Aldridge v. Whitten

Opinion by DEVEREUX, C. (after stating the facts as above). In our opinion, it was error to direct a ver- *696 diet for the plaintiff under the evidence in this case. The allottee died in October, 1908, after statehood, and therefore the law of descent and distribution of .the State of Oklahoma governed. The Oklahoma statute in force at the death of the allottee provides: “If decedent leave no issue, nor husband, nor wife, the estate must go to the father.” (Wilson’s Rev. & Ann. St. 1903.. sec. 6895.) It appears from the evidence that the allottee was living with her father and mother at the time of her death in October, 1908, and, there being no evidence of the father’s death, he is presumed to have been .alive on.May 26, 1910, when the lease was made, and, there being no evidence that the allottee left issue or husband or wife, under this statute the land was inherited by the father. The rule is well settled that in an action to recover land the plaintiff must recover on the strength of his own title. Young v. Chapman, 37 Okla. 19, 130 Pac. 289; Hurst y. Sawyer, 2 Okla. 470, 37 Pac. 817. There being no evidence that the father of the allottee was dead, plaintiff below failed to show title in himself, and was not entitled to recover. It is true that in the cross-examination of the plaintiff below he was asked: “Q. You know there was a deed on record to Mr. Aldridge? A. Yes, sir. Q. And you knew the deed was from Hanna? A. No, sir. Q. Didn’t you know the deed was from Hanna to E. C. Aldridge? A. No, sir; Hanna told me she did not sign it. Q. Who was it purported to be signed by? A. Hanna.” The defendants, however, contented themselves with this cross-examination, and did not offer the deed in evidence. In 5 Enc, of Ev. p. 29, it is said: *697 “Actual possession under color of title is sufficient to protect the defendant in ejectment until a superior right is shown by the plaintiff, but, where the defendant offers no evidence to justify his possession, it may fairly be inferred that he is a mere trespasser.” It was under a lease from Hanna that the plaintiff claimed, and, had the defendants introduced a deed from Hanna, the plaintiff could not have disputed her title, as both claimed under a common source, but the evidence above set out does not show:"ahy. such deed. It is also argued that the plaintiffs in ‘error cannot now change the theory on which they tried the case in the court below, because the exception to the peremptory instruction was: “That the testimony shows'.that the land was allotted . to Allie, a Seminole Indian, that the father and mother of ‘ Allie both are living, and that said father of Allie did not join in the rental contract to the plaintiff in this case, and that the court should instruct the jury that the extent of the recovery of plaintiff will be for the possession of a one-half undivided interest in said land, and not for the whole tract.” On whatever theory the defendants below proceeded, a valid objection was made to the charge, and the error properly preserved in the record, and in any aspect of the case there was error. What we have said is not in conflict with Thorn v. Cone, 47 Okla. 781, 150 Pac. 701, because, in that case the allottee died prior to statehood, and the devolution of the estate was governed by the laws of Arkansas, and also in that case the father and mother were both full-bloód Semi-nóles. In the case at bar it appears that Allie Was a halfbreed, but the record is silent as to the source of her non-Indian blood. *698 We therefore recommend that the judgment be reversed, and a new trial granted. By the Court: It is so ordered.