3 Indian Terr. 365 | Ct. App. Ind. Terr. | 1900
The appellant’s assignment of errors is as follows: (1) The court erred in giving the instruction asked by appellees, to return a verdict for the appellees; (2) the court erred in refusing to give the instruction asked by appellant, to return a verdict for appellant; (3) the court erred in refusing the instruction asked by appellant; (4) the court erred in overruling appellant’s motion for a new trial;
As to the second proposition: The first lease was executed on April 1, 1890, for a term of three years, and expired April 1, 1893. The so-called renewal lease was executed on January 20, 1893, — 2 years, 9 months, and 19 days after the execution of the first, and 2 months and 12 days before its term expired; and therefore there was no space of time between the termination of the first and commencement of the second when rights of third parties could spring into existence. Under the first lease the defendant was a trespasser. Under the second he continued to be a trespasser, because there was no time when the plaintiffs were out of possession or without title. And therefore it is immaterial whether the last lease is to be considered a new one or a renewal of the the old one. The effect in either case is the same. The defendant can obtain no legal rights as against the new lease, if it be a new one, by virtue of his having been a trespasser under the old one. And therefore we are not called upon to decide the question as to whether or not the lease of 1893 was a renewal of that of 1890, or a new and original one, because, as above shown, in either event the defendant could obtain no rights under his contract executed in the spring of 1892, at a time when the old lease was alive and in force. But the defendant contends that a pasture lease, to be valid under the Creek laws, must have been procured with the consent of all the citizens who were residing within the pro