134 Minn. 165 | Minn. | 1916
Action to determine adverse claim to real estate which was a part of the White Earth Indian Reservation. Appellant as well as respondent claim through Thomas Clark, a mixed blood Indian, the deeds to appellant being prior in' time to that through which respondent claims. Respondent attacks appellant’s deeds upon the ground that the grantor was a minor at the time of their execution. The court found such to have been the fact, and ordered judgment for plaintiff. This appeal is from the order denying a new trial.
The finding that Thomas Clark was not of age when he conveyed to appellant is assailed as unsupported by credible evidence. The record has been examined and the conclusion reached that this court cannot so hold. Outside the writings hereinafter referred to, there was testimony to the effect that Thomas Clark was not born until August 3, 1893, and the deeds to appellant were executed not later than February 16, 1914. Whether this testimony was worthy of any credence was for the trial court. Hnder the well-known rules guiding us in reviewing findings of fact based on conflicting testimony, the challenged finding should not be disturbed, unless it appears that testimony which might .have influenced the court was erroneously admitted.
It is also urged that no foundation was laid for the introduction of Exl )ibit (-, because the identification of Thomas Clark with the child Thomas Clock in the exhibit was not sufficiently established. There was evidence f rom his mother that the Indians pronounced Clark as Clock or Klock. The given name of the father and mother of Thomas Clark correspond with that of the father and mother in the exhibit. The father’s was peculiar and distinctive in itself, namely Amazon. The identification was for the trial court.
Mrs. Inman, a witness for respondent, testified that she was in the habit of keeping a record of births in the families of her acquaintances; that she 'was an acquaintance of the mother of Thomas Clark; that she visited her in August, 1893, when Thomas was three or four days old; and that when she returned to her home she made this entry in her book: “1893 Pine City tommy dark was boarned Aug. the 3 1893.” The book was somewhat mutilated. It was admitted over appellant’s objection, the court saying: “The same will be admitted in evidence as one of the circumstances and in explanation of the testimony of Mrs. Inman but is not admitted in evidence as evidence in itself of the date of birth of Thomas Clark, but simply in corroboration of her evidence and as evidence that the child was in existence at the time of the making of the memorandum.” The trial was to the court, and no error was committed in receiving the book with the court’s limitation placed upon its force as evidence.
Thomas Clark married while a minor. It was necessary for the parents to consent. An affidavit, purporting to give such consent containing a statement relative to the age of Thomas impeaching that given by the mother upon the witness stand, was offered in evidence by appellant, but was excluded on the ground that a sufficient foundation had not been laid. The affidavit is not signed except by mark. The testimony shows that the mother did not understand the English language and there was no evidence from anyone who understood both the English language and
The order is affirmed.