Harris v. Hart ( 1915 )

HARDY, J.

Defendant in error, B. L. Hart, brought suit in the district court of Craig county, for the possession of certain lands, alleging that he was entitled to the immediate possession thereof, and deraigned his title as follows: That on November 14, 1905, one Allie Nash, a Cherokee freedman, executed a warranty deed, conveying said lands to the Campbell-Ratcliff Land Company; that on January 13, 1906, said Nash executed another warranty deed to said land company; and on May 11, 1906, said land company conveyed said lands to the Creek Land & Improvement Company, which last-named company on June 25, 1910, conveyed said lands by warranty deed to said B. L. Hart. Defendant Wilson filed separate answer, admitting possession of said premises, but. alleged simply that he was the tenant of his codefendant, F. S. Harris. Defendant Harris filed answer, alleging that at the time of the execution of the deed by the said Allie Nash to the Campbell-Ratcliif Land Company, November 14, 1905, said Allie Nash was a minor; and that at the time of the execution of the deed of date January 13, 1906, said Allie Nash was a minor; that the deed from the Campbell-Ratcliif Land Company of date May 11, 1906, to the Creek Land & Improvement Company, was void for the reason that the said land company had no right or title in said lands; that the deed from the Creek Land & Improvement Company to the defendant in error, B. L. Hart, of date June 25, 1909, was void, for the same reason; and that the deed from the said Nash to the defendant in error, B. L. Hart, of date December 15, 1909, was procured for the purpose of ratifying all of the above-mentioned deeds, and was therefore void. Defendant Harris further alleged that he was the owner of the legal and equitable estate in said premises, having purchased sam'e from the allottee, Allie Nash, by warranty deed, dated June 9, 1909; and prayed that plaintiff in said suit take nothing, and that all of the said above-mentioned deeds under which defendant in error claims be canceled and declared clouds upon the title of defendant Harris.. Reply was filed to this answer, and upon the issues thus joined the case was tried to a jury on the 28th day of November, 1911, resulting in a verdict in favor of defendant in error, B. L. Hart, upon which verdict judgment was rendered, and this appeal prosecuted.

The first proposition presented in the brief is that, three-fourths of the whole number of jurors having returned a verdict, and the signature of one of such jurors appearing to have been made by mark, and said signature not having been witnessed as required by statute, the verdict is void and the court was without authority to receive same or to render judgment thereon.

The verdict was signed by nine jurors, and opposite the name of W. T. Rafferty, one of the jurors, appeared this notation, “His X mark.” No attesting witness to such signature appears thereon in the usual form. Section 19, art. 2, Const., provides:

“In civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein.”

Section 2945, Rev. Laws 1910, defines “signature” to be as follows:

“ ‘Signature’ or ‘subscription’ includes miark, when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness.”

Construing this section of the statute, the Supreme Court of Oklahoma Territory, in Sivils v. Taylor, 12 Okla. 47, 69 Pac. 867, held, where the name of a person who signed by mark was not witnessed in the manner required by this section, the same did not constitute a sigr náture within the meaning of the statute, and this opinion was followed in Sims v. Hedges, 32 Okla. 686, 128 Pac. 155, and in Walker Bond & Co. v. Purifier et al., 32 Okla. 844, 124 Pac. 322. Plaintiffs in. error urge... that, this statute and these decisions are controlling'in,.this case, and that the verdict was a nullity and therefore could form no - basis for a judgment to be rendered thereon. We cannot agree with this contention. In the first place, there is nothing to indicate, other than the notation, that the signature of the juror Rafferty was not in his own handwriting; and, even if the name of the juror was written by another, it does not appear that it was not written in the presence of all the jurors and by one of the jurors who also signed his name to the verdict. The record shows that, when the jurors returned into open court with their verdict, they were asked by the court whether they had agreed upon a verdict, and answered in the affirmative, and thereupon the verdict was read in' the presence of the jury, and the court then said:

“Gentlemen of the jury, is this your verdict that you have heard read in your presence and hearing, your verdict in this case?” Answer by the jury: “Yes, sir.” By the Court: “You gentlemen whose names are signed to it each signed it, did you?”. By the jury: .“Yes, sir.”

We think these facts present a very different case from that of any of the decisions referred to, and which are relied upon by plaintiffs in error. A case more nearly in point, to our mind, is the case of Stanard v. Sampson, 23 Okla. 13, 99 Pac. 796. In that case special interrogatories were submitted to the jury and answers were returned, and the interrogatories were read in the presence .and hearing of the jury, and the jurors were asked by the trial court if the answers written by them immediately following each interrogatory were their finding, and each of the jurors answered in the affirmative. Thereupon the special findings were received by the court and ordered recorded, and the jury discharged, without any objection being taken by either side. The answers to the special interrogatories were not signed as required by section 5011, Rev. Laws 1910. In the case of City of Kingfisher v. Altizer, 13 Okla. 127, 74 Pac. 107, the „ Supreme Court of the territory of Oklahoma, in passing upon a question similar to the one in the case of Stanard v. Sampson, supra, held that a failure of the jury to sign the answers was fatal, and therefore their answers constituted no part of the verdict and could not be considered for any purpose; but this court, in the case of Stanard v. Sampson, supra, declined to follow the cáse of City of Kingfisher v. Altizer, and quoted with approval from the case of Northern Pacific R. Co. v. Urlin, 158 U. S. 277, 15 Sup. Ct. 842, 39 L. Ed. 977, the language of Mr. Justice Shiras, who wrote the opinion, as follows:

“The contention that the judgment below was invalid because the verdict of the jury was not signed by the foreman, as reauired by a section of the Code of Montana, is, in our opinion, without merit. The record discloses that when the verdict was rendered, at the request of the defendant, the jury was then and there polled by the clerk, and each of said jurors answered that the verdict as read was theirs, whereupon the plaintiff moved for judgment in accordance with said verdict, the motion was granted, and judgment was ordered accordingly. No objection was made, or request that the verdict should be signed was then made by the defendant, and we think that the court below was justified in treating the irregularity, if such it were, as having been waived.”

And after quoting the above language, Mr. Justice Williams proceeds to state the views of this court as follows:

“The settled weight of authority supports the rule announced by the Supreme Court of the United States in the above case, which was the controlling tribunal as to the decisions of the Supreme Court of the territory of Oklahoma at the time the decision was rendered in the case of City of Kingfisher v. Altizer, supra. Gurley et al. v. O’Dwyer, 61 Mo. App. 349; Morrison v. Overton, 20 Iowa, 465; Patterson v. Murphy, 63 Ga. 281; Burton v. Bondies, 2 Tex. 203; Hardy v. State, 19 Ohio St. 579; Berry v. Pusey, 80 Ky. 166. We conclude that, had objection been made to the receiving of the answers, on the ground that they were not signed by the foreman or had request been made that the same be signed, and the court had overruled such objection or denied such request, in either event it would have been error; that answers to special interrogatories submitted to and returned by the jury not signed, over the timely objection of either party, cannot be considered as constituting a part of the verdict, and cannot legally be considered for any purpose. But when neither objection to the receiving of the same unsigned, nor any request that the same be signed, is miade, the plaintiff waived the right to complain of such alleged error in this court.”

See, also, Brown et al. v. First National Bank of Temple, 35 Okla. 726, 130 Pac. 140.

It is not claimed that the verdict was not the verdict of the juror Rafferty, nor is pretense made that he did not concur therein, nor is any objection made other than the mere technical objection that the person who wrote the name of the juror.did not also write his own name as a witness thereto. The mere notation itself is not sufficient to show that the juror Rafferty did not write his own name in the face of the statement in the record that in answer to the inquiry of the court the jury answered, each of them, that they signed the verdict; and if it were true that the juror could not write his name, and that same was written by a person other than himself, yet when the verdict was returned into open court, and in response to the questions of the court the jurors answered that they concurred in the verdict so returned, and no objection was then and there made, we think that the irregularity, if it be such, was waived, and certainly could not be urged to defeat the judgment rendered thereon, unless it be made to appear in some way that prejudice has resulted therefrom; and from this record there is no showing made that it was not the verdict of the juror, nor is any prejudice apparent on the record. The objection to the verdict cannot be sustained.

The second proposition urged is alleged error in admitting in evidence the second deed from Allie Nash to the Campbell-Ratcliff Land Company, and also in admitting the deed from the said Nash to defendant in error Hart, dated December 15, 1909; it being contended that the first deed being void, because of the minority of the grantee at that time, these second deeds were an attempt to ratify the first deed, and therefore were void and not admissible in evidence.

Under the third proposition, it is claimed that the best evidence of the age of the allottee was the testimony of the father and mother, who were shown to be living, and that the court erred in admitting in evidence the judgment of the United States court in the Indian Territory on the question of the age of said allottee. These two questions are closely related, and the consideration of .one necessarily involves- the other, and we shall therefore consider the two together.

The deeds are regular on their face, and appear to have been regularly-acknowledged and recorded, and were entitled to be admitted in evidence if otherwise valid. Section 15 of the Cherokee Treaty, 32 Stat. at Large, 716, provided that all lands allotted to members of said tribes should be alienable after the expiration of five years from the issuance of patents; and, construing this provision of the treaty, this court has held that these lands were not alienable prior to the expiration of five years after the issuance of patents. Allen v. Oliver, 31 Okla. 356, 121 Pac. 226. The date of the patent is not apparent in this case. It is conceded that by the Act of April 21, 1904, c. 1402, 33 Stat. 204, the restrictions upon the lands of the allottee Allie Nash were removed unless he were a minor, and if a minor, at the date of the execution of the deed of November 14, 1905, to Campbell-Ratcliff Land Company, the deed would be void and would be incapable of ratification, and his grantees in his deed made after he reached his majority would be entitled to assert the invalidity of such deed against their own conveyance. Blakemore v. Johnson, 24 Okla. 544, 103 Pac. 554; Bragdon v. McShea, 26 Okla. 35, 107 Pac. 916; Alfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 517. It then became a question of fact as to whether or not the allottee, Allie Nash, was 21 years of age on November 14, 1905, the date he executed said deed to the Campbell-Ratcliff Land Company; and, if he was of such age on that date, the deed would be valid. The deed relied upon by plaintiffs in error was dated on the 9th day of June, 1909, and there is no controversy as to the fact that at the time this deed was executed he was of full age, and capable of conveying title to his property. At the trial the allottee, Allie Nash, was on the witness stand, and testified. that his birthday was February 2, 1884; that he knew this only from what his parents had told him;' and that both his father and mother had told him this was the correct date. Plaintiff also offered in evidence a decree of the United States court in the Indian Territory, in probate,'sitting at Vinita,. dated the 11th day of June, A. D. 1907, which was rendered in a guardianship proceeding then pending, wherein the guardian had requested the court that his final report be approved and that he be discharged, and alleging that a mistake had been made in the ages of his wards, as given in his petition for appointment; and, upon a hearing of this petition, the court rendering judgment whereby it decreed, “that the ages of said minor children should be, and the same are hereby corrected as follows: * * * Allie Nathan Nash, born February 2, 1884,” and discharging the guardian, and in its decree finding that at the date thereof the allottee herein was over the age of 21 years. The plaintiffs in error, over objection, offered in evidence as to the age of the allottee the testimony taken before the Commission to the Five Civilized Tribes at the tim¡e of his enrollment, and in addition thereto offered in evidence the testimony of several persons who testified to having known the parents of the allottee, Allie Nash, prior to and at the time of their marriage, and •having known of the time of his birth, and fixing the same at some time in the year 1888. The question of fact was submitted to the jury, and the jury found in favor of the plaintiff in the case, thereby finding that at the date of the execution of plaintiff’s deed, to-wit, November 14, 1905, said Allie Nash was of full age.

The judgment of the United States court in the Indian Territory was rendered in a guardianship proceeding, where none of the parties interested here were parties thereto, and we do not think same was admissible for the purpose of proving the age of the allottee in the present proceedings, as between the parties hereto. Youst v. Willis, 5 Okla. 413, 49 Pac. 1014; Hawkins v. Overstreet, 7 Okla. 277, 54 Pac. 472; 2 Black on Judgments, section 534 et seq.

It has already been seen that at the trial Allie Nash, the allottee, testified to his own birthday as being the 2d day of February, 1884. He was on the witness stand, and was before the jury, and they saw him and heard his testimony, and could determine from his size and his apparent age as to whether or not his testimony was probably true. That this testimony was competent is held in the case of Stevens v. Elliott et al., 30 Okla. 41, 118 Pac. 407, where it is said:

“Plaintiff in error contends that the testimony * * * as to her age, because she did not know the facts of her own personal knowledge, was of no value. This is not the law. 16 Cyc. 1124; Hill v. Eldridge, 126 Mass. 234; Tyler on Infancy, p. 205. We deem the testimony offered by plaintiff as to her age of much higher and more convincing character than that .offered by defendant Stevens.”

That .such testimony is permissible even when based upon hearsay is sustained by the authorities and by the text-writers, a few of which we cite herein; and this is true, even though the father and mother be living and present* in court at the time: 2 Jones on Evidence, sec. 303; 2 Wigmore on Evidence, sec. 1493; 4 Chamberlayne on Modern Law of Evidence, sec. 2929; State v. Miller, 71 Kan. 200, 80 Pac. 51, 6 Ann. Cas. 58; People v. Ratz, 115 Cal. 132, 46 Pac. 915; Central R. Co. v. Coggin, 73 Ga. 689; Comm. v. Stevenson, 142 Mass. 466, 8 N. E. 341; Cheever v. Congdon, 34 Mich. 296; Loose v. State, 120 Wis. 115, 97 N. W. 526; State v. Rackich, 66 Wash. 390, 119 Pac. 843, 37 L. R. A. (N. S.) 760, Ann. Cas. 1913C, 312; Morrison v. Emsley, 53 Mich. 564, 19 N. W. 187; Houlton v. Manteuffel, 51 Minn. 185, 53 N. W. 541; State v. Best, 108 N. C. 747, 12 S. E. 907; Pearce v. Kyzer, 84 Tenn. (16 Lea) 521, 57 Am. Rep. 240.

The testimony taken before the Comimission to the Five Civilized Tribes upon the enrollment of the allottee, Allie Nash, introduced by plaintiffs in error, might have been competent had there been any issue as to the age of the allottee at the time of the deed to plaintiffs in error; but there was no controversy on this point, and the evidence was probably offered for the purpose of rebutting the testimony of the allottee, Allie Nash, as to his age. It has become firmly established by a long line of decisions of this court that the enrollment records of the Commission to the Five Civilized Tribes, which have been held to include the testimony taken at the hearing upon them, are not conclusive evidence as to the age of the allottee, where this fact is a material inquiry in reference to transactions that occurred prior to the passage and approval of that act, which was on the 27th day of May, 1908; and it has also been held that these records are not even admissible in evidence for the purpose of showing the age of an allottee as affecting a conveyance executed by him prior to the date of said act, where other evidence of a higher degree is at hand. Williams v. Joins, 34 Okla. 733, 126 Pac. 1013; Rice v. Ruble, 39 Okla. 51, 134 Pac. 49; Rice v. Anderson, 39 Okla. 279, 134 Pac. 1120; Scott v. Brakel, 43 Okla. 655, 143 Pac. 510; Phillips v. Byrd, 43 Okla. 556, 143 Pac. 684; Freeman v. First National Bank, 44 Okla. 146, 143 Pac. 1165; Grayson v. Durant, 43 Okla. 799, 144 Pac. 592; Gilbert v. Brown, 44 Okla. 194, 144 Pac. 359; Cornelius v. Yarbrough, 44 Okla. 375, 144 Pac. 1030; Smith v. Bell, 44 Okla. 370, 144 Pac. 1059; Bucher et al. v. Showalter, 44 Okla. 690, 145 Pac. 1143.

It thus appears that there was sufficient evidence to raise an issue of fact as to the age of the allottee on the date of the execution of plaintiff’s deed on November 14, 1905, and upon this state of the record the admission of the other deeds in evidence was not error.

We have already seen that the admission of the decree of the United States court in the Indian Territory was erroneous, and as we are unable to say what effect the admission of this decree had upon the minds of the jury, or to what extent it may have influenced them in arriving at their conclusion, and as such evidence tended strongly to corroborate the evidence of the witness Allie Nash and to prove a material issue in the case, it apparently prejudiced the rights of plaintiffs in error; and for the admission of this evidence the judgment must be reversed, and the cause remanded for a new trial. Meek v. Daugherty, 21 Okla. 859, 97 Pac. 557; Brison et al. v. McKellop, 41 Okla. 374, 138 Pac. 154.

All the Justices concur.