Culp v. Bronaugh

Opinion by LOGSDON, O. Defendants have presented and argued in their brief four propositions as follows: (1) “The court erred in not rendering-judgment for plaintiffs in error on the pleadings and proofs. (2) “The court erred in sustaining motion of plaintiff for judgment on pleadings and proofs.. (3) “The court erred in refusing and ruling out evidence in answer to question of attorney for defendants below. 14) “The court erred in overruling the motion of defendants for a new trial.” Under the first proposition defendants make two contentions, which are stated in their brief, thus: “The defendants contend and earnestly insist that a minority plea is a special one available only to the infant when he attains his majority. “We insist that the deed' executed and delivered on March 26, 1919, by Delia Jane Powell, allottee, to V. Bronaugh was valid as between the parties thereto, but that said deed was ineffective as to the adverse holders who were in possession unless this action had originally been brought in the name of said allottee.” Both of these contentions have been determined by this court adversely to defendants in a number of cases. In Sanders v. Melson, 71 Oklahoma, 174 Pac. 755, this court said: "Where a Cherokee freedman during his minority attempts to convey by deed his allotted lands and his grantees enter into and hold possession thereof for more than one year, and subsequently after attaining his majority he by warranty deed conveys to another, the validity of the second conveyance is not affected by section 2260, Rev. L. 1910 (Oomp. Stat. 1021, see. 1679), as the alienation of such land is controlled by congressional enactment.” 'To the same effect are the following cases: Thompson v. Riddle, 69 Okla, 115, 171 Pac 331; Parks v. Berry, 69 Okla. 18, 169 Pac. 884; Egan v. Ingram, 58 Okla. 766, 161 Pac. 225; Sells v. Mooney, 79 Okla. 35, 190 Pac. 861; Miller v. Grayson, 64 Okla. 122, 166 Pac. 1077; Whitmore et al. v. Levine et al., 80 Okla. 21, 193 Pac. 884. Defendants’ second contention, that the court erred in sustaining the motion of plaintiff for judgment on the pleadings and proofs, is not sustained by an inspection of the record. At page 59 of the case-made it appears that at the close of the evidence plaintiff’s attorney made a motion for judgment as prayed for in his petition, and also demurred to the evidence < f the defendants because of its insufficiency to constitute any defense to plaintiff’s cause of action. Thereupon the court announced as follows: “Let this demurrer to the evidence go before the motion for judgment. I am not now passing on this, Mr. Butler. I am taking it under advisement.” Thereupon both sides rested. It is apparent from this announcement of the court that there was no action upon the motion for judgment, and that the court took the ease under advisement so as to determine the sufficiency or insufficiency of the testimony for the defendants as against the demurrer of the plaintiff. It appears that no action was ever taken by the court upon either motion or demurrer for in the journal entry of judgment at page 62 of the case-made, this recital appears: “And the court, upon examination of the pleadings and after hearing the testimony of witnesses and other evidence offered on behalf of the parties hereto, and upon examination and consideration of the same, and being well and sufficiently advised in the premises, finds all of the issues in favor of the plaintiff and against the said defendants, and each of them, and finds that plaintiff should have judgment as prayed for in his petition.” It thus appears that the court rendered judgment upon all of the evidence and upon each of the issues presented by the evidence, and that his judgment was based upon the merits of the case rather than upon any motion or demurrer. Defendants’ third proposition involves the ruling of the court as to the admissibility of certain testimony on the cross-examination of the plaintiff. It appears from an *200 examination of the record (hat the plaintiff was placed upon the stand for the purpose of proving the loss or destruction of the original deed from the allottee to him in order that the record of said deed might be introduced. After this proof was made defendants endeavored upon cross-examination to make proof in support of certain allegations of their answer relating to the alleged fraudulent conduct of the ¡plaintiff in procuring said deed and to his notice of the claims of the defendants to said land. Upon objections being interposed to this line of cross-examination, the court, sustained the objections with the suggestion to defendants’ counsel that the witness might be called as a witness for the defense, and that such proof would then be competent. This was not done. There appears to be no error or abuse of discretion in’ this ruling of the trial court. It follows from what has been said that there is no merit in the fourth proposition urged by the defendants, which is that the court erred in overruling the motion of the defendants for a new trial. It is, therefore, concluded that no error prejudicial to the substantial rights of the defendants has been pointed out, and that the judgment of the trial court should in all things be affirmed. By the Court: It is so ordered.