H. went into possession of land allotted to M., a minor Creek freedman, under void conveyances executed by M. during his minority. After reaching his majority, and when said lands were no longer restricted, M. conveyed the same land to Montgomery by warranty deed. Held, that said conveyance was not champertous under the authority of Murrow Indian Orphan Home v. McClendon, 64 Okla. 205, 166 P. 1101. Error from District Court, Seminole County; Tom D. McKeown, Judge.

Simmons v. Whittington, 27 Okla. 356, 112 P. 1018, 1020; Murrow Indians Orphans' Home v. McClendon, 64 Okla. 205, 166 P. 1101, 1102. It follows that the deed from Katie to Mahaley and George, lacking the approval of the Secretary of the Interior, was ineffectual, and that Mahaley and George acquired no estate in the lands here involved.

The plaintiff presents in his brief the argument that the champerty statute does not apply to this case for the reason that the plaintiff took his deed from the heirs of an Indian allottee. It is admitted by the defendant that the deed under which the defendants held the land was a forgery and void, and there is no dispute as to the plaintiff's title to the land, and for that reason it is admitted that the plaintiff had legal title to the land at the time this suit was filed. It becomes then a question as to the rights of the heirs of Riley Fulsom to convey their interest in the land in question. In the case of Murrow Indian Orphans' Home v. McClendon, decided by this court and reported in 64 Okla. 205, 166 P. 1101, the facts show that Susan McGee made a deed to the Murrow Indian Orphans' Home on March 3, 1909, and the Murrow Indian Orphans' Home then went into possession of the land. Susan McGee was a full-blood Chickasaw Indian and her restrictions on the alienation of her land had not been removed by operation of law or by the Secretary of the Interior under provision of law, Susan McGee died intestate on January 26, 1912, and her heirs sold the lands in controversy to the defendant in error, McClendon, and his assigns for a consideration of $1,200.

The statute does not apply to such a case. Thompson v. Riddle, 69 Okla. 115, 171 P. 331; Murrow Indian Orphans' Home v. McClendon, 64 Okla. 205, 166 P. 1101. 3. Plaintiff in error contends that the deeds to Charles H. Meshew were void on account of the champerty statute. It appears that during the course of this litigation certain of the Indian heirs had quitclaimed their interest to Meshew.

The defendant further complains that the deed given by the allottee September 1, 1900, was champertous and void as to the defendant under provision of section 2260, Revised Laws 1910, for the reason the defendant was in possession under color of title. We cannot agree with this contention, since this court has held in numerous cases that this statute does not apply to members of the Five Civilized Tribes, and the defendant does not furnish any good reason for overruling these decisions Gannon v. Johnson et al., 40 Okla. 695, 140 P. 430; Ashton v. Noble et al., 46 Okla. 296, 148 P. 1043; Sells v. Mooney, 79 Okla. 34, 190 P. 861; Murrow Indian Orphans Home v. McClendon, 64 Okla. 205, 166 P. 1101; Whitmire v. Levine, 80 Okla. 21, 193 P. 884. The judgment of the court below is affirmed.

"Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute, applies to the subject-matter, and that the general statute does not apply." Plaintiff, however, contends this identical question was decided by this court in the case of McClendon v. Murrow, 64 Okla. 205, 166 P. 1101. There is this distinction, however, in the two cases, or at least as disclosed by the record, to wit: In the first place in the McClendon Case the Secretary of the Interior never attempted to reserve the land for the benefit of the home irrespective of his authority so to do. Second, no affidavit was filed by the allottee prior to the time of receiving the patent that the land was selected by her for the use and benefit of the home.

78 Okla. 297. Walker v. Brown, 43 Okla. 144, 141 P. 681; Jefferson v. Winkler, 26 Okla. 653, 110 P. 755; Murrow Indian Orphans Home v. McClendon, 64 Okla. 205, 166 P. 1101; Ex parte Webb, 225 U.S. 663; Williams v. Johnson, 239 U.S. 414; Brader v. James, 246 U.S. 88; Truskett v. Closser, 198 Fed. 635; Barbre v. Hood, 228 Fed. 658. In passing upon the right of Indians to alienate their lands the Supreme Court of Kansas, in the case of Ingraham v. Ward, says:

Second. "That the rule of law announced by this court in the case of Miller v. Fryer, 35 Okla. 145, and other cases had become and were rules of property." In discussing the first proposition, counsel for plaintiffs in error admit that their contention is in conflict with the more recent cases of this court, such as Murrow Indian Orphans Home v. McClendon, 64 Oklahoma, 166 P. 1101; Miller v. Grayson, 64 Oklahoma, 166 P. 1077; Hammett v. Montgomery, 67 Oklahoma, 170 P. 689; Thompson v. Riddle, 69 Oklahoma, 171 P. 331, the first of which cases expressly overrules the cases upon which counsel rely; but it is insisted that these last decisions of the court have overlooked the effect of the champerty statute of Oklahoma as it relates to and applies to the sale of lands from which all restrictions are removed and the sale of restricted Indian lands made under the supervision of the governmental agency and according to the rules and regulations of the Indian Department. But we think the rule announced in Murrow Indian Orphans Home v. McClendon, supra, which specifically overrules Miller v. Fryer, supra, and other similar cases, applies with equal force to deeds executed by allottees from whom all restrictions are removed and deeds of allottees executed under the supervision of governmental agencies. In Thompson v. Riddle et al., 69 Oklahoma, 171 P. 331, it is said:

The governmental policy in such cases is that, when the time arrives when the allottee, by virtue of the removal of restrictions against his land, or the removal of his disability to convey by attaining majority, or when on account of the allottee's death the land descends to his heirs free of restrictions and thus becomes alienable by them, he or they, as the case may be, may then exercise the right of alienation and dispose of said lands as he or they see fit, unembarrassed by any previous attempted alienation thereof or encumbrances thereon. Murrow Orphan Home v. McClendon, 64 Okla. 205, 166 P. 1101. This policy runs through all the acts of Congress, and is for the protection and benefit of all citizens of the Five Civilized Tribes.

Champerty is not available as a defense to a deed executed by a full-blood Indian. In Murrow Indian Orphan Home v. McClendon, 64 Oklahoma, 166 P. 1101, this Court held: "Our statute on champerty does not apply to restricted Indian lands. Congress has reserved the exclusive right to control the sales and prescribe the conditions, under which title to these lands may pass.