Ball v. Dancer

Opinion by BREWER, C. This is an ordinary action in forcible entry and detainer, brought in a justice of the peace court in Choctaw county, and taken from there on appeal to the county court, where a demurrer was sustained to plaintiff’s evidence and judgment rendered for the defendants. From this decision this appeal is taken by case-made properly certified. At the trial the plaintiff, to sustain his claim of a right of possession of the premises, produced evidence which shows that in November, 1909, he obtained two separate written leases from one Davenworth Bacon to the land in controversy; the first lease to cover a period from January 1, 1910, to January 1, 1911, apd the second, the period from January 1, 1911, to December 31, 1911. Plaintiff was the only witness who testified, and at the conclusion of his evidence the attorney for the defendants presented his demurrer to the evidence in the following language: “If the court please, I want to renew my demurrer on the ground that a full-blood Indian cannot lease his homestead for more than one year, and ask for peremptory instructions for the defendant.” . The court replied: “I will sustain your motion apd direct a verdict for the defendant.” To this ruling of the court the plaintiff was. allowed exceptions.. ."It-is not necessary, to consider whether or not a full-blood Iridian could lease his homestead for a period of two years, simply by executing at the ■ same time a different instrument for each of the years, for the reason- that in the entire record before us there is not a word-in the pleading, or the evidence, that would even suggest..that the party who. leased the land was a full-blood Indian, or,indeed, any other Find of. an Indian.. .The only suggestion that [116] such is the fact is the motion.made by defendant at the close of plaintiff’s testimony. It is scarcely necessary, we take it, to say that this court cannot take judicial knowledge of. whether or not a party before the court is a full-blood Indian or not. It may be true that the attorney and the court knew this man personally and believed him to be a full-blood Indian; but, to rely upon the fact that he was such, it was necessary to introduce and prove the same. The cause should be reversed an.d remanded f'or further proceedings.