Lewis v. Clements , 21 Okla. 167 ( 1908 )

The trial court committed several errors which have been cited by appellants in their assignments of error, any one of which affords ground upon which this case should be reversed. We shall not, however notice all of the assignments made, but shall discuss those that affect directly the merits of plaintiff's case.

Judgment was rendered upon default against C. S. Lewis and wife, but it is contended by appellants that judgment should not have been rendered, for the reason that plaintiff's complaint did not state a cause of action against Lewis and wife. Plaintiff's cause of action, if any he has under the allegations of his complaint, grows out of a contract, made by an Indian citizen prior to the removal of his restrictions upon the alienation of his surplus allotment, to sell to plaintiff a portion of his surplus allotment. By Act. Cong. June 28, 1898, c. 517, § 29, 30 Stat, 507, it is provided:

"That all contracts looking to the sale or incumbrance in any way of the land of an allottee, except the sale heretofore provided, shall be null and void."

And by Act Cong. July 1, 1902, c. 1362, § 15, 32 Stat. 642, to ratify and confirm an agreement with the Choctaws and Chickasaws, it is provided:

"Lands allotted to members and freedmen shall not be affected or incumbered by any deed, debt or obligation of any character contracted prior to the time at which said lands may be alienable under this act, nor shall said lands be sold except as herein provided."

It is further provided in the latter act that all lands allotted to members of the Five Civilized Tribes of Indians, except such land as is set aside to each for a homestead, shall be alienable after the issuance of patent, as follows: One-fourth in acreage in one year, one-fourth in three years, and the balance in five years. By Act Cong. April 21, 1904, c. 1402, 33 Stat. 204, it is provided that all restrictions upon the alienation of all allottees of the Five Civilized Tribes, who are of Indian blood, except minors and except as to homestead, may, with the approval of the Secretary of the Interior, be removed under such rules and regulations as the Secretary of the Interior may prescribe.

It is admitted by plaintiff in his complaint that the contract made by Lewis and wife with him was made before Lewis' restrictions upon the alienation of the land sought to be conveyed had been removed. Such contract was in violation of the laws of the United States governing the conveyance of surplus allotments of members of the Five Civilized Tribes, and by the terms of the statute is void. Sayer v. Brown (Ind. T.) 104 S.W. 877. Plaintiff's complaint therefore failed to allege facts sufficient to constitute a cause of action, or facts sufficient to entitle him to recover against Lewis and wife, and the action of the court in rendering judgment by default against Lewis and wife over their objection was error. If a complaint does not contain allegations sufficient to constitute a cause of action, a judgment rendered by default is void, and will be reversed on appeal. Fullerton v. Houpt, 12 Ark. 399;Chaffin et al. v. McFadden, 41 Ark. 42; 23 Cyc. 740.

The action of the court in rendering judgment against Poole and wife, cancelling the deed executed by Lewis and wife to Poole, was also error, for the reason that, under the allegations of plaintiff's complaint and proof offered by him, the only interest that he had in the land in controversy was such interest as he obtained by virtue of his contract with Lewis, which being a void contract conveyed to him no interest. A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title of such real estate. 1 Ency. Plead. Prac. 300.

The judgments of the trial court against Lewis and wife and against Poole and wife are reversed, and the cause remanded.

All the Justices concur.