The questions presented in this record for decision may *Page 52 be stated briefly as follows: (1) Did the United States court for the Southern district of the Indian Territory have authority to appoint E. Dunlap guardian or curator of the estate of Davis Lowman, located in said district, when the domicile of the minor allottee was in the Central district? (2) Could a guardian so appointed make a valid lease of a minor's lands? (3) Was the lease of Ellis Lowman as guardian of the defendant in error, dated June, 1908, for a term commencing January 1, 1911, a good and valid lease? (4) Did the trial court err in taxing the costs of the action against the plaintiff in error? (5) Did the county court of Pushmataha county have legal authority to transfer the guardianship proceedings of Ellis Lowman from that county to McCurtain county on application made more than 60 days after the enactment of the amendatory statute regulating the transfer of causes (Sess. Laws 1907-08, p. 213)? (6) Was the approval of the Secretary of the Interior necessary to the deed of the adult heirs of Davis Lowman, deceased, who died during the year 1907, in order to pass their title?
The authority of the United States court for the Southern district of the Indian Territory to appoint Dunlap as the guardian must be found in the Arkansas statute and the act of Congress extending the same over the Indian Territory, if at all, since that was the law under which the proceedings were had. It seems that this question has never been passed upon by the Supreme Court of Arkansas directly; or even indirectly in such a manner as to be of material assistance to this court in determining the question. The deposition of an eminent practitioner in Arkansas was admitted at the hearing, and he testified that in his 50 years' experience at the bar in that state he had not known of a single case where the probate court in that state, outside of the domicile of the minor, had appointed a guardian or curator of the estate of a minor. While, on the other hand, it is conceded that the practice was common in the Indian Territory, prior to statehood, for the United States courts to appoint guardians or curators of the estates of minors located in their respective jurisdictions without regard to the domicile of the minor. It does not *Page 53 clearly appear just how a practice so different as that in Arkansas and that in the Indian Territory, under the same statutes, became established. It is possible that the broad terms of the statute itself, and the wide difference in the conditions of the estates of minors in the Indian Territory and in the state of Arkansas, gave rise to this difference in the practice.
The statute reads as follows: "The court of probate shall have power to appoint guardians for minors, and possess the control and superintendence of them." Mansf. Dig. § 3461. This section is found in chapter 73 of Mansfield's Digest, and the act of Congress of May 2, 1890, extending this chapter over the Indian Territory, provides: "And said court in the Indian Territory shall appoint guardians and curators." Act May 2, 1890, c. 182, § 31, 26 Stat. 94.
Prior to statehood there were no county divisions or county government in the eastern part of the state of Oklahoma, then known as the "Indian Territory." Under the court government of that country then existing, the territory was divided into judicial districts, which corresponded to county divisions of the state of Arkansas, at least as far as the jurisdictions of the courts were concerned. Sessions of the United States courts were held at various points in each district, designated as "court towns," but the several courts exercised jurisdiction over the entire district, and holding the court at various places in the district was a system of convenience merely. It is a matter of common knowledge that in the division of the property of the Five Civilized Tribes, the children taking an equal part thereof with the parents, a large per cent. of the property in the eastern part of the state was and is now owned by minors, and that the domicile of the minor and the location of his allotment or estate is often widely separated. This condition of course brought the question squarely to the court as to whether it would not be more economical and less expensive to the estate of the minor to appoint curators or guardians for his estate in the district where his land was located. There was nothing in the statute expressly forbidding that this be done, and these conditions doubtless gave rise to the *Page 54 practice. It was doubtless made to appear to the United States court in the Indian Territory that it would be less expensive in the management of the land of the minor to appoint some one who lived near the location of the land, rather than some one who might live far distant, although his residence was the same as that of the minor. It was the property and not the ward that demanded the care and attention of a curator, and the best interest of the ward's estate that prompted the court to exercise the jurisdiction.
Aside from the fact that this practice was in vogue and recognized for years in the Indian Territory prior to statehood, and vast property interests have been acquired thereunder, and the unsettling of such interests by denying the authority of the courts to make such appointment, we believe that the practice ought to be sustained. There can be no question about the fact that the interest of the ward was better protected by this practice than it would have been by pursuing the practice of appointing a guardian at the domicile of the ward only. We believe that this statute ought to be construed as vesting the discretion in the court to make the appointment either at the domicile of the ward or where the land was located as might seem best to serve the interest of the minor and his estate.
This construction of the statute finds support in McKeen v.Delancy's Lessee, 5 Cranch, 22, 3 L. Ed. 25. In an opinion by Chief Justice Marshall, it is said:
"The first question which presents itself in this cause is, Was the deed properly approved? Were this act of 1715 [Laws Pa. 1715, c. 208] now, for the first time, to be construed, the opinion of this court would certainly be that the deed was not regularly proved. A justice of the Supreme Court would not be deemed a justice of the county, and the decision would be that the deed was not properly proved, and therefore not legally recorded. But, in construing the statutes of a state on which land titles depend, infinite mischief would ensue should this court observe a different rule from that which has been long established in the state; and in this case the court cannot doubt that the courts of Pennsylvania consider a justice of the Supreme Court as within the description of the act. It is of some weight that this deed was *Page 55 acknowledged by the Chief Justice, who certainly must have been acquainted with the construction given to the act, and that the acknowledgment was taken before another judge of the Supreme Court. It is also recollected that the gentlemen of the bar, who supported the conveyance, spoke positively as to the universal understanding of the state on this point, and that those who controverted the usage on other points did not controvert it on this. But what is decisive with the court is that the judge who presides in the Circuit Court for the district of Pennsylvania reports to us that this construction was universally received. On this evidence the court yields the construction which would be put on the words of the act to that which the courts of the state have put on it, and on which many titles may probably depend."
See, also, C., R.I. P. Ry. Co. v. Dodson Williams,25 Okla. 829, 107 P. 921.
We therefore find that the United States court for the Southern district of the Indian Territory had authority to appoint E. Dunlap guardian or curator of the estate of Davis Lowman, a minor, located in said district, and that the first question should be answered in the affirmative.
2. It follows from the foregoing conclusions that the second question should receive a like affirmative answer. Since it having been determined that the United States court for the Southern district of the Indian Territory had authority to appoint a guardian or curator of the lands of Davis Lowman located in said district, and it having been agreed in the statement of facts that the proceedings leading up to the appointment of E. Dunlap were in all things regular, and that he was legally qualified as such guardian or curator, it follows as a matter of course that he had authority to execute a valid lease for the lands of his ward for a term not exceeding five years.
3. In view of the conclusion reached on the preceding questions, the validity or invalidity of the second lease — that executed in June, 1908, for a term of three years commencing January 1, 1911 — is not necessary in disposing of the instant case, and for that reason no opinion is expressed in regard to it.
4. The assessment of costs in question seems to be governed by a specific statute which reads as follows: *Page 56
"When it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real or personal property." (Section 6115, Snyder's Statutes.)
This being an action for the recovery of specific real property, the plaintiff, having recovered judgment in the court below, had an absolute right to costs. No discretion was vested in the trial court on this subject. It was error to tax them to plaintiff. St. Charles v. O'Mailey, 18 Ill. 407; Lultgor v.Walters, 64 Barb. (N.Y.) 417. However, in view of the fact that upon consideration of the questions hereinbefore discussed the conclusion follows that the judgment of the trial court should have been for the defendant and not for the plaintiff, the defendant was entitled to costs, and this part of the judgment is correct.
5. It appears that after the appointment of Ellis Lowman as guardian by the United States court for the Eastern district of the Indian Territory and the admission of Oklahoma and the establishment of county divisions therein, under the Schedule of the Constitution and the Enabling Act, the district court of Pushmataha county inherited this Lowman probate case, as successor to the United States court for the Eastern district of the Indian Territory, Antlers division, and that the case was by order, as provided by law, transferred to the county court of said county. The guardian, however, and his wards resided in McCurtain county. On the 7th day of June, 1909, the guardian presented his petition and application to the court of Pushmataha county under the provisions of section 1, c. 16, art. 3, p. 213, Sess. Laws 1907-08, praying that said cause be transferred to McCurtain county, the county of the domicile of the guardian and his wards, and where said case should have been commenced if then instituted. The order was made and the case transferred. Subsequently, on the petition of the guardian, the interest of the minors in the land in controversy was sold by order of the county court of McCurtain county and the sale confirmed, and deed duly executed to the plaintiff in error. The contention is made in behalf of the defendant in error that the guardian's deed and *Page 57 all the proceedings are void, for the reason that the county court of McCurtain county never acquired jurisdiction of said cause, since the application for transfer was not made until after the expiration of 60 days "after the passage and approval" of said act; that the county court in Pushmataha county had no power to make the order of transfer after the expiration of said 60 days from the approval of that act. The statute reads as follows:
"That all those civil cases transferred from the courts of the territory of Oklahoma and the United States courts in the Indian Territory to the courts of this state as transferred by acts of Congress and accepted by the Constitution, which would have been properly triable in any court, or county or district of this state, had such suit or proceeding been commenced after the admission of this state into the Union, including records formerly belonging to the United States commissioners' courts and all papers of mayors of cities and incorporated towns having and exercising ex officio jurisdiction as United States commissioners in that part of the state formerly known as 'Indian Territory,' that may be in the hands of the clerks of the various district courts of that portion of the state may, including probate matters, on petition verified by the affidavit of the applicant or his attorneys of record, filed with the judge or clerk of the court where such cause is pending within sixty days after the passage and approval of this act, be transferred to the proper courts of such county or district, and that all books, records, pending cases, papers, proceedings, liens, judgments and executions pending in a justice of the peace court of any county are hereby transferred to some justice of the peace court of the county in which, if originally brought in said court, the defendant lives, or if the defendant be a nonresident, then to the county where the plaintiff lives, or the defendant has property, and when such records are transferred as above provided for, said court shall have full and complete jurisdiction of all cases and proceedings so transferred: Provided, that all transfers of cases, papers, books, proceedings, made or attempted to be made by mayors of incorporated towns to the proper court are hereby legalized and made valid."
It will be observed that this statute does not forbid the filing of a petition for removal or prohibit the court from making the order of removal after the expiration of 60 days "after the passage and approval of this act." Nor is it prescribed in the *Page 58 statute that an order made after 60 days is void. No good reason appears why an order of removal should not be made as well after as within the 60 days. This is a remedial statute providing a method of distributing certain cases pending at the time of statehood to the courts of the residence of the parties. It vests in the courts named the power to make a distribution on application presented in the manner provided in the statute. It does not appear that the Legislature intended to limit the exercise of this power to 60 days. In fact, such a limitation written in the statute would in a large measure defeat the purpose of the statute. We cannot hold that this 60 days provision was or is a limitation on the power of the court to make the order of removal. This provision in the statute is merely directory and not mandatory. We therefore hold that the court under this statute had the same power to make the order of removal after 60 days as within the 60 days from the passage and approval of said act. This construction of the statute finds confirmation in the decision of this court construing section 1, c. 25, p. 37, Sess. Laws Ex. Sess. 1910, relating to the transfer of certain probate cases. Burnett v. Durant,28 Okla. 552, 115 P. 273. Also in the construction placed on section 5, art. 1, p. 26, Sess. Laws 1907-08. Haskell v. Reigelet al., 26 Okla. 87, 108 P. 367; Grove v. Haskell,24 Okla. 707, 104 P. 56.
We therefore hold that the cause was properly transferred to McCurtain county.
6. It is admitted that the plaintiff's grantors were full-blood Indians, and that the land conveyed or attempted to be conveyed was inherited lands from their relative Davis Lowman, who died in August, 1907, prior to the enactment by the Congress of the United States of the act of May 27, 1908, c. 109, 35 Stat. 312, and that the plaintiff's deed executed September 16, 1909, was approved by the county court of McCurtain county, the court having jurisdiction of the settlement of the estate of the deceased allottee.
It is contended by the defendant that this deed was void and *Page 59 conveyed no interest in the land in controversy for the reason that it had not been approved by the Secretary of the Interior.
Section 9 of the act of May 27, 1908, reads in part as follows:
"That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee."
The provision above quoted, and the other provisions of the act of May 27, 1908, operated to remove the restrictions against alienation of every allottee of the Five Tribes who died subsequent to the passage of said act, subject to the proviso that deeds of full-blood heirs must be approved by the county court having jurisdiction of the settlement of the estate of the deceased ancestor and those who were survived by the heirs born since March 4, 1906, but it is contended that the provisions of the act cannot be applied to any allottee who died prior to the enactment of this statute; that the phrase "that the death of any allottee * * * shall operate," etc., cannot apply to allottees then dead, but must apply only to those who shall thereafter die; that since the approval of the Secretary of the Interior was required to deeds of full-blood heirs by act of April 26, 1906, c. 1876, 34 Stat. 137, and was required up to the passage of the act of May 27, 1908, and that the plaintiff's deed, although executed in September, 1909, after the said statute was enacted, should have the approval of the Secretary of the Interior to make it a valid deed, because at the time of the death of the allottee whose land was attempted to be conveyed such approval was then required to the deed of his heirs, and on account of some indefinite and indeterminable claim to guardianship over the Indians by the Secretary. We are frank to state that this contention does not appeal to us, and this construction of the statute seems strained and against the evident purpose and intent of Congress in its enactment, which clearly was to remove, rather than extend, restrictions on the alienations of these Indian *Page 60 lands and to pass to the probate courts of the state a large measure of the power which the Secretary of the Interior had prior thereto exercised over these Indian citizens of Oklahoma.
The very first sentence in section 1 of this act of May 27, 1908, declares the status of these lands in the following language:
"That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrances, be as follows."
Then follows an enumeration of the classes from which restrictions are removed; and further along in said section it is provided:
"And nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act."
In section 6 of this act it is further provided:
"That the person and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate court of the state of Oklahoma."
The only purpose of requiring the Secretary to approve the deeds of full-blood heirs was for the protection of the full-blood grantors. This purpose we assume can be as effectively and as fully accomplished by the court having jurisdiction of the settlement of the estate of the deceased allottee as by the Secretary of the Interior burdened with the cares of a great department of government. This approval, however, must be the act of the court as distinguished from the act of the judge of the court. Mr. Justice Day, speaking for the Supreme Court of the United States in regard to these statutes, in a recent decision, said:
"The obvious purpose of these provisions is to continue supervision over the right of full-blood Indians to dispose of lands by will, and to require conveyance of interests of full-blood Indians in inherited lands to be approved by a competent court." (Tiger v. Western Investment Company et al., 31 Sup. Ct. 578, 55 L.Ed. ___.)
It is well said in the brief on behalf of the plaintiff in error: *Page 61
"Prior to May 27, 1908, there was no uniformity in restrictions upon alienations as to the different tribes, constituting what is known as the Five Civilized Tribes. It is, in our judgment, clearly apparent that the purposes of the act of May 27, 1908, were to establish a uniform and complete system applicable to all of the tribes; to substitute the provisions of the act of May 27, 1908, for the provisions of the act of April 26, 1906, and other legislation of like character. In other words, it was the substitution of a complete system in lieu of the fragmentary provisions theretofore existing. It is a substitute for and a repeal of the previous laws relating to the same subject-matter dealt with by this act."
If the act of May 27, 1908, was intended by Congress as a substitute for all prior laws on the subjects therein covered, and we believe it was so intended, then its enactment operated as a repeal of all former laws on the same subject although it contains no expressed words to that effect. The rule is announced by this court as follows:
"A statute revising the whole subject-matter of former acts, containing in the main the provisions of the former acts, and evidently intended as a substitute for them, although it contains no express words to that effect, operates to repeal the former acts." (Smock v. Farmers' State Bank, 22 Okla. 825,98 P. 945.)
This act of May 27, 1908, was remedial in its nature, and there is no reason apparent to the court why the word shall, as used in section 9 thereof, cannot be applied to allottees who died prior to that date as well as to those who died subsequently. Fitzpatrick v. Simonson Bros. Manufacturing Co.,86 Minn. 140, 90 N.W. 378; Maysville Lexington R. R. Co. v.Herrick, 13 Bush 122, 125; Ex parte Jordan, 94 U.S. 251, 24 L. Ed. 123.
The only object to be accomplished by requiring the approval of deeds of full-blood heirs by the Secretary or the county court was the protection of the living and not the dead. The law in force at the time of the execution of the deed ought to govern, and not that in force at the time of the death of the allottee. This is the construction, as we are advised, placed upon this act by the Department of the Interior for the first year following *Page 62 its passage. What caused a change in the policy or construction of the act by the department, we are not advised, but we know that there was no change in the statute, nor was there any subsequent enactment by Congress authorizing it. We are constrained to hold that after the passage of the act of May 27, 1908, the approval of the Secretary of the Interior was not necessary to the deed of any full-blood heir other than the specific instances in the statutes enumerated, and, as the heirs of Davis Lowman, deceased, executing the deed to the plaintiff in error were not in the excepted class, the approval of the county court of McCurtain county of plaintiff's deed in the instant case was sufficient, and said deed so approved conveyed all the title of the heirs of the deceased allottee in said land.
Although the plaintiff in error had the legal title to the land in controversy at the time of the commencement of the action, the right to the possession thereof was in the defendant in error by virtue of the lease expiring December 31, 1910. In order for the plaintiff to prevail in this character of action, it is necessary not only that he show legal or equitable title in himself, but also the right to possession at the time of commencing the action. Jennings v. Brown,20 Okla. 294, 94 P. 557. The judgment of the trial court should have been for the defendant.
The cause is therefore reversed and remanded to the district court of Garvin county for further proceedings consistent with this opinion.
TURNER, C. J., and KANE and DUNN, JJ., and GORDON, J.,pro tem., concur. *Page 63