Killam v. Gritts

Opinion by LOGSDON, C. Four errors are assigned but only one proposition is discussed in the briefs, and that is whether the evidence was sufficient to establish the minority of the allottee on September 23, 1919, the date of the deed from the allottee to the defendant. Plaintiff, having alleged the minority of the allottee at the date of the execution of the deed which she sought to have canceled, the burden rested upon her to establish such fact. Freeman v. First Nat. Bank, 44 Okla. 146, 143 Pac. 1165; Rice v. Ruble, 39 Okla. 51, 134 Pac. 49. To sustain the burden thus resting upon her, plaintiff offered in evidence the census card of the allottee, Ethel Welch, which discloses that application for her enrollment was made July 18, 1902, and that at *264 the date of such application she was of the age of four months. In addition to the census card plaintiff offered in evidence the birth affidavit made in connection with the application for enrollment of Ethel Welch. This affidavit was made by the mother May 13, 1902, and shows that Ethel Welch was born January 20, 1902. Defendant’s contention against the sufficiency of this evidence is thus stated on page 5 of his brief: “Neither of the certificates covering these two pieces of evidence undertakes to say that they constitute a copy of the enrollment records of the Commissioner of the Eive Civilized Tribes pertaining to the enrollment of this allottee. The trial eourt should have held plaintiff’s testimony insufficient to establish the age of the allottee.” No evidence was offered by the defendant upon the trial of this case, so that the evidence of the plaintiff stands uncontradicted in the record. That this evidence was competent and entirely sufficient for the purpose for which it was introduced is settled by numerous decisions of this court. Hutchinson v. Brown, 66 Okla. 250, 167 Pac. 624; Hefner v. Harmon, 60 Okla. 153, 159 Pac. 650; Hart v. West, 62 Okla. 71, 161 Pac. 534; Jackson v. Lair, 48 Okla. 269, 150 Pac. 162. Since this is the only question presented and argued in this court, and the evidence being amply sufficient to sustain the finding and judgment of the trial court, such judgment should be in all things affirmed. By the Court: It is so ordered.