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brance by deed, mortgage, contract to sell, or other instrument or method of incumbering real estate, which affects the title to land allotted to allottees of the Five Civilized Tribes, prior to the removal of restrictions therefrom, and also any lease of such restricted land made in violation of law, shall be absolutely null and void, necessarily renders the attempted removal of any restriction upon alienation by the approval of a lease by the Secretary void unless the restriction lipon alienation had been first removed by a prior proceeding under section 1. These arguments, however, seem too subtle and ingenious to be sound. Section 1 provides that the Secretary may remove the restrictions on alienation wholly or in part under such rules and regulations concerning terms of sale and disposal of the proceeds as he may prescribe. Section 2 provides that leases of restricted lands for oil, gas, or mining purposes approved by the Secretary under rules and regulations provided by him shall be valid. Valid leases of lands valuable for their oil, gas, or mineral result in the extraction and disposition of the most valuable part of the property and necessarily remove from that part of the property all restrictions upon alienation. If they failed to remove such restrictions, they would be ineffective and void. If approved under section 2 they necessarily remove the restrictions from the property in part under rules and regulations provided by the Secretary, and if restrictions were removed to the same extent under section 1 they would likewise be removed under rules and regulations provided by the Secretary.

Section 1 is indeed broader than section 2, and it authorizes the Sec retary to remove the restrictions wholly as well as partly from the land; but as the whole is greater than any of its parts, and includes them all, section 1 includes the power to remove the restrictions on the leaseholds and their products which the Secretary is also empowered to remove by means of his approval of leases under section 2. It may be that the provision in section 9 that the homestead shall remain inalienable unless the restrictions are removed under section 1 refers to the removal of the restrictions wholly and not in part. However this may be, the court is without doubt that it was neither the intent of Congress nor is it the effect of that provision to invalidate leases approved by the Secretary under section 2, or to deprive them of the indispensable effect of valid leases, the removal of the restrictions on alienation from the leaseholds they evidenced, and the royalties they provide. Nor, since restrictions on alienation may be removed from leaseholds and their royalties either under section 1 or under section 2, is it essential to the validity of the removal under either section that the same or a like removal should have been first sought and procured under the other. This construction of this act is consonant with the cardinal rules that every statute should receive a rational, sensible interpretation, that the intention of the legislative body should be ascertained and given effect, if possible, and that this intention niust be deduced, not from a part, but from the entire statute which expresses it, because the enacting body did not express its intention by a pórtion, but expressed it by all, of the law it passed upon the subject. On the other hand, the construction sought which would deprive oil and gas mining leases authorized by section 2 of the effect of the removal of restrictions upon the alienation of the leaseholds and the royalties they evidence, and thus render them ineffective, flies in the face of the familiar maxim that “all the words of a law must have effect rather than that part should perish by construction.” City of St. Louis v. Lane, 110 Mo. 254, 258, 19 S. W. 533; United States v. Ninety-nine Diamonds, 139 Fed. 961, 963, 72 C. C. A. 9, 11, 2 L. R. A. (N. S.) 185; Knox County v. Morton, 68 Fed. 787, 790, 15 C. C. A. 671, 675; Wrightman v. Boone County, 88 Fed. 435, 437, 31 C. C. A. 570, 572; Stevens v. Nave-McCord A Tercantile Co., 150 Fed. 71, 75, SO C. C. A. 25, 29.

[2] It is next said that the lease did not constitute an alienation of any part of the land, and that consequently its approval by the Secretary did not effect a removal of any restrictions on alienation. In support of this position counsel cite Duff v. Keaton, 33 Okl. 92, 124 Pac. 291, 42 L. R. A. (N. S.) 472, wherein the Supreme Court of Oklahoma held that an oil and gas lease was neither a conveyance nor a sale of a minor's land within the meaning of section 5314, Comp. Laws of Oklahoma 1909, so that it was not necessary for his guardian, in order to make such a lease on his behalf, to follow the procedure there prescribed to enable him to make a sale or conveyance of the land. But that court was careful to add:

"This conclusion does not militate against the rule announced in Eldred v. Okmulgee Loan & Trust Co., 22 Okl. 742, 98 Pac. 929. There it was held that a lease. was an alienation within the terms of an act of Congress approved April 21, 1904 (33 Stat. 204, c. 1402), which reads: 'And all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads removed'-wherein this court said: "Hence we conclude that a lease conveys a leasehold estate; is an alienation by deed; is an alienation within the intent and meaning of the act of April 21, 1904, supra, upon which species of alienation restrictions by that act were removed.'” 33 Okl. 103, 124 Pac. 295, 42 L. R. A. (N. S.) 472.

They cite Kolachny v. Galbreath, 26 Okl. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451, which holds that a grant by lease of oil and gas, when it is in the ground, is a grant, not of the oil and gas in the ground, but of such part of the oil and gas as the lessee finds and reduces to possession, and that, as such a lease does not convey a corporeal hereditament, it will not sustain an action of ejectment. And such is also the holding by this court. Priddy v. Thompson, 204 Fed. 955, 960, 123 C. C. A. 277, 282. They cite Traer v. Fowler, 144 Fed. 810, 75 C. C. A. 540, State v. Evans, 99 Minn. 220, 108 N. W.958, 9 Ann. Cas. 520, and other cases of like character, to the general rule that coal, iron, oil, gas, and other minerals derived from the ordinary and reasonable operation of opened mines constitute the rents and profits and not the body of the property, and belong to the owners of the former and not to the owners of the latter. But these decisions do not rule, nor did the judges in rendering them consider, the question here at issue. That question is: Does an oil and gas mining lease of a restricted homestead, made and approved under section 2 of the act of May 27, 1908, constitute an alienation thereof wholly or in part within the meaning of that act? Section 1 of that act declares that all homesteads of the class here under consideration "shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions wholly or in part” etc.

Oil and gas in the ground are a part of the land, and in this case they were the most valuable part of the land of the lessors. While a lease of such land, granting the exclusive right to find and extract all the oil and gas therein, conveys only that part of the oil and gas which the lessee finds and reduces to possession, and not all the fugacious oil and gas in the land, it nevertheless grants the right and gives the power to the lessee to extract and apply to his own use the most valuable part of the land of the lessors, their oil and gas in their ground; and when, as here, the execution of such a lease is followed by the discovery and extraction of valuable deposits of oil and gas thereunder, it not only conveys an incorporeal hereditament, but it effects the removal from the lessors of the title to the most valuable part of their land, for oil and gas in the ground is a part of the land of the owners of the latter. Such a lease becomes an alienation of that part of the land of the lessors which the lessee takes from it, converts into personal property, and appropriates to his own use. That it was not the intent of the members of Congress that such a lease should fall without the alienation they forbade is evident from the fact that such a result would have left property of incapable Indians of great value free from restrictions on alienation, and also from the fact that they thought it necessary to enact section 2 in order to provide a way by which such leases might, with the approval of the Secretary of the Interior, be relieved from the restrictions on alienation which they clearly believed had been imposed upon them by section 1. And the conclusion is that a lease of a restricted homestead for oil, gas, or other mining purposes under section 2 of the act of May 27, 1908, is an alienation of that part of the land constituting the homestead which the lease permits the lessee to take from it by the discovery and removal thereunder of the oil, gas, or other mineral therein. Moore v. Sawyer (C. C.) 167 Fed. 826, 835; Eldred v. Okmulgee Loan & Trust Co., 22 Okl. 742, 745, 746, 98 Pac. 929; Sharp v. Lancaster County, 23 Okl. 349, 100 Pac. 578, 579; Truskett v. Closser, 198 Fed. 835, 836, 838, 117 C. C. A. 477, 478, 480; Beck v. Flournoy Live Stock & Real Estate Co., 65 Fed. 30, 31, 34, 35, 12 C. C. A. 497, 498, 501, 502.

Another position of counsel for the appellants is that the approval of the oil and gas mining lease, and the consequent removal of the restrictions on alienation from that part of the homestead which consisted of the oil and gas in the ground which the lessee has taken and may take from the land under the lease, did not effect any change in the character or in the termination of any estate inherited by Julia Willingham, and that she still retained thereafter the same interest and estate in the land and in the homestead which she had previously held. The only question in this case is the extent of the respective interests of the three lessors in the fund which has been accumulated in royalties out of the oil and gas extracted under the lease. From that oil and gas, and from the part of the land which the lessee took from the lessors in order to obtain them, the restrictions upon alienation were removed on October 25, 1912, when the Secretary approved the lease. It is immaterial to the determination of the interests of these lessors in this fund what estates or interests they retain in that part of the land constituting the homestead not covered by the lease, and it is also immaterial whether or not the restrictions on alienation have been removed from that part of the land. Those questions are therefore here dismissed.

[3] Nor is it fatal to the decree of the court below that each of these three lessors is entitled to one-third of the fund in controversy that the estate or interest of Julia Willingham in the part of the land which the lessors granted to the lessee remained the same after the removal of the restrictions as before. When these restrictions were removed on October 25, 1912, the land was agricultural or grazing land. No oil or gas wells had been drilled, and no mines had been opened. Julia Willingham had the right during her life, until April 26, 1931, to the use and occupation of the land, and she, Tootie Riley, and Doc Willingham each owned one undivided one-third of the land in fee subject to that right. As an estate for life is the largest estate that right could possibly be, let us concede, without deciding, that the title of the three heirs was subject to an estate for life in Julia Willingham, and that her estates and interests in the lands were not terminated or changed by the removal of the restrictions on the alienation of the part of the land leased. As, when the restrictions were removed, there were no mines opened on the land, she, as owner of an estate for life, had no right to open any, and no right by virtue of her life estate to the royalties or rents and profits from any oil or gas that might be obtained from mines subsequently opened. The title to the oil and gas in the ground, and to the rents, profits, and royalties that might in the future be obtained from mines that were subsequently opened, was in the three owners of the fee. Lanyon Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995; Marshall v. Mellon, 179 Pa. 371, 36 Atl. 201, 35 L. R. A. 816, 57 Am. St. Rep. 601; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891; Hook v. Garfield Coal Co., 112 Iowa, 210, 83 N. W.963; Oolagah Coal Co. v. McCaleb, 68 Fed. 86, 15.C. C. A. 270; Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N. E. 818, 36 L. R. A. (N. S.) 1108. If, therefore, as counsel argue, the removal of the restrictions on alienation from the part of the land subject to the lease neither terminated nor changed the character of the estates of the three parties interested in the land, Julia Willingham, who had no right to nor interest in the oil or gas in the lands, or in their future proceeds, before the removal of the restrictions by reason of her homestead right, had none thereafter by virtue of that right, and those proceeds were. rightly decreed to the three owners of the fee share and share alike.

14] Moreover, if this conclusion were erroneous, a careful study of section 9 has satisfied that the homestead right of Julia Willingham in reality never rose to the dignity of an estate for life in any part of the land allotted to Emma Derrisaw. The purpose and effect of the act of July 28, 1908, was not to create estates, but to limit the extent of and to remove restrictions upon alienation. United States v. Knight, 206 Fed. 145, 124 C. C. A. 211. This homestead was originally vested in Emma Derrisaw, the allottee, and remained inalienable after the

death of that allottee for the use and support of her issue. Section 9 of the act of May 27, 1908, which limited the duration of the restrictions on its alienation and the time during which Julia Willingham had the right to it for her use and support, provided that neither should continue beyond April 26, 1931, in any event, and that both might be terminated at any time before that date, either by the death of Julia or by the removal by the Secretary of the restrictions on its alienation. The contention of counsel that the clause "unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section 1 hereof," in the provision in section 9 that if the allottee of one-half or more Indian blood shall die leaving issue surviving born since March 4, 1906, “the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section 1 hereof, for the rise and support of such issue, during their life or lives, until April 26, 1931," limits the word “inalienable” only, and does not limit the duration of the right of such issue to the homestead for their use and support, has received consideration and meditation, but it has not proved persuasive. The subject of the act, which was restrictions on alienation, the purpose of its enactment, which was to limit and remove them, and the plain terms of this provision, convince that its true construction is that restrictions on the alienation of, and the right of the issue to, the homestead for their use and support, terminated at the same time, whether that termination is wrought by the removal of the restrictions on alienation by the Secretary, by the death of the issue before May 26, 1931, or by the arrival of that date. And the result is that, even if Julia Willingham ever had any homestead right for her use and support in the part of the land of the lessors granted by the lease, it did not constitute an estate for life, it did not rise higher than an estate for years defeasible during its term by her death, or by the removal of the restrictions on its alienation by the Secretary, and, as the Secretary removed all restrictions on the alienation of that part of the land by his approval of the lease on October 23, 1912, her homestead right to it for her use and support, if she ever had any, then terminated. And the conclusion is that, because Julia Willingham never had, by virtue of her homestead right, any estate for life in or right to the part of the land here in controversy that was leased, or to the proceeds thereof for her use and support, and because, even if she had any estate or interest therein, it was terminated on October 23, 1912, when the restrictions on its alienation were removed, she is entitled to no larger share of the royalties derived from the lease than is each of the other lessors.

In opposition to this result the decision of the Supreme Court of Oklahoma in Barnes v. Keys, 36 Okl. 6, 127 Pac. 261, 45 L. R. A. (N. S.) 178, Ann. Cas. 1915A, 515, Wilson v. Youst, 43 W. Va. 826, 28 S. E. 781, 787, 39 L. R. A. 292, Ammons v. Ammons, 50 W. Va. 390, 40 S. E. 490, 494, Eakin v. Hawkins, 52 W. Va. 124, 43 S. E. 211, 212, Stewart v. Tennant, 52 W. Va. 559, 44 S. E. 223, 229, and Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564, have been cited. The opinions in

243 F.-4.

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