The first contention of the plaintiffs in error is that the mining lease executed by Charles Dawes and his wife, Minnie Ball Dawes, under which lease the plaintiff. Elmer E. Klein, claims, is invalid and void because the property covered by the lease was a part of the Indian allotment of Minnie Ball Dawes, a restricted Quapaw Indian woman, and her restrictions had not been removed, nor the lease authorized or approved by the Secretary of the Interior; and that without such action by the Secretary of the Interior, she (Minnie Ball Dawes) was not legally authorized to execute the character of lease secured by W. A. Moses. They contend that Minnie Ball Dawes, a duly enrolled Quapaw Indian within the limits of the Quapaw Agency, received the lands as a part of her allotment, subject to restrictions against alienation thereof for a period of 25 years as provided by Act of Congress approved March 2, 1895 (28 Stat. L. 907). The act referred to, as amended by Act of Congress approved June 7, 1897 (30 Stat. L. 62-72), is as follows: *Page 164
"That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their lessees and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided, that whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him."
It seems that under this congressional act, Minnie Ball Dawes, an Indian woman within the limits of the Quapaw Agency, was authorized to lease her land for mining purposes or a term of ten years, unless it had been made to appear to the Secretary of the Interior that by reason of age or other disability she was unable to manage her allotment; if so, then the leasing was within the discretion of the Secretary of the Interior. It seems that this act gave authority to the allottee to convey mining rights by lease not exceeding ten years, unless it was or had been made to appear to the Secretary of the Interior that the allottee was incapable of managing her allotment. The question here is, Had the Secretary of the Interior taken the leasing of this land for mining purposes out of the control of the allottee, Minnie Ball Dawes?
The plaintiffs in error seem to rely upon section 11 of the regulations issued by the Department of the Interior in January, 1907, for an affirmative answer to this question, asserting that she is listed as an incompetent in said section 11. In this section or the regulations, a number of Indians are listed as incompetents; and the defendants in error admit that this Indian woman (Minnie Ball Dawes) is included in the list. After further consideration by the Department of the Interior of the competency of the Indians listed, it seems that further regulations were promulgated by the Department and the list revised, and the individual Indians classified, and Minnie Ball Dawes was not included in the list of incompetents. This revised classification seems to have been made in the latter part of 1907. It seems that Minnie Ball Dawes was permitted to lease her land without interference by the Department of the Interior until as late as about April, 1918, when she was declared to be "incompetent with respect to mining and business leases." The order is dated April 5, 1918. There seems to be no intimation in the order that the order should operate retroactively, even if the Department is clothed with power to make the order retroactive. From this last order Minnie Ball Dawes herself appealed to the Department of the Interior to again classify her as competent, and in her appeal she calls attention to the lease contract made with W. A. Moses by way of showing her ability to transact her own business affairs.
We conclude, upon this record, that on the 16th day of May, 1916, Minnie Ball Dawes was regarded by the Department of the Interior as competent to execute the mining lease she made in favor of W. A. Moses on said date, and that her status of competency remained until the Department of the Interior made the incompetency order against her as of April 5, 1918. Approval by the Department of the Interior was not essential to make the said lease contract a valid lease, under the circumstances appearing in this record.
The second contention made is that the Dawes-Moses lease was forfeited; and that the findings of the trial court that the lease was not forfeited, but was in force and effect, are against the clear weight of the evidence. The Dawes-Moses lease provided what should constitute grounds of forfeiture, and how forfeiture should be accomplished. The grounds of forfeiture consisted in failing to mine, pay royalty allow examination of the books, failure to keep the books in proper form, to refuse examination of the mining premises, or to fail to perform the conditions of the contract, all as provided in the lease. The means of forfeiture provided for are:
"The parties of the first part may declare this lease forfeited by serving notice upon the party of the second part, either in person or through the mail at the last known address of the party of the second part, heirs or assigns, stating that said lease has been forfeited, and thereupon may take immediate possession," etc.
Thus, grounds of forfeiture must, in fact, exist, and the notice be given. This lease contract was made on the 16th day of May, 1916, and Minnie Ball Dawes and Charles Dawes were parties of the first part, and W. A. Moses was party of the second part in the execution of the lease. Minnie Ball Dawes, one of the parties of the first part, died on about the 4th of February, 1919, leaving as her sole heirs at law Charles Dawes, her husband, and Beatrice Peters Schapp and Juanita Alma Dawes, her daughters. From the death of Minnie Ball Dawes these, her heirs, were in the position of owners *Page 165 of the rights acquired by parties of the first part in the Dawes-Moses lease. The record tends to show that on the 24th day of June, 1920, a forfeiture notice was issued by Charles Dawes alone, addressed to W. A. Moses, Elmer E. Klein, Harry H. Hawkins, and some 12 other parties named in the notice, calling the attention of these parties to a certain provision in the lease, as follows:
"That mining shall be carried on in good faith continuously and shall not be suspended at any time to exceed ten days in any two consecutive calendar months, without written permission of the lessors or their agent"
— and to the further provisions of the lease that if the conditions of the lease have not been complied with, the lessors are authorized to take immediate possession without notice to quit or demand for possession and notifying the parties named that the lessee and assigns have "wholly failed to mine said land in good faith or in any manner provided by said contract," and further notifying the parties "that the said lessors have elected to and have re-entered upon the said lands and all mining rights under said lease are declared forfeited and canceled." The notice is signed "Charles Dawes," and acknowledged by him; and the notice is filed of record as of the 24th of June, 1920, and recorded. The evidence tends to show that copies of this notice were mailed to the parties named in the notice at their last known addresses. This is the notice of forfeiture upon which the defendants Hawkins and Dawes rely. The court found such notice to be insufficient. If this notice was insufficient, there seems to have been no forfeiture. It seems from this record that the land involved was property belonging exclusively to Minnie Ball Dawes. She, joined by her husband, Charles Dawes, had executed the Moses lease. She died before the grounds of forfeiture had been committed if, in fact, there existed grounds of forfeiture, and before the notice was issued and served. After her death her husband, Charles Dawes, and Beatrice Peters Schapp and Juanita Alma Dawes, her daughters, took the property by inheritance, being her sole heirs, and they were co-owners of the land and rights accruing under the lease. These three heirs of Minnie Ball Dawes were then covenants, each equally interested with the others in the property and rights accruing. The question then is. Was the forfeiture notice issued by Charles Dawes, one of the cotenants alone, sufficient as a forfeiture notice?
In Howard v. Manning, 79 Okla. 165, 192 P. 358, this court had under consideration a similar question, and held:
"All the heirs, or their successors, must concur and unite in an election to enforce the forfeiture on account of the breach of entire and indivisible covenants."
And further held that:
"Neither tenant in common has, by virtue of his relationship to his cotenant in common, any authority to act as agent for his companion in either giving a lease or enforcing a forfeiture thereof."
All the heirs must concur in the election to enforce the forfeiture, and no one of them may, by virtue of his relationship as a cotenant, "act as agent for his companion." Charles Dawes did not even assume to act as agent for Beatrice Peters Schapp and Juanita Alma Dawes, his cotenants. He was acting for himself alone. Upon the authority of the cited case, the notice issued by Charles Dawes alone, a cotenant and not sole owner, was a nullity, and did not effectuate a forfeiture; and the trial court correctly so held.
There being no sufficient notice of forfeiture, it seems unnecessary to examine the record to determine the question of whether or not grounds of forfeiture actually existed. It appears certain from this record that the defendant Harry H. Hawkins began mining operations upon this land under a contract with plaintiff Elmer E. Klein, who himself held under W. A. Moses, the original lessee. Under this contract with plaintiff, it appears that defendant Harry H. Hawkins had placed mining machinery and had carried on rather extensive mining operations upon the land. It seems that such operations were being carried on up until within a few days before the forfeiture notice was given; and the machinery was there upon the ground just as it had been used in the mining operations at the time the defendant Charles Dawes claims to have made a re-entry. Dawes was operating the machinery when Hawkins came back upon the lease, but desisted at the direction of Hawkins. It seems that an amicable agreement was entered into between Hawkins and Dawes, and they operated the lease together. It was about this time, or shortly afterwards, that Hawkins and Dawes and the daughters of Minnie Ball Dawes entered into the lease contracts above referred to, and Hawkins bought out Dawes' interest in the land.
The trial court found that sometime after defendant Hawkins had taken possession of the property under his contract with the plaintiff, that he (Hawkins) and Charles Dawes had entered into a partnership agreement affecting the mining property, and that such partnership arrangement existed during *Page 166 the time that Hawkins was off the lease and at the time Dawes claimed to have made the re-entry. This finding seems to be supported by the record.
We conclude that the findings of the trial court, that the mining rights of Moses and associates under the Dawes-Moses lease were not forfeited, and that the rights asserted by them remained intact, are amply supported by the record; and that the judgment in favor of the plaintiff and against the defendants is amply supported.
Upon the cross-appeal by Elmer E. Klein et al., it is contended that they are entitled to a judgment of the court giving them the benefit of any mining rights secured by defendant Hawkins in his dealings with Charles Dawes and Beatrice Peters Schapp and Juanita Alma Dawes, extending the mining lease beyond the expiration of the Dawes-Moses lease. The Dawes-Moses lease expired by its own terms at midnight of the 15th day of April, 1926. By the terms of the contract secured by defendant Harry H. Hawkins from the daughters of Minnie Ball Dawes, he holds mining rights in and to this land until midnight on the 23rd day of July, 1930. This contract was approved by the Department of the Interior. It seems that Hawkins had purchased outright the interest of Charles Dawes in the land involved. The parties to the cross-appeal present the contention that such extension to July 23, 1930, should inure to their benefit; and that the lessee named in this lease contract should be adjudged to be a trustee for them; and that the trial court erred in refusing to enter such judgment.
It seems that no such contention was presented by the original pleadings. After the parties had rested, plaintiff moved for leave to amend the pleadings and prayer seeking the relief now contended for: and the pleadings were permitted to be so amended, or were treated as amended; but the prayer was denied. This ruling and judgment of the trial court is assigned as error in the cross-petition in error.
It seems plain from an examination of the decree entered by the trial court that every right had and held by the plaintiff, or by Moses and associates, under the Dawes-Moses lease, has been secured to them by the decree. The effect of the decree is to hold that the Dawes-Moses lease was a valid, binding mining lease contract from its inception to midnight on the 15th day of May, 1926. The effect of the judgment is to require Hawkins to settle with plaintiff and Moses and associates according to the terms of his sublease without any reference whatever to his contract with Beatrice Peters Schapp and Juanita Alma Dawes. Hawkins was a sublessee, not a partner with the plaintiff or Moses and associates. He occupied no confidential relationship with them or any of them. He and the plaintiff and Moses and associates had dealt at arm's length in the sublease contract. He owed them the duty to perform the obligations imposed upon him by his sublease, and no more. He seems to have thought that conditions arose that released him, but the court thought otherwise; and by the judgment he is required to perform his contract. Have the plaintiff and Moses and associates greater rights than the original lease and the sublease to Hawkins gave them? It would seem not. The rights of the various parties had been mutually agreed upon and expressed in the several contracts. The contract between Hawkins and the daughters of Minnie Ball Dawes, approved by the Department of the Interior, as we understand the instrument was in no sense a renewal of the original lease or a continuation of its terms. It was and is plainly a new, separate, and independent contract, imposing its own burdens upon the new lessee. These burdens have been sustained by Hawkins alone. He must hereafter sustain them in compliance with his contract. He has, no doubt, paid the stipulated royalty fixed in the new lease, and has otherwise performed the contract. There seems to be no complaint that this has not been done. But he is also required to pay the royalties stipulated in his sublease. There seems to be no purpose in the mind of plaintiff or his associates to help bear the burden that has secured the new and additional advantages, after the expiration of the old lease. Since the execution of the new lease, Hawkins has complied with its terms; and the judgment requires him to perform the conditions of the old lease. Why should he be further penalized?
Some authorities are cited by cross-petitioners in error, but they seem to deal with confidential agents of the lessee, and secret rights secured by him while the confidential relationship existed. As has been pointed out, Hawkins was a sublessee and not a confidential agent of plaintiff, or of Moses and associates. We think the cited cases are not applicable here.
The cross-petitioners seem to claim that they have an equity of renewal of their lease. Any renewal of their lease would depend entirely upon the voluntary contract made by the parties. Their lease, by its own terms, *Page 167 expired at midnight on the 15th day of May, 1926. There is no stipulation in the contract for a renewal. W.A. Moses, in getting the lease, dealt with Charles Dawes and Minnie Bali Dawes. At the death of Mrs. Dawes, Charles Dawes, Beatrice Peters Schapp, and Juanita Alma Dawes became the successors in interest of Mrs. Dawes. It seems that Charles Dawes inherited a one-third interest in the property, including the rights under the Dawes-Moses lease. So far as anything appears, Charles Dawes had a legal right to dispose of such interest and rights as he saw fit. We know of no legal impediment in the way of his selling such interest and rights. Any sale he made would be subject to the Dawes-Moses lease, which definitely fixed the date of expiration. No reason is pointed out, and we know of none, why Harry H. Hawkins, although a sub-lessee, should not buy such interest. On the 9th of June, 1921, Charles Dawes sold and Hawkins bought Dawes' interest in the property. Up until the death of Minnie Ball Dawes, the lessees, plaintiff and Moses and associates, were dealing with her as owner of the property. After her death and until the 9th of June, 1921, plaintiff and Moses and associates were dealing with Charles Dawes and the daughters of Mrs. Dawes as the owners. After that date, and until the expiration of the original lease, they were dealing with Hawkins and the daughters of Mrs. Dawes as owners. Hawkins and these daughters were holding subject to the original lease until it expired by its terms according to the judgment of the court in favor of the plaintiff.
It seems plain that Hawkins has, no time since he became part owner of the property, had any purpose in mind of renewing the original lease, and no good reason appears why a court of equity should now step in and compel him to make a renewal contract with plaintiff and Moses and associates without his consent, over his objection, and entirely against his will and to his financial detriment and loss. This would be the obvious effect of a decree declaring him to be the trustee of plaintiff and Moses and associates until the expiration of his contract with Beatrice Peters Schapp and Juanita Alma Dawes, and adjudged them to be entitled to a 7 1/2 per cent. royalty on all ores extracted after the expiration of the original lease and until the expiration of the new lease, as is prayed for by them.
The court compels performance of the conditions of the sublease until it expired by its own terms. It seems that since execution of the new lease Hawkins has also had the burden of performing its conditions. By the Judgment of the court Hawkins is compelled to pay to plaintiff and Moses and associates 7 1/2 per cent. of all ores extracted until the expiration of the original lease, or until midnight, April 15, 1926. Since August 6, 1920, the date the new lease was made, he has likewise performed the conditions of the new lease by paying a royalty of 10 per cent. of the ores extracted.
We think the trial court was correct in finding that Hawkins' mistake in concluding that the old lease had been abandoned and forfeited was not sufficient reason for compelling him to continue the payment of royalties provided for in both leases after the old lease had expired.
The prayer of the cross-petitioners in error is denied.
The judgment of the trial court is, in all things, affirmed.
By the Court: It is so ordered.