130 P. 289 | Okla. | 1913
This action in ejectment was commenced in the district court of Hughes county on December 20, 1909. Trial was had to a jury on November 22, 1910, resulting in a verdict by direction of the court, in favor of plaintiff and against defendants, for the possession of the land in controversy and for damages. Motion for new trial being duly presented and overruled, defendants appeal, and assign many alleged errors of the trial court, any one of which, as they contend, would be sufficient to authorize a reversal of the judgment entered in the lower court.
The first question to challenge our attention is the instruction of the court to the effect that defendant in error, Chapman, had the legal title to the land in controversy, and therefore was entitled to recover. The facts relative to this subject are as follows: the land sought to be recovered is part of an allotment, set apart from the general domain of the Creek Nation, to the heirs of Ida McCosar, a full-blood Creek Indian, who died on or about the 16th day of July, 1900, leaving surviving her father Bunnie McCosar, Elliott McCosar, a brother, and Kate Gooden, nee McCosar, a sister, all full-blood Creek Indians. Bunnie McCosar, the father, was the guardian of Kate and Elliott; the mother having died before Ida.
On August 25, 1905, Bunnie McCosar, the father and guardian, leased the land in question for a period of five years, to J. J. Armstrong, who, for a valuable consideration, sold and transferred the same to plaintiff in error L. C. Young, who sublet the same to John Adams, the other plaintiff in error, and who held and occupied said land at the time this action was instituted. It appears that on July 10, 1907, Bunnie McCosar and wife attempted to convey said lands to the Hughes County Land Company; that on September 25, 1907, they also attempted to convey *21 the same to the Sherman Land Company; that on September 26, 1907, Kate Gooden attempted to convey the same to the Sherman Land Company; that on December 17, 1909, the said Sherman Land Company attempted to convey the same to Chapman, the defendant in error; that on October 5, 1909, Bunnie McCosar and wife, Kate Gooden and husband, and Elliott McCosar, joined in another deed to Chapman, which last-named deed was approved by the county court of Hughes county on the same date.
Counsel for plaintiffs in error, in an elaborate brief, insists that we pass upon the question of the title to the land in controversy. This is wholly unnecessary except in so far as the decision of this case is concerned. The record before us does not contain sufficient necessary facts to warrant this court in attempting to pass upon the whole title, and the character of the estate claimed by plaintiffs in error is not such as will permit them to insist upon such determination. There can be no dispute, however, but that Bunnie McCosar and his two children, Elliott McCosar and Kate Gooden, nee McCosar, were the owners of the land in controversy under the facts of this case, at the time they executed the lease to Armstrong, and whether they took by inheritance or purchase, or whether the land constituted an ancestral estate, or whether it was a new acquisition, need not, of necessity, concern us at this time. Under the doctrine first announced in this court inHancock v. Mutual Trust Co.,
It is also further urged that the lease was void for that it had never been recorded. Such a lease as the one under consideration, having been executed in the Indian Territory prior to statehood, was valid, and its validity was in no wise impaired by the advent of statehood, and the extension of the Oklahoma recording laws. In Armstrong, Byrd Co. v. Phillips,
"Instruments executed in the Indian Territory prior to statehood which were valid, under the laws in force in that jurisdiction, without registration, are valid after statehood, notwithstanding *23 noncompliance with the registration laws extended over and put in force in the state by the Enabling Act and the Schedule to the Constitution."
This authority sustains fully the validity of the lease as to the objection urged against it.
It is next insisted by defendant in error that even though the validity of the lease be sustained, though not recorded, Chapman, the purchaser of the title, had no actual notice of plaintiffs in error's adverse claims or of their possession of the premises. In Whitham v. Lehmer,
It is therefore unnecessary to pass on the other questions raised by plaintiff in error. For the various reasons hereinabove noticed, it necessarily follows that the judgment of the district court of Hughes county should be reversed.
By the Court: It is so ordered. *24