As long ago as Berryhill v. Spillers (1924) 105 Okla. 255,232 P. 376, relied upon by the majority, involving an attorney's contingent contract with a minor's guardian for the recovery of chattels and land, claimed as assets of the minor's estate, providing, as consideration for the attorney's recovery, a part of whatever might be recovered, and specifying a conveyance of a share of both real and personal property to be recovered, this court determined that while the promise to pay the attorney from cash assets of the minor's estate was valid and enforceable, the attorney "could not enforce the specific performance of the contract for the conveyance of an undivided one-fourth interest in the property recovered." That,the court admitted to be the law.
Until the present opinion and decision, there never was departure from the rule stated. Since Berryhill v. Spillers, supra, is not now overruled, but followed, this phase of jurisprudence in Oklahoma is not the science of prediction.
Fry v. Wolfe, 106 Okla. 289, 234 P. 191, lends no support to the rule promulgated, for therein the attorney's contingent and contracted fee was not enforced against the estate of the minor, but as against subsequent purchasers of the minor's land. The attorney's recovery, there against adults, was based upon an ascertained fact of adoption of the contract "irrespective of whether the contract was void in its inception."
Lasley v. Moore, 112 Okla. 198, 240 P. 704, stands in the same relation. That cause does not involve a minor's estate but merely alienation of land belonging to an adult full-blood Creek Indian. For the alienation, Federal restrictions required approval of the grant by the county court, an adopted Federal agency, and since that approval was had, the contract constituted a lien upon the adult's land the same as if the restriction had not existed.
First Nat. Bank Trust Co. of Tulsa v. Bassett,183 Okla. 592, 83 P.2d 837, 118 A.L.R. 1276, furnishes no majority support, for while the attorney's contingent contract there involved specified, as a consideration for recovery of assets belonging to the estate of a minor, a portion of either land or money, the claim allowed and sustained by judgment was formoney in the sum of *Page 540 $2,500. It is, therefore, misleading in the case at bar, alone involving land, to say "The rule therefore applies in the instant case."
The Bassett decision allows payment of an attorney's fee from the minor's funds alone, rather than from the guardian. The recovery was based on the court's approval of a contract so providing, which, without the county court's approval, would not have been a charge against the minor's estate either as a contracted claim or upon quantum meruit, for such attorney's claims are not necessaries as constituting debts or liens against the minor for which his land may be sold. Watts v. Houston, 65 Okla. 151, 165 P. 128; Marx v. Hefner,46 Okla. 453, 149 P. 207, Ann. Cas. 1917B, 656.
While such an approved contract, in the alternative, or as in the Berryhill Case, subject as to value to construction in the alternative, and where the contract is for benefit of the ward, the alternative provision for the attorney's payment in cash is valid and binding upon the ward's estate. The rule in the Bassett Case, supra, is utterly without application to the instant case wherein no alternative is stated in the contract and no compensation to the attorney is either sought or secured except as affecting an alienation of the ward's title and interest in land constituting a homestead, to be alienated by the per curiam judgment in this unusual manner.
Nor may the equation presented be minimized by the statement that the minor had only a chose in action, or right of action, for the recovery of allotment of his mother, which had been conveyed away.
The land, as recited and as adjudged, Goff v. Goff,124 Okla. 63, 253 P. 1014, constituted a homestead. This homestead existed for the shelter and protection of this minor. The mother's deed vested in others only the bare naked legal title, and that in trust, for the instrument was denominated "a safehand keeping deed." Possession of the land remained in the grantor and heir, this minor plaintiff. Subsequent traffic in the title was champertous and void. There is failure here to distinguish between possession and seisin, applicable to these lands, tenements, and rights of homestead by the statutes and Constitution provided. An estate may be vested or contingent. It is an estate if one has a present right or interest, and even though a future event is required to perfect legal title or reduce the estate to possession, the fact underlying the mother's grant was fear of fraud and aggression as against an underprivileged people, the object of a bounty provided by a just and generous government. This land constituted an allotment and homestead of a Creek freedman. Despite purpose of the deed of trust, Job-like, that which they feared most has come upon them. As in the opinion of this court by the Honorable John B. Harrison, "an innocent minor, like a bleeding lamb, was led to slaughter."
The fact remains, as by the majority recited, more than a decade and a half ago, while the plaintiff was yet a minor and of necessity a tenant in common and in possession of the land, by this court adjudged to be a homestead, the defendant below, A.L. Emery, commenced an action to partition the land. Emery based his action on the guardian's deed, conceded by the majority opinion to be "ineffective."
It is strange law under which this attorney succeeded by the intermediate judgment vacated and by which he is given right to prevail in any part otherwise than under the usual and exclusive method by statute provided, to alienate the minor's interest in land, or to divest the minor of the homestead derived from the blood of his ancestors.
Heretofore, as to a homestead, the rule prevailed, Miller v. Hassman, 24 Okla. 381, 103 P. 577, ". . . the same will not be partitioned"; Funk v. Baker, 21 Okla. 402, 96 P. 608, "The homestead, on the death of the widow, leaving unmarried *Page 541 minor children, is not subject to administration proceedings"; Pioneer Mortgage Co. v. Carter, 84 Okla. 85, 202 P. 513, "The children may continue their possession of the whole homestead until the youngest child becomes of age"; sec. 1223, O. S. 1931, 58 O. S. 1941 § 311; Rockwood v. St. John's Estate,10 Okla. 476, 62 P. 277; In re Estate of Gardner, 122 Okla. 26,250 P. 490; Choteau v. Choteau, 49 Okla. 105, 152 P. 373. But as against the judgment in partition, the minor may show cause. Nor is it necessary in the judgment to reserve the minor's right. 12 O. S. 1941 §§ 94, 96, 700, 1031.
Consideration may be given to a fancied rule of necessity. It may be by some believed that when the minor is divested of that with which he is invested, and the minor's estate be without cash assets with which to pay an attorney, of necessity, for recovery of a minor's lands, an attorney must be employed, therefore safeguards of statute and the rules of common law as to advertisement and sale of a minor's lands may be broken down. Such a view reverts to the issue put at rest adversely in the early case of Grissom v. Beidleman, 35 Okla. 343,129 P. 853, 44 L.R.A. (N.S.) 411, Ann. Cas. 1914D, 599, followed in Watts v. Houston, supra. This court then adopted the New Hampshire and Massachusetts rule that "Whatever may be the law in other jurisdictions in regard to the liability of minors in actions at law for attorney's fees on account of services rendered to the estates of minors, the law is settled in this jurisdiction that claims for such services cannot be classified as necessaries and may be avoided by the minors," "even under an express promise." According to Coke, necessaries of the infant include victuals, medical aid, and good teaching whereby he may profit himself afterwards, and these concern the person and not the estate, and no authority goes beyond this. Coke, Lit. 172a. Therefore, a debt contracted and approved, whereby an attorney's fee is due and owing on the part of a minor, forms no basis for the sale or alienation of a minor's interest in lands or tenements.
The reason underlying the rule is that the minor's contract generally is subject to disaffirmance upon the minor's attainment of his majority, and while the infant is a minor, he has only capacity to contract as defined by the statutes. 15 O. S. 1941 § 12. The minor "cannot give a delegation of power nor, under the age of 18, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control." How, then, may a contract, constituting a lien or alienation of an interest in land, be lawfully made or approved on behalf of a minor? The authorities and decisions answer in the negative.
And while a guardian's contract providing an attorney's fee may in fact be specified and approved, yet if the guardian's contract be considered that of the infant, the infant, upon attaining majority, may disavow the contract because it is the policy of the law to protect minors against their own mistakes. Wharen v. Funk, 152 P. Super. 133, 31 A.2d 450, 43 C.J.S. 161; Grissom v. Beidleman, supra. The guardian's deed, based on the contract, directed and approved by the county court, is by the majority assumed to be void. The contract alone remains.
The endeavor of this and other courts has been to prevent designing adults from overreaching infants by taking advantage of their lack of experience and judgment and inducing them to enter into contracts clearly to their disadvantage. Worman Motor Co. v. Hill., 54 Ariz. 227, 94 P.2d 865, 124 A.L.R. 1363. Witness in the case at bar the disadvantage to the minor in his loss of title and dispossession resultant, or to result, as applied to his homestead by the consideration provided in the attorney's contract, exclusively providing the attorney's part of the minor's land. A cash payment arising from rents and profits, or a sale in part of the land to pay debts, if such debts were allowable as a basis *Page 542 of a sale, could have had no such result. The per curiam opinion is not in accord with decisions since statehood.
Considering the guardian's contract to be that of the minor, by force of statute, the minor had right of disaffirmance, 15 O. S. 1941 § 19; Webb v. Harris, 32 Okla. 491, 121 P. 1082. This court, in its early judgments, Grissom v. Beidleman, supra, adhered to the rule that an attorney for an infant employed by a guardian who recovered land of a minor might be paid, but the attorney had no interest or lien on the property recovered. Owens v. Gunther, 75 Ark. 37, 86 S.W. 851, 5 Ann. Cas. 130.
Chief Justice Williams made use of these words:
"The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made."
Nor may the contract, after affirmance, be resuscitated or modified.
At common law, the estate of a minor could be alienated only for reasons limited. Generally, an infant may acquire property rights but save in the manner provided by law, as a minor he cannot dispose of them. 39 C.J.S. 189. The common law was derived from the experiences of Anglo-Saxon civilization. It gave to humanity the most enlightened system of jurisprudence the world has ever known. The common law provided a system for law by which rule, applied individually with reason, was transformed into the reign and majesty of law. Thus civilization was afforded a plan of distributive justice and justice administered became something apart from the oracle or decree. The motivating impulse of the common law was not forthwith to do right, but to know that justice might be done. Ours is a system of justice under law. That we may have a rule of law and not of men. Herein, there is variation and vacillation in the rule. The error is extended to partition and sale of the homestead and it imports absolute validity of an attorney's contract providing as a single consideration a portion of minor's lands recovered.
Under the general rule, at common law the nature of an infant's property must not be changed either by a guardian or a court so as to convert personal property into real or real property into personal. It is the English rule that in the absence of express statutory authority there could be no conversion of a minor's property except for the purpose of paying debts or supporting and educating the minor. This is the law in American jurisprudence. Olsen v. Rasmussen,146 Or. 648, 30 P.2d 329.
This doctrine of the common law, as modified, is the law in Oklahoma.
By statute, however, the guardian is permitted to sell the lands of his ward for additional specified purposes such as to reinvest in more productive stock.
Ordinarily, statutes in derogation of the common law are subject to the rule of strict construction, but by force of statute, 12 O. S. 1941 § 12, 25 O. S. 1941 § 29, in Oklahoma, generally, such is not the rule. An exception, however, is provided by the statute regarding probate and guardianship proceedings and that statute restricts alienation of a minor's land to "the manner prescribed by statute." 58 O. S. 1941 §§ 1-893. Thus sale for the purposes enumerated by statute constitutes the exclusive method of such alienation, and so a minor's land may not be exchanged or bartered whether for chattels, other lands, or services of an attorney. Rock Island Implement Co. v. Pearsey, 133 Okla. 1, 270 P. 846; Ammerman v. Karnowski, 109 Okla. 156, 224 P. 774, as the statute, 58 O. S. 1941 §§ 821, 822, constitutes a limitation on power. Perkins v. Middleton, 66 Okla. 1, 166 P. 1104.
Time then stands as an element at law, requisite to the effective and final grant made by or on behalf of the minor and as a condition precedent of alienation of the minor's lands under the device *Page 543 of an attorney's fee contract, even though it be approved by court.
Within the time provided by law, the minor disavowed the contract and showed cause against the judgment in partition. 12 O. S. 1941 § 1031, sub. 8, § 700.
The guardian's deed to Emery, based on the contract, conveying the minor's land, is conceded by the majority to be void, as well it may be. Gault Lumber Co. v. Pyles,19 Okla. 445, 92 P. 175; Drennan v. Harris, 67 Okla. 313, 161 P. 781, 170 P. 500; Smith v. Rockett, 79 Okla. 244, 192 P. 691; William Cameron Co. v. Yarby, 71 Okla. 79, 175 P. 206; Anno. 108 A.L.R. 936; Perkins v. Middleton, 66 Okla. 1, 166 P. 1104; Cochran v. Davis, 154 Okla. 103, 6 P.2d 685.
Likewise, the lien adjudged against the minor's land was void. Jones v. Johnson, 72 Okla. 134, 178 P. 984, 21 A.L.R. 202; Morton v. Thomason, 146 Okla. 255, 293 P. 1005.
Since, then, the attorney's contention is relegated to the validity of the contract, whether such contracted provision for alienation of the minor's land be void, as in the Berryhill-Spillers Case, or whether the contract be subject to disavowal as once thought by this court, speaking through its first Chief Justice, Grissom v. Beidleman, supra, and irrespective of the validity of the action in partition of the minor's homestead, which, according to our decisions, likewise has invalidity, it is readily apparent that the judgment in partition is void on the face of the record, Schmid v. Farris,169 Okla. 445, 37 P.2d 596, and that the decree in equity last below rendered should receive affirmance.
This is so because unless authority is found in the statute, the power to alienate minor's land does not exist. The only species of alienation found in statute is by sale, so whether the attempted alienation by contract was made by the minor, or on behalf of the minor by the guardian, irrespective of approval by the probate court, it is void. Alienation of the minor's estate as a transaction must be by actual sale and not by the mere bartering or exchange of land for services, as in the case at bar.
It is fundamental that the donee of power can exercise it only to the extent actually conferred and as conferred. Trutch v. Bonnell, 11 Or. 58, 4 P. 588, 50 Am. Rep. 456.
The word "sale," as held in Brown v. Laird, 134 Or. 150,291 P. 352, 73 A. L. R. 877, means "the transfer or passing of title in exchange for money, preferably paid in cash." Sale is a word of precise, legal import, both at law and in equity. It means at all times a contract between parties to give and pass rights of property for money. Williamson v. Berry, 8 How. 495, 12 L.Ed. 1170.
That the power of a guardian to sell land of his ward does not include the power to barter or exchange such lands is clear and overwhelming by authority and decisions established. Perkins v. Middleton, supra; Killmer Paint Glass Co. v. Davenport-Bethell Co., 136 Okla. 252, 277 P. 653; 63 A.L.R. 1003; Olsen v. Rasmussen, supra.
It is also well settled that the powers of a probate court do not include authority to divest an infant of his title to lands except in the manner by the statute prescribed.
In the case at bar there was no money paid for the interest of the minor in the land, inherited from his mother. So that a fraud was perpetrated against the law and against the rights of the minor. That fraud was carried forward into the partition and so-called sale where again, for the minor's inherited and remaining interest in the land, no money was paid. Thus the minor was dispossessed of the homestead, denied due process of law, and its private property was taken without just compensation. That was a sham sale, Conklin v. LaDow,33 Or. 354, 54 P. 218, against which, under provisions of statute or in the absence of statute, equity exists to afford relief. Kelly, Gdn., v. Kelly, *Page 544 134 Okla. 172, 272 P. 838; Allison v. Crummey, 64 Okla. 20,168 P. 691.
The majority err in reliance and statement of contents in Kelly, Gdn., v. Kelly, supra, for, as appears from the syllabus, the attorney sought "funds" for his contracted fee, and in the body of the opinion the attorney "waived all interest in the real estate except revenue arising therefrom." The exception did not extend, as stated by the majority, to "aninterest in the oil and gas rights therein."
I would affirm.