A Cherokee allottee, April 1, 1910, while a minor, in consideration of the payment of the purchase price, executed a deed for a part of his allotment, and on March 14, 1914, after he became of age, executed a second deed to the same grantee, for a consideration of $26 “in hand paid," and "for the purpose of ratifying" the deed of April 1, 1910. Held, that such second deed was not violative of the provisions of the governing statute, section 5 of the act of Congress of May 27, 1908, and conveyed title to the grantee. (Syllabus by Galbraith, C.) Error from District Court, Cherokee County; John H. Pitchford, Judge. Action by Thomas Catron against G. W. Allen. Judgment for defendant, and plaintiff brings error. Affirmed. W. A. Chase, A. B. Campbell, and Geo. Paschal, for plaintiff in error. J. I. Coursey, for defendant in error. Opinion by GALBRAITH, C. This action was commenced by the plaintiff in error, Thomas Catron, a Cherokee allottee, to recover the possession and quiet title to 50 acres of his allotment from his grantee, on the ground that his deeds were void, the one because made during his minority, and the other because made to ratify and confirm a void deed. The cause was tried on the following agreed statement of facts: "That Thomas Catron, the plaintiff. had the rights of majority conferred upon him by the district court of Cherokee county, Okla., on the 19th day of March. 1910. That the enrollment records in the office of the Commissioner of the Five Civilized Tribes, at Muskogee, Okla., shows that Thomas Catron arrived at the age of 21 years on the 6th day of December. 1913. That on the 1st day of April. 1910. Thomas Catron and his wife executed two deeds covering the lands in controversy in this action, to the defendant, G. W. Allen, copies of which deeds are set out and attached to plaintiff's reply as Exhibits A and B. That on the 14th day of March. 1914. Thomas Catron and his wife executed another deed to the lands in controversy herein to the defendant. G. W. Allen. That Thomas Catron was paid an additional con sideration for the execution of that deed. That the clause in said deed, showing the purpose for which deed was executed, is as set out in Exhibit A attached to defendant's answer. That Thomas Catron was over the age of 21 years at the time he executed the deed of March 14, 1914, as shown by the Enrollment Records." Upon these facts the court found for the defendant, G. W. Allen, and against the plaintiff. As a basis for the finding the court made findings of facts as follows: "The Court: Well, gentlemen, I think I am ready to pass on that question. I find that on March 19, 1910, the plaintiff in this action appeared in this court with his father and asked that majority rights be conferred upon him. The plaintiff appeared before the court and submitted himself to examination, and the court found that he was possessed of sufficient intelligence and discretion to justify the court in granting the rights of majority. In granting this right the court is well aware that it did not confer upon the plaintiff the right to dispose of his allotment of lands as a member of the Cherokee Tribe, until the rolls disclosed that he had reached his majority. However, I find that on the 1st day of April, 1910, soon after his majority rights were conferred, he executed deeds to the defendant. The enrollment record shows that on December 6, 1913, the plaintiff did reach his majority, and on March 14, 1914, he executed to the defendant a deed covering the lands sued for. The consideration expressed in the deed is $26. At that time the plaintiff could have disposed of these lands for that sum, and the deed would have been valid, in the absence of fraud. I find, however, in the body of the deed a statement that this deed is given for the purpose of ratifying the deed made by the plaintiff prior to his majority, as shown by the enrollment records. The court is in some doubt as to whether the $26 was the consideration paid at that time for the land and the clause in the body of the deed was for the purpose of showing that the plaintiff ratified his former deeds. Whether or not the statement in the deed following the conveying clause, to the effect that the deed is given for the purpose of rat fying the former deeds, would vitiate the deed, the court is not prepared to say. I do hold as a matter of law at the date of the execution of the last deed, to wit, March 14, 1914, the plaintiff having reached his majority. as shown by the enrollment records, and having received a consideration therefor, and having executed a deed to the defendant for the premises in controversy, he conveyed to the defendant all rights, title, and interest the plaintiff had in said lands." There is no question that the first deed, that of April 1, 1910, was void on account of the allottee's minority, and was incapable of ratification. Truskett v. Closser, 236 U. S. 223, 35 Sup. Ct. 385, 59 L. Ed. 549; Nunn v. Hazelrigg, 216 Fed. 330, 132 C. C. A. 474; Welch v. Ellis, 63 Oklahoma, 163 Pac. 321. The second deed was a general warranty deed in form, and was executed at a time when the allottee was free of restriction. It was recited in this deed that for and in consideration of $26 in hand paid, the receipt of which is hereby acknowledged, the grantors "do hereby grant, bargain, sell and convey unto G. W. Allen the following described land," describing the land by metes and bounds. Then follows a clause reading in part: "This deed is given for the purpose of ratifying a certain deed executed by grantor and his wife to the same grantee on the 1st day of April, 1910," etc. Now, it is contended by the plaintiff in error that the deed of April 1, 1910, was void because the grantor was under the restriction of minority at that time, and that the deed of March 14, 1914, is likewise void because it was made for the purpose of ratifying and confirming a void deed. That this reference in the deed of March 14, 1914, to the prior void deed shows the purpose and intention of the parties to be to ratify and confirm the prior deed in violation of the acts of Congress controlling such conveyances. This contention cannot be sustained under the decisions of this court. In Ehrig v. Adams [opinion subsequently withdrawn], 152 Pac. 594, there was a deed void because made during the period of restrictions, and a deed made to the same grantee after the removal of restrictions, and a reference in the second deed to the first. The second deed in that case recited a consideration of $1, and the reference clause as follows: "This deed is made to correct a former deed made between the same parties, which was placed of record," etc. One of the exceptions presented in that case was: "That the deed from Hays Crockett to Henry Bratton, of date of July 4. 1910, was an attempted ratification of a prior void deed of date of October 31, 1906, and is itself invalid for want of power in Hays Crockett to ratify a contract made in violation of law." The decision of the Supreme Court Commission, considering that case for decision. took the same view of the question now presented by counsel for plaintiff in error in the instant case, and held that the second deed was an attempt to ratify and confirm a prior void deed, and therefore the second deed was void also. However, the Supreme Court in a later case took a different view of the question, and overruled that case. McKeever v. Carter et al., 53 Okla. 360, 157 Pac. 56. In Welch v. Ellis et al., 63 Oklahoma, 163 Pac. 321, is the last announcement of the court on the question here presented. In that case the allottee made a deed during his minority, and after becoming of age made a second deed to the same grantee without the payment of any additional consideration, and the same contention was made there as here, and the court, denying the contention, held that the controlling statute (section 5 of the act of May 27, 1908), was not thereby violated. Mr. Chief Justice Kane, speaking for the court, said: "It will be observed that none of the acts of Congress removing restrictions attempt to make the right to convey, after restrictions are removed, depend upon the adequacy of the consideration received by the grantor. In that respect, after the restrictions upon alienation are removed, the Indian citizen stands upon the same equality with the ordinary citizen of the state. Mere inadequacy of price or any other inequality in the bargain is not per se a ground to avoid his deed, either in equity or by the terms of the statute. Practically all the local authorities cited by counsel for plaintiff in support of their contentions construe section 16 of the Creek Sup plemental Agreement [32 Stat. 500, ch. 1323]. and section 19 of the act of April 26, 1906. As we hold that section 5 of the act of May 27, 1908, is controlling in the case at bar. we do not deem the cases of that class cited by counsel to be in point. On the other hand, there is a line of cases wherein deeds exe cuted subsequent to the act of May 27, 1908. were involved, in which unqualifiedly it is held that inadequacy of consideration alone does not constitute an equitable ground for setting aside such deeds, and that the provis ions of section 5 of the act of May 27, 1908. does not affect a deed made after all restric tions upon the alienation of the lands therein described were removed. Lewis v. Allen, 42 Okla. 584 [142 Pac. 3841: Henley v. Davis. 156 Pac. 337; McKeever v. Carter et al., 157 Pac. 56. So we conclude that upon plaintiff attaining his majority the whole legal title to his land vested in him; that thereafter he could dispose of it as he saw fit, give it away. or sell it for any consideration, either legal or moral, which seemed to him sufficient. AS the plaintiff herein voluntarily conveyed his land after attaining his majority, he cannot now, after the lapse of many years, repudiate the conveyance upon any except the ordinary equitable grounds. This latest deed to his surplus allotment not being violative of any statute, and there being no equitable grounds for setting it aside alleged or proven, it must stand." See Hope v. Foley, 57 Okla. 513, 157 Pac. 727. to the same effect. The reference in the second deed to the first deed might be taken to show a purpose to ratify the prior void deed. Under the law such a purpose could not be effectual, and at most it was a vain attempt to do an impossible thing. The claim of title of the defendant in error was made under the deed of March 14, 1914. That deed was based upon a good consideration, and was made by competent grantors, and was sufficient in form to carry title, and no fraud, duress, or undue influence are claimed to have entered into the transaction. It therefore appears that the trial court was right in its finding, and that the judgment appealed from should be affirmed. By the Court: It is so ordered. FIRST NAT. BANK OF EUFAULA v. No. 7650-Opinion Filed Nov. 28, 1916. Municipal Corporations-Contractors' Bonds A person loaning money to a contractor to pay for labor and material furnished to such contractor is not protected by the provisions of a bond executed in conformity to section 3881, Rev. Laws of 1910. (Syllabus by Hooker, C.) Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by the First National Bank of Eufaula against the Southern Surety Company. Judgment for defendant, and plaintiff brings error. Affirmed. Turner & Turner and Carl W. Gust, for plaintiff in error. William T. Hutchings and Stanard, Wahl & Ennis, for defendant in error. con "Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or structing any public buildings or making repairs on the same, such officer shall take from the party contracted with, a bond with good and sufficient sureties to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements." It appears from the facts here that on or about the 3d day of January, 1913, the Nick Peay Construction Company entered into a written contract with the city of Eufaula to make certain public improvements therein, and in order to secure the performance of its contract it did on said day execute a bond to the city of Eufaula with the Southern Surety Company as its surety, whereby it was obligated that the Nick Peay Construction Company shall well and truly pay all indebtedness incurred for any and all labor and material furnished in the construction of said extension in the performance of said contract, then this obligation to be null and void; otherwise to remain in full force and effect. It is alleged in the petition in this case that the First National Bank of Eufaula loaned to the Nick Peay Construction Com pany the sums of money sued for herein to enable it to pay for the labor and for the material used by it in the construction of said municipal improvements, and that money thus furnished by the bank to said company was actually used by the company in the work embraced in the contract and covered by the conditions of the bond, and by reason of the failure of the company to pay the bank said money it is sought here by the bank to make the Southern Surety Company liable to the bank for said money upon the theory aforesaid. It is asserted by the bank that the provisions of the bond which provided that the principal shall well and truly pay all indebtedness incurred for any and all labor and material furnished in the construction of said extension in the performance of said contract make the Southern Surety Company liable for the money due by the construction company to the bank, inasmuch as it is alleged that said money was used by the company for the purpose of paying the claims of laborers and materialmen who were clearly entitled to sue and recover the amount due them upon the bond; while the Southern Surety Company contends that the bond which was executed by the Construction Company with it as surety under the provisions of section 3881 of Revised Laws of 1910 will not justify a recovery against it for the money due the bank. It contends that the object and purpose of requiring this bond was to secure laborers and materialmen against loss and extending to them a lien upon the bond which under the law they are not entitled to assert upon public buildings, or against pub lic property. We have carefully considered the question at issue here, and we believe that the great weight of authority supports the contention of the defendant in error. This court, in the case of Rockwell Bros. v. Keatley, 51 Okla. 783, 152 Pac. 449, said: "The sole question presented for our consideration is whether the bond, conditioned, as provided by section 6164, Comp. Laws 1909, that the contractor shall pay all indebtedness incurred for labor and material furnished in the construction of said public building, is broad enough to include money loaned to the contractor for the purpose of paying for such labor and material. The protection offered by the bond was to those who might supply the contractor with labor and material in the completion of his contract. It was not given for the purpose of protecting a party advancing money on a commission contract, whereby such party was to receive a commission for the use of said money of $1.00 per thousand. * * The principle involved is discussed in Bank v. Rundle [107 Fed. 227, 46 C. CA. 251] 52 L. R. A. 505, wherein it was held that, where a bank furnished money to pay labor claims, it is not protected by a bond conditioned to pay persons supplying the principal with 19bor or material in the prosecution of his work, and in referring to the bond the court said: 'It did not extend to a bank which might lend money for the purpose of paying for such work and material.' * * "We therefore conclude that a person loaning money to a contractor to pay for labor and material furnished to such contractor is not protected by the provisions of a bond conditioned that the contractor shall pay all indebtedness incurred for labor and material furnished in the construction of a public building." We see no reason to change the rule laid down in this state in the case above cited. and the judgment of the trial court denying to the plaintiff in error the right to recover against the Southern Surety Company herein is hereby affirmed. By the Court: It is so ordered. FIRST NAT. BANK OF EUFAULA v. No. 7649.-Opinion Filed Nov. 28, 1916. Other Decision Followed. Same as in First Nat. Bank v. Southern Surety Co., 61 Oklahoma, 161 Pac. 539. (Syllabus by Hooker, C.) Error from Superior Court, Muskogee Coun ty; H. C. Thurman, Judge. Action between the First National Bank of Fufaula and the Southern Surety Company. From the judgment, the Bank brings error. Affirmed. Turner & Turner and Carl W. Gust, for plaintiff in error. Wm. T. Hutchings and Stanard, Wahl & Ennis, for defendant in error. Opinion by HOOKER, C. Under the authority of Rockwell Bros. v. Keatley, 51 Okla. 783, 152 Pac. 449, and First National Bank of Eufaula v. Southern Surety Co.,ante, p. 308. 161 Pac. 539, this day decided by this court, this cause is affirmed. By the Court: It is so ordered. A materialman sold lumber to a contractor to be used in erecting certain structures upon the land of M. After the material so sold was furnished and used, M. assumed the debt of the contractor and gave his note therefor. Held, that the materialman was not thereby converted from a subcontractor into a principal contractor, and that a lien filed after 60 but within 120 days after the last material was furnished was inferior to the lien of a mortgage executed and recorded prior to the filing of the materialman's lien. (Syllabus by Burford, C.) Error from District Court, Oklahoma County; J. W. Hayson, Judge. Action by the J. S. Mayfield Lumber Company and others against the Jefferson Trust Company and another. From a judgment for plaintiffs, defendants appeal. Reversed, with directions. Wilson & Tomerlin and Asp, Snyder, Owen & Lybrand, for plaintiffs in error. Burwell, Crockett & Johnson, for defendants in error. Opinion by BURFORD, C. The Mayfield Lumber Company sued to foreclose a materialman's lien filed within 120 days but more than 60 days after the last material was furnished. The Jefferson Trust Company and Geo. A. Jones, defendants, filed cross-petitions to foreclose certain mortgages recorded after the commencement of the building for which the lumber company furnished mate rial, but prior to the filing of the lumber company's lien. Interveners and plaintiffs each claimed priority of lien. The cause was tried to the court without a jury. He made findings of fact and conclusions of law and rendered judgment against the respective defendants below, bound therefor in favor of the plaintiff and interveners for the various amounts found to be due them, and foreclosing their respective liens. Priority of lien was given the lumber company over the trust company and Jones, and from this judgment they appeal. The validity of the various liens or the correctness of the amount round due upon them from J. W. Mann or the Mann Development Company, defendants below, is not questioned here, and that part of the judgment is not before us for review. Upon the question of priority of lien between the lumber company and the trust company and Jones, the material facts found by the court, to which no objection is made here by either party, and by which we are therefore bound, are that the lumber company sold to a contractor certain material to be used in a building upon the land here involved, the property of the Mann Develop ment Company. After the material had been furnished, J. W. Mann, for and on behalf of the corporation, executed a note to the lumber company for the amount of the contractor's bill under an arrangement with the contractor, whereby the development company was to complete the building. The court's finding is that the sale of lumber was made by the lumber company to "a subcontractor by the name of E. B. Gordon or Gordon & Ogle." This is evidently a clerical error, as Gordon is referred to and treated throughout as a contractor and not a subcontractor. However, we attach little importance to this, for, as above stated, the validity of the lien itself is not before us, and treating Gordon as a contractor--the more favorable view for the lumber company-we are of opinion that the priority of their lien cannot be sustained. Clearly, in the first instance, the lumber company, having sold and furnished the material to Gordon, was a subcontractor. The giving of a note by Mann for the development company could not convert them into an original contractor. The present case is not distinguishable in principle from Bryan v. Orient Lumber & Coal Company, 55 Okla. 370, 156 Pac. 897, rendered since the trial below. There, although other questions were involved, it was held that. where lumber was furnished to a contractor. the giving of a note by the husband of the owner to the materialman could not operate to convert him into an original contractor so that his lien could be filed after 60 days had elapsed since the last material was furnished. The proof in this case showed that the mortgages of the trust company and Jones were recorded after the building was started, but before the lumber company furnished its last material and, of course, before it filed its lien. The trial court was, under the holding of Bryan v. Orient Lumber Company, supra, in error in holding that the lien of the lumber company had priority. The cause should therefore be reversed, with directions to the trial court to set aside that portion of the judgment giving priority of lien to the lumber company, and, without disturbing the remaining portions of that judgment, to modify the whole so as to give priority of lien to the Jefferson Trust Company and Geo. A. Jones over the J. S. Mayfield Lumber Company, and for such further proceedings as may be proper to enforce the rights so adjudicated. By the Court: It is so ordered. TEMPLE NAT. BANK v. JOHNSON. No. 8055--Opinion Filed Nov. 28, 1916. Banks and Banking-National Banks-Recovery of Usury Paid. A petition against a national bank, filed for the recovery of alleged usurious interest. should contain an allegation that the taking and receiving of the same was knowingly done, or an allegation to an equivalent effect. and where such an averment is lacking it is error to overrule a general demurrer thereto. (Syllabus by Burford, C.) Error from District Court. Cotton County; Cham Jones, Judge. Action by H. M. Johnson against the Temple National Bank to recover penalty for usury. From a judgment for plaintiff, defendant appeals. Reversed, with directions to sustain demurrer to petition. L. M. Gensman and W. T. Dixon, for plain tiff in error. I. K. Revelle, for defendant in error. Opinion by BURFORD, C. This was an action to recover the penalties for usury under section 5198, Rev. St. U. S. (U. S. Comp. St. 1913, sec, 9759), instituted originally in a justice court and, after judgment there. |