Harris v. Hardridge
104 S.W. 826
Ct. App. Ind. Terr.
1907
Check Treatment
TowNskxd, J.

(after stating the facts as above). Appellant filed the following assignments of error: “The court erred in sustaining respondent’s demurrer and in dismissing appellant’s bill, because said bill contained a statement of facts in manner and form properly charged and set forth to constitute a good and sufficient cause of action against said respondents to entitle appellant, in equity, to the relief therein prayed.”

Appellant contends: First, that the contract made between him and appellees Adam AT. Hardridge and Martha Hardridge on the 7th day of September, A. D. 1900, was not in violation of any law then existing, but was a good and legal contract and ought to be specifically performed by said ap-pellees; second, that if said contract was an illegal contract at the time it was made both appellant and said appellees continued to perform it and recognize it as being legal and binding after the restrictions were removed by the act of Congress of April 21, 1904 (33 Stat. 204, c. 1402), and that after said date said cpntract became and was, by the actions of the parties thereto, a valid, legal, and binding contract and ought to be specifically enforced in a Court of Equity. As is shown by plaintiff’s complaint, on September 7, 1900, appellant and appellees Hardridge and wife made a verbal contract by which appellees Hardridge and wife agreed to convey to appellant Harris 60 acres of land, -“as soon as defendant Adam M. Hard-*538ridge should receive his deed for said quarter section of land,” in consideration for which appellant, Harris, agreed to convey to appellees Hardridge and wife lot 2 in block 413 in the city of Wagoner, with improvements. Appellees Hardridge and wife delivered possession of the 60 acres to appellant. At the same time appellant delivered possession of lot 2, block 413, to ap-pellees. On October 28,1901, said verbal agreement was reduced to writing and signed by the parties. Appellant, on December 10, 1904, tendered to appellees Hardridge and wife a deed for said lot. Appellees refused to accept it, and refused to convey to appellant the 60 acres. ' Appellee Adam M. Hardridge is enrolled as a Creek freedman, and is entitled to an allotment of 160 acres of land, and at the time this contract herein stated was made had selected said 60 acres as part of his allotment, and was in possession of the same. On April 22, 1904, the restrictions Avere removed by act of Congress upon all persons not of Indian blood, which enabled appellee Hardridge to convey said 60 acres. On May 13, 1904, appellees Hardridge and wife attempted to sell, and did make and deliver a pretended deed to said 60 acres to appellees Ruble and Gordon.

Under Act June 28, 1898, c. 517, 30 Stat. 507, known-as the “Curtis Bill,” it was “provided further that the lands allotted shall be nontransferable- until after full title is acquired and shall be liable for no obligations contracted prior thereto by the allottee, and shall be nontaxable while so held.” Hence, when the contract was entered into on September .7, 1900, as alleged by appellant, the land to be allotted was nontransferable until after full title is acquired’ Under Act March 1, 1901, c. 676, 31 Stat. 861, entitled “An act to ratify and confirm an agreement with the Muskogee or Creek Tribe of Indians, and for other purposes,” it was provided: “(7) 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 *539prior to the date of the deed to the allottee therefor and such lands shall not be alienable by the allottee or his heirs at any time before the expiration of five 3rears from the ratification of this agreement, except with the approval of the Secretary of the Interior.” Hence, Congress again provided that the 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.” Under Act June 30, 1902, c. 1362, 32 Stat. 641, entitled “An act to ratify and confirm a supplemental agreement with the Creek tribe of Indians and for other purposes,” it was provided as follows: “(16) Lands allotted to citizens shall not in any manner whatever or at any time be incumbered, taken,, or sold to secure or satisfy any debt or obligation nor be alienated by the allottee or his heirs before the expiration of five 3rears fro the date of the approval of this supplemental agreement, except with the approval of the Secretaiy of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear. * * * Aw agreement or conveyance of any kind or character violative of an3r 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.”

It is in our judgment conclusive that this agreement to conve3r, under the foregoing provisions, is illegal and void. In Pomeroy’s Equit3r Jurisprudence, vob 1, § 402, it is said: “Wherever a contract or other transaction is illegal, and the parties thereto are, in contemplation of law, in pari delicto, it is a well-settled rule, subject only to a few special exceptions depending upon other considerations of policy, that a Court *540of Equity will not aid a particeps criminis, either by enforcing the contract or obligation while it is yet executory, nor by relieving him against it, by setting it aside, or by enabling him to recover the title to property which he has parted with by its means. The principle is thus applied in the same manner when the illegality is merely a malum prohibitum, being in ■contravention to some positive statute, and when it is malum in se, as being contrary to public policy or to good morals.” And in Bishop on Contracts, §§ 594 and 609: “Sec. 594. * * * When, therefore, the carrying out of a contract is thus forbidden by law, the decisions are uniform that the party who was under obligation to do the thing is excused. * * * Sec. 609. * * * On this principle, a man who has promised to do a thing, but is prevented by overwhelming necessity, or by an interdict from the law, will not be compelled to suffer as for a breach of contract. * * And, within the present topic, the standard of necessity is what comes from the act of God, the act of a public enemy, or the forbidding of the thing by law.”

We are of the opinion that the authorities cited by appellant in which specific performance was decreed are not applicable where the contract sought to be enforced is declared absolutely void by statute, and that equity will not enforce a void contract. The authorities cited as to the validity of leasehold interests have ho application to the question discussed in the ease at bar.

It is our judgment that the court below was correct in its judgment, and it is therefore affirmed.

Gill, C. J., and Clayton and Lawrence, JJ., coneur.