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to have jurisdiction of the person of the defendant.

There being no proposition that can be considered except those arising upon the motion to set aside the judgment, which proposition involves alone the question of service, and these matters having been waived by the general appearance, and the argument of the propositions not pertaining to the question of service and all matters pertaining to service being shown by the record to have become res adjudicata, and there being no other proposition presented to this court, the judgment of the probate court will be affirmed. All the Justices concurring, except IRWIN, J., absent.

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A settlement or entry on public land already covered of record by another entry, valid upon its face, does not give a second entryman any right in the land notwithstanding the fact such entry may subsequently be relinquished or ascertained to be invalid by reason of facts dehors the record of such entry; and one first entering after the relinquishment or cancellation has priority over one attempting to enter prior to such relinquishment or cancellation. Following McMichael v Murphy. 197 U. S. 304, 25 Sup. Ct. 460, 49 L. Ed. 766.

(Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice James K. Beauchamp. Action by Amelia M. Holt against A. H. Classen and others. Judgment for defendants and plaintiff brings error. Affirmed.

The amended petition upon which this action is predicated sets forth that the plaintiff is the sole surviving heir of Levi Holt. who on or about the 11th of March, 1890, filed his soldier's declaratory statement and application to make homestead entry on the S. W. 4 of section 27, township 12, range 3 W. I. M., in the proper United States land office in accordance with the laws of the United States, and established rules of the land department. It appears from the petition and exhibits that one Ewers White was at the time a homestead entryman of the tract involved, that his entry had been contested by one Blanchard, and White's homestead entry was held for cancellation by the commissioner of the general land office. Holt's declaratory statement and application to enter the land was made during the time, and while White had a right to appeal from the decision of the commissioner to the Secretary of the Interior, which appeal was in due time perfected, and White's entry thereby preserved in tact pending a determination by the Secretary of the Interior of the matters presented by such appeal. While the right of White to the land was pending before the Secretary, White, on November 29. 1890, relinquished his homestead entry to the tract, and Murphy was allowed to make

homestead entry thereon. The allowance of such entry at that time, and while Holt's ap plication to file declaratory statement was pending and suspended, was held by the Department of the Interior to be erroneous; but, in view of the fact that Murphy's entry was of record, the department ruled that Murphy would be allowed 30 days from the date of notice to show cause why his entry should not be canceled and Holt's application placed of record. This order brought on before the department a contest between Murphy and Holt which resulted ultimately in a determination by the Secretary of the Interior in favor of IIolt's right to enter the land. Pending the contest between Holt and Murphy, Holt died, and his rights were revived in the name of Amelia M. Holt, plaintiff herein, as sole surviving heir, and she thereafter was represented before the department by the defendant C. W. Ransom, who on June 14, 1897, and after the determination by the Secretary of the Interior of the right of the heirs of Levi Holt to enter the tract as a homestead, filed in the local office a waiver of the preference right of such heirs to make homestead entry of the tract in accordance with the decision of the Secretary of the Interior, and asked on behalf of such heirs to withdraw all claims in consideration (as recited in said waiver) of the receipt of $2,000 to them in hand paid by Samuel Murphy, which waiver was signed by C. W. Ransom and acknowledged before S. M. Dilley, register of the local land office, and the defendant Samuel Murphy was thereafter permitted to make homestead entry of the tract.

The petition of the plaintiff then alleges that the act of Ransom in waiving plaintiff's right was without her knowledge or consent; that no part of the consideration received by Ransom was ever paid to her; that she relied upon Ransom as her attorney to keep her informed as to her rights, but that he deceived her by concealing from her the fact that a preference right of entry had been awarded to the heirs of Levi Holt, and of the fact that he had entered a waiver of the rights of said heirs to the tract as above stated; and that she did not discover the fraud until about the Sth day of September, 1901. The petition of plaintiff further recites that the defendants on the 14th day of June, 1897, conspired and confederated with the said Ransom to cheat and defraud plaintiff out of her right to said land, and acted together with said Ransom in executing and filing said waiver as above set forth, and charges that the defendant C. W. Ransom, for a consideration paid by the other defendants, and by the assistance and counsel of the other defendants, except the Classen Company, filed a waiver of all of plaintiff's rights to said land, in the local land office. It is further charged that on the 19th of January, 1898, the defendant fraudulently procured a patent to the land to be issued

ny the government to the defendant Samuel Murphy, and that he thereafter fraudulently conveyed 120 acres of said land to the other defendants, retaining to himself 40 acres to himself 40 acres thereof. The petition then in detail charges specific acts of fraud on the part of each one of the defendants (except the Classen Company) participated in by all the defendants, each and all of which acts were entered into, done, and performed with the intent and purpose of each of said defendants, thereby to cheat and defraud the plaintiff out of her right to enter said premises awarded her by the said decision of the Secretary of the Interior. The acts of the several defendants by which the plaintiff claims to have been defrauded consisted in manipulating the title to said land by deeds and mortgages in such way as to place the same beyond the reach of any action by the plaintiff to recover the same, and as well also to distribute the value of said premises ratably among the said defendants. The value of said premises is alleged to be the sum of $175,000, and to that extent the plaintiff alleges she has been damaged by the wrongful and fraudulent acts of the said defendants set out in the petition.

To the petition of the plaintiff each of the defendants filed their separate demurrers upon three grounds: (1) That the action was barred by the statute of limitation; (2) that it did not state facts sufficient to constitute a cause of action; and (3) that there is a misjoinder of parties defendant. The cause coming on before the trial court upon these demurrers, the court sustained the same as to each of the defendants upon the second ground, and from this ruling and judgment of the court the cause comes to this court for review, upon the error alleged to have been committed in sustaining such demurrers. The foregoing is a statement of the material facts set out in the petition and exhibits thereto attached.

John S. Jenkins, for plaintiff in error. J. H. Everest and C. T. Smith, for defendants in error.

GILLETTE, J. (after stating the facts as above). In considering this case, based upon the facts above stated, we shall consider the same in the light only as presented by the brief of the plaintiff in error, and in such brief the plaintiff in error states: "There is but one question raised in this case: Did the application of Levi Holt to enter the land in controversy initiate a right to said land in favor of Levi Holt, which application was made, and received by the register and receiver of the local land office, and the legal fees tendered on the 11th day of March, 1890, and suspended on the same day, to await the determination of White et al., on appeal; said application being made four days after the final judgment of the commissioner, and before an appeal was taken to the Secretary?"

This presentation of the issue narrows the question for our determination to the single proposition: Was the tendered entry of Holt rightfully received and held suspended at the time it was tendered March 11, 1890, and while the homestead entry of Ewers White remained in tact upon the land?

It will be observed that Holt's application was not in any sense an application to contest the validity of any existing entry of or right to the land, but was an application to enter the same and file thereon a soldier's declaratory statement, which application was by the officials of the local land office received, but held suspended pending a complete determination of the then existing rights of White et al., under the entries which segregated the tract from the public domain. If the land was in fact segregated from the public domain at the time Holt tendered such entry, the local land office had no jurisdiction to accept another original right or application to enter the land, which in and of itself would be an act of segregation. It is true that one homesteader believing himself entitled to the land may enter a contest for the determination of such right against all existing entries or applications, but this is the extent of his right under such conditions. A tendered homestead entry or application to enter a tract of land already segregated from the public domain carries with it no legal right thereto. A homestead right to a tract of the public domain may be initiated in two ways: First, by an actual bona fide settlement upon the land; second, by a homestead entry thereof at the local land office. A valid initiatory right may be secured in either of these ways, and one is as effective as the other. The first of these inceptive rights that is exercised establishes an inchoate right to the land. If each of these rights are initiated at the same time by different persons, the land office will call a hearing to determine which, in point of time, was first, and award the land accordingly. If a tract of land already segregated from the public domain by an existing entry could have another valid right thereto attached. as an original homestead right, then such right might be initiated by settlement as well as by a tendered entry at the land office; but this proposition is squarely denied by the decision of the Supreme Court of the United States in MeMichael v. Murphy, 197 U. S. 304, 25 Sup. Ct. 460, 49 L. Ed. 766, involving this same tract of land. In that case it appears that, while White's homestead entry was still in tact, of record. McMichael, on June 3, 1889, attempted to initiate a homestead right thereto by establishing a residence thereon. He was ejected from the land, and the land having subsequently been patented to one Murphy, whose right thereto attached by a homestead entry allowed subsequently to the settlement right of McMichael, he (McMichael) brought suit against Murphy seeking thereby to have Murphy's title to the land held a trust for his

qualification of the entryman to make it, nevertheless operates to so segregate the tract involved from the public domain as to preIclude the initiation of another homestead right to the same tract by entry, until the voidable entry has been canceled.

The authorities here cited, we think, justify the conclusion that the question presented in this case by the plaintiff in error should be determined in the negative.

The judgment of the court below is therefore affirmed. All the justices concurring, except IRWIN, GARBER, and HAINER, JJ., absent.

(19 Okl. 106) FIRST NAT. BANK OF BARTLESVILLE v. BLAKEMAN.

1. WITNESSES - GENERAL REPUTATION - EVI

DENCE.

On the trial of a cause to a jury, where the defendant testifies as a witness in his own behalf and is not impeached in any manner recognized by the rules of evidence, it is reversible error to permit him to introduce evidence of his general reputation for truth and veracity.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1084-1086.] 2. SAME.

The rule stated in the opinion as to when a party will be allowed to corroborate his own testimony by evidence of previous good character.

use and benefit. This court denied him that right (McMichael v. Murphy, 12 Okl. 155, 70 Pac. 189), and the Supreme Court of the United States, reviewing this decision (197 U. S. 304, 25 Sup. Ct. 460, 49 L. Ed. 766), says: "Following the adjudicated cases, we hold that White's original entry was prima facie valid, i. e., valid on the face of the record, and McMichael's entry, having been made at a time while White's entry remained uncanceled, or not relinquished, of record, conferred no right upon him, for the reason that White's entry, so long as it remained undisturbed of record, had the effect to segregate the lands from the public domain and make them not subject to entry. Upon White's relinquishment they again became public lands, subject to the entry made by Murphy." It will be observed that the Supreme Court uses the word “entry" without distinguishing (Supreme Court of Oklahoma. Sept. 4, 1907.) between a homestead entry at the land office and the initiation of a homestead right by settlement, but holds that lands are segregated by a homestead entry, from the public domain, and no valid entry can thereafter be made upon the land until it is restored to the public domain by a cancellation of the entry that segregated it. Following this decision of the Supreme Court of the United States, the Supreme Court of this territory, in Holt v. Murphy, 15 Okl. 12, 79 Pac. 265, a case involving this same tract of land and the rights thereto of these same parties, held: "(1) A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and, so long as it remains a subsisting entry, precludes it from subsequent entry. (2) A homestead application to enter land already covered by a subsisting homestead entry can confer no right whatever upon the applicant. (3) Where an application to enter land already covered by homestead entry is received by the local land office and rejected, and an appeal is taken from such action, it is not a pending application that will attach on the cancellation of the previous entry, since the appeal cannot operate to create, as matter of law, any right not secured by the application." The rule thus laid down by this court is in accord with the determination of the Supreme Court of the United States in Hodges v. Colcord, 193 U. S. 192, 24 Sup. Ct. 433, 48 L. Ed. 677, wherein said court uses the following language: "Gayman's homestead entry was prima facia valid. There was nothing on the face of the record to show that he had entered the territory prior to the time fixed for the opening thereof for settlement, or that he had in any manner violated the statue or the proclamation of the Presi dent. This prima facie valid entry removed the land, temporarily at least, out of the public domain, and beyond the reach of other homestead entries." An examination of the case last above cited shows that such an entry, although void, by reason of the dis

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1284.]

(Syllabus by the Court.)

Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Action by the First National Bank of Bartlesville against George W. Blakeman. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Biddison & Eagleton, for plaintiff in error. Wrightsman & Fulton and James B. Diggs, for defendant in error.

BURFORD, C. J. The plaintiff in error, the First National Bank of Bartlesville, commenced its action in the probate court of Pawnee county against the defendant in error, George W. Blakeman, to recover judg ment upon a promissory note for the sum of $349.30, bearing date January 21, 1902, payable to T. C. Milton, or order, and purporting to be signed by Geo. W. Blakeman. The note was indorsed by Milton to the plaintiff in error, and, payment being refused after maturity, the bank sued Blakeman as maker of the note. Blakeman denied under oath the execution of the note. The cause went to the district court on appeal for trial de novo. The case was tried to a jury on the sole issue as to the genuineness of the signature of the maker of the note. A number of witnesses testified to the facts relevant to the issue, and the defendant, Blakeman, testified as a witness in

There are a few general principles which pervade all the adjudicated cases, and these have been carefully stated and learnedly considered by the eminent text-writers on Evidence, and we may safely base our con clusions upon a consideration of their labors.

One of our earliest American writers upon the law of evidence, and one whom every lawyer and jurist of to-day venerates, Prof. Greenleaf, in volume 3, § 469, of the fifteenth edition of his work says: "Where evidence of contradictory statements by a witness, or of other particular facts, as, for example. that he has been committed to the House of Correction, is afforded by way of im

his own behalf, denying unequivocally that he had signed or authorized the signing of the note sued on. No person testified to having seen him sign the note, and the payee, Milton, was not produced as a witness by either party. There was some testimony by experts as to the genuineness of the signature. There was no evidence offered for the purpose of impreaching the testimony of Blakeman, nor was there, on cross-examination of Blakeman, any attempt made to show that he had made contradictory statements, or that he had committed any criminal or immoral acts. No evidence was offered attacking his general reputation for truth and veracity. During the trial the defense offered several witnesses, and, after qualify-peaching his veracity, his general character ing them as character witnesses, they were permitted to testify, over the objection and exception of the plaintiff, that the reputation of Blakeman for truth and veracity was good in the neighborhood in which he lived. The case was submitted to the jury, and verdict returned in favor of the defendant, Blakeman. The bank filed a motion for new trial, in which it alleged as error the ruling of the court in admitting the evidence of the general reputation of the defendant. The motion was overruled, and judgment rendered for the defendant. The bank appeals, and assigns as error the overruling of its motion for new trial.

But one question is presented or argued by counsel for plaintiff in error. The sole The sole question for our determination is: Was it reversible error for the court to permit the defendant, whose character had not been attacked, to introduce evidence of his general reputation for truth and veracity? The plaintiff in error insists upon the extreme rule that it is never permissible to offer evidence of general reputation unless the general character for truth and veracity is attacked by the adverse party, while the defendant in error insists upon the other extreme that anything which tends to discredit the testimony of a witness is an impeachment of the witness, and entitles him to offer testimony in support of his general reputation for truthfulness. Both parties are sustained by respectable authority, but we think neitner of them suggests the safe rule. The question as to when and under what conditions a witness may be corroborated by evidence of general good character is one that has been as much discussed by textwriters and jurists, and upon which there is as irreconcilable confusion, as many others found in the books in this country of many jurisdictions. This court has never been called upon to adopt a rule on the subject, and we feel it our duty to explore the field fully and select the path which seems to lead to the most logical and beneficial results. It is useless to attempt to reconcile the many judicial decisions upon the main subject and its related branches; nor would it be profitable to make a critical review of them.

for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth. But evidence that he has on other occasions made statements similar to what he has testified in the cause is not admissible, unless where a design to misrepresent is charged upon the witness in consequence of his relation to the party or to the cause, in which case it seems it may be proper to show that he made a similar statement before the relation existed. So, if the character of a deceased attesting witness to a deed or will is impeached on the ground of fraud, evidence of his general good character is admissible. But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to character."

We find the subject thus discussed in Underhill on Evidence, § 352: "The direct impeachment of a witness by any of the means which have been above explained creates and issue respecting his general character for truthfulness. Evidence to support this, and to show that he is a person in whose testimony the jury may have confidence, is therefore relevant. But evidence of reputation is not relevant merely because there is a contradiction between adverse witnesses, or because the credibility of a witness is shaken on cross-examination, though its admission in such cases may not be reversible error. A distinction has sometimes been made by which it has been held that general evidence of the character of the witness for truthfulness is not relevant, if he was impeached merely by showing that he had made contradictory statements. This distinction is repudiated by a majority of the decisions, which support the proposition that general evidence of the character of the witness as a truthful person is always admissible, whenever any attempt, though it may have been unsuccessful, has been made to impeach it, as, for example, where another witness is asked what is his character for truth, and replies that it is good."

In 3 Jones on Evidence, § 870, the author, in discussing this question, says: "While it

ciple, and perhaps for stronger reasons, it is no ground for the introduction of evidence to sustain the character of a witness that other witnesses have contradicted him by testifying to a different state of facts; and this remains true, although the contradiction is of such a character as to incidentally impute immorality or crime."

That learned and scholarly jurist, Mr. Justice Elliott, upon the subject under consideration, in his work on Evidence (volume 2, § 995), says: "When the reputation of a witness for truth has been impeached, the party calling a witness has a right to call other witnesses to prove that his reputation is good. Good character, it has been held, may be shown, where the witness has been impeached by proof of conviction of crime. But this principle is not always applied, at least where there is no real attack by way of impeachment. If the witness has been impeached by proof that he made contradictory and inconsistent statements out of court, some of the cases allow his good character to be shown in corroboration, while others refuse to admit such testimony. However, to render testimony of good character competent and admissible in support of the witness, an attack must necessarily have been made on his character." And in section 971 he proceeds to show how a witness may be

is clear that a direct attack upon the reputation of a witness admits evidence to sustain his credibility, the question whether such evidence is rendered admissible by collateral attack is involved in more difficulty. It has sometimes been held that, if it appears from the cross-examination of a witness that he has been guilty of immoral conduct or charged with a criminal offense, he may be sustained by evidence of good character for truth. So it was held that, when a witness was assailed by evidence that he had been suborned and paid for his testimony, his good character for veracity might be shown. So the same class of testimony has been received in an action on an insurance policy, where the defendant had sought to prove that the plaintiff had burned his building and made false proofs of loss, and in an action for forgery, where the defendant sought to prove that a witness for the state had himself committed the forgery, proof of the good character of such witness was allowed. As we have seen, although it is held in some of the cases that answers on cross-examination which tend to disparage the character of the witness are sufficient to render admissible sustaining evidence of his good character, and although there is considerable authority in the decisions to support this view, the practice would undoubtedly lead to great confusion and the multi-impeached, by showing, either by cross-ex plicity of collateral issues, unless carefully guarded by the discretion of the trial judge. It is well settled that when, either by crossexamination or other evidence, it is shown, that the witness has been convicted of a crime, his good reputation for truth since such conviction may be shown; and such testimony is not received where it appears that the witness was acquitted, or merely charged with crime, without a conviction. So, where a witness admitted on cross-examination that he had been drunk on various occasions, it was held that this did not render testimony admissible as to his general good character for veracity." And in section 871 the same author says: "It has sometimes been held that, where proof has been offered of the inconsistent or contradictory statements of a witness, his credit may be sustained by proof of his good reputation for truth and veracity; that, since the object of the attack is to impeach the witness, the mode of such attack is immaterial, and the same reason exists for sustaining the witness as where witnesses are called to testify to his bad reputation. But it is the better view, and one sustained by the weight of authority, that in such cases the witness cannot be fortified by evidence of good character. Although the contradiction in his statements may tend to show that he ought not to be believed in the particular case. this does not necessarily touch his general good character for truth or integrity, since the inconsistency may be the result of mis. take or forgetfulness. On the same prin

amination or by opposition witnesses, bias, malice, prejudice, interest, or corruption; by showing inconsistent and contradictory statements of the witness; by showing general bad character, or reputation for truth and veracity.

In Bradner on Evidence, § 16, it is said: "Testimony to support the character of a witness cannot be given in evidence, unless the credibility of the witness is impeached.”

Prof. Wigmore, in his critical and extensive contribution to the literature of the law, has gone over this subject more 'analytically and completely than any other text-writer, and in section 1104 of Wigmore on Evidence he gives us the following: "Good character for veracity is as relevant to indicate the probability of truth-telling as bad character for veracity is to indicate the probability of the contrary. But there is no reason why time should be spent in proving that which may be assumed to exist. Every witness may be assumed to be of normal character for veracity, just as he is assumed to be of normal sanity. Good character, therefore, in his support, is excluded until his character is brought in question, and it becomes worth while to deny that his character is bad. The question thus always arises under the general rule: When is the witness' character brought into question by the opponent, so as to open the way to evidence of good character in denial? This must depend on the nature of the opponent's impeaching evidence. It may be a direct assault on the witness' character, in which

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