Landrum v. Graham

Turner, J.

(after stating the facts as above). The only assignment of error necessary to be considered is that the court erred in holding the mortgage to be a valid and subsisting lien upon the lands therein set forth. It is contended that, as the same is an incumbrance, it was executed in violation of Act. Cong. July 1, 1902, c. 1375, § 14, 32 Stat. 717 , which among other things provides, “Lands allotted to -citizens shall not in any manner whatever or at any time be encumbered, taken or sold to secure or satisfy any debt or obligation, or be alienated by* the allottee or his heirs, before the expiration of five years from the date of the ratification of this act,” and is therefore void, in that it was executed “before the expiration of five years from the date of the ratification of this act.”

By way of answer to this contention, it is urged in support of the judgment of the trial court that that part of Act. Cong. April 21, 1904, c. 1402, § 1, 33 Stat. 204 , 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, hereby removed,” removed not only the restrictions on the alienation of the lands of this allottee exclusive of her homestead, but also, by implication, removed her restrictions* on incumbering the same, and, as the mortgage in question was executed subsequent to the passage of said act, it is a valid and subsisting security which the trial court did not err in ordering enforced. By this we think the contention well met. It is apparent that that part of the *461 act of July 1, 1902, supra, was intended to place it beyond tbe power of the allottee to alienate her surplus lands for a period of five years from its ratification. In order to more effectually accomplish this purpose, said act also placed it beyond her power to incumber them during that period; it being fvell known that an incumbrance is often the first step leading to and frequently compelling an alienation. It is also apparent that C'ongress in removing her restrictions on alienation by the act of April 21, 1902, supra, had no object in further retaining the restriction on incumbering, and that in repealing, in effect, the law imposing the restrictions on alienation, it also, by implication, repealed the restrictions on incumbering.

If this is not the proper construction and that contended for by plaintiff in error is, then Congress in this instance made use of terms the correct construction of which will inevitably lead to an absurdity in that the greater does not include the lesser — that an allottee as to .his surplus lands can alienate it by deed in fee simple, can give it away, can make an absolute alienation, but cannot make a conditional alienation- in the way of a mortgage as security for a debt or loan. We decline to adopt such construction.

“There is a strong presumption against absurdity) in a statute, and, where the language of an act is susceptible to two senses, that sense will be adopted which will not lead to absurd consequences.” (26 Am.

& Eng. Enc. of Law, 640.)

■We áre therefore of the opinion that the mortgage in question was not executed in violation of law; that it was a valid and subsisting lien and security upon the lands therein set forth; that there was no error in the decree of foreclosure of the trial court, and for that reason the same is affirmed.

All the Justices concur.