Volume 87 — Oklahoma Reports

Error from District Court, Coal County; J. II. Linebaugh, Judge. Action by Sylvia Gibson and others against J. H. Horrigan and others to recover interest in inherited Indian land, for partition, etc. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Pontotoc County ; J. W. Bolen, Judge. Action by Laura J. Huff against the Oklahoma State Bank and another, seeking to recover amount of bank deposit. Judgment for defendant in error Oklahoma State Bank.

Error from District Court, Cotton County; Cham Jones, Judge. Action by Nellie Carey against A. D. Lawrence and others to cancel a certain oil and gas lease. Judgment holding the oil and gas lease valid and decreeing certain defendants to be the owners thereof and directing that A. D. Lawrence execute an assignment of said lease to certain defendants. A. D. Lawrence appealed.

Error from District Court, Washington County; Preston A. Shinn, Judge. Action by W. E. Mitchell against the Sea-mans Oil Company to foreclose mechanic’s lien, etc. Judgment for plaintiff, and defendant brings error.

Error from District Court, Washington County; Preston A. Shinn, Judge. .Action by J. C. Davis and W. E. Mitchell, partners, doing business under firm name of Davis & Mitchell against the Seamans Oil Company to foreclose meeh¿nic’s lien, etc. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Bryan County George S. March, Judge. Action by Alice Barnett against the Merchants’ Life Insurance Company of Des Moines, Iowa, to recover $2,500 on life insurance policy. Judgment for the defendant,, and plaintiff brings error.

<p>Error from District Court, Seminole County; J. W. Bolen, Judge.</p> <p>■ Action by A. C. Aldridge against M. E. Killingsworth ívkI another to recover land; intervention by C. Dale Wolfe, trustee of estate of G. F. Killingsworth, 'bankrupt.Judgment for defendant Killingsworth, and intervener brings error.</p>

Error from District Court; Seminole County; J. W. Bolen, Judge. Action by O. J. McCann against J. L. Dixon to quiet title and for damages. Judgment for plaintiff, and defendant brings error.

<p>Error from District t lourt, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Petition by Earler Jackson filed in the probate cause In re Guardianship of Earler Jackson in the County Court of Okmul-gee County praying for an order of the court vacating and setting aside the decree of sale, order of confirmation, and guardian’s deed under which M. E. Porter, as guardian, sold certain lands belonging to the estate of the petitioner to A. D. Watson. Porter and Watson filed motion to dismiss the petition, which was by the county court sustained, and said proceeding was appealed to the district court, and the motion of Porter and Watson to dismiss was- again sustained. Prom the judgment of the district court dismissing the petition, Earler Jackson appeals to this court.</p>

<p>Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge.</p> <p>Action by Ruth Johnson and others against Willie L. Hudson and others for recovery of land, etc. Judgment for plaintiffs, anil defendants bring error.</p>

Error from District 'Court, Carter County; W. F Freeman, Judge. Action by the Deming Investment Company, as plaintiff, to foreclose a certain mortgage against C. W. Thomas and Minnie G. Thomas, his wife, as owners of the land in controversy, and certain other defendants, who were mortgagees and lienholders. Pending the action Minnie G. Thomas died and the action was revived as against her heirs and legal representatives.

Error from District Court. Okmulgee County; Mark L. Bozarth, Judge. Petition by Isparchecher Stevens in re guardianship proceedings in the County Court of Okmulgee County to vacate and set aside decree of sale, order of confirmation. and guardian’s deed. Motion filed by W. C. Cummings, former guardian of petitioner, and W. IT.

Error from District Court, Garvin County ; W. L. Eagleton. Judge. Action by H. F. Knebel against Albert M. Rennie and Edith Rennie to foreclose a real estate mortgage. Defendants filed demurrer to plaintiff’s petition, which demurrer in part is sustained. Plaintiff appeals.

<p>Original Action from Canadian County.</p> <p>Action by the El Reno Wholesale Grocery Company againát X Y. Taylor, County Treasurer, to enjoin collection of state . tax levy.</p>

Error from District Court, Grady County; Cham Jones, Judge. Replevin by the First National Bank of El Reno against Joe Ball for possession of broomcorn under mortgage. Judgment for defendant, and plaintiff brings error.

■Error from District Court, Tulsa County; Conn Linn, Judge. Action by C. C. Mills against Lucy Tom, nee Bigpond, and others to quiet title. Judgment for plaintiff, and defendants bring error.

Error from District Court, Seminole County ; J. W. Bolen, Judge. Action by C. Dale Wolfe, trustee in bankruptcy of estate of G. F. Killingsworth, bankrupt, ag'ainst G. F. Killingsworth and Mary Etta Killingsworth, to subject certain real estate to the payment of the debts of said bankrupt. Judgment in favor of the defendants. Plaintiff appeals.

<p>Error from District Court, Garfield County ; James B. Cullison, Judge.</p> <p>Action by W. S. Billings against -the Vita-graph-Lubin-Selig-Essanay to recover damages for breach of contract. Verdict and judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Greer County; T. p. -Clay, Judge. Action in replevin by Hattie Williams against Lee Williams to recover possession of a horse. Verdict and judgment for plaintiff, and defendant brings error.

Error from District Court, Choctaw County ; J. W. Bolen, Assigned Judge. . Action by H. A. Babb against John D. Townsend to recover a money judgment. Verdict and judgment in favor of the plaintiff, and defendant appeals.

Error from District Court, Garvin County; F. B. Swank, Judge. Action by Mamie Harless to recover a money judgment against J. G. Jensen. Verdict and judgment for plaintiff, and defendant appeals.

Error from District Court. Poniotoc County; J. W. Bolen, Judge. Action by John W. Probert, against P. P. Kibby et al. -to foreclose a real estate mortgage. Judgment in favor of certain defendants quieting title to the land, and plaintiff appeals.

Error from Superior Court, Muskogee County; ’ Guy F. Nelson, Judge. Action by Annie Lightfoot to quiet title .to certain real estate as against C. H. Brun-son et al. Brunson disclaimed any interest in the property, and judgment was rendered against him on this disclaimer. Brunson appeals.

<p>(Syllabus.)</p> <p>1. Limitation-of Actions — Land Suits — Law in Indian Territory.</p> <p>No person or persons, or their heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments but within seven years next after his, her, or their rights to commence, have, or maintain such suit shall have come, fallen, or accrued; and all suits, either in law or equity, for the recovery of any lands, tenements, or hereditaments shall be had and sued within seven years next after title or cause of action accrued, and no time after said seven years shall have passed. Section 5056, Kirby’s Digest of the Statutes of Ark. of 1904.</p> <p>2. Same — Accrual of Cause of Action.</p> <p>Under the foregoing section of the statute of limitations as contained in Mansfield’s Digest of the Statutes of Arkansas (sec. 4471, which was by act of Congress (26 Stat. 81, sec. 31), put into force in the Indian Territory, the statute would not begin to run until the right to commence or maintain the action shall have accrued.</p> <p>3. Indians — Right to Eject Persons from Allotment — Statutes.</p> <p>Under the Cherokee allotment agreement, approved by act of Congress of July 1, 1902, and ratified by the Cherokee Nation August 7, 1902, as contained in 32 U. S. Stat. at L.. 716, an allottee of said Cherokee Nation could not maintain an action in court to eject persons from his allotment until he had received his patent.</p> <p>4. Same — Exclusive Authority of Department Officials.</p> <p>By section 21 of the Cherokee allotment agreement, supra, the exclusive authority to place an allottee in possession of his allotment and remove other persons therefrom prior to receiving his patent is vested in the United 'States Indian agent for the Union Agency under the direction of the Secretary of the Interior, and his action cannot be controlled, by the writ or process of any court.</p> <p>5. Same — Time for Running of Statute of Limitations.</p> <p>Under the stipulated facts in this case, the Cherokee allotment agreement and the statute of limitations above referred to, as contained in Mansfield’s Digest in force in the Indian Territory, said statute of limitations did not begin to run until the 17th day of September, 1907, the date the Secretary of the Interior approved the patent conveying the land in controversy in this action to Zachariah Foreman, the allottee.</p>

Original action by Winona Oil Company and Consolidated Underwriters, as petitioners, against John Clark Smithson and State Industrial Commission of the State of Oklahoma, as respondents, to reverse and vacate award of State Industrial Commission of workmen's compensation.

<p>(Syllabus.)</p> <p>1. Quieting Title — Action —- Who May Maintain.</p> <p>Under c. 19 Session Laws 1910-11, one not in possession of real property may bring an action for the possession thereof and to quiet title thereto by invoking the jurisdiction of the court to cancel conveyances of record which constitute a cloud upon his title.</p> <p>2. Deeds — Quitclaim Deed — Interest Conveyed.</p> <p>Under section 1161, Revised Lawls 1010, a quitclaim deed conveys all of the right, title, and interest of the grantor to the grantee to the premises therein described, where such deed is executed in substantial compliance with e. 13, Revised Laws 1910.</p> <p>3. Indians — Restricted Lands — Conveyances —'Validity,</p> <p>A conveyance of allotted restricted Indian lands made in violation of a federal statute authorizing the alienation of such lands is against public policy and absolutely void,- and in no manner can any right, title, or interest in such lands be acquired under such a conveyance.</p> <p>4. Same — Minor Allottees — Jurisdiction of State Courts — Quieting Title.</p> <p>The district courts of this state are without jurisdiction to enter a valid judgment divesting an Indian minor allottee of title to his allotted lands by entering a decree quieting title in a party asserting title to such lands under void conveyances executed in violation of a federal statute prescribing the manner by which title may be acquired to such lands. The title to such lands may be acquired only under a regular probate sale as provided for by law.</p> <p>5. Guardian and Ward — Oil and Gas Lease —County Courts — Jurisdiction.</p> <p>The county courts of this state have jurisdiction, where it is made to appear to be for the best interest of a' minor, to authorize the guardian to sell an oil and gas lease upon its lands as provided by the applicable statutes and the probate rules of the Supreme Court; but such courts are without power or authority to enter a valid order validating a void oil and gas lease executed in violation of the law.</p> <p>6. Estoppel — Elements.</p> <p>An essential element of estoppel is that. the party invoking it must have been misled to his injury by the wrongful conduct of the party against whom it is invoked.</p>

<p>Error from District Court,■ Oklahoma County; James I. Phelps, Judge.</p> <p>Action by Sarah Etenburn against E. R. Neary, administrator of the estate of George W. Neary, and others to recover land, for damages, etc. Judgment for plaintiff, and certain defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Master and Servant — Workmen’s Com-nemsation — Questions of Fact — Finality of Decisions of Industrial Commission.</p> <p>By the provisions of section 10 of the Workmen’s Compensation Law (chapter 14, Session Laws 1919) the decision of the State Industrial Commission, where there is evidence to support such decision, is final as to all questions of faet.</p> <p>2. Same — Sufficiency of Evidence.</p> <p>Record examined, and held, that there is evidence to support the award.</p>

<p>Error from District Court, MeCurtain County; Chas. 6. Wafts, Assigned Judge.</p> <p>Action by Charlie WUlson and others against Lizzie Going to quiet title. Judgment for defendant, and plaintiffs appeal.</p>

<p>Error from District Court, Nowata County; W. J. Campbell, Judge.</p> <p>Action in replevin by J H. Hashbarger against J. W. Thompson, in which L. C. Thompson intervened. Judgment for plaintiff, and intervener appeals.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Dismissal — Moot Questions.</p> <p>When the question presented by Che appeal has become moot, the appeal will be dismissed.</p> <p>2. Same — Mandamus to Secure Building Permit.</p> <p>' This is an action for mandamus to require the building inspector of the city of Tulsa to issue a building permit for-.the repair of a certain building. The trial court refused- 'the writ, aiid, the applicant appealed. Section 44 of the charter provides the application must be made by the owner ■or his duly authorized agent. Pending th© appeal the applicant has sold and disposed of all his interest in said property. Held, the question involved on appeal becomes moot, and the case will be dismissed.</p>

<p>Error from District Court, Pittsburg County; Harve L. Melton, Judge.</p> <p>Action by Sampson Moore against Lizzie Moore for divorce. From order allowing plaintiff alimony and attorneys fees pen-dente lite, defendant brings error.</p>

Error from District Court, Oklahoma County; Edward D. Oldfield, Judge. Action by Ella Sheldon against Oklahoma City for damages for personal injuries. Judgment in favor of the plaintiff in the sum of $1,000, and defendant brings error.

<p>.Error from District Court, Custer County; Frank Mathews, Assigned Judge.</p> <p>Action by R. P. Coates against J. R. Brown for services performed. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1.Executors and Administrators — Contract Between Executor and Devisee — Validity.</p> <p>Where an executrix of an estate enters into an agreement with one entitled to an interest in such estate and takes from such person a quitclaim deedl to real estate bequeathed to such person by the will of the testator, 'and where such executrix relies upon such agreement and quitclaim deed as a defense, she must show that she acts in entire good faith and that she obtained such agreement and deed upon full and fair representation and Information communicated to such beneficiaries of all of the facts and circumstances, and that she was guilty of no fraud, falsehood, or deceit in obtaining such agreement and deed; and the burden of proof is upon such executrix to show this, and in no way can she be protected in deviating from the line of fiduciary relation.</p> <p>2. Appeal and Error — Right to Complain— Favorable Instruction.</p> <p>Though an instruction be erroneous, if .such error consists in being more favorable to the plaintiff in error than he was entitled to, the same was error without injury and will not constitute a cause for reversal.</p> <p>3. Sufficiency of Evidence.</p> <p>The evidence examined, and found sufficient to sustain the verdict of jury, which was in itself not excessive, and there being no prejudicial error found in the record, the judgment of the trial court is affirmed.</p>

Error from District Court, Washington County; Preston A. ¡Shinn, Judge. Action by Mary E. Sauer, administratrix of the estate of F. A. Sauer, against Robert 5. Bradley, George R. McKinley, and J. O. Hartman to cancel note and for damages. Judgment for defendants, and plaintiff brings error.

Error from County Court, Jefferson County ; E. L. Dillard, County Judge. Action by the State of Oklahoma, on the relation of Ben F. Saye, County Attorney, for the forfeiture of one Ford roadster automobile. Sam Kennedy interpleaded in said case. Judgment for plaintiff, and Kennedy, appeals.

Error from Oounty Court, LeFlore County; D. A. Shaw, County Judge. Action by iSam Rupe against the Midland Valley Railroad Company for destruction of automobile by fire. Judgment for plaintiff, and defendant appeals.