This indenture, made this day of in the year of our Lord 188 , by and between E. M. Hewins, J. W. Hamilton, A. J. Day, S. Tuttle, M. H. Bennett, Ben, S. Miller, A. Drumm, E. W. Payne, and Charles H. Eldred, directors in trust, and their successors in trust, party of the first part, and , of the county of , and State of , party of the second part:|
Witnesseth (1), that whereas the party of the first part is the lessee of all that section of territory known as the unoccupied Cherokee lands, being and lying west of the ninety-sixth meridian, and west of the Arkansas River, in the Indian Territory, not heretofore reserved and excepted from the force and operation of a certain lease entered into by and between the party of the first part, and Dennis W. Bushyhead, principal chief of the Cherokee Nation, duly authorized under an act of the National Council, entitled "An act to amend an act to tax stock grazing upon Cherokee lands west of the ninety-sixth meridian," approved in special session May 19, A. D. 1883, said lease being on file in the office of the party of the first part at Caldwell, Kans., and at the office of the principal chief of said Cherokee Nation, at Tahlequah, Ind. T.
(2) Now, in consideration of the rents, covenants, and agreements herinafter mentioned, reserved, and contained on the part and in behalf of the party of the second part, his administrators and assigns, to be faithfully kept and performed, the party of the first part hereby leases and lets unto the party of the second part the following described premises, to wit: containing acres, more or less (at present occupied or to be occupied by the party of the second part as a cattle ranch and range) possession of which said premises is hereby given and accepted under this lease and agreement, and by the acceptance and signing hereof, for and during the term of years, from the day of , A. D. 188 . In consideration of which the said party of the second part hereby undertakes and agrees to pay to the party of the first part the sum of cents per acre, or dollars per annum, payable semi annually, at the ofice the party of the first part at Caldwell, Kans., for each and every six months of said term, on teh 15th day of September, A. D. 188 , and the 15th day of March, A. D. 188 , in advance.
Said payment being evidenced by ten promissory notess of the said party each for the sum of dollars, and due on the 15th day of September and March in each of the years 1883, 1884, 1885, 1886, 1887, 1888, respectively, all payable to the order of S. Tuttle, trustee, with 12 per cent interest per annum after maturity, and with the exceptions of the dates on which the same mature, in the words and figures following, to wit:
Caldwell, Kans., October 1, 1883On I promise to pay to the order of S. Tuttle, trustee, the sum of dollars, at the Bank, Caldwell, Kans., with interest after maturity at the rate of 12 per cent, per annum, until paid. Without defalcation, value received.
This note is given, as evidence of indebtedness under a lease and agreement, entered into between the undersigned and W. M. Hewins, A. J. Day. et al., trustees, whereby certain lands in the unoccupied Cherokee country, Indian Territory, were leased, and is to be governed as to its maturity and payment by the terms of the lease and agreement aforesaid on file at the office of the payee, at Caldwell, Kans., but payment is enforceable in any court of the United States or elsewhere.
3. And the party of the second part hereby undertakes and agrees that if any part of the said sums shall remain unpaid after the expiration of twenty days from the date the same becomes due and payable, as herein agreed to be paid, or if defaults shall be made in the payment of any of said notes at maturity or in any of the covenents heretofore or hereinafter set forth , or as contained and required by the conditions hereof, it shall be lawful, and it is hereby agreed that the party of the first part may then and there forthwith consider this lease forfeited and annulled, and may enter and resume possession of the premises, and proceed to the collection of the rents then due as herein provided.
4. Further, as it is the intention of the party of the first part to lease the lands above demised unto the party of the second part at the same rate per acre as the same shall cost the said first party as set out by the terms of the lease between the first party and Dennis W. Bushyhead, principal chief aforesaid, together with all expenses and sums of money heretofore paid out or hereafter to be paid out on account of the same, in the performance of their duties as trustees, it is agreed by the party of the first part that in case the sums above agreed to be paid, and as evidenced by promissary notes aforesaid, shall upon the annual settlements of the party of the first part, as trustees, prove to be in excess of the actual pro rata annual cost of the same to said first party, that the excess thereof shall be credited to the account of the second party on the books of the said first party and returned at each January settlement subsequent to the 1st day of January, 1884. And said second party agrees that in case the sums agreed to be paid as above, are insufficient to meet all cost and expenses on account of said lands had by the party of the first part in relation thereto that he will pay to said first party such further and additional sum as will fully reimburse the first party for such cost and expenses. The books and sworn statement of the bookeeper of the first party to be full and conclusive evidence of cost and charges of said first party on account of said land, and to be conclusive and binding upon said second party. Nothing in this condition contained shall release said second party from the payment of the full amount of the notes aforesaid at the time the same become due and payable according to their terms.
5. And the party of the second part further agrees that the lease heretofore made under date of the 5th day of July, A. D. 1883, by and between Dennis W. Bushyhead, principal chief, for and on behalf of the Cherokee Nation, and the party of the first part, shall, in all its conditions, terms, and agreements, except as herein changed, stand as a part and be considered as a portion of this lease and agreement. And further that the act of the Cherokee council passed in special session, and approved May 19, A. D. 1883 entitled "An act to amend an act to tax stock grazing upon Cherokee lands west of the ninety-sixth meridian," shall in all its requirements, inhibitions, forefeiture, agreements, contracts, covenants, and conditions, be held as a part and parcel of this lease and agreement. Both said lease and act of the Cherokee council heretofore referred to, being considered part of these presents as fully and firmly as though the same were both herein fully set out and recited at length, and binding upon the party of the second part, in all it's particulars except as herein otherwise modified, changed, and specially agreed to.
6. Said party of the second part further agrees that in case the lands hereinbefore leased or any part of them shall be disposed of by the Cherokee Nation, under present existing laws, or laws hereafter to be passed by the Congress of the United States, that on the party of the first part giving six months notice thereof, and that in that event the terms and conditions of this lease shall terminate, on the expiration of the said six months, to all or any portion of the tract above described as leased to the party of the second part, thus sold or disposed of, and shell be lawful for the party of the first part, or any person purchasing said premises or any part thereof, at the termination of the said six months, to enter upon and take possession of the lands thus sold or disposed of.
7. Said second party specially agrees that in case all or a portion of said land be sold or disposed of as above set out, that he will peacefully surrender possession to all or any part thereof, and specially agrees that in case of the sale of a portion only, of the lands above leased and occupied by him, that this lease shall terminate only as to the portion so sold, and that he shall be held and bound for the remainder of the whole term for such portion as shall remain, at the price per acre above set out and agreed upon. A rebate at the price agreed to be paid per acre, in such proportion as the land thus sold and disposed of shall bear to the entire tract leased, to be credited at the time of possession of the same is delivered upon the notes of the said second party in the hands of the first party, yet unpaid.
8. It shall be the privilege of the said party of the second part, his heirs, administrators, and assigns, to erect on said lands such fences, corrals, and other improvemnets as may be necessary, proper, and convenient for the carrying on of his business as a ranchman, and stock raiser, and for utilizing said lands for the purpose for which they are leased.
9. And the said party of the second part specially agrees that in case this lease shall be terminated, to all or any part of said lands, as heretofore provided, or by failure of said party of the second part to keep the coveneants and conditions, and perform the same fully as herein set out, that he will not remove from said lands any of the fences, corrals, or other improvements, as may have been made from timber which has been obtained from the aforesaid tract, but that the same shall revert to and become the property of the party of the first part, free from any demand or claim of the second party hereto.
10. It shall further be the privilege of the party of the second part, his heirs, administrator, and assigns, to cut from the territory herein leased such timber only as my be absolutley necessary for the purpose of building the fences, corrals, and improvemnets hereinbefore authorized to be erected and maintained on said leased premises, and further to cut from said lands such timber as may be necessay for firewood and fuel, but not otherwise, and to commit no waste thereon; and said second party agrees that he will cut no timber for removal from said lands, or leased premise, or to take or remove any material or property being part of the premises so leased, or remove or ship materials therefrom, and that he will use all due dilligence to prevent the cutting and removal therefrom.
11. And the said party of the second part covenamts and agrees that in case of the commission of waste on the timber lands, or any part of the premises above leased by him, or by any one under his direction, or orders, or with his permission, directly or indirectly, given by himself or his agents, or any one acting for him, that the said party of the first part shall be entitled to enter as for condition broken, and terminate and annul this lease
12. And said party of the second part hereby further covenants and agrees as a part and consideration of this lease and contract, well and truly, and without deduction or delay, to make all payments as required in the foregoing, in the manner prescribed and set out, and in the case of failure in any of the covenants, conditions, and agreements herein agreed to be kept and performed, or upon entry by the party of the first part for condition broken, as hereinbefore or hereinafter set out, to peaceably surrender the premises leased, and all improvements and erections thereon, contemplated to be surrendered and delivered to the party of the first part.
13. And the said party of the second part further covenants and agrees as on of the special conditions and terms of this contract and lease, that he will make no permanent improvements (improvements the right to make which is hereinbefore granted being considered temporary improvements), on the aforesaid leased premises, and only such temporary improvements as are authorized by the act of the Cherokee council, approved May 19, A. D. 1883, heretobefore referred to and made part of this lease and agreement.
14. And said party of the second part further covenants and agrees with the party of the first part and it is made one of the conditions hereof, that he will faithfully observe the intercourse laws of the United States, that he will obstruct no mail or stage line, and that he will particularly respect that portion of the lease existing between the party of the first part and the said Dennis W. Bushyhead, principal chief of the Cherokee Nation, which refers to the Salines located west of the Arkansas River, and the means of ingress and egress therefrom, reserved and excepted on behalf of the said Cherokee Nation.
15. And the said party of the second part hereby further covenants and agrees, and this contract, lease, and agreement is upon this special condition, that in case of the failure of the party of the second part to faithfully keep and perform all the conditions, requirements, agreements, covenants, contracts, and obligations hereinbefore or hereinafter set out and agreed to be kept and performed by the party of the second part, or in case of the failures of the part of the second part to pay any of said notes promptly at maturity, as hereinbefore agreed, at the time the same shall become due and payable, that the said party of the first part shall have shall have a lien, by way of mortgage, upon any of the property, personal or otherwise, maintained and kept on said leased premises, or elsewhere by said second party.
16. And it is further specially agreed to, and made a condition hereof, that in case of failure of the second party as aforesaid to well and faithfully perform all the terms and conditions hereof, and to pay the sums of money hereinbefore agreed to be paid, that it shall be lawful for the party of the first part to enter upon said leased premises and to take therefrom any cattle, sheep , hogs, horses, or other personal property of the party of the second part, or so much thereof as may be necessary to pay all claims and demands of the party of the first part against the party of the second part, and to sell the same by giving two weeks notice in some newspaper published at the city of Caldwell, in the county of Sumner, and State of Kansas, or by notice duly posted for two weeks in four prominent places in the said city of Caldwell. But such sale can be made elsewhere in the United States at the election of the first party, by notices posted at or adjacent to the place of sale, for the time above specified.
17. And it is specially agreed that it shall be legal and proper for the party of the first part to apply the proceeds of said sale to the payment of all dues and demands due from the party of the second part, on account of said notes, or for other failure or violation of the conditions hereof in the same manner and with like effect as if the party of the first part held as chattel mortgage all the property aforesaid.
18. And the said party of the second part further covenants and agrees that he will furnish annually to the party of the first part, or to their agent at the office of the first party at the city of Caldwell, Kansas, a full and complete list of all brands of cattle, horses, sheep, and hogs pastured or ranged on said premises, and especially agrees and warrants that the said party of the first part shall have a special lien, claim, and demand on all cattle, hogs, horses, and sheep in said brands, enforceable wherever found, for the keeping of all terms, covenants, and agreements herein contained, and for the payment of the sums of money aforesaid, in like manner and with the same force and effect as though the contract and agreement was a specially executed chattle mortgage, duly recorded with the said first pary as mortgagee.
19. And the said party of the second part hereby covenants and agrees that he will hold the party of the first part harmless and free from all damage by reason of said taking and sale, in case this portion of the lease is enforced by the party of the first part.
20. And the said party of the second part further agrees, for himself and his heirs, administrators, and assigns, that neither he nor they shall, at any time or times, during the continuance of this lease, transfer, asign, set over or underlet to any person or persons whomever, the premises hereinbefore leased, or any part thereof, for all or any part of the said term of years, without the license and consent in writing of at least three of the persons, or their successors comprising the party of the first part, for that purpose first had and obtained.
21. And the said party of the second part further covenants and agress that he will well and truly observe and faithfully execute all singular of the foregoing covenants and conditions declared to be a part of the consideration and agreement under which this lease is granted.
In consideration of which and the faithful observance of all the terms and conditions aforesaid, the said party of the first part hereby covenants and agrees by these presents, that the said party of the second part, his heirs, administrators, and assigns, shall and may at all times during the said term, subject to the conditions as aforesaid, peaceable hold and enjoy all the privileges and rights of lessees of the premises aforesaid, free, clear, and harmless from any let or hindrance whatsoever from the party of the first part, together with all privileges and rights of said party of the first part in reference to the same, according to the terms and conditions of the lease between party of the first part and Dennis W. Bushyhead, principal chief of the Cherokee Nation, hereinbefore referrd to and the act of the Cherokee council, approved May 19, A. D. 1883, heretofore referred to, entitled "An act to amend an act to tax stock grazing upon Cherokee lands west of the ninety-sixth meridian," both said lease and the act aforesaid being made part hereof.
In testimony whereof, the said parties have hereunto set their hands and seals the day and year above written.