Jackson v. Lair , 48 Okla. 269 ( 1915 )

That the enrollment record was purely hearsay, and therefore inadmissible as evidence of Minnie Landrum's age at the time she executed the deed of October 2, 1907, that being prior to the act of Congress of May 27, 1908, which did not become effective until July 27, 1908, is well established. Grayson etal. v. Durant et al., 43 Okla. 799, 144 P. 592.

On the other hand, it is both clear from the language of said act of May 27, 1908, and well established by the decided cases that, in respect to the age of plaintiff at the time she executed the conveyances that were made by her after July 27, 1908, when that act took effect, the said enrollment record was not only admissible, but was conclusive as to her age as shown by it. Gilbert v. Brown, 44 Okla. 194, 144 P. 359. But that record did not show, nor tend to show, her precise age within the year 1908. It throws no light whatever upon the date, within that year, at which she became 18, and therefore capable of conveying. This question, unsettled by the enrollment record, must necessarily be determined by indulging a legal presumption or by recourse to other evidence than the record. Section 3 of said act, which is the one to be considered here, "merely declares that all allottees who appear to be minors, as therein defined, upon the enrollment records, must hereafter be conclusively presumed to be such in all transactions concerning the alienation of their allotted lands" (Scott v. Brakel et al., 43 Okla. 655, 143 P. 510); and it therefore does not appear from the proffered and rejected evidence (the enrollment record) that Minnie Landrum was under the disability of minority at the times in 1908 at which she executed to plaintiff the several deeds of that year. The oral evidence showing, as the trial court found, that Minnie Landrum was 18 years old at the time she executed to plaintiff the deeds of 1908, plaintiff was clearly entitled to the equitable relief given him.

This, of course, includes a denial of right to the affirmative relief prayed by the defendants; but, if plaintiff had failed to establish his right to the relief prayed, the relief asked by the defendants in behalf of the defendant Jackson would have to be denied because he took the deed under which he claims in violation of section 2036, Stat. 1890 (sec. 2260, Rev. Laws 1910), the plaintiff alone, having been in possession and Minnie Landrum out of possession of and having taken neither rents nor profits from the land for more than one year before the deed to Jackson, and he was guilty of champerty. Huston v. Scott et al., 20 Okla. 142, 94 P. 512, 35 L. R. A. (N. S.) 721; Miller v. Fryer, 35 Okla. 145,128 P. 713; Ruby v. Nunn, 37 Okla. 389, 132 P. 128; Phillips etal. v. Byrd, 43 Okla. 556, 143 P. 684.

For the reasons stated, the judgment of the trial court should be affirmed.

By the Court: It is so ordered.