Linam v. Beck

Opinion by COLLIER, C.

(after stating the facts as above). The. vital question involved in this case is the age of the grantor at the time he executed the deed to plaintiff conveying the lands in controversy. The evidence shows that the deed was executed by said allottee *729 subsequent to the passage of Act Cong. May 27, 1908, c. 199, 35 Stat. 312 . The enrollment records of the Five Civilized Tribes, which are conclusive as to the age of' said allottee, were introduced in evidence, and show that said allottee was enrolled September 20, 1900, at which time he was ten years of age.

Cornelius v. Yarbrough, 44 Okla. 375 , 144 Pac. 1030 ;

Duncan v. Byars et al., 44 Okla. 538 , 144 Pac. 1053 ;

Scott v. Brakel et al., 43 Okla. 655 , 143 Pac. 510 ;

Campbell v. McSpadden, 44 Okla. 138 , 143 Pac. 1138 ;

Charles v. Thornburgh, 44 Okla. 379 , 144 Pac. 1033 ;

Phillips v. Byrd, 43 Okla. 556 , 143 Pac. 684 . Therefore said allottee was not 21 years of age until September 20, 1911, and the deed executed by him September 6, 1911, to plaintiff herein was void.

Jackson v. Lair, 48 Okla. 269 , 150 Pac. 162 ;

Reid v. Taylor, 43 Okla. 816 , 144 Pac. 589 .

It is a rule of law, too well settled to require citation of authorities, that plaintiff in ejectment must recover upon the strength of his own title, and not upon the defects in the title of his adversary. It was incumbent upon plaintiff to show his title to said lands; and, failing in this, his action was without merit, and the court committed reversible error in overruling defendants’ demurrer to the evidence.

For the error pointed out, this cause should be reversed and remanded, with instructions to dismiss the action.

By the Court: It is so ordered.