be enforced at law or in equity in the courts of the United States in the Indian Territory. While there can be little doubt of the jurisdiction of the United States courts in the Indian Territory to order the sale of the allotted or inherited lands of a minor member of the Five Civilized Tribes where the same were held free from restrictions upon alienation, prior to April 28, 1904, there can be no doubt about such jurisdiction subsequent to April 28, 1904. Wherever the allotted or inherited lands of a minor member of the tribe were free from restrictions upon alienation, they were subject to sale on order of the United States courts for the Indian Territory in the exercise of their probate jurisdiction to the same extent as were the lands of other minors not members of said tribes.

§ 167. Minors-Who were.-Males of the age of 21 years and females of the age of 18 years were of full age for all purposes, and until they attained such ages, respectively, they were minors for all purposes. This statute having been put in force in the Indian Territory by act of Congress and continued in force until statehood, it may be treated as a congressional act for the purpose of determining the age of majority of members of the Five Civilized Tribes.

§ 168. Appointment of guardian or curator.-The United States court, exercising jurisdiction in the district of the minor's residence, had authority to appoint a guardian for the person, or curator for the estate of such minor. Applications for the appointment of guardian are required to be by petition, which must be signed, or joined in in some way, by the minor where over 14 years of age, and by the next of kin, or some person in the minor's behalf, where under 14 years of age. Notice to the parent or person next of kin in charge of the minor was necessary to the appoint

Mansf. Dig. Ark. 1884, § 3464.

4 Wortham v. John, 22 Okl. 562, 98 Pac. 347; In re Bolin's Estate, 22 Okl. 851, 98 Pac. 934; Spade v. Morton, 28 Okl. 384, 114 Pac. 724; Huston v. Cobleigh, 29 Okl. 793, 119 Pac. 416.

ment of a guardian. There are a number of statutory provisions regulating the matter of priority of right, qualification to act as guardian, the giving of bond and approval thereof, which it is not necessary to here discuss. Appointment could be made by the clerk in vacation, but where so made was required to be ratified and confirmed by the court in session. The giving of a bond for the faithful discharge of duties as guardian was a condition precedent to the issuance of letters of guardianship.

§ 169. Sale of real estate of minors for purposes of education. The probate court is authorized to order the sale of the real estate of a minor, or so much thereof as may be requisite to raise the funds necessary to complete his education. Notwithstanding the statute does not prescribe the method of invoking the jurisdiction of the court to grant an order of sale, application should, no doubt, be made to the court setting forth the facts rendering it necessary that the sale be made to raise funds to complete the education of the minor. Apparently no notice of such application is required to be given or contemplated by the statute. The court is to judge of the necessities from the application and such information as he may demand as a condition precedent to the making of the order. No real estate of a minor shall be sold on the order of the court for less than three-fourths of its appraised value, and the guardian or curator must not be, either dirctly or indirectly, interested in the purchase of such real estate. The sale of such real estate is required to be advertised and conducted in the manner provided by law for advertising and conducting sales of real estate of deceased persons made by executors and administrators for the payment of debts. Before sale the guardian is required to have the lands appraised by three disinterested householders, who shall make oath that they will truly and according to the best of their abilities view and appraise such lands, and their appraisement thereof must be made out in writing under their hands and

delivered to the guardian and filed with the clerk of the court. No notice is required to be given of the sale. If the bids do not justify a sale, the facts are to be reported to the court, and another sale ordered at the end of twelve months to the highest bidder. If the sale is made, the guardian or curator must report such sale to the court ordering the same for its confirmation. If such sale is approved by the court, it becomes valid to all intents and purposes. If approval is refused, the order of sale is thereupon renewed. The guardian or curator, upon confirmation and receipt of the purchase price, is required to execute and deliver to the purchaser a deed of conveyance referring in apt terms to the order of the court, the advertisement, the appraisement and description of the real estate, the time, place and terms of sale, and the payment of the purchase money. Such recitals are made prima facie evidence of the facts recited. Such deed operates to convey to the purchaser all the right, title and interest of the ward in the real estate sold. Such deed should be executed, acknowledged and recorded as other conveyances of real estate. A sale by a guardian of the real estate of a minor is not completed and does not pass title until confirmed by the court. The procedure under this statute has received very full consideration by the Supreme Court of Oklahoma."

§ 170. Sale of real estate of minors for investment.The United States courts in the Indian Territory, when it was made to appear that it would be for the benefit of the ward that his real estate or some part thereof be sold and the proceeds put on interest or invested in productive stocks or in other real estate, had the jurisdiction and authority to order the guardian or curator to sell the lands of same. Such order was required to be made by the United States court of the district in which such real estate or the

5 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; Wortham v. John, 22 Okl. 562, 98 Pac. 347; In re Bolin's Estate, 22 Okl. 851, 98 Pac. 934; Spade v. Morton, 28 Okl. 384, 114 Pac. 724; Huston v. Cobleigh, 29 Okl. 793, 119 Pac. 416.

greater part thereof was situate. To obtain such order the guardian or curator was required to present to the court a petition setting forth the condition of the estate and the facts and circumstances which made it for the benefit of the ward that such real estate be sold and the proceeds put on interest or invested in productive stocks or other real estate. No notice of the application was required to be given, and the court was authorized to make the order if, after full examination on the oath of creditable and disinterested witnesses, it should appear that it would be for the benefit of the ward that such real estate should be sold.

*

The court is required to direct that the sale be made "under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, * first requiring the guardian or curator to enter into good and sufficient bonds to make * * such sale * with fidelity to the interest of his ward, and faithfully to account for the proceeds. * " Does this section require a compliance with all of the requirements for the sale of real estate for the education of minors, or does it require a compliance with only the specific requirements of sections 3504 to 3506, inclusive, of Mansfield's Digest of the Statutes of Arkansas of 1884? It is probably necessary to comply only with the last-mentioned sections. This seems to be clearly indicated in a decision of the Supreme Court of the state, although it was finally announced that it was not deemed necessary to pass upon the question. While confirmation is necessary to the validity of such sale, such confirmation may result, not only from a specific order of confirmation, but by other orders of the court recognizing the sale and providing for the handling, investment, or distribution of the funds.

The Supreme Court of Arkansas, prior to the extension. of these statutes over the Indian Territory, had uniformly held that failure to comply with statutory directions in the

matter of the sale of the real estate of a decedent, or of a minor, did not render such sale void or subject to collateral attack. A confirmation cured all mere errors."

§ 171. Leases of minors' land in Indian Territory.Leases of the real estate of a minor could be made for the purpose of securing funds to educate the minor, or for the purpose of putting the proceeds of such lease out at interest or investing the same in productive stocks or in other real estate. In each instance the leases are required to be made in the same manner as the sale of real estate of a minor for the purpose of education and for the purpose of putting the same out at interest, investing in productive stocks or other real estate, respectively. The United States courts in the Indian Territory had jurisdiction and authority under these statutes to authorize the leasing of the lands of a minor by his guardian for a term extending beyond the term of guardianship and of the arriving of the minor at the age of majority. Such authority extended, under the Act of April 26, 1906, to the authorization of the guardian to make an oil and gas lease, and the approval of the Secretary of the Interior was not necessary to the validity of the same.

8

Under section 3498 of Mansfield's Digest of the Statutes of Arkansas, in force in the Indian Territory, rental contracts or leases of the lands of a minor had to be sold to the highest bidder giving ten days' previous public notice. of the time and place of such sale."

*

Also,

See authorities cited under preceding section. Borden v. State, 11 Ark. 519, 44 Am. Dec. 217; Ex parte Marr, 12 Ark. 88; Rogers v. Wilson, 13 Ark. 507; Bennett v. Owen, 13 Ark. 177; Montgomery v. Johnson, 31 Ark. 74; Beidler v. Friedell, 44 Ark. 411; Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102; Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. 183; Alexander v. Hardin, 54 Ark. 480, 16 S. W. 264.

7 Spade v. Morton, 28 Okl. 384, 114 Pac. 724; Huston v. Cobleigh, 29 Okl. 793, 119 Pac. 416.

• Morrison v. Burnette, 154 Fed. 617, 83 C. C. A. 391.

• Huston v. Cobleigh, 29 Okl. 793, 119 Pac. 416.