The defendants in error have filed a very extensive brief in support of their petition for rehearing and in addition thereto numerous attorneys have filed amicus curiae briefs. The trial court sustained a demurrer to the petition as to one defendant and sustained a motion for judgment on the pleadings as to the other defendant. The petition asked for cancellation of the oil and gas lease upon several grounds, to wit: (1) That it was obtained by fraud; and (2) that the procedure adopted in procuring said lease was in direct violation of rule 9 of this court [47 Okla. vxi].
It is alleged that the lease at the time was of the reasonable value of $15,000, and the same was obtained for the sum of $100.
If we accept the allegations of the petition as true, it is very apparent a great injustice has been perpetrated upon the minor and a valuable oil and gas lease obtained upon his property through a pretended court proceeding, at such a grossly inadequate consideration that it should at least appeal to the conscience of a court of equity. Those filing amicus curiæ briers are interested in this court rendering the proper decision and properly protecting the rights of both parties to the litigation, and correctly announcing the law, yet in no instance have they, under the facts as stated, suggested that the minor was entitled to any relief. A great portion of the briefs for rehearing suggests the proposition that rule 9 of this court is simply a rule of procedure, and a failure to comply with said rule when acquiring an oil and gas lease upon the lands of a minor, where the lease has been confirmed by the court, will not render the lease void. In dealing with this question it is necessary first to consider the power and authority of this court to prescribe rules relating to probate procedure in the county court, where not prescribed by statute, and not in conflict with the Constitution or statutes of this state.
The power and authority of this court to prescribe such rules and the force and effect of such rules when promulgated were decided by this court in the case of State ex rel. Freeling v. Kight, 49 Okla. 202, 152 P. 362, where the court stated:
"By section 2, art. 7, of the Constitution, the Supreme Court is given jurisdiction to exercise a general superintending control over all inferior courts and all commissions and boards created by law, and this jurisdiction is a separate and distinct grant from its appellate jurisdiction."
In the first syllabus paragraph the court stated:
"By virtue of section 5347, Rev. Laws 1910, the Justices of the Supreme Court are given authority to prescribe such rules regulating procedure in probate matters as are necessary to carry the provisions of the Code into effect, and to prescribe such further rules consistent therewith as they may deem proper."
The second syllabus paragraph is as follows:
"Such rules, when so prescribed, apply to and are binding upon the county courts of this state, and such courts and judges thereof are without power to dispense with the requirements of such rules, or to vacate or set the same aside, or to prescribe other rules in lieu thereof or in conflict therewith."
In the body of the opinion the court quoted with approval from 6 Stand. Ency. Proc. p. 63, as follows:
"Rules have the force and effect of law, and are binding upon litigants, and upon counsel, upon the court and its officers. A rule made pursuant to statutory authority by an appellate court to govern the procedure in inferior courts is binding upon the latter, and rules adopted by a board or convention of judges are binding upon the individual judges."
In the body of the opinion the court quoted with approval from 18 Ency. P. P. p. 1271, as follows:
"Although courts may sometimes dispense with the requirements of their own rules, it is uniformly held that they have no such power in regard to rules prescribed for them by the higher court."
The opinion in the above case was cited, approved, and followed by this court in the *Page 230 case of Haddock v. Johnson, 80 Okla. 250, 194 P. 1077.
Let us now consider the contention of the defendants in error on rehearing in view of the decision of this court in the case of State ex rel. Freeling v. Kight, supra, where the court stated:
"Rules have the force and effect of law, and are binding upon litigants, and upon counsel, upon the court and its officers."
The defendants in error do not complain of the statement of law as announced above, but state that a rule of procedure cannot deprive the court of jurisdiction. If rule 9 has the same force and effect as an enactment of the Legislature, then let us treat it as if it were one of the sections of our statute relating to the sale of an oil and gas lease upon the lands of the minor. The first portion of the rule provides:
"No oil and gas, or other mineral lease, covering lands belonging to minors or incompetents, will be approved except after a sale in open court to the highest and best responsible bidder."
Let us compare this with section 6384, Rev. Laws 1910:
"No sale of real estate at private sale shall be confirmed by the court unless the sum offered is at least ninety per cent. of the appraised value thereof, nor unless such real estate has been appraised within one year of the time of said sale."
These sections, one dealing with the confirmation of sale of an oil and gas lease, the other with the confirmation of the sale of the land of minors, contain very similar language, and the language in one is as mandatory or prohibitive as the language in the other. This court had section 6384 under consideration in the case of Winters v. Oklahoma Portland Cement Co., 65 Okla. 132, 164 P. 965, and the court in the fifth syllabus paragraph announced the following rule:
"The provision of the statutes (Rev. Laws 1910, sec. 6384) which provides that no sale of lands of minors at private guardianship sale shall be confirmed where the bid is not 90 per cent. of the appraised value or where there has been no appraisement of such lands within a year prior to the sale, is mandatory, and goes to the jurisdiction of the court to make the order of confirmation. Where an order of confirmation of such a sale is made in violation of such provision, the order of confirmation is void for want of jurisdiction."
In that case it was urged that the failure to appraise the lands, or a sale for less than 90 per cent. of the appraised value, was a mere irregularity and was cured by the order of confirmation of the sale, and in support of that contention the parties relied on the cases of Eaves v. Mullen, 25 Okla. 679,107 P. 433, Sockey v. Winstock, 43 Okla. 758, 144 P. 372, and the same cases that are relied upon in this case.
In the above case, this court, in commenting upon the case of Eaves v. Mullen, supra, used this language:
"The rule announced in Eaves v. Mullen, supra, as to the effect of irregularities and defects after the acquirement of jurisdiction and antecedent to the order of confirmation, was based upon decisions from the Supreme Court of the United States, the appellate courts of California, South Dakota, and Arkansas. We do not find where the three first named courts have passed upon the question as to whether a violation of the appraisement by the order of confirmation, in a private guardianship sale, is a mere irregularity or is a jurisdictional departure, but the Supreme Court of Arkansas, in the case of Mobbs v. Millard et al., 106 Ark. 563, 153 S.W. 821, rendered after the decisions in the Arkansas cases cited in Eaves v. Mullen, held that such a violation was not an irregularity, but a jurisdictional departure, rendering the order of confirmation absolutely void. In Mobbs v. Millard et al., supra, the Arkansas court said: 'Under the law a minor cannot act for himself, and his guardian is his statutory agent. The requirement that no real estate of any minor shall be sold for less than three-fourths of its appraised value was passed for his protection pursuant to a general principle of public policy. Appraisement means valuation. Thus it will be seen the Legislature provided a means for fixing in advance the lowest valuation at which a minor's land can be sold. In the instant case it is conceded that the land was sold for less than three-fourths of its appraised value. * * * We hold that the sale was not in substantial compliance with the statute and is invalid. * * * We do not wish to be understood as holding that errors and irregularities in making the appraisements or in otherwise complying with the provisions of the statute in regard to the sale would not be a substantial compliance with the provisions thereof. * * * But we do hold that an essential requirement of the statute in regard to the sale of a minor's land cannot be entirely omitted and wholly disregarded."
The learned commissioner in the opinion used the following language:
"We must hold that the provision that no private guardian's sale shall be confirmed by the court unless the sum offered is at least 90 per cent. of the appraisement, nor unless the real estate sold has been appraised within one year from the time of such sale, is mandatory, and that an order of confirmation and guardian's deed violating this provision are absolutely void. We should not *Page 231 be understood as holding, however, that mere irregularities in the appraisement proceedings would have such effect, if such irregularity was not such as to deprive the appraisement of substance."
The case of Winters v. Oklahoma Portland Cement Co. was before this court a second time and entitled Oklahoma Portland Cement Co. v. Winters, 77 Okla. 36, 186 P. 468. The second syllabus paragraph in the opinion quoted the fifth syllabus paragraph in the former opinion, and in the body of the opinion the court, speaking through Mr. Justice Kane, stated as follows:
"Moreover, we have examined the opinion of Commissioner Johnson again, as we did when we approved it on former appeal, and believe that the ruling on the question now under consideration is correct. The authorities cited by the learned commissioner are in point and support his ruling on this question, and the conclusion reached is not, as contended, contrary to the decisions of this court in Hathaway v. Hoffman,53 Okla. 72, 153 P. 184; Baker v. Cureton, 49 Okla. 15,150 P. 1090; Welch v. Focht, 67 Oklahoma, 171 P. 730, L. R. A. 1918 D, 1163; or any other case of this class. In our judgment this case, as held by the learned commissioner, is governed by the authorities cited by him in support of his opinion, and particularly by such cases as Roth v. Union National Bank,58 Okla. 604, 160 P. 505, and Mobbs v. Millard, 106 Ark. 563, 153 S.W. 821. We think the case of Roth v. Union National Bank, supra, is precisely in point in principle.
"As the opinion prepared by the learned commissioner carefully and satisfactorily distinguishes Hathaway v. Hoffman, Baker v. Cureton, and other cases of this class relied upon by counsel for defendant from the case at bar, and the other cases by which it is ruled, no further discussion of these cases necessary."
This court, in a later opinion, in the case of Glory v. Bagby, 79 Okla. 155, 188 P. 881, followed the rule announced in the case of Winters v. Oklahoma Portland Cement Co., supra.
It would be inconsistent to hold that the sale of the lands of the minor sold at private sale for less than 90 per cent. of the appraised value, or where sold without appraisement, in violation of section 6384, Rev. Laws 1910, was a jurisdictional departure and rendered the proceedings void, and to hold that the Constitution and statute of this state empowered this court to prescribe rules for county courts in probate procedure and that the rules so prescribed have the same binding force and effect as a statute, and then to hold that a total failure to comply with rule 9, which contains just as strong and mandatory language as section 6384, would not be a jurisdictional departure and render the proceeding void.
It is contended that no rule of procedure or statute relating to procedure can deprive a court of jurisdiction. This is perhaps a correct statement of the law, but a rule of procedure or the statute relating to procedure simply prescribes how and when a court may exercise the jurisdiction conferred upon it. The county court has jurisdiction over the estates of minors, but the different section of the statute relating to procedure prescribed when and how the court must exercise that jurisdiction. This court is commited to the rule, if the statute relating to procedure is mandatory, the court must substantially comply with the provisions thereof. Whether the statute is mandatory or directory must be determined from the reading of the statutes themselves, and the intent of the framers, when ascertained must control.
Bearing in mind that section 2, art. 7, of the Constitution, and section 5347, Rev. Laws 1910, conferred upon the Justices of the Supreme Court power and authority to promulgate rules regulating procedure in probate matters, and that this court has held that such rules, when promulgated, had the force and effect of statutes and wore binding upon the inferior courts, in determining whether the rules were intended by the court to be mandatory or directory we must be governed by the same rule of construction that is applicable in construing statutes, and the intention of the framers thereof, when assertained, must control.
There is another rule applicable, and that is announced in the case of Harper v. Victor, 212 Fed. 903, where the court stated as follows:
"A statute should receive a rational, sensible interpretation, one which tends to avoid or remove the mischief at which it was leveled and to accomplish the object sought by the legislative body which enacted it, rather than one which promotes or permits the evil and avoids the accomplishment of the purpose of the enactment."
With this principle in mind, let us consider the reason or apparent reason, if any, for adopting rule 9. In the year 1914, when rule 9 was adopted, this court consisted of practically the same members as when the opinion in the case of Duff v. Keaton, 33 Okla. 92, 124 P. 291, was adopted and the court upheld a sale of oil and gas mining lease in the absence of fraud, where a petition was filed for the sale of an oil and gas lease and on the *Page 232 same day the court made an order authorizing the guardian to sell an oil and gas lease to the highest and best bidder, and on the same day the guardian reported that he had sold a lease upon the land, and on the same day the court approved the sale. It is very apparent the court did not consider this procedure a sufficient protection for the minor, as the proceedings might all be consummated within an hour's time and no one except the party interested would have knowledge that valuable oil rights of the minor were being offered for sale. Prospective purchasers would have no opportunity to bid, and in this manner the rights of the minor would not be protected and his property would be disposed of at a very inadequate consideration. To avoid this vice and to avoid the evil effects of such proceedings, the court adopted the rules. Why did the court deem it necessary that it be sold to the highest and best bidder? In order that the minor's rights be protected and he receive a just compensation for his property. The rules were no doubt promulgated to prevent just what occurred in the case at bar, to wit, the alleged sale of a valuable lease worth $15,000 for the sum of $100. The requirement that the petition be on file a certain length of time and that the sale be in open court, with an opportunity for every one to bid, was promulgated by the court for the protection of the minor. As was said in the case of Mobbs v. Millard, 106 Ark. 563, 153 S.W. 821:
"The requirement that no real estate of any minor shall be sold for less than three-fourths of its appraised value was passed for his protection pursuant to a general principle of public policy for the protection of the minor."
It is contended, however, that this decision overrules the case of Eaves v. Mullen. This same contention was urged in the case of Winters v. Oklahoma Portland Cement Company; but this court held otherwise. The decisions of the Supreme Court of Arkansas cited to support the case of Eaves v. Mullen followed the former decisions of that court and the court in its opinion stated the law as anounced had become a rule of property in that state. The law announced by the majority of the court was severely criticized in a dissenting opinion in the case of Apel v. Kelsey (Ark.) 12 S.W. 703, and it was suggested that if it had become a rule of property, it was the duty of the Legislature to change the same by a legislative enactment. The Legislature made a minor change in the law, and the court refused to follow its former decisions and announced the rule in the case of Mobbs v. Millard, supra, which was cited with approval and followed in the case of Winters v. Portland Cement Co., the opinion in which was adopted November 28, 1916, and a rehearing denied May 15, 1917; so, at the time of acquiring the lease in this case, it was the recognized law of this state that the rules of this court relating to probate procedure in obtaining oil and gas leases were binding upon the lower court and had the same force and effect as a statute.
It was likewise the recognized law of this state that the order of confirmation of a sale of the minor's property, in violation of section 6384 of the statute, was void for want of jurisdiction; so, there can be no rule of property upon which the defendants in error can rely upon. It is suggested in some of the briefs that this was not really a sale of the minor's property. This contention, we think, is well answered in the original opinion. If it is not a sale, it is simply a subterfuge by acquiring a minor's property by a procedure of "stipulation," and "modification."
The National Oil Company had an oil and gas lease upon this minor's property and in a few months he would become of age and its lease would terminate. The day he would become of age he would have a right to the land and all of the oil. The county court would no longer have jurisdiction over his estate. He would have a right to make the* kind and character of lease he desired, or he would have the right to produce the oil himself, as the wells had been already drilled. To deprive him of that right, a procedure termed "stipulation," and "modification," was invoked, and the same confirmed by the county court, thereby attempting to deprive him of a valuable lease upon his property for an inadequate consideration. There was no substantial compliance with the rules of this court, and the county court was without jurisdiction to adopt a procedure in direct violation of the rules of this court.
For the reasons stated, the petition for rehearing is denied, and the former opinion adhered to.
HARRISON, C. J., and JOHNSON, ELTING, KENNAMER, and NICHOLSON, JJ., concur. *Page 233