Among the many reasons why the court did not err in holding, in effect, that no defense had been interposed to this suit, is that the lease upon which defendant relies to defend his possessions of the property in controversy is void. The property therein described was the homestead of Wehiley Neharkey. It was allotted as such October 28, 1901, which Moses Neharkey took as her sole heir. The agreement under which it was so allotted was approved March 25, 1901, and provided:
"Lands allotted to citizens hereunder shall not in any manner whatsoever or at any time, be incumbered, taken, or sold to secure or satisfy any debt or obligation contracted or incurred prior to the date of the deed to the allottee therefor and such land shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land as a homestead which shall be nontaxable and inalianable and free from any incumbrance whatever for twenty-one years, for which he shall have a separate deed, conditioned as above: Provided, that selections of homesteads for minors, prisoners, convicts, incompetents, and aged and infirm persons, who cannot select for themselves, may be made in the manner herein provided for the selection of their allotments; and if, for any reason, such selection be not made for any citizen it shall be the duty of said commission to make selection for him. The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation free from such limitation."
It has been held by this court, in J. R. Sharp et al. v. O.M. Lancaster, 23 Okla. 349, 100 P. 578, that an oil and gas mining *Page 80 lease is an alienation within the inhibition of that part of this section providing "that such lands shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement except with the approval of the Secretary of the Interior," and as the lease in question was executed June, 23, 1904, the same falls squarely within that inhibition, unless, as contended by defendant, on the death of Wehiley Neharkey all restrictions on the homestead were removed by the last sentence of said section. With this contention we cannot agree, but are constrained to hold as we, in effect, held in De Graffenreid v.Iowa Land Trust Co., 20 Okla. 687, 95 P. 624, that the limitation last referred to in said section is the limitation that the homestead "shall be nontaxable and inalienable and free from all incumbrances whatever for twenty-one years," and had no reference to the limitation providing "that said lands shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement except with the approval of the Secretary of the Interior," leaving the five-year limitation on alienation still attaching to the entire allotment. This was, in effect, the holding of Frank L. Campbell, Assistant Attorney General of the Interior Department, in an opinion rendered August 10, 1906, in a controversy over certain royalties accruing, under an oil and gas mining lease executed by the heirs of one William Colbert, deceased, a Creek Indian. Said heirs had, prior to April 26, 1906, executed a deed to the homestead of the allottee, and the grantees therein demanded from the Indian agent the royalties accruing under the lease on the homestead of the allottee. The opinion says:
"This section (section 7 of the Original Agreement [Act March 1, 1901, c. 675, 31 Stat. 849]) in its first paragraph makes a clear, emphatic, and unequivocal inhibition against the alienation of any part of the allotted lands within 5 years, or until May 25, 1906, except by approval of the Secretary of the Interior. The words are general, and include the homestead as well as other lands. The second paragraph makes a further and longer term of inalienability of 21 years for the homestead lands, without power *Page 81 to the Secretary of the Interior to shorten it. The third paragraph, continuing to deal with the homestead, limits its descent to particular heirs, issue born after May 25, 1901, excluding other issue, and excluding any power of the allottee by will to defeat the descent to the particular heirs. It then provides that if there are no particular heirs, he may dispose of the homestead by will, free from limitation herein imposed, and that if he makes no will, the homestead shall descend to his heirs free from such limitations. There are two distinct limitations against alienation, one for 5 years applying to all allotted lands, and a second for 21 years applying to homestead lands. The latter does not in term, nor by any necessary implication, exclude operation of the former. It is an added and further one for nonalienation of the homestead. Through the second and third paragraph of the section there is a continuity of subject and thought, viz., the homestead, and all provisions of both paragraphs have reference thereto. Nothing in the act indicates an intent of Congress to make title of inherited homestead lands freer of alienation by heirs of a decedent than the lands not of homestead character. On the contrary, the only distinction made by Congress between the homestead and other land was to make them less alienable. I am therefore of the opinion that the words 'limitation herein imposed' and 'such limitation' have reference to the 21-year limitation against alienation of homestead lands, and have no reference to the 5-year general limitation against the alienation of any allotted lands."
We are therefore of the opinion that this lease falls within the 5-year inhibition against alienation by the allottee or his heirs, and, not having received the approval of the Secretary of the Interior, is void. Nor did the court err in refusing to decree specific performance of that part of the lease above set forth, for the reason, among other things, that the same, being, in effect, the sale of an option on the homestead which might be closed within said prohibitive period at the pleasure of the grantee, is violative of the spirit of section 7,supra, and section 16 of the Supplemental Agreement (Act June 30, 1902, c. 1323, 32 Stat. 503), which, in effect, retains said 5-year limitation and falls within that class of contracts declared void by the last sentence of said section, which *Page 82 provides that any agreement or conveyance of any kind or character, violative of any of the provisions of this paragraph, shall be absolutely void, and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity. The word "paragraph" as here used is synonymous with the word "section" (Webster's Inter. Dict.; McClellan v. Hein et al., 56 Neb. 600, 77 N.W. 120; Marine v. Packham, 52 Fed. 579, 3 C. C. A. 210), and refers to said section 16, and means that this option is not only void because sold within said prohibitive period, but, after that period has expired, is not susceptible of ratification in any manner. This provision was on the statute books when this option was sold, and seems to have been leveled directly at such sales; for what would it profit to make the allotment of a deceased allottee, in the hands of his heirs, inalienable for 5 years, and at the same time permit them to sell an option thereon which might be closed by the purchaser within that time? It goes without saying that such would be contrary to the spirit of the law, and would defeat the limitation.
But plaintiff must recover on the strength of his own title, and it now becomes our duty to test the strength of his chain, and determine whether the same is sufficient upon which to base a recovery. His contention that defendant's lease is void because made within the prohibitive period of 5 years without the approval of the Secretary of the Interior being sustained, he has thereby digged a pit into which every conveyance in his chain of title, back to Moses Neharkey, under whom both claim, must fall; that is, the deed from Moses Neharkey to Grant C. Stebbens, dated March 5, 1905, from said Stebbens and wife to A. F. Ault, dated May 13, 1905, from said Moses Neharkey and wife to said Ault, dated May 23, 1905, and from said Ault and wife to plaintiff, dated June 6, 1905, and that, too, for the same reason.
The heirs of Moses Neharkey are not before the court, and we can afford them no affirmative relief. It follows that while the court did not err in holding that defendant had interposed no defense to this suit, and was entitled to no relief on his cross-complaint, *Page 83 yet the court did err in holding that plaintiff had title to the property in controversy of strength sufficient to recover, and that he was entitled to the possession thereof, together with damages and costs, and for that reason this case is reversed and rendered, and the costs in this court will be ordered equally divided between plaintiff and defendant.
All the Justices concur.