
    HARDRIDGE et al. v. SMITH.
    No. 7025
    Opinion Filed May 21, 1918.
    Rehearing Denied July 16, 1918.
    (173 Pac. 818.)
    Indians — Recovery of Allotment — .Contract for Attorney’s Fees — Consideration— Validity.
    Where an attorney, under a void contract with a minor, renders service for said minor in recovering his allotment of land, which had been sold by said allottee during his minority and also by his guardian, and where said Indian citizen, reaching his majority before the judgment obtained for him becomes final, and all restrictions upon the alienation of his lands are removed, he then standing upon an equality with any other citizen of said state with reference to the disposition or incumbrance of his allotted land, makes a new contract with his attorney to give him one-half of the land recovered or its value for said services rendered and to be rendered, held, such contract is not violative of any statute, and, when freely and voluntarily made, is valid and enforceable.
    (Syllabus by West, C.)
    Error from District Court, . Okmulgee County; Wade S. Stanfield, Judge.
    Suit by Herbert E. Smith against Edmund Hardridge and others, to enforce an attorney’s employment contract executed by defendant Hardridge. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    E. M. Carter and James M. Hays, for plaintiffs in error.
    Herbert E. 'Smith, for defendant in error.
   Opinion by

WEST, C.

Parties will hereinafter be referred to as they appeared in the court below.

This suit was instituted in the district court of Okmulgee county by plaintiff against defendants to enforce an attorney’s employment contract executed by defendant, Edmund Hardridge, to plaintiff. It appears that Edmund Hardridge was a member of the Creek Nation, and as such received an allotment. During his minority he had conveyed this allotment by deed, and the same had also been sold by his guardian, and the purpose of the employment contract was to obtain the services of the plaintiff to recover possession of said allotment and cancel and set aside all conveyances which were clouds upon his title. At the time of the making of the original contract the defendant Edmund Hardridge was a minor, the contract having been made by him and by his next friend with the plaintiff. Suit was filed and judgment obtained in favor of Edmund Hardridge in that case before be became of age. After judgment was bad in defendant Hardridge’s favor, and before tbe same became final, and after said; Hardridge bad reached bis majority, be executed a second contract with tbe plaintiff, one clause of wbieb being as follows:

“First. That said party hereby agrees to pay to second party a fee for bis services rendered herein, an amount equal to one-half part of said land above described, and That said tender being made to said first party agrees to give said second party deed to eighty acres of said land, same to be from tbe surplus allotment.”

Upon the trial of the cause, there being other parties defendant who bad certain claims or liens upon the land, the trial court found that plaintiff was entitled to a fee of one-balf of the value of the land, less certain incumbrances, wbieb the court fixed at the amount of $640, an,d was entitled to have the same declared and impressed as a lien upon the allotment of the said defendant Edmund Hardridge, describing the same. From this action of the court defendants have prosecuted their appeal, and have assigned a number of errors. the brief of plaintiff in no way complies with rule No. 26 of this court, and, under the bolding announced in case of Ebey, Receiver, v. Krause, 35 Okla. 689, 139 Pac. 1100, and cases following this doctrine, the appeal is subject to be dismissed. However, upon a careful consideration of assignments of error, we deem that one assignment is decisive of this ease. That is, that the attorney’s contract involved is void and of no effect, and not enforceable against the defendant Hardridge, and could not be impressed as a lien upon bis surplus allotment. It being contended that the first employment contract made with the defendant while a minor was void, likewise the second contract which the defendant Hardridge made after arriving at bis majority, which in effect carried out the terms of the original contract, was also void. It is also contended that the provision of the contract providing for a part of the surplus allotment, not specifying which particular part thereof the attorney should have under bis employment contract, was too vague and indefinite, and was incapable of being enforced. the court, however, did not decree the plaintiff any particular part of the land, but found only that be was entitled to an attorney’s fee as provided by bis contract, finding what the amount should be, and declaring it to be a lien upon bis entire surplus allotment. We think the judgment of the court disposes of this last-mentioned contention.

We will now consider tbe first proposition, which we believe decisive of this case, that is, as to whether or not the last contract was void and nonenforeeable. In the case of Catron v. Allen, 61 Okla. 306, 161 Pac. 829, this court in first and second paragraphs of tbe syllabus lays down tbe following rule:

“1. A deed to a part of tbe allotment of a Cherokee citizen of three-sixteenths blood, before attaining bis majority, and after Act Cong. May 27, 1908, c. 199, 35 Stat. 312, 313, took effect, is absolutely void, as violative of section 5 of said act.
“2. A Cherokee allottee, April 1, 1910, while a minor, in consideration of the payment of tbe purchase price, executed a deed for a part of bis allotment, and on March 14, 1914, after he became of age, executed a second deed to tbe same grantee, for a consideration of $26, ‘in band paid,’ and ‘for the purpose of ratifying’ tbe deed of April 1, 1910. Held, that such second deed was not violative of tbe provisions of tbe governing statute, section 5 of tbe act of Congress of May 27, 1908, and conveyed tytie to tbe grantee.”'

In the body of the opinion tbe court quotes tbe following excerpt from tbe case of Welch v. Ellis et al., reported in 63 Okla. 158, 163 Pac. 321, as follows:

“It will be observed that none of tbe acts of Congress removing restrictions attempt to make tbe right to convey, after restrictions are removed, depend upon the adequacy of tbe consideration received by tbe grantor. In that respect, after tbe restrictions upon alienation are removed, the Indian citizen stands upon the same equality with tbe ordinary citizen of tbe state. Mere inadequacy of price, or any other inequality in the bargain, is not per se a ground to avoid bis deed, either in equity or by tbe terms of the statute. Practically all tbe local authorities cited by counsel for plaintiff in support of their contentions construe section 16 of tbe Creek Supplemental Agreement (32 Stat. 500, c. 1323), and section 19 of tbe act of April 26, 1906. As we hold that section 5 of tbe act of May 27, 1908, is controlling in tbe case at bar. we do not deem tbe cases of that class cited by counsel to be in point. On the other iTand, there is a line of cases wherein deeds executed subsequent to tbe act of May 27, 1908, were involved, in which it is unqualifiedly held that inadequacy of consideration alone does not con-, stitute an equitable ground for setting aside such deedse, and that the provision of section 5 of tbe act of May 27, 1908, does not affect a deed made after all restrictions upon the alienation of tbe lands therein described were removed. Lewis v. Allen, 42 Okla. 584, 142 Pac. 384; Henley v. Davis, 57 Okla. 45, 156 Pac. 337; McKeever v. Carter et al., 53 Okla. 360, 157 Pac. 56. So we conclude that, upon plaintiff attaining bis majority, tbe whole legal title to bis lands rested 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 vio-lative of any statute, and there being no equitable grounds for setting it aside alleged or proven, it must stand.”

Sections 926. 927, and 935, Rev. Laws 1910, are as follows:

“926. Good Consideration Defined. Any benefit conferred, or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.
“927. Moral or Legal Obligation cn Promisor Good as Consideration. An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, biit no further or otherwise.
“935. Same — Burden of Proof. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.”

It would therefore appear that, notwithstanding the original employment contract, made by the defendant, Hardridge when he was a minor, was void, nevertheless, after reaching his majority, all restrictions as to the alienation of his surplus allotment being removed, and the whole legal title in the land in question being vested in him, he could thereafter, dispose of it and incumber it as he saw fit, and the contract in question, securing to him the services of his attorney, being in the nature of continuing services, the judgment of the court at the time of the execution of the last contract not being final, and the minor having received benefits under the first contract for which he may have felt morally obligated to pay, would be a sufficient consideration to support the last-mentioned contract, and said defendant Hardridge, could for the purpose of discharging this obligation, incumber his unrestricted, allotment. As the evidence discloses that the defendant Hardridge voluntarily made the new contract after attaining his majority, said last contract, not being violative of any statute, is in all things vaPd and enforceable.

It would necessarily follow that the judgment of the lower court should be affirmed.

By the Oourt: It is so ordered.  