as a witness." 1 Where the mark is made by one person and the name of another written as a witness, the statute is not complied with; but an officer's certificate of the grantor's acknowledgment of the execution of a deed is a sufficient compliance with the requirement of the identification by witnesses to the grantor's signature by mark.2

§ 153. Indian Territory prior to statehood.-Prior to the 19th day of February, 1903, there was no statute in force in the territory of the Five Civilized Tribes regulating, controlling or affecting the execution, acknowledgment or registration of conveyances of real estate. On that date Congress put in force in the Indian Territory chapter 27 of Mansfield's Digest of the Statutes of Arkansas of 1884.3

This statute, so far as it dealt with the subject-matter, controlled the effect of conveyances of real estate, the proof and acknowledgment thereof, required registration and determined the probative effect of such conveyances. Conveyances of real estate in adverse possession were specifically authorized. All lands, tenements and hereditaments, whether in possession of the grantor or held adversely, and every interest therein, were made alienable by deed or grant.

The wife, as a result of marriage, was endowed with a third part of all the lands whereof her husband was seised of an estate of inheritance at any time during marriage, and such right of dower attached upon the death of the husband, notwithstanding any conveyance made by him of such lands, unless dower had been relinquished in the form prescribed by the statute.

The word "heirs" was not necessary to create or convey an estate in fee simple. Every deed, unless expressly limited by appropriate words, was made to pass a fee simple title. The words "grant, bargain and sell" in and of them

1 Campbell v. Harsh, 31 Okl. 436, 122 Pac. 127; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1.

2 Campbell v. Harsh, 31 Okl. 436, 122 Pac. 127.

8 Reproduced in full as chapter 54.

selves constituted an express covenant of an indefeasible estate in fee simple free from incumbrances done or suffered by the grantor and of quiet enjoyment.

$154. Conveyances by married women.-By the Act of May 2, 1890, certain chapters of Mansfield's Digest, including chapter 104, entitled "Married Women" were extended over the Indian Territory. Section 4621 of this chapter, which is the first section, reads as follows: "The real and personal property of any feme covert in this state, acquired either before or after marriage whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose be and remain her separate estate and property and may be devised, bequeathed or conveyed by her the same as if she were a feme sole and the same shall not be subject to the debts of her husband."

Under the decisions of the Supreme Court of Arkansas, construing this statute, a married woman could convey and acknowledge as a feme sole. She could not, however, bind herself by a bond for title or other executory agreement, but she might mortgage her property to secure the debt of her husband.

Section 4621 is copied from the Constitution of Arkansas of 1874. Previous to 1874, both under the Constitution and the statutes, the conveyance by a married woman of her property had to be joined in by her husband. By mistake of the digester the old provision in the chapter on Conveyances with reference to the acknowledgment of a married woman, in force prior to the adoption of the Constitution of 1874, was continued in the statute. It is section 659, found in the chapter entitled "Conveyances of Real Estate," and is as follows: "The conveyance of any real estate by any married woman, or the relinquishment of dower in any of her husband's real estate, shall be authenticated and the title passed, by such married woman voluntarily appearing before the proper court, or officer, and in the absence of her husband declaring that she had of her

own free will executed the deed or instrument in question, or that she had signed the relinquishment of dower for the purposes therein contained, or set forth without compulsion or undue influence of her husband."

The chapter containing this section having been put in force in 1903 subsequent to the extension of the chapter on married women over the Indian Territory, some question has arisen as to whether a conveyance by a married woman is valid where not joined in and acknowledged by her husband. Section 659 was not in force in Arkansas. The recording act, however, does not, like some of the previous acts, extend only such laws as are in force in Arkansas; but the language is that "chapter 27 of the Digest of the Statutes of Arkansas, known as Mansfield's Digest of 1884, is hereby extended to and put in force in the Indian Territory so far as the same may be applicable and not inconsistent with any law of Congress." It is not believed that Congress intended to deprive a married woman of the liberty given her under the married woman's act and recognized by every other law in force in the Indian Territory at that time. Such a conveyance made by a married woman and acknowledged as a feme sole passes title to her separate property.*

§ 155. Relinquishment of dower by married women in the Indian Territory.-The wife could relinquish her dower in her husband's real estate during his lifetime or convey her unassigned dower interest subsequent to his death. There seems, however, to have been some doubt as to whether she could convey, otherwise than jointly with the heirs, to the heirs, or to some person to whom the estate, other than the dower interest, had been conveyed.

The relinquishment of dower in the husband's real estate

4 Adkins v. Arnold, 32 Okl. 167, 121 Pac. 186.

Carnall v. Wilson, 21 Ark. 62, 76 Am. Dec. 351; Jacoway v. McGarrah, 21 Ark. 347; Reed v. Ash, 30 Ark. 775; Countz v. Markling, 30 Ark. 17; Pillow v. Wade, 31 Ark. 678; Weaver v. Rush, 62 Ark. 51, 34 S. W. 256; Barnett v. Meacham, 62 Ark. 313, 35 S. W. 533.

was required to be authenticated and the title passed by the wife appearing before the proper officer, in the absence of the husband, and declaring "that she had, of her own free will, signed the relinquishment of dower for the purposes therein contained and set forth without compulsion or undue influence of her husband."

§ 156. Acknowledgments to conveyances of real estate in Indian Territory.-Two methods of acknowledgments or proof of conveyances of real estate were permissible under the Arkansas statute put in force in the Indian Territory; the first by the grantor appearing before a notary public or other officer authorized to take acknowledgments and stating that he had executed the same for the consideration and purposes therein mentioned and set forth. If the grantor was personally unknown to the officer taking the acknowledgment, his identity as the person executing the conveyance was required to be ascertained upon the oath of some person known to such officer before taking the acknowledgment.

The other method of acknowledgment was that of the execution of the instrument in the presence of two disinterested witnesses, or the acknowledgment of the execution by the grantor in the presence of such witnesses, who were required to subscribe the deed or instrument of writing as witnesses, with the date of their signatures thereto if signed after date of execution. One of such witnesses must then appear before an officer authorized by law to take acknowledgments and state on oath that he saw the grantor subscribe such conveyance, or that the grantor acknowledged in his presence that he had subscribed or executed such conveyance, for the purposes and consideration therein mentioned and set forth, and that he had subscribed the same as a witness at the request of the grantor.

Prior to the adoption of these statutes and their extension over the Indian Territory, the Supreme Court of the

Stidham v. Matthews, 29 Ark. 650.

state of Arkansas had been more than usually strict in requiring acknowledgments to comply literally with the language of the statute and in denying such instruments the right to registration or effect as notice where they failed to do so."

Mortgages, leases for more than a year, and instruments fixing liens or charges upon real estate were required to be executed, acknowledged and recorded as conveyances of real estate were required to be executed, acknowledged and recorded.

§ 157. Officers authorized to take acknowledgments in the Indian Territory.-Prior to statehood, proof or acknowledgment of conveyances of real estate could be taken within that part of the state known as the Indian Territory before any notary public, justice of the Supreme Court, or clerk of any court of record.

Conveyances could be acknowledged or proven without the Indian Territory before any court of the United States, or state or territory thereof, having a seal, before the clerk of such court, or before a notary public, the mayor of a city or town, a commissioner appointed by the Governor of the state, or a chief officer of a city or town having a seal; when without the United States, before any court, mayor, or chief officer of a town having a seal, or any officer of a foreign country authorized by the laws of such country to take acknowledgments of real estate, provided such officer had, by law, an official seal.

§ 158. Registration of Conveyances.-Prior to the 19th day of February, 1903, there was no statute in force in the Indian Territory providing for the registration or recording of conveyances of real estate. By common consent instruments conveying real estate had been recorded in the office of the clerks of the United States court at various places at which these offices were located in the Indian Territory. By the act above referred to provision was made for

7 See chapter 54 and annotations thereto.