and discharges the railway company from liability arising from taking and using the same."

§ 200. Minors-Mortgage of estates.-The guardian of the estate of a minor or insane person is authorized by section 6364, Revised Laws 1910, to mortgage any real estate belonging to such minor, but not for a greater sum than is necessary to pay the existing liabilities for which such estate is legally liable to be ordered sold. It will be noted that incompetents, included in other provisions of the statute, are omitted from this section. It is probable. however, that the word "insane," as used in the section, includes all who are mentally incapable of conducting their own affairs and who have been so adjudged and a guardian appointed for their estates. Upon the filing of a petition for leave to mortgage by the guardian, the county judge is required to set a time for the hearing, and the guardian is required to cause notice thereof to be given by publication in a newspaper published and of gen.. eral circulation in the county where such hearing is to be had. Such notice must contain a description of the real estate sought to be mortgaged and must be published for two weeks successively prior to such hearing.1

§ 201. Oil and gas leases.-The statute 2 authorizes the guardians of infants and insane persons to lease and grant mineral oil and mineral gas leases in consideration of a royalty, part or portion of the production thereof, under the same procedure as provided by law where the consideration is money, and in the following section all leases of such character theretofore made and approved by the county court are legalized. These sections of the statute were enacted in 1905. At the time of their enactment there was

60 Indiana, B. & W. Ry. Co. v. Brittingham, 98 Ind. 299; State v. Hamilton County Com'rs, 39 Ohio St. 58.

61 Fitch v. Miller, 20 Cal. 361; Smith v. Biscailuz, 83 Cal. 344, 21 Pac. 15, 23 Pac. 314; Howard v. Bryan, 133 Cal. 257, 65 Pac. 462. 62 Rev. Laws 1910, § 6547.

no specific provision prescribing the procedure to be followed by a guardian in leasing the lands of his ward for either agricultural, grazing, commercial or mineral purposes, nor is there now such a statute.

What is the procedure for the making of a valid oil and gas mining lease of the allotted lands of a minor held free from restrictions on alienation? This question has been recently exhaustively considered by the Supreme Court of the state in a case brought on behalf of a minor, by his mother as next friend, against his guardian and the lessee from the guardian, to have declared null and void an oil and gas lease upon the minor's estate and to enjoin the further taking out of oil and for an accounting and recovery for waste already committed. The court held, after an exhaustive examination of the authorities, that a lease for oil and gas mining purposes for a term of years is not a sale of real estate within the contemplation of the statutes requiring a petition for, notice of, advertising, and public sale, of the real estate of a minor; that oil and gas is a chattel real, and that the procedure for leasing minor lands for oil and gas purposes is that prescribed by section 6569 of the Revised Laws of 1910, and not that prescribed by sections 6554 to 6568, inclusive. The rule announced in a previous case 3 that an oil and gas lease is an alienation within the meaning of that term in allotment agreements and acts was adhered to. The procedure for the making and approval of an oil and gas lease by a guardian for a minor is stated by the court in the following language: "On account of section 5513, Comp. Laws 1909,* which provides: "The county court, on the application of a guardian or any person interested in the estate of any ward, after such notice to persons interested therein as the judge shall direct, may authorize and require the guardian to invest the proceeds of sales and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all

63 Eldred v. Okmulgee Loan & Trust Co., 22 Okl. 742, 98 Pac. 929. * Revised Laws 1910, § 6569.

concerned therein; and the probate court may make such other orders and give such directions as are needful for the management, investment and disposition of the estate and effects, as circumstances require" (italics ours)—a guardian has no authority to lease the lands of his ward, or enter into a license or contract covering the same, for oil and gas mining purposes, without the direction and approval of the probate court. For said section stipulates that the probate court may 'make such other orders and give such directions as are needful for the management, investment and disposition of the estate and effects, as circumstances require.' The rule obtaining at common law for the guardian to lease the lands of his ward without the approval of the court is thereby changed."

64

§ 202. Oil and gas-Leases for-Of lands of minors under Act of May 27, 1908.-The usual and approved procedure for the leasing of the lands of a minor for oil, gas and mineral purposes is for the guardian to file with the county court in which the guardianship proceeding is pending a petition for authority to lease the lands of the minor for such purpose. The petition should set forth the facts necessary for the consideration of the court in determining whether or not to authorize a lease.

If in the opinion of the court, it is for the best interests of the minor that his lands be leased for such purposes, an order should be entered of record directing the guardian to receive bids and offers for such a lease.

The guardian should, pursuant to the order, receive such bids and report the same to the court, showing in detail the cash bonus per acre, the total bonus, the royalty to be paid on oil produced and saved, and the amount to be paid for each gas well.

If on a consideration of the report the court is of the opinion that any bid should be accepted, an order should be made confirming the sale of the lease and directing the

4 Duff v. Keaton, 33 Okl. 92, 124 Pac. 291.

BLED.IND.(2D ED.)-15

execution by the guardian to the purchaser of an oil, gas and mining lease and to make return thereof to the court for final action and approval.

The guardian should thereupon submit such lease so executed to the court for approval and an order should be entered by the court confirming and approving the same.

$203. Collateral attack on sale.-Upon a review by appeal or other proceeding, a failure to substantially comply with any of the provisions of the statute may furnish sufficient reason for a reversal of the order of sale or confirmation.*

Where, however, the sale is attacked collaterally or in any proceeding other than by way of review of the action of the court ordering and confirming the sale, every presumption should be indulged in favor of the regularity of the sale. County courts are courts of general jurisdiction and their records are entitled to the same consideration and import the same verity, where dealing with the estates of minors, as do the records of courts of general jurisdiction.

The interest of the individual minor may be subserved by holding void a sale of his real estate, because of the failure to comply with some statutory provision affecting or controlling the procedure resulting in such a sale; but if technicalities may be availed of to have the sale of lands of minors adjudged void, the great majority of purchasers will be deterred from bidding at such sales. The net result will be a very substantial reduction in the prices bid for the lands of minors so sold. Every decision of an appellate court rendering less stable the title acquired by sale upon order of a court materially reduces the number of bidders who will purchase at such sale and thereby materially reduces the amount that may be realized thereon.

While every precaution should be taken to protect a minor against fraud and imposition, the desire to afford such protection should not be treated as a license to take from another that which he has purchased in good faith and

* In re Bohanan (Okl.) 133 Pac. 45.

paid for and the proceeds of which have been paid to the guardian for the minor.

It is only by giving the greatest stability possible to the title acquired by purchase at a probate sale of the real estate of a minor, that purchasers can be found who will pay the approximate value of such real estate when offered for sale. 65

§ 204. Guardianship, how terminated.-Death, arrival at majority, or formal discharge of the guardian terminates the guardianship. Several statutory provisions in force in the state seem to indicate that marriage operates to supersede the authority of a guardian and to discharge the person if not the estate of the minor, from guardianship control. On this assumption following statehood, many conveyances were made by married minors before they became 21 and 18 years of age respectively. Majority rights were also conferred upon Indian minors by judgment of the courts of the state.

It has been uniformally held, and without dissent, under the acts of Congress fixing the right of alienation of allotted and inherited Indian lands that marriage does not confer majority rights or operate to discharge the real estate of the minor from the control of his guardian, and that a conveyance by a married minor Indian or freedman of his allotted or inherited land is invalid and does not operate to pass title."

65 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; Brown v. Trent (Okl.) 128 Pac. 895; In re Bohanan (Okl.) 133 Pac. 45; Grignon v. Astor, 2 How. 319, 11 L. Ed. 283; Mohr v. Manierre, 101 U. S. 417, 25 L. Ed. 1052; Thaw v. Falls, 136 U. S. 548, 10 Sup. Ct. 1037, 34 L. Ed. 531; Guynn v. McCauley, 32 Ark. 107; Currie v. Franklin, 51 Ark. 338, 11 S. W. 477; Beidler v. Friedell, 44 Ark. 411; Whitman v. Fisher, 74 Ill. 152; Benson v. Benson, 70 Md. 258, 16 Atl. 657; Johnson's Adm'r v. Filtsch (Okl.) not yet reported; Hamiel v. Donnelly, 75 Iowa, 93, 39 N. W. 210; Schaale v. Wasey, 70 Mich. 414, 38 N. W. 317; Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537; Kelley v. Morrell (C. C.) 29 Fed. 736; Dodson v. Middleton (Okl.) 135 Pac. 368.

66 Bell v. Cook (C. C.) 192 Fed. 597; Jefferson v. Winkler, 26 Okl. 653, 110 Pac. 755; Stevens v. Elliott, 30 Okl. 41, 118 Pac. 407; Kirkpatrick v. Burgess, 29 Okl. 121, 116 Pac. 764; Yarbrough v. Spald