Jackson v. Lair

1. INDIANS — Allotted Lands — Evidence — Statute. Under Act Cong. May 27, 1908, effective July 27, 1908 (35 Stat. 312, c. 199), it is only where minority at the time of a conveyance appears upon the enrollment record that such minority is conclusively presumed so, as to render void such conveyance of allotted lands by a Creek freedwoman who at such time had, in fact, passed the age of her minority. 2. SAME. Under Act Cong. May 27, 1908, effective July 27, 1908 (35 Stat. 312, c. 199), where the enrollment record of a Creek freedwoman merely shows that she was 18 years old in 1908, without more specific statements as to time, it does not appear therefrom that she was a minor on July 28 or September 18, 1908, when she executed conveyances of allotted lands; and in such case recourse may be had to other evidence to ascertain whether she had attained her majority on those specific dates. 3. SAME. The enrollment records of the Commission to the Five Civilized Tribes of Indians are not conclusive evidence of the age of an allottee of tribal lands in testing the validity of a deed thereto executed prior to the act of May 27, 1908, effective July 27, 1908 (35 Stat. 312, c. 199) ; and such records are only admissible in such cases as even disputable evidence of age when allowable under the general rules of evidence. (a) In such cases, where there are living witnesses in court who testify directly to the age of such allottee, such evidence is wholly inadmissible. 4. CHAMPERTY AND MAINTENANCE — Grant of Lands — Grantor Out of Possession. Under section 2036, St. 1890 (section 2260, Rev Laws 1910), any person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant, has been- in possession, or he or those by whom he claims have been in possession, of the same, or of the reversion or remainder thereof, or have taken the rents or profits thereof for the space of one year before such grant, conveyance, sale, promise, or covenant mail;;, is guilty of a misdemeanor, and a conveyance in violUtion of this provision of the statute, which is declaratory of the common- law, is ehanvpertous and void. (Syllabus by Thacker, O.)

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Suit by James B. Lair against E. A. Jackson and another. Judgment for plaintiff, and defendants bring error.- The plaintiffs in error, E. A. Jackson and Minnie Landrum, when not designated by their individual names, will be. designated as defendants, and the defendant in error, James B. Lair, will be designated as plaintiff, in accord with their respective titles in the trial court. This case was tried to the court without a jury and resulted in a judgment for plaintiff. . The said Minnie Landrum, nee Chambers, a Creek freedwoman, to whom the N. W. *4 of section 21, township 12, range 16 east, had theretofore been allotted on October 2, 1907, by warranty deed describing the N. E. *4 of said N. W. 14, on July 28, 1908, by warranty deed describing the N. W. % of said N. W. %, on September 18, 1908, by warranty deed describing the S. % of said N. W. 1/4,, and on October 31, 1910, by warranty deed describing said N. W. % in its entirety, in which deeds her husband joined, conveyed said described lands to the plaintiff upon a valuable consideration paid on the date of the deed in each instance, except the last, aggregating $2,200. On August 25, 1910, said Minnie Landrum, joined by her husband, executed and delivered to her codefendant, E. A. Jackson, a warranty deed, purporting to convey said N. W. 14 to him upon a purported consideration of $1 “and other valuation consideration,” including (as appears from a contract of that date between them) the undertaking of said E. A. Jackson to sue, at his own expense, to cancel said deeds to plaintiff and perfect title in himself and thereupon to pay the said Minnie Landrum $1,000 as the purchase price of said land. At the time of the deed to E. A. Jackson, plaintiff was, and since more than one year antedating said deed has been in the actual possession of all said land, and the said Minnie Landrum has neither taken rent nor been in possession since her conveyances to plaintiff in 1907-08. Plaintiff brought this suit to cancel said deed to Jackson and to remove the cloud thereof from his title; and each of the defendants filed an answer in which they alleged that at the time of each of the deeds to the plaintiff antedating the one to E. A. Jackson the said Minnie Landrum was a minor, and her said deeds to plaintiff were therefore void, except as a cloud upon Jackson’s title, and they prayed for a cancellation of plaintiff’s deeds and for title and possession for the benefit of Jackson. There was, in behalf of plaintiff, reasonably strong oral evidence to the effect that Minnie Landrum was at least 19 years old in 1907, when one of the deeds was executed, and at least 20 years old in 1908, when the next two deeds were executed to the plaintiff; and there was no less cogent oral evidence in behalf of defendants to the effect that she was only 15 in 1907 and 16 in 1908. All this oral evidence was admitted without objection. The defendants offered and the court, upon objection, excluded the Creek freedman enrollment record, showing conclusively, under the act of’ Congress approved May 27, 1908, and effective July 27, 1908 (35 Stat. 312, c. 199), as to the age of Minnie Landrum, where the question arises upon her conveyances on or after July 27, 1908, that she was 18 years old in that year, although this record does not, in any manner, tend to. show at what time in that year she reached that age.