Larson, the plaintiff in error, made his note to the Flournoy Live-Stock & Real-Estate Company for the sum of $600, and this note was indorsed to the defendant in error in the usual course, of business before maturity and for a valuable consideration. Suit was brought upon this note against the maker and indorser, and A. L. Maryott and H. C. McHirron, who had guaranteed its payment, were also made defendants. Larson, the maker, alone answered. In his answer he states that the Flournoy LiveStock & Real-Estate Company had made a pretended lease of certain lands situated within the limits of the Winnebago and Omaha Indian reservation in the state of Nebraska, and that he subleased certain of these lands from said company and executed the note in suit for the rental agreed to be paid therefor for the year 1895. The fifth paragraph of the answer is as follows:
“The defendant, further answering, alleges that the lands pretended to be leased by the said Flournoy LiveStock & Real-Estate Company to the defendant, had been alloted to Jane, John and George Little Thunder Peterson, and other Indians whose names are to the defendant unknown, all of said Indians residing upon said Winnebago and Omaha reservations, pursuant to an act of Congress of the United States approved February 8, 1887, entitled ‘An act to provide for the allotment of lands in severalty to Indians on the various reservations and to extend the protection of the laws of the United States and territories over the Indians, and for other purposes/ the 5th section of which act is in words and figures following, to-wit:
“That said Indians leasing said lands to the Flournoy Live-Stock & Real-Estate Company, aforesaid, were at the time of the making said leases under the supervision and control of the Indian agent appointed by authority of the government of the United States and had no right or authority to enter into any written contract of whatever kind or nature for the alienation, incumbrance or leasing of the real estate alloted to them, as aforesaid; that the said leases procured from said Indians by the said Flournoy Live-Stock & Real-Estate Company, were never approved by the secretary of the interior, nor the commissioner of Indian affairs, and were absolutely null and void; that the note in suit, and to recover upon which this action is brought, was made, executed and delivered by the defendant to the said Flournoy Live-Stock & Real-Estate Company, in direct Violation of the statutes above referred to, and in direct violation of the laws of the United States, whereby in consequence of which, the consideration of said note was and is illegal, and the said
A trial was had to á jury, and after the parties had closed their evidence, the court, on- the request of the bank, instructed the jury to return a verdict for the plaintiff. The petition contains forty-five assignments of error which we are asked to examine and pass upon; but as there is one question Avhich, in our opinion, is decisiAre of the case, Ave Avill confine ourselves to that.
The statute set out in the fifth paragraph of the defendant’s ansAver makes any contract touching the lands, for the rental of which the note in suit was given, absolutely null and void. It Avill not be disputed that a lease of these lands is a contract “touching the same,” and it can hardly be doubted that a note given for the rental agreed upon is a part of the same contract. In Kittle v. De Lamater, 3 Nebr., 325, 332, it is said: “In laA\'r it seems clear that the contract to print and publish the Eureka map and lottery scheme, as alleged in the ansAver, and the execution of the note by the plaintiff in error to Asher & Adams, must all be taken as one transaction, and as constituting but one contract.” The fact that an independent Avritten contract in the form of a note was given by Larson to evidence his agreement to pay rent does not make it the less a contract touching these lands. What Avas the contract? The Flournoy Company agreed to rent certain lands to Larson; Larson on his part agreed to pay a certain sum as rent therefor. The agreement to lease on one side and the. agreement to pay rent on the other Avere both necessary elements entering into the contract; and the agreement to pay rent, though evidenced by the note, Avas just as much a part of the contract as though made in any other form. It is true, as urged by the defendants in error, that Kittle v. De Lamater has been overruled as to one question decided by a later case, Smith v. Columbus State Bank, 9 Nebr., 31, but the point above ruled was not questioned or doubted, nor do Ave see hoAV it Avell could be. In Smith v. Bank, supra,
The rule that the tenant can not dispute the title of his landlord is urged as an estoppel against the plaintiff in error, and it is insisted that having taken a lease from the Flournoy Company, he ought not to be allowed to show
We recommend that the judgment of the district court be reversed and the case remanded with directions to dismiss the same as against the plaintiff in error.
For the reasons above given, the judgment of the district court is reversed and the cause remanded with directions to dismiss the action.
Reversed and remanded.