government, then he agrees to relinquish on the land named in Cimarron County in favor of the said W. S. Blain. The above trade is conditioned on W. S. Blain being satisfied with the land in Cimarron County, after he visits and inspects the same. W. S. Blain Witness: J. A. Nial." J. H. Brake. Thereafter, Blain went to Cimarron County to inspect the Brake farm, and upon his return they made, also, this agreement, of date November 1st, 1909, which we, for convenience, designate Contract "B": "This agreement made by and between W. S. Blain, party of the first part, and J. H. Brake party of the second part Said W. S. Blain agrees to trade his place, to-wit: Northeast (4), Section thirty-three (33), Township ten (10), Range three (3) to the said J. H. Brake for his place, to wit: Southeast quarter (1⁄4%) of Section thirtythree, (33) Township one (1), Range four (4). Said J. H. Brake assumes a mortgage of $2300.00, and agrees to pay $1,000.00, in cash, $1,000.00 in one year, bearing 5 per cent interest and $1100.00 in three years, interest 5 per cent. All papers to be left in Shawnee National Bank in escrow until contract is fulfilled. Deposit of $1,000 00, is to be made by January 1st, 1910. Deed to be made to W. S. Blain by J. H. Brake as soon as patent is issued. W. S. Blain, J. H. Brake. Witnesses: Jno. W. Jones, Robt. Strong." Blain and wife executed a deed to Brake which embraced his farm in Pottawatomie county, and it was placed in escrow in the bank, and in which Brake as sumed the mortgage indebtedness on it and obligated himself to make other and deferred payments. Thereafter, nn December 10th, 1909, Brake joined by his wife, executed warranty deed conveying the Cimarron County quarter-section of land to the plaintiff, Blain, and placed the same in escrow with the same bank, the consideration being $1,000.00, which was the estimated value of the Brake land and evidently, treated as a part of the purchase money due Blain for his farm. Afterwards the commissioner of the general land office rejected the homestead entry of the said Brake and cancelled the same. After some preliminaries, the plaintiff, Blain, sued the defendant, Brake, for the recovery of the $1,000. and sought to establish upon the farm in Pottawatomie County he had deeded to Brake a lien in this sum and prayed for its foreclosure, etc. The case was tried to a jury, but upon the conclusion of the evidence the court instructed a verdict for the plaintiff in the sum of $1,000.00, interest and costs and entered judgment thereon and further decreed that the amount of the judgment is for a part of the purchase price of the land in Pottawatomie County due by the defendant, Brake and fixing a lien on said land for said sum and foreclosing. The defendant [being plaintiff in error] moved the court to peremptorily instruct the jury to return a verdict for the defendant, because under the facts proven in this case the plaintiff was not entitled to recover, which motion was overruled and exceptions reserved. In the view we take of this case, it is unnecessary to notice any of the assignments of error or any ruling of the court upon the admissibility of evidence, etc., with the exception of three of the requested instructions made by plaintiff in error, defendant below, and which are the second, third and fourth requested instructions of plaintiff in error set forth in his sixth, seventh and eighth assignments of error, and the are as follows: Second requested instruction. [sixth assignment of error]: "If you find from the evidence that the defendant had a homestead entry under the law of a tract of government land in Oklahoma and his proof of compliance with the homestead laws had been submitted to the United States land office, but was afterwards rejected by the land department, then the contract introduced in evidence between the parties to convey the same and the deed thereto were wholly void, and the plaintiff cannot recover anything in this action.' In special instruction number three, plaintiff in error's seventh assignment of error: "You are instructed that any contract for the sale and conveyance of land on which a party has a homestead entry before the final proof of compliance with the homestead laws has been made and approved by the commissioner of the general land office, is void and cannot be made the basis of a right to recover damages." The fourth requested instruction, being plaintiff in error's eighth assignment of error: "If you find from the evidence that the plaintiff defendant in error, knew at the time the cantract marked Exhibit 'B' and deed from the defendant to the plaintiff was made, that the land in Cimarron County was public land and that the defendant only had a homestead entry thereon and that his final proof of compliance with the homestead laws had not been approved by the Commissioner of the general land office, then your verdict should be for the defendant." This brings us to a consideration of the contract set out [supra], and we are inclined to the opinion that the two contracts relate to the same subject matter and having the same purpose and object in view, and, therefore, are to be treated as one contract. It is our opinion that this contract was void and in violation of the homestead laws of the United States and that the parties thereto contract. ing about a matter that they had no lawful right to do, as their act was in violation of public policy. In Horseman, et al. vs. Horseman, 72 Pac. 698, we find that paragraph two of the syllabus is as follows: "Under U. S. Comp. St. 1901, p. 1389, Sec. 2200, require ing a person applying to enter land as a homestead to file an affidavit that his application is for his exclusive use, for the purpose of actual settlement, and section 2291, p. 1390, requiring that no patent shall issue, except on affidavit of the entryman, his widow, heirs, or devisees, that no part of the land has been alienated, a contract for the sale of a homestead by an entryman before he has made final proof and acquired a patent is unenforceable." In 32nd Cyc., p. 1078, the rule is stated as is conteded for by plaintiff in error, that the making of any contract by a settler or entryman before his right to the land has been completed to sell or contract to sell after he has perfected his title is void. This statement of the law is supported by the long list of cases cited from the various states and United States Supreme Court, see also Higgin vs. Butler, 10 Okla. 345; Anderson vs. Carkins 135 U. S. 483. It is true that in Horseman, et al. vs. Horseman, supra, the contract in that case was made before final proof and while in the case at bar the contract was entered into after proof was made before the local land office, but this did not avail as the proof when presented to the commissioner of the general land office was not only rejected but the filing was cancelled, and it follows that any. attempt at alienation under any such contract as shown in this record, being against public policy is void and cannot be enforced nor from the basis of a suit for damages. We are aware that a line of authority holds correctly that where an entry has been made by an entryman upon public lands and final proof made, as required by law, and the same has been accepted by the general land office that Equity will enforce an issuance of the patent, but this is not the case here; and, for the reasons given, the cause is reversed and remanded. All the Justices concur. CHAS. B. HYDE, Plaintiff in Error, VS. DEAN ISHMAEL, et al., Defendant in Error. (Rendered April 2, 1914) No. 3643 Error from District Court of Seminole County. 1. The homestead of a married man can not be sold without the consent of the wife given in the manner provided by law. Sec. 2, art. 12, Const. of Oklahoma, and the deed of the husband in which the spouse does not join, is ineffective to convey the homestead. 2. A Seminole Freedman living with his wife and minor children, and not owning any other land in the state, his allotment being wild and unimproved, made a five year lease thereon in order to have the same improved, cleared and put in a state of cultivation and at the ex. piration of this term leased the land for an additional one year intending to occupy the same as a home at the expiration of this second lease, and upon the expiration of the one year lease he entered upon the land with the purpose of establishing his home thereon, but was forcibly ejected by parties claming the property under a warranty deed executed by the allottee in which his spouse did not join. HELD, that under the facts of this case the land was impressed with the homestead character and the spouse not having joined in the deed. The same was ineffectual to convey title to the homestead. (Syllabus by the Court.) INDIANA OIL GAS, and DEVELOPMENT CO., VS. No. 3301 J. J. MCCRORY, et al., Defendants in Error. Reversed. 1. A lease which grants "all the oil and gas" under the leased land, together with the right to enter "at all times" for the purpose of "drilling and operating" to e |