
    Poplin, et al. vs Clausen.
    Opinion delivered January 30, 1897.
    
      Invalid Lease to Non-Citizen — Estoppel.
    Defendant was in possession of land under a verbal lease providing for possession for a term of years, contrary to the laws of ■ the Cherokee Nation. This lease was afterwards reduced to writing. Plaintiffs bought the premises from defendant’s lessor, but before the term of defendant expired, with knowledge of the illegality of the lease. Held, that they became a party to the contract and were estopped from bringing suit for possession before the expiration of the term.
    
      Record — Presumption.
    In the absence of a showing that the record contains all of the evidence produced on the trial, the Appellate Court will pro: sume there was sufficient evidence to support the instruction of the trial court.
    Appeal from the United States Court for the Northern District.
    William M. Springer, Judge.
    Action by Kate Poplin and another against J. F. Clausen. Judgment for defendant. . Plaintiffs appeal.
    Affirmed'.
    On the 30th of August, 1895, the appellants, Kate and George Poplin, instituted this suit against the appellee, J.| F. Clausen, in the United States Court for the Norther district of the Indian Territory, at Vinita, for the recover of 200 acres of land, more or less, alleging that they wer citizens of the Cherokee Nation and the owners and entitle' to the possession of the premises in controversy; that th defendant was a citizen of the United States; that he wad wrongfully in possession of the premises, and unlawfully holding possession thereof; and that he had so wrongfully) and unlawfully kept them out of possession of said premise; for two years, etc. Appellee, answering, denied the wrongful acts charged, and alleged that he was in possession o: the premises under a verbal contract with one Fannie M. L Force, who at the time óf the execution thereof was th owner of said premises; that on the 14th day of September 1893, he and the said Fannie M. Le Force reduced sai' rental contract to writing at the request of the appellants] that appellants agreed to the terms of said written contrae and purchased said premises of Fannie M. Le Force subjec] to the terms and conditions thereof. A copy of said contrac| was attached to and made a part of said answer, showing b; the terms thereof that it did not expire until March 1, 1900; and upon said contract appeared the following memorandum: “I, Mrs. Fannie M. Le Force, do hereby sell and transfer all my right, title, and interest in and to the said premises described in the written csntract, and give the said Kittie Poplin possession of said premises subject to the berms of said contract, for value received, this day and year ibove written. Fannie M. Le Force.” Appellants demurred :o the answer of appellee, and, the demurrer being overruled iy the court, replied thereto, alleging that said contract was n violation of the laws of the Cherokee Nation, and void, md did not entitle the defendant to possession against the jppellants, and, further, that appellee had failed to comply pith the terms of said contract. The cause was tried by a ury on the 8d day of March, 1896, and, after hearing the estimony, the court directed the jury to return a verdict for he defendant. The cause is in this court by appeal, and the ppellants assign the following errors: (1) Overruling the emurrer to the answer; (2) directing a verdict for the defend-nt; (3) overruling the motion for a new trial, and rendering idgment for the defendant.
    
      Denison and Ilaxey, for appellants.
    
      Hutchings and English and Smith and Thompson, for ppellee.
   Kilgore, J.

(after stating the facts.) The first error [signed assails the action of the court in overruling the [murrer to the defendant’s answer. Consideration of this jling might be refused upon the ground that it was not exited to in the trial. Johnson vs West, 41 Ark. 535; Elliott, ip. Proc. § 784. If at liberty to consider the ruling upon demurrer, the following facts set up in the answer must I treated as established: That the appellee was in pos-esión of the premises sued for by virtue of a contract with one Fannie M. Le Force, who was, at the time oí making said contract, the owner of and éntitled to the possession of said premises; that he went into the possession of said premises under an oral contract and agreement with said Fannie M. Le Force; that appellants, desiring to purchase said premises, requested said Fannie M. Le Force and appellee to reduce their oral agreement and contract to writing, so that there might be no misunderstanding as to appellee’: right in and to the premises; that by reason of said reques said Fannie M. Le Force and appellee reduced the said contract to writing on the 14th day of September, 1893; tha1| appellants then and there assented to the terms of said contract, and then and there purchased the premises subject to the terms and conditions thereof, by which, in consideratio: of certain improvements to be made by appellee, he was to have the use and occupancy of the premises until the 1st da; of March, 1900; that appellee had performed the thing; agreed to be done by him under such contract. The theor; of the appellants’ contention is that they ought to recove] the property in controversy, together with all the improv ments put on the same by appellee, for the reason that hi holds under a lease executed in violation of the laws of th| Cherokee Nation. The law of the Cherokee Nation on thij subject is set -out in appellants’ brief, though it does m appear to have been in evidence upon the trial of the ca¡ below. That law provides that “it shall not be lawful to any citizen of the Cherokee Nation to sell any farm or oth improvements in said Nation to any person other than bona fide citizen thereof, nor shall it be lawful to rent a; farm or improvements to any person other than a citizen the Indian Territory, and every person who shall offe: herein shall be guilty of a misdemeanor, and shall be punisl ed by a fine in any sum not less than ten dollars nor mo; than five hundred dollars. ” Now, if it be admitted that tb| words ‘ ‘ citizen of the Indian Territory ’ ’ are exclusive United States citizens (as to which, see Westmoreland vs U. S., 155 U. S. 545, 15 Sup. Ct. 243), is the contention tenable that the appellee cannot defensively plead his contract with Mrs. Le Forbe, because it is void under the statute just quoted? Appellee went into possession under a contract with Mrs. Le Force, and made valuable improvements on the premises under that contract. Admitting that Mrs. Le Force violated the Cherokee statute in making the contract, appellants bought out the Le Force claim, accepting and recognizing the contract between her and the appellee, thereby themselves becoming parties to the alleged illegal agreement, and placing themselves exactly in the shoes of their vendor. So that, if the contract was void, as against the laws of the Cherokee Nation, Mrs. Le Force could not rave maintained a suit for the rescission thereof, and hence ippellants cannot. They must succeed on the strength of heir own title if they succeed at all, and not on the weakess or vice in that of the appellee. They cannot derive dvantage from their own wrong, nor take any benefit by [•eason of their misconduct in the premises. It seems to be ell settled by the authorities that contracts which are made .nlawful by statute are '^oid, though the statute does not in erms so declare, but simply inflicts a penalty upon persons ho make such contracts. Sannoner vs Jacobson, 47 Ark. 8, 14 S. W. 458; 3 Am. & Eng. Enc. Law, 872.. Assuming |hat the lease set up by appellee in his answer is void, it’ is ecessary to inquire into his status in relation thereto, and |o consider the question of his rights, if any he has. He is possession under a contract to pay for the use of the remises for a certain number of years by placing thereon (ertain substantial and valuable improvements, and this con-act, it is admitted by the demurrer, he has complied with, the case of White vs Brown (decided by this court) 1 Ind. er. 98, 38 S. W. 335, Chief Justice Springer, in delivering e opinion on a question much like that which is povf under discussion, used the following language: “ The lease, as such, is void. But it was more than a lease of land. It was also a contract for making certain improvements on the land, which were to be made in lieu of cash payments or oi giving portions of the crop.” It was held in that case that the lessee had an equity in the improvements, of which he could not be deprived without compensation. It was alsc held in that case that a third person could not be estopped from setting up the illegality of a contract to which he was not a party. In the present case appellants admit that thej made themselves parties to the contract assailed, caused i1 to be reduced to writing, and bought subject to it. They dc not offer to do equity with reference to the improvements but seek to recover on the sole ground that appellee anc their vendor had violated a Cherokee law. It does not lid in the mouth of appellants to complain of this in this action! Though the lease may be in violation of the law of thd Cherokee Nation, yet, having been executed, appellee mad have acquired rights which the law would recognize anc protect as against every person except the Cherokee Nationl As to this, however, we do not deem it necessary now to exl press a definite opinion. The court did not err in overruling the demurrer.

Estoppel.

It appears, from the evidence, that the father of apj pellants undertook to purchase for them the lease and in provements held by appellee, as he had purchased for ther the rights of Mrs. Le Force, and that, owing to disagree ment about the price, the trade was not concluded. Then i| was that appellants suddenly became conscience-stricken b^ cause of the violation of the Cherokee law by appellee an<| their vendor, and, being unable to buy the improvements appellee at their own price, they instituted this suit, anl sought to recover them for nothing. Error is assigned tl the action of the court in directing the jury to find for thl appellee. The record does not show that it contains all thl svidence adduced at the trial. In the absence of such showing, we must presume that there was evidence to require the court’s instruction. Railway Co. vs Amos, 54 Ark. 159, 15 3. W. 362; St. Francis Co. vs Lee Co , 46 Ark. 67; McKinney vs Demby, 44 Ark. 74; Ballard vs Noaks, 2 Ark. 45; Hall vs Needles (this day decided) 1 Ind. Ter. 146; 38 S. W. 671. The judgment is affirmed.

Evidence Presumption.

Lewis, J., concurs.  