¶1 On Second Petition for Rehearing.
¶2 Opinion by
¶3 In the exhaustive brief filed on behalf of the plaintiffs in error in support of the second petition for rehearing and against the finding announced in the decision rendered herein, to the effect that the deeds for the surplus allotment, executed after the removal of restrictions, were void for the reason that they were executed in compliance with the terms of a contract to convey made prior to the removal of restrictions, counsel say:
“We want to make plain the distinction between a legal and illegal act. Deeds, leases, and other instruments affecting restricted lands, which are executed with the intention of obtaining the approval of the Secretary of the Interior, are not illegal, and do not violate any provision of the act of Congress. These instruments never become valid unless approved, but after approval they have the same validity as though the instrument had originally covered unrestricted land. On the other hand, instruments made for the purpose of evading the statute, without any intent of procuring the approval of the Secretary of the Interior, fall within the inhibitions of Congress.”
¶4 This may be conceded to be a correct statement of law. Applied to the facts of the instant case it condemns the claim advanced by the plaintiffs in error. It is admitted that Oates took deeds from the heirs for the land prior to May 26, 1906, when the surplus allotment was re *468 stricted, and that a small part of the consideration was then paid, and that these deeds were recorded, and that the deeds taken after the restrictions were removed recited the same consideration as that recited in the prior deeds, and that the remainder of this consideration was paid upon the execution of the deeds after the restrictions were removed.
¶5 It is contended, however, that the deeds taken for the restricted land were authorized by statute, inasmuch as. the land might be sold and conveyed upon the approval of the Secretary of the Interior, and that it was the 'intention of the. parties to submit these deeds to the Secretary for. approval. It is sufficient, to say in reply to this argument that it is not sustained by the evidence. The facts show that the deeds taken for the restricted lands were not exécuted in the manner prescribed by the Secretary for deeds presented for his approval, and these deeds were recorded in the recording office of the district where the land was located, and recited that the consideration therein had been paid in cash, while the rules of the department required the consideration to be paid into the department, and then the consideration recited in these deeds was much smaller than that alleged to be the value of the land in the sworn application, presented to the department for the removal of restrictions.
¶6 Supplemental Creek Agreement, sec. 16 (32 Stat. at L. 500), provides:
“Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void, …' * and no rule of estoppel shall ever prevent the assertion of its invalidity.”
¶7*469 And in section 19, Act April 26, 1906 (34 Stat. L. 137), it is provided:
“Every deed executed before, or for the making of which a contract or agreement was entered into before, the removal of restrictions, be and the same is hereby declared void.”
¶8 The contract or agreement to convey within the inhibition of this statute is not to be inferred, as we understand it, from the mere fact of the execution of a deed during the period of restrictions, and placing that deed of record and the execution of a deed to the same party for the same land after the restrictions have been removed. Such acts may properly be taken into consideration in determining the fact of the entering into the prohibited contract or agreement to convey, but the making of the unlawful contract must be found’ from all the facts and circumstances surrounding the transaction as disclosed by the evidence. The trial court found from the evidence that the deeds taken after the restrictions had been removed were taken in compliance with the terms of a contract or agreement to convey entered into between the 4heirs and Oates in violation of the terms of the statutes above quoted. This finding is supported by the evidence.
¶9 Much is said in the brief as to the Lowes being innocent ' purchasers; that the record showed the legal title to be in Oates, and the Lowes had no notice of. the imperfection of his title, and having taken legal ádvice, and having been advised that the title of Oates was good, they ought to be protected as innocent purchasers. It is sufficient to say in answer to this contention that, the deed to Lowe’s grantor being absolutely void by reason of the statute, no title could be transmitted to Lowe by reason *470 of or through such deed, regardless of Lowe’s status, knowledge, or lack of knowledge.
¶10 The conclusion announced in the former opinion filed herein is adhered to, and the second'petition for rehearing is denied.
¶11 By the Court: It is so ordered.