168 P. 237 | Okla. | 1917
Lead Opinion
Zachariah Foreman, a Creek freedman, commenced this action to recover possession of certain land which had been allotted to him and which he alleged had been wrongfully withheld by defendants, and for damages. Defendants answered, setting out title in themselves through a certain deed executed by plaintiff to defendant L.W. Mark, dated March 30, 1905.
The only issue submitted to the jury was whether plaintiff was 21 years of age when the deed to Marks was executed. To the interrogatory submitting this question the jury answered, "No." Over objection the court admitted in evidence the enrollment records of the Commission to the Five Civilized Tribes, consisting of the testimony of Robert Laflace, uncle of plaintiff, taken at the time of his enrollment, also the findings of the Commission and the census card, from which it appeared that plaintiff was a minor upon the date that the deed to Marks was executed. The admission of this evidence is assigned as error, and this is the sole reason urged for the reversal of this cause. The deed in question was executed before the passage of the act of Congress of May 27, 1908, and the evidence was not competent to prove the age of plaintiff under the circumstances of this case. Perkins v. Baker,
The court, having held the evidence competent and permitted the same to be considered by the jury, undoubtedly considered it when making his findings. We say this because the court instructed the jury that, *14
while these records were not conclusive upon the point at issue, they could be considered by them in connection With the other evidence. Having held the evidence competent, and refused to strike it out, the court undoubtedly considered it when making his findings. This being true, its admission was prejudicial. Kennedy v. Pawnee Trust Co.,
The deed was executed after the lands were selected in allotment in pursuance of an agreement so to do made before the selection. This agreement was void, and could not have been enforced against plaintiff. Lynch et al. v. Franklin,
After the lands were selected, if plaintiff were an adult, there was no statute which would prohibit a sale thereof by him, as all restrictions against the alienation thereof were removed by Act of Cong. April 21, 1904, c. 1402, 33 Stat. 189. Neither would the provisions of Act Cong. April 26, 1906, c. 1876, § 19, 34 Stat. 144, render the deed void because that act was not retroactive and did not apply to conveyances executed before its passage and approval. Casey v. Bingham,
The one vital point at issue being whether plaintiff was a minor when he executed the deed to Marks, and the testimony complained of being directed to that issue, and its consideration having undoubtedly influeced both the jury and the court, the judgment is reversed, and the cause remanded for a new trial.
All the Justices concur except KANE, THACKER, and MILEY, JJ., who dissent.
Dissenting Opinion
I am unable to concur in this opinion. Under section 6005, Rev. Laws 1910, the judgment of the trial court in this case cannot be reversed unless, after an examination of the entire record, it appears that the admission of the enrollment records in evidence "probably resulted in a miscarriage of justice," as it is clear that its admission constitutes no substantial violation of any constitutional or statutory right. My own views as to the effect of this section of the statutes are fully set forth in my concurring opinion in the case of Potter v. Womach,
There was a sharp conflict between the evidence for the plaintiff, consisting of the testimony of himself and the midwife who attended his mother at the time of his birth, that he was not 21 years of age until May 22, 1905, and the presumption arising from the execution of the deed and the testimony of Marks and Coombs that he stated that he was 21 years of age when he executed the same on March 30, 1905, and of Marks that "he looked all of it" and had been trading horses, etc., before that date; but the question as to whether he had attained his majority at the time he executed the same was a question for the jury, with the determination of which this court cannot properly interfere, since it does not appear that the error complained of has probably resulted in a verdict that would not otherwise have been returned, or, in other words, in a miscarriage of justice.
