Simpson v. Hicks , 90 Okla. 207 ( 1923 )

This appeal is prosecuted to reverse the judgment of the district court of Pontotoc county, rendered in favor of the defendant against the plaintiff. The plaintiff in the trial court was Hugh Simpson, who is plaintiff in error; the defendants in the trial court were George H. Hicks and others, who are the defendants in error.

The action was in ejectment, the plaintiff claiming to be entitled to the possession of certain lands, the restricted surplus allotment of one Thomas Graham, a full-blood Choctaw Indian, to whom the land had been allotted and patented under the allotment acts. The suit was tried to a special judge agreed upon by the parties, and a jury was waived.

The plaintiff pleaded he was entitled to possession by reason of an agricultural lease dated July 25, 1918, executed by the allottee, to run according to its express terms from January 1, 1919, for a period of four years. The defendants, Hicks and others, disputed the right of the plaintiff to recover and set up that at the time of the execution of the lease in question, defendants were in possession of the premises under an agricultural lease executed by the said allottee on the 18th day of January, 1914, to run for a period of five years, up to January 1, 1919, and that on December 26, 1918, the allottee had executed to the defendant Hicks another agricultural lease to run from January 1, 1919, for a period of five years.

The other defendants claim through defendant Hicks, and they will not be referred to.

The question of the validity of the said lease dated December 26, 1918, pleaded by the defendant Hicks, it is unnecessary to decide, as this action is in ejectment, and the plaintiff must recover, if at all, upon the strength of his own title, not upon the weakness of his adversary. The defendant in error Hicks has filed no brief in this cause, and, ordinarily, this court will not search the record to ascertain if there is some theory upon which the judgment of the trial court may be affirmed, where the assignments of error of the plaintiff are reasonably sustained. But on reading the brief of the plaintiff in error and the cases cited by him, and findings and conclusions in the record, we do not feel that the court would be warranted, even in the absence of a brief on the part of the defendant, in reversing this cause.

Without going into an extended discussion of the provisions of the act of Congress touching the leasing of restricted lands by Choctaws and Chickasaws for agricultural purposes, and without going into the cases or discussing the reasons assigned, it is sufficient to that we feel that the rule announced in the case of Brown et al. v. Van Pelt,64 Okla. 109, 166 P. 102, to the effect that a valid lease for agricultural purposes of restricted surplus allotments may be made during the existence of a prior valid lease, provided it is made for a fair rental and near the termination of the existing lease, where the new lease does not extend for a period of more than five years, considering the unexpired time of the old lease, settles the controversy here, in accordance with the judgment of the trial court.

Another question which is readily disclosed by the record is that a request was made of the trial court to make separate findings of facts and conclusions of law under section 5017, Rev. Laws 1910. In accordance therewith, the trial court made and signed separate findings of fact and conclusions of law, in all respects in compliance with said section of the statute. No exceptions were taken or saved thereto. The assignments of error are, in brief, that the findings and judgment of the court are not supported by the evidence, and are contrary to both the law and the evidence. Having saved no exceptions to the findings of facts and conclusions of law of the trial court, these assignments cannot be considered. Bryan v. Okmulgee Co., 71 Oklahoma,176 P. 226.

It follows, therefore, that the judgment of the trial court should be affirmed.

JOHNSON, C. J., and KENNAMER, HARRISON, and MASON, JJ., concur.