view of the conveyancing act of 1897, it was not repealed thereby, while the act last mentioned specifically repealed it.

Defendants in error contend that the deed is void under the rule laid down in Ruemmeli v. Cravens, 13 Okl. 342, 74 Pac. 908. The doctrine of that case, generally speaking, is correct, but does not apply in the case at bar. For the deed in this case is not void as between the grantor and grantee, nor due to any disability of either the former to make the transfer, or the latter to take the title. The disability does not lie there, but is inherent in the condition of the land itself, which being held adversely under color of title, the conveyance thereof is void as against such occupant. It is his right of occupation which is protected. If the grantee can induce such adverse claimant to waive the possession, and yield it to him, his title is absolute, and complete. It is a transfer of land in adverse possession against which the statute animadverts, but the deed made between the parties is good as between them and to all the world. This is the holding of all of the cases and text-writers who have dealt with the subject. "Both at common law and under statutes adopting the common law or the statute of Henry VIII (32 Hen. VIII, c. 9), a conveyance of land, though by the rightful owner, while it is in the adverse possession of another claiming to be the owner thereof, is absolutely void as to the party in possession and his privies." 6 Cyc. 883, and cases cited.

In a New York case, Livingston v. Proseus, 2 Hill, 526, the syllabus reads as follows: "A deed of lands held adversely to the grantor is utterly void as against the person thus holding and others afterwards coming in under him; but, in respect to all the rest of the world, it is operative, and passes the grantor's title." And in the discussion of the authority which follows, the court says: "The whole apparent difficulty arises from an inaccurate statement of the consequence which results from the adverse holding at the time the deed is executed. It is often said in the books, without any qualification, that the deed is void. But that is only true in relation to the person holding adversely, and those who afterwards come in under him. As to all the rest of the world the deed is valid, and passes the title from the grantor to the grantee. This, I think, is sufficiently established by the cases already mentioned, and the authorities on which they rest. The deed is void as against the party who might otherwise be injured; but it is good as to all others. But as against the person holding adversely, the deed is utterly void -a mere nullity." Farnum v. Peterson, 111 Mass. 148; Wade v. Lindsey, 6 Metc. (Mass.) 407; Cleveland v. Flagg, 4 Cush. (Mass.) 76; McMahan v. Bowe, 114 Mass. 140, 19 Am. Rep. 321. In addition to the authorities above cited, the following cases support the same doctrine: John Doe ex dem. Dearmond

v. Roe, 37 Ga. 5; Den et al. v. Geiger, 9 N. J. Law, 225; Steeple et ux. v. Downing et al., 60 Ind. 478; Whitaker v. Cone, 2 Johns. Cas. (N. Y.) 57; Pepper v. Haight et al., 20 Barb. (N. Y.) 429; Thompson v. Richards, 19 Ga. 594; Everenden et al. v. Beaumont et al., 7 Mass: 76; Brinley v. Whiting, 5 Pick. (Mass.) 347; Swett et al. v. Poor et al., 11 Mass. 549; also Sutherland on Statutory Const. § 336.

It being found, therefore, that Ann E. Webb, the original defendant in this case, being in adverse possession under claim of right and color of title on September 11, 1902, at the time of the making of the deed by Blubaugh to plaintiff in error, the same is as to her successors in interest invalid. The judgment of the lower court is accordingly affirmed.

All

the Justices concurring excepting KANE, J., who dissents.

LEAK et al. v. JOSLIN.

(20 Okl. 200)

(Supreme Court of Oklahoma. Feb. 1908.) PUBLIC LANDS-TOWN SITES - EQUITY—Ju

RISDICTION.

When town-site commissioners, by virtue of an act of Congress otherwise known as the "Supplemental Creek Agreement" (March 1, 1901, c. 676, 31 Stat. 861), where there is no conflict as to the facts, but by a misconstruction of the law as applied to the facts, schedule a lot to a party who is not entitled to same under the law, after title has passed to a private party, courts of equity will inquire as to whether or not such title shall be held as trustee for the party really entitled to same.

(Syllabus by the Court.)

Error from United States Court for the Western District of the Indian Territory, at Wagoner; before Justice Louis Sulzbacher.

Action by Winnie Joslin against Amanda Leak and John Leak. Judgment for plainReversed. tiff, and defendants bring error.

This action was instituted in the United States Court for the Western District of the Indian Territory at Wagoner on the 14th day of October, A. D. 1904, and summons issued thereon, being a statutory action in the nature of ejectment. In that court Winnie Joslin was plaintiff, and Amanda Leak and John Leak defendants, and hereafter reference will be made to them as they appeared in the court below.

Plaintiff alleged that on the 8th day of March, 1904, she was seised and possessed of lot 3 in block 465 in the city of Wagoner, Ind. T.; the same having been conveyed to her on said date in fee by a deed made and executed and delivered to her by P. Porter, principal chief of the Muskogee Nation, which deed was approved on the 17th day of June, 1904, by Eathan Allen Hitchcock, Secretary of the Interior. A copy of said deed is attached and referred to as Exhibit A. Said deed is in regular form, reciting: "Whereas, a town-site commission heretofore appointed and acting under authority of the

act of Congress approved March 1, 1901, and ratified by the Creek Nation May 25, 1901, has appraised the lots in the town of Wagoner in said nation; and, whereas, the plat of said town had been approved on the 10th day of October, 1900, by the Secretary of the Interior, and was duly placed on file; and whereas, said commission had appraised all of the lots in said Wagoner at their true value, which appraisal had been approved by the Secretary of the Interior; and whereas, the said commission had awarded the real estate described herein to Winnie Mackey, who had paid twenty dollars, the full amount of the purchase price, into the treasury of the United States, to the credit of the Muskogee or Creek Tribe of Indians." Then, through the granting clause, which states under and by virtue of the power and authority vested in him by the said act of Congress of the United States that he thereby, as principal chief of the Muskogee Nation, grants, sells, and conveys to the said Winnie Mackey, her heirs and assigns, forever, all the right, title, and interest in and to lot 3 block 465 in the town of Wagoner, Muskogee (Creek) Nation, Ind. T., and according to the plat thereof on file, as aforesaid. Then follows the signature, as aforesaid, under date of March 9, 1904, which is in due form. It appears that Winnie Mackey afterward married a man by the name of Joslin, and at the time this action was instituted her name was Winnie Joslin.

Afterwards, on the 20th day of December, 1904, the defendants filed their amended answer and cross-complaint wherein they admitted that the plaintiff had the deed hereinbefore referred to, which had been executed and delivered to plaintiff by the principal chief of the Creek Nation, and which had been approved June 17, 1904, covering said lot 3 in block 465 in the town of Wagoner. But defendants further alleged that they were in peaceable possession of said lot, occupying and using the same. They deny that they unlawfully retained the same, and that they ejected plaintiff from said premises, and denied that they were in possession of any of said lot except the strip on the north side thereof, described as follows, to wit: Beginning at the northeast corner of said lot 3, running diagonally across said lot 3 to a point on the west side of said lot 56 feet south of the northwest corner of said lot; thence north 56 feet to said northwest corner of said lot; thence east along said line between said lots 2 and 3 to the place of beginning. They further allege that on the 25th day of March, 1897, the defendant Amanda Leak purchased the Indian possessory right to said lot 3 of said block, and strip enclosed, as hereinbefore described from J. C. and P. C. Overton, members of the Muskogee (Creek) Tribe of Indians, who had the legal right to sell and convey the same, such conveyance being attached as an exhibit and properly designat

ed, it appearing at that time that said Amanda Leak went by the name of Amanda Proctor; that immediately after such purchase from the Overtons the defendants inclosed said lot or property, which did not exceed four acres, and built thereon a four-room house, and at the time this action was instituted by the plaintiff that she, with her husband, Leonard Leak, was residing thereon and in actual possession of the same, and had been continuously from the 25th day of March, 1897; that such inclosed property of which they were in the actual possession, with improvements thereon as aforesaid, comprised what is known as said lot number 2, and the strip off of said lot number 3 hereinbefore described; that the said lots were laid off and platted by the town-site commission of the city of Wagoner appointed and acting under authority of act of Congress approved March 1, 1901, c. 676, 31 Stat. 861, and that said lot number 2 was scheduled to defendant Amanda Leak and lot number 3 was scheduled by the commission to plaintiff Winnie Joslin; that the said defendants are uneducated people, and did not know that said commission had scheduled any part of said inclosure to plaintiff until 60 days prior to the institution of this action, at which time said plaintiff undertook forcibly to take possession of said strip inside of defendants' inclosure, and that up to that time defendants believed that the land inclosed by said inclosure was comprised in said lot 2, and they allege that said town-site commission, by a mistake of law, scheduled said strip to the plaintiff, when in fact uncontradicted and in law it should have been scheduled to defendant, and that the plaintiff never laid any claim to said strip until same had been scheduled to her as aforesaid; that said plaintiff had no right to said strip except the right that grew out of the fact that same was scheduled to her by said commission.

It is further alleged that the said inclosure containing said lot number 2 and the said fraction of lot number 3 covered all the land owned or claimed by the said defendant Amanda Leak at that time in the city of Wagoner, and that the same was less than four acres; that said defendants believed that when they were paying the appraisement on said lot number 2 they were paying on all of said inclosure, and never discovered the error or mistake until about 60 days prior to the institution of this action; that the said Amanda Leak is the equitable owner of said fractional lot, and is entitled to have the legal title conveyed to her, and that the plaintiff has no title to said strip except in trust for defendants; that in equity and good conscience said plaintiff ought to make a deed conveying all of her right, title, and interest to said defendants, upon said defendants paying said amount of money to said plaintiff, with interest paid by her on said strip or fractional lot; that defendants are not ad

vised and have no way of ascertaining what amount plaintiff has expended on said strip, but that they then and there tender in open court whatever amount may be necessary to reimburse the plaintiff for what she has paid out; and that said defendants then and there offered to deposit said amount with the clerk of the court, or any one else under the direc tion and order of said court, whenever the exact amount due the plaintiff is ascertained. Defendants further allege that they have no complete and adequate remedy at law, and that said plaintiff is insolvent, and move that said cause be transferred to the equity side of the docket, and that she have the relief prayed for.

Thereafter, on the 29th day of April, 1905, the court considered the demurrer filed by the plaintiff to the answer and cross-complaint of the said defendants and sustained the same, to which action of the court the defendants duly excepted. And afterwards, on the 30th day of July, the cause coming on to be heard, the defendants elected to stand upon their pleas. And thereupon judgment was rendered in favor of the plaintiff for the recovery of the said strip or fractional part of said lot number 3.

Charles G. Watts and De Roos Bailey, for plaintiffs in error. Robert F. Blair, for defendant in error.

WILLIAMS, C. J. (after stating the facts as above). In this cause, from the allegations of the answer and cross-complaint of the defendants the question is presented, by misconstruction of the law as to the fractional part of the lot of land in question having been taken from the defendants, who had acquired the legal right thereto under the sanction of the laws then in force in the Indian Territory, and a patent to same having been issued to said plaintiff in accordance with law, whether or not a court of equity has power to grant relief to the injured party.

In the case of Johnson v. Towsley, 13 Wall, (U. S.) 72, 20 L. Ed. 486, it is said: "The contest arises out of rival claims to the right of pre-emption of the land in controversy. The register and receiver, after hearing these claims, decided in favor of Towsley, the complainant, and allowed him to enter the land, received his money, and gave him a patent certificate. On appeal to the commissioner of the land office their action was affirmed, but on a further appeal to the Secretary of the Interior the action of these officers was reversed on the construction of an act of Congress, in which the Secretary differed from them, and on that decision the patent was issued to Johnson. * * On the other

hand, there has always existed in courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when

it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown, or other executive branch of the government, have been corrected or declared void, or other relief granted. No reason is perceived why the action of the land office should constitute an exception to this principle. In dealing with the public domain under the system of laws enacted by Congress for their management and sale, that tribunal decides upon private rights of great value, and very often, from the nature of its functions, this is by a proceeding essentially ex parte, and peculiarly liable to the influence of frauds, false swearing, and mistakes.

* And so, if for any other reason recognized by courts of equity as a ground of interference in such cases the legal title has passed from the United States to one party, when, in equity and in good conscience, and by the laws which Congress has made on the subject, it ought to go to another, 'a court of equity will,' in the language of this court in the case of Stark v. Starrs, 6 Wall. (U. S.) 402, 18 L. Ed. 925, just cited, 'convert him into trustee of the true owner, and compel him to convey the legal title.' In numerous cases this has been announced to be the settled doctrine of this court in reference to the action of the land officers. Lytle v. Ark., 22 How. (U. S.) 193, 16 L. Ed. 306; Garland v. Wynn, 20 How. (U. S.) 8, 15 L. Ed. 802; Lindsey v. Hawes, 2 Black (U. S.) 559, 17 L. Ed. 268. * Undoubtedly there has been in all of them some special ground for the exercise of the equitable jurisdiction, for this court does not and never has asserted that all the matters passed upon by the land office are open to review in the courts. On the contrary, it is fully conceded that when those officers decide controverted questions of fact, the absence of fraud, or imposition or mistake, their decision on those questions is final, except as they may be reversed on appeal in the department. But we are not prepared to concede that when in the application of the facts as found by them they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the courts are without power to give any relief. And this is precisely what this court decided in the case of Minnesota v. Bachelder, 1 Wall. (U. S.) 109, 17 L. Ed. 551, and in the case of Silver v. Ladd, 7 Wall. (U. S.) 219, 19 L. Ed. 138."

In this cause, by the demurrer it is admitted that the defendants below, the owners of the improvements on said fractional lot, under and by virtue of an act of Congress approved March 1, 1901, and ratified by the Muskogee (Creek) Nation May 25, 1901, otherwise known as the "Supplemental Creek Agreement," acquired a legal right to said fractional part of said lot, and that it was the duty of the town-site commission under

The

said act to schedule the same to said defendants, and a patent thereto should have been issued in favor of said defendants. By the demurrer the plaintiff further admitted that up to the time the schedule was made by the town-site commission she had no interest or right whatever to said fraction of said lot, but that said defendants, in accordance with law, were the owners of the improvement and entitled to have said lots scheduled to them, and that through misconstruction of law as applied to the facts the same was scheduled to the plaintiff, and that they have neither been guilty of laches or have any adequate remedy at law. By said demurrer plaintiff admits all of these facts to be true. court below should have overruled same, and transferred said cause to the equity side of the docket. Minn. v. Bachelder, 1 Wall. (U. S.) 109, 17 L. Ed. 551; Silver v. Ladd, 7 Wall. (U. S.) 219, 19 L. Ed. 138; Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 849; Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. 605, 28 L. Ed. 427; Johnson v. Towsley, supra; Lytle v. Wynn, supra; Lindsey v. Hawes, supra; Twine v. Carey, 2 Okl. 250, 37 Pac. 1096; Wilborne v. Baldwin, 5 Okl. 265, 47 Pac. 1045; Thornton v. Peery, 7 Okl. 442, 54 Pac. 649; Paine v. Foster, 9 Okl. 213, 53 Pac. 109; Mansf. Dig. §§ 4917, 4918, 4929, 5106; Ivey v. Drake, 36 Ark. 228; Trulock v. Taylor, 26 Ark. 54.

Let this cause be reversed, with instructions to the lower court to proceed in accordance with the opinion of this court. All the Justices concurring.

(20 Okl. 207)

COCKRELL et al. v. SCHMITT. (Supreme Court of Oklahoma. Feb. 18, 1908.) MOTIONS 1. PLEADING SEPARATING AND NUMBERING CAUSES OF ACTION.

Where it is not obvious that the petition states more than one cause of action, it is not error to overrule a motion to require plaintiff to separately state and number the several causes of action, when the motion is a general one and fails to specify wherein the petition states more than one cause of action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1194-1198.]

2. SAME- DEMURRER TO PLEADING GOOD IN PART.

Where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, a demurrer should be overruled.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 486-490.]

3. EVIDENCE-CHATTEL MORTGAGES - EFFECT OF RECITALS.

As the law presumes that all acts are done in good faith until there is evidence to the contrary, a chattel mortgage, in evidence, containing the statement that the "mortgaged property is owned entirely by and is now in possession of said party of the first part at his home in Lincoln township, Blaine county, Oklahoma,

*"fairly tends to prove the same, and will be regarded as prima facie evidence of the truth of the statement, in the absence of evidence to the contrary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, 1668.]

4. TRIAL-DIRECTION OF VERDICT FOR PLAIN

TIFF.

If the evidence on behalf of plaintiff is sufficient to prove his cause of action, and there is no substantial evidence offered by defendant upon any material issue in the case, it is not error for the trial court to instruct the jury to return a verdict for the plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 320–333.]

5. EXECUTION-JUDGMENT NECESSITY.

Where the sheriff seeks, in an action of replevin, to justify the seizure of property under an execution issued in another case, he must prove a valid and subsisting judgment in that case before he can attack a transfer of the property levied on as made in fraud of creditors. Where said judgment has been rendered but not entered upon the journal as required by law, it is not error to exclude secondary evidence offered in proof thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, §§ 5, 21.]

Hayes, J., dissenting.
(Syllabus by the Court.)

Error from District Court, Blaine County; James K. Beauchamp, Judge.

Replevin by Maggie Schmitt against A. S. Bridgford, as sheriff, in which action E. B. Cockrell and another were made parties defendant. Judgment for plaintiff, and defendants bring error. Affirmed.

On March 12, 1902, Maggie Schmitt, defendant in error, plaintiff below, brought this, a suit in replevin, against A. S. Bridgford, sheriff of Blaine county, plaintiff in error, defendant below, in the probate court of that county to recover, as owner, eight head of cows, two two year old heifers, eight head of short yearling cattle, and one three year old bull, and for one span of mules, one span of bay mares, and two brood sows with ten sucking pigs, in which she claimed a special ownership by virtue of a chattel mortgage made and delivered to her by her husband, Martin Schmitt, on February 26, 1901, to secure a $500 note of that date payable to her by him in three years, which had been levied on by the sheriff as the property of said Schmitt under an execution issuing out of the probate court of Blaine county in the case of E. B. Cockrell and W. S. Bradley against said Schmitt, dated November 26, 1901. On the same day, March 12, 1902, an order of delivery issued and placed her in possession of said property, which she has since retained. On April 14, 1902, plaintiffs in error, E. B. Cockrell and W. S. Bradley, were made parties defendant and entered their appearance. On August 28, 1902, the case went to trial and resulted in a judgment, in part, for plaintiff, from which she appealed to the district court. On March 20, 1905, trial was had in the district court, and at the close of the testimony on both sides the court directed the jury to return a verdict for plaintiff, which was done and exceptions noted. There was final judgment, motion for a new trial by defendants filed and overruled, and exceptions noted, a petition in error and case-made duly filed in this court, and the case is before us on appeal.

Stephens & Myers, for plaintiffs in error. Hotchkiss & Emery, for defendant in error.

TURNER, J. (after stating the facts as above). In her second amended petition, defendant in error, hereafter called "plaintiff," included in the same cause of action the property in controversy of which she claimed to be owner, and the property in which she claimed special ownership by virtue of a certain chattel mortgage filed with her petition and marked "Exhibit A," and the first assignment of error made by plaintiffs in error, hereafter called "defendants," is: "That the court erred in overruling the motion to require plaintiff below to separately state and number the several causes of action in the second amended petition." As it is not obvious to us that the petition states more than one cause of action, and as the motion is so general as not to inform us, and as no authority is cited in support of the motion in defendant's brief, we cannot see wherein the court erred in overruling the motion. Ambrose v. Parrott, 28 Kan. 693, citing Gilmore v. Norton, 10 Kan. 491; Kerr v. Reese, 27 Kan. 338. In Grimes v. Cullison, 3 Okl. 268, 41 Pac. 355, the court said: * * That

in the motion to make more definite and certain the defendants below failed to point out wherein the petition was indefinite and uncertain, and we do not think, in the absence of such matter in a motion, that the court below committed any error in overruling the same.

If the petition be indefinite or uncertain, it is the duty of counsel, in moving to have the same made more definite and certain, to specifically set out wherein they desire relief at the hands of the court; if they fail to so set out in their motion, it is not error to overrule the same."

The next assignment of error is that "the court erred in overruling the demurrer of defendants below to petition of said plaintiff below." It is urged that "the petition is fatally defective for the reason that it fails to charge anywhere that at the time of the execution of the mortgage Smith was the owner of the property described therein, or that he had any right to mortgage the same." The chattel mortgage is attached to the petition as an exhibit, in which is stated, among other things, that the mortgaged "property is owned entirely by and now in possession of said party of the first part at his home in Lincoln township, Blaine county, Oklahoma * *.' Without passing upon the question as to whether or not the allegations contained in the exhibit should be considered as a part of the petition, in passing upon this demurrer we think it sufficient to say that it is a wellestablished rule of this court that where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, the demurrer should be overruled. Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817; City of Guthrie v. Harvey Lumber Co., 5 Okl. 774, 50 Pac. 84.

*

There can be no doubt that the petition states a cause of action for the property set forth in that paragraph in which the plaintiff claims a general ownership, and for that reason there was no error in overruling the de

murrer.

The next error assigned which we think necessary to notice is: Did the court err in directing the jury to find a verdict for the plaintiff? The record discloses that plaintiff claimed the right of possession to a part of the property in controversy as owner, and as to the other part of special ownership by virtue of a chattel mortgage from her husband. Defendants pleaded a general denial, directed their proof toward establishing title to the property levied on in Martin Schmitt, plaintiff's husband, that it had been conveyed by him to plaintiff in fraud of creditors, and sought to justify the levy under an execution issued against the property of Martin Schmitt. In passing upon this question, it is well to remember "that plaintiff must recover on the strength of his own title." Wells on Replevin, p. 54, citing Easter v. Fleming, 78 Ind. 116; Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583; Hall v. So. Pac. Co., 6 Ariz. 378, 57 Pac. 617; Bardwell v. Stubbert, 17 Neb. 485, 23 N. W. 344. It might be well to add: "If the evidence on behalf of plaintiff is sufficient to prove his cause of action, and there is no substantial evidence offered by defendant upon any material issue in the case, it is not error for the trial court to instruct the jury to return a verdict for the plaintiff." Irwin v. Dole, 7 Kan. App. 84, 52 Pac. 916. Otherwise stated, the rule is: "Where there is no sufficient evidence of a fact essential to the plaintiff's case or the defendant's affirmative defense, a verdict should be directed." 6 Am. & Eng. Enc. of Law, 686, and cases cited.

Let us examine the evidence and see whether plaintiff has made out a prima facie case, and, if so, what evidence defendants, if any, have adduced to rebut it. The testimony tends to prove that plaintiff was married to Martin Schmitt in Illinois about December 25, 1890; that up to that time she had worked for wages and had saved some $187. After her marriage they lived on a farm in that state for about five years, and then moved to Iowa, taking with them two cows belonging to her, where, with the money she brought with her and claimed as her separate property, she bought five head of cows and five sows. Shortly after they went to Iowa he bought a farm of 86 acres near Fremont in that state, taking the title in his own name. The stock owned by plaintiff was kept on this place and was sold from time to time, together with its increase, during the last three years of their residence there, plaintiff realizing in all therefrom some $650 or $700, which she "put in the place." This farm was sold in 1900, and the money derived from the sale of it was deposited in the name of her husband in the bank at Fremont.