Wilhite v. Coombs

Clayton, J. There are five specifications of error, assigned. It will, however, only be necessary for us to consider two of them — the first and fifth. They are as follows: “(1) The court erred in striking out plaintiff's reply to a portion of the answer.” “ (5) The court erred in instructing the jury to find for the defendant.” As the court had recalled its decision overruling plaintiff’s motion to be allowed to file his replication, and the defendant had withdrawn his objections to said motion, the way was open for him to have filed it; and, if it were a necessary pleading, he should have done so. The fault, therefore, was not that of the court, but solely of the plaintiff, and he cannot now be heard to complain of the action of the court. The fifth specification raises a more serious question. Did the court err in peremptorily charging the jury to find for the defendant on the ground that the plaintiff, as against the de [359] fendant, was without sufficient title to maintain an action of ejectment? The answer averred, and it was conclusively shown by the proof, that the title to the land in controversy, at the time the contract between the parties was executed, was in the Cherokee Nation; that the land conveyed by it had not been segregated from the Cherokee domain. It was a part of a Tract of land which had been laid off into lots and blocks, streets and alleys, by one William Johnstone, a Cherokee Indian, who possessed the independent Indian’s right of possession, and from whom both parties claimed to deraign, by verbal contract, whatever title they may have had. The tract was contiguous to the segregated and incorporated town of Bartlesville, and was extensively built upon and improved. Steps were being taken to have it laid off and platted by the town site commission, with the view of annexing it to the aforesaid town of Bartlesville. There was proof that the plaintiff at the time of the execution of the contract, and before, was in possession of at least one of the lots sued for; both being located on the main street of the town. The contract between the parties is as follows: “This agreement, made and entered into this 15th day of April, 1901, by and between Ola Wilhite, of the town of Bartles-ville, Ind. Ter., of the first part, and Leslie Coombs, of Blackwell, Okla. Ter., of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of two hundred and fifty and no-100 dollars, to him in hand paid by the party of the second part,'receipt whereof is hereby acknowledged, does hereby sell, transfer and deliver unto said party of the second part the right of possession to lots number nine and ten in block number ten in Johnstone’s addition to the town of Bartlesville, in the northern district of the Indian Territory, to have and to hold the same unto the said party of the second part, his heirs and assigns. [360] “It is further agreed by and between the parties to this contract and sale as a further consideration for right of possession to said lots that the party of the second part shall, within eighteen months from the date hereof, have erected upon said lots a stone or brick building of sixty feet frontage on Second street, said building to be a good substantial building and in the event that he should fail to erect such building upon said lots within eighteen months from date hereof, then the right of possession shall revert back to said party of the first part upon his paying or refunding to said party of the second part the two hundred and fifty dollars so paid as aforesaid. “In Witness Whereof, the said parties have hereunto set their hands this 15th day of April, 1901. (Signed) Ola Wilhite. Leslie Coombs.” As heretofore stated, both of the parties deraign their title and right of possession from the Cherokee Indian, Johnstone, and therefore neither, in an action of ejectment, can dispute his title or his right to convey. “It is not material from whom or how the common source derived the title to the lands in controversy. As both parties admit the title to have been in the common source, they cannot be heard to deny it or fortify it by evidence on trial. The party having the stronger or best claim or title from the common source, as a starting- point, must prevail.” Newell on Ejectment, p. 580, § 3. And as between the parties claiming from a common source, this is true as to Indian lands as well as all others. As long as the United States, or the Cherokee Nation, or the individual Indian is not a party to the suit, the title or the right of possession in the Indian, and his right to convey, stand admitted. The defendant, by disputing plaintiff’s title because of failure of title in his grantor, disputes his own. And this he will not be allowed to do. But if it be true that neither had title, then the question would arise as to [361] who was in prior possession of the land. If the plaintiff were in prior possession, and the defendant could show no better title, he (the plaintiff) would prevail. Before the passage of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 495), atatime when there was no provision of law for the establishment of town sites on Indian lands, this court decided “that a note given in consideration of a transfer of a certain tract of land in a town in the Indian Territory, which tract was unoccupied and unimproved, is based on sufficient consideration, though the title was in an Indian,” and “that the business of renting unoccupied lots in a town in the Indian Territory is not against public policy, though the title to the lots was in the Indians.” Tye vs Chickasha Town Co. 2 Ind. Ter. Rep. 113, (48 S. W. 1021); Walker Trading Co. vs Grady Trading Co. 1 Ind. Ter. Rep. 191, (39 S. W. 354). In our opinion, this case should have been presented to the jury on proper instructions upon the question as to the prior right of plaintiff or defendant to the possession of the lots as deraigned from Johnstone, their common grantor, and it was error on the part of the court to peremptorily charge the jury to find for the defendant. Reversed and remanded. Raymond, C. J., and Townsend, J., concur.