian" of the Creek Nation. The land had been selected and a patent or patents thereto had issued to the heirs for Moses' share of the land of the Creek Tribe, and to which he during his lifetime belonged. Jennie, like her father, was a full-blood Creek, and while she had the right to sell and convey, her conveyance was, by the terms Both the land of Andrew J. Berryhill and of the act, made subject to the approval of Moses Coney, in the hands of their respecthe Secretary of the Interior. The purpose tive heirs, was "inherited" land. The father of the provision of the statute requiring the of Berryhill being of mixed blood, that part approval of her conveyance was her protec- of section 22, requiring the approval of his tion, to secure to her the fair value of her conveyance by the Secretary of the Interior, land. Tiger v. Western Inv. Co., 221 U. S. did not apply. The heirs of Moses Coney be286, 31 Sup. Ct. 578, 55 L. Ed. 738; Brader ing full-blood Indians, the validity of the v. James, 154 Pac. 560. The statute afford- conveyance of Jennie Hickory depended upon ing her this protection should be liberally the approval thereof, in compliance with the