
    WELCH et al. v. WADDELL INV. CO.
    No. 16822
    Opinion Filed June 1, 1926.
    Rehearing Denied July 13, 1926.
    Indians — Partial Invalidity of Mortgage o» Lands in .Part Restricted.
    A mortgage executed by a member off one of the Five Civilized Tribes of Indians on-his allotment, a portion of which is restricted by virtue of the Act of Congress of May 27, 1908, is vciid only as to the restricted' portion.
    (Syllabus by Jarman, C.)
    Commissioners’ Opinion, Division No. 2.
    Error from District Court’, Washington. County; II. C. Farrell, Judge.
    Aetidn by Waddell Investment Company against George Welch and JaekolSne Welc-ft et al. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Neff & Neff and J. L. Barnes, for plaintiffs in error.
    -Ship-man & Lewis, for defendant in error..
   Opinion by

JARMAN, C.

On September 23, 1919, J-ackioEne Welch, a duly enrolled member of the Cherokee Tribe of Indians-of one-half degree Indian blood, joined by her husband, George Welch, executed a promissory note to the WaddeiU Investment Company, a -carporatipn, and a mortgage on 140 acras of the surplus and 20 acres Gf the homestead portions of her allotment to secure the same. Upon default being misde, the Waddell Investment Company, hereinafter referred to as plaintiff, commenced this action against Jaclsoline and George Welch, hereinafter referred to as deiendamts, for judgment for the amount due cn the note, and for tiha foreclosure of the mortgage. The defendant, Jackoline Welch, in her separate answer, alleged that, the homestead portion was restricted, she being of one-half degree) Indian blood, and her restrictions never halving been remdved, and that by reason thereof the mortgage executed by her was void, and prayed for a cancellation of the same. The trial court held that the mortgage wais void as to the hcimestead portion, hut valid as to the surplus portion, and. entered a decree foreclosing the mortgage as to such surplus portion.

Tihe only question presented to this court is involved in the following proposition submitted by the defendants:

“The plaintiff having taken 'a' single mortgage upon an antire tract of land, a part o-f which was restricted by the -acts of Congress, said mortgiaig'e was against public policy and void in its entirety, and plaintiff was not entitled to enforce the same sd long as the same was executory. As authority for this, wei cite the case of Mann v. Brady, 80 Okla. 299, 196 Pac. 346, and the cases therein cited.”

The instant case is distinguishable from the case of Mann v. Brady, cited and relied upon by defendants. In the cited case, the allotment of -Brady, a Greek Indian, a portion of which was restricted, wu>s listed with Mann, a real estate agent, fur sale at a stipulated price par acre. Mjann later brought an action against Brady for the amoum of his commission, alleging that he had prcteured a purchaser ready, able, and willing to buy the land according to the terms of the contract, and the court held that the contract was not severable, and that he could not -make a valid contract with reference to the sale of his entire allotment ■where a portion of the same was restricted. In the cited case, the object of the contract was dhe sale o-f the entire acreage, including bo-th tha restricted Hindi unrestricted portions, and since the restricted portion of the allotment could not he sold by reason of the Act o-f Congress of May 27, 1908, expressly prohibiting the same, such contemplated sale was unlawful, and therefore the object -of the parties in making the contract was unlawful. In c-hei instant case, the object of the parties was the borrowing on the one hand and the loaning on the otnt-r of a cgirtain sum -of money, which wia® a lawful object. The mortgage contract involving the homestead portion of the allotment is not malum in se, but malum prohibitum. As stated by the court in ihe case of Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817, in discussing’ la. contract executed by the husband to convey the homestead, which was prohibited by statute:

“A contract to convey a hcimestead, exeieuted by the husband alone, is not illegal in the sense of being prohibited as an offense. The illegality is npt that which exists where the contract is in violation of public policy clr sound morals, or founded on an illegal consideration, which would vitiate the whole instrument. The sole object of the statute was to- prevent the alienation of the homestead without the wife’s joining in the conveyance or contract. The policy of the law extends no) further than merely to defeat what it does not permit. It merely withholds from the husband the power to allianate the homestead in that way — in other words, provides that the homestead is not grantable in that way, and it was never held that the whole grant would he void merely because a part of the land was not 'grant-able.”

As stated by the court in the case of U. S. v. Bradley, 35 U. S. 343, 344:

“That bonds and other deeds may in many cases he -good in. part and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine well fctinded in the common law land has been recognized from a very early period. The doctrine has been maintained, and is settled law of the present day, in all cases where the different covenants or conditions are severable, and independent of each other, and do nclt import malum in se.”

There can be mo question about the mortgage contract involved in the instant case being severable as to the homestead and surplus portions. The plaintiff, as mortgagee, cctald have released the mortgage as to any portion of the mortgaged premises without impairing the validity a? the mortgage -on the remainder. It' is- not a question of all ck none 'of the mortgaged premises being held liable for the mortgage indebtedness. It is well settled that a mortgage covering several species of property may be invalid as to- one, but good and enforceable security as to' the others. 27 Cyc. 1130, 31.

For the reasons given, the judgment of the trial court is affirmed.

By the Court: It is so ordered.

Note. — See 31 C. J. p. 520 §91 (.Anno).  