lease for him, but such an agreement was against public policy, and cannot be enforced. As between Barrett and the territory, his lease was valid, and he had a right to transfer it with the consent of the leasing board.

The judgment of the district court of Woods county is affirmed, at the costs of the plaintiff in error. All the Justices concur, except PANCOAST, J., who tried the case below, not sitting.

(18 Okl. 370)

MARTIN V. TERRITORY.

ted the beating and wounding, but claimed he acted in self-defense. He was on the remains of a stack of hay at the time Cramer came to where he was working and ordered him to take no more of the hay. Whether or not Cramer first drew his knife and made an effort to cut Martin was a material question in the case, and one upon which there was positive testimony both ways and of a very contradictory character. The prisoner objected to each instruction given by the court and saved proper exceptions. The contention now is that under the instructions of the court the jury could not have acquitted the defendant on the grounds of self-defense

New trials will not be granted upon the grounds of newly discovered evidence where the newly discovered evidence is merely cumulative or is for the purposes of impeachment. It must appear that, if the newly discovered evidence had been introduced on the trial, there is a reasonable probability that a different result would have been reached.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2328-2332.]

(Syllabus by the Court.)

Error from District Court, Caddo County; before Justice F. E. Gillette.

Frank Martin was convicted of assault, and brings error. Affirmed.

Dyke Ballinger and A. J. Morris, for plaintiff in error. W. O. Cromwell, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

BURFORD, C. J. The plaintiff in error was convicted in the district court of Caddo county of the crime of assault with a dangerous weapon with intent to do bodily harm, and sentenced to serve one year in the penitentiary. Motion for new trial was overruled and the ruling excepted to, and the prisoner brings the case here on petition in error.

It appears from the record that the plaintiff in error, Martin, and the prosecuting witness, Cramer, had put up some hay on the shares on lands occupied by Cramer. On the day of the assault they became engaged in a controversy and finally an altercation, in the course of which Martin beat Cramer on the head with a revolver, causing serious wounds. Cramer admitted having a knife in his hands during the scuffle, but claims that he did not get it open. Martin claimed that Cramer struck at him with the knife, and cut two or three gashes in his clothing and in a leather pistol scabbard which he was wearing upon his person. Martin admit

a reasonable doubt that he was justifiable. It is claimed that, if there was a reasonable doubt arising upon all the evidence as to whether the defendant committed the assault in self-defense, he was entitled to an acquittal. There is no question under the law, as frequently announced by this court, that one on trial for a crime is not required to make out his defense to the satisfaction of the jury beyond a reasonable doubt; but, if upon the whole evidence the jury entertain a reasonable doubt as to whether one charged with an assault acted in the lawful defense of his person, then he is entitled to an acquittal. It is not necessary to cite authorities in support of this principle.

The court instructed the jury in writing. The seventh and eighth, the only ones relating to the question of self-defense, are as follows: "(7) If you find from the evidence that at the time complained of the defendant and the prosecuting witness, Cramer, were jointly interested in certain hay in the stack which was undivided as between them, that the defendant proceeded to take his share of the hay or the whole or any part thereof, the said prosecuting witness, Cramer would not for such reason be justified in committing an assault on the defendant or in fact in committing any breach of the peace; and, if you find from the evidence that the prosecuting witness, Cramer, made an assault on the defendant with a knife in such manner and under such circumstances as to induce in the mind of a reasonably prudent man a belief that he was in danger of suffering great bodily harm at his hands, then you are instructed that the defendant might lawfully defend himself against such assault, and might use such force as was reasonably necessary to repel such assault, and it would be justifiable. (8) If you find from the evidence, beyond a reasonable doubt, that the defendant at the time and place stated in the indictment made an assault on the prosecuting witness, Cramer, with a revolver, using the same as an instrument with which to commit bodily harm upon him, the said Cramer, and that such instrument was a dangerous weapon when used as the same was used by defendant, and was used with intent to commit bodily harm, and such act was un

purchase money agreed in the contract was paid and a bill of sale therefor delivered. This agreement was filed in the office of the register of deeds of Comanche county, and Secor took possession of the property. The contract was signed by the contracting parties, but was not witnessesd by any witnesses. Before he had paid the purchase money, and while the property was still in his possession, Secor mortgaged said property to the defendant in error, the First National Bank, which mortgage was properly executed and filed for record with the register of deeds. The bank took possession of the property in question, and Twitchell Company, after demand for possession and refusal, brought its action in replevin and obtained possession upon the writ of replevin. The court held that the written agreement between the Twitchell Company and Secor, by which he came into possession of the property, was void as against the subsequent mortgagee, for the reason that the contract had not been executed in conformity to the laws regulating the execution of chattel mortgages.

The identical question in this case was decided by this court in Shafer v. National Cash Register Co., 16 Okl. 117, 82 Pac. 646, where it was held that an instrument in writing evidencing the conditional sale of personal property when executed in the manner such instruments are authorized to be executed is entitled to be deposited with the register of deeds, and need not be witnessed or acknowledged to entitle it to registration and to make it constructive notice when so filed. This case is conclusive of the case at bar.

The judgment of the probate court of Comanche county is reversed at the costs of the defendant in error, and the cause remanded, with directions to set aside the judgment and grant a new trial. All the Justices concurring.

(18 Okl. 282)

HOWE v. PARKER.

(Supreme Court of Oklahoma. Feb. 14, 1907.) 1. DISMISSAL REINSTATEMENT EFFECTCURE OF ERROR.

Where an action is dismissed and afterwards reinstated and a trial thereof had, no error can be predicated upon the alleged error of the court in dismissing the action.

2. FORCIBLE ENTRY AND DETAINER-TITLE TO SUPPORT ACTION-DETERMINATION BY SECRETARY OF THE INTERIOR.

The hearing of a contest before the Secretary of the Interior upon a motion for review or rehearing is the final determination of the case and decisive of the rights of the parties and closes the contest, and, after being closed, in a proper case, the action for forcible entry and detainer may be prosecuted by the successful contestant.

3. SAME EFFECT OF INJUNCTION.

Where, during the pendency of a contest between two individuals, an order of injunction is procured, enjoining one of the parties from interfering with or entering upon the tract of land embraced in the entry of the other, such

injunction will not prevent the successful contestant from maintaining an action of forcible entry and detainer after the contest has been closed.

4. SAME-DEFENSES-RIGHT TO COMPENSATION FOR IMPROVEMENTS.

An unsuccessful contestant who, during the contest, has made improvements upon the land, is not entitled to hold possession until the improvements are appraised and paid for under the occupying claimant's act, and such a defense cannot be made in an action for forcible entry and detainer. Cook v. McCord, 75 Pac. 294, 13 Okl. 506, cited and adhered to. (Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by Milton E. Parker against Sarah J. Howe. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

This is an action of forcible entry and detainer, originally commenced before a justice of the peace, to recover possession of the southeast quarter of section 27, township 12, range 3 west, in Oklahoma county. After the trial in the justice's court the case was appealed to the district court. There the case was dismissed, but again reinstated and tried upon an agreed statement of facts. From the record it appears that one Henry Howe made homestead entry of the land, and that afterwards one John Burton and one Milton E. Parker filed contests, charging Howe with soonerism. The case was tried before the local land office, appealed to the Commissioner, and from there to the Secretary, with a final decision in Parker's favor. Pending the contest, the entryman, Howe, died, and the action was thereafter prosecuted against the heirs. After a motion had been filed for a rehearing and denied by the Secretary, Parker made his homestead entry of the land, and thereafter, on the 17th day of November, 1903, this action was commenced. The judgment of the district court was in favor of the defendant in error, and from that judgment the plaintiff in error appealed to this court.

W. F. Wilson and H. E. Elder, for plaintiff in error. Tom F. McMechan, for defendant

had not, prior to bringing this suit, made final proof. We think that the plaintiff is in error in this contention, as the agreed statement of facts upon which the case was tried, and the decision of the Secretary of the Interior denying the motion for rehearing, as contained in the record, fully shows that the case before the Department of the Interior has been finally terminated, and that Parker has placed his entry upon record. It has been decided by this court that the filing of a motion asking the Secretary to exercise supervisory power does not open a contest or preclude the jurisdiction of the territorial court in an action of forcible entry and detainer. Smith v. Finger, 15 Okl. 129, 79 Pac. 759; Cope v. Braden, 11 Okl. 295, 67 Pac. 475; Cox et al. v. Garrett, 7 Okl. 382, 54 Pac. 546. Hebeisen v. Hatchell, 12 Okl. 29, 69 Pac. 888, has been cited to uphold the contention of counsel for plaintiff in error; but in that case it is disclosed that prior to the commencement of the action of forcible entry and detainer a motion had been made before the Secretary for the exercise of supervisory power, which motion had been sustained and set down for hearing with an order that notice should be given, and this court held that under such circumstances such action by the Secretary was a reopening of the contest, and that during the pendency of such motion the action of forcible entry and detainer would not lie. In this case, however, the record does not disclose that any motion had even been made, much less had the Secretary sustained such a motion or ordered notice to be given. It has been generally recognized by this court, as well as others, that the hearing in a contest case before the Secretary upon a motion for review or rehearing is the final determination of the case, and decisive of the rights of the parties and closes the contest. While it is true that the Secretary has the right to exercise a supervisory power, even after the case is closed, yet until such power is exercised, and the case reopened, it remains closed, and after being closed the action of forcible entry and detainer may be prosecuted by the successful contestant.

The third contention is that while in possession of the land the plaintiff in error obtained an injunctional order preventing and prohibiting the defendant in error from interfering with or entering upon the said tract of land, which injunction is now in full force and effect, and has never been appealed from. The record in this case discloses nothing of this injunction, except as shown by the agreed statement of facts, which is to the effect that the plaintiff in error procured an order of injunction, prohibiting the defendant from interfering with or entering upon the tract of land embraced in said homéstead entry. The order of injunction is not contained in the record, nor is the date of the order mentioned in any way. Neither is it disclosed whether said order was a tem

porary order, remaining in force until some particular time, or until certain conditions transpired. We must conclude, however, that, inasmuch as the injunctional order was made by the same court that tried the case, by reason of the provisions of the order it has either expired, or that it was not such an order as would prevent the plaintiff below from prosecuting this case. Certainly we cannot assume that this order, whatever it may have been, was such as would prevent the plaintiff from prosecuting any case that he may have had a right to prosecute to recover possession of the land in controversy.

The remaining question contended for in the brief is that the plaintiff's continued residence upon the land for a period of more than seven years prior to the institution of this suit, and that the improvements that she had erected thereon, consisting of a house, stable, orchard, and vineyard and the cultivation of the ground, all of the value of from $300 to $1,000, which were made by her while an occupant in good faith as administratrix of her father's estate and as the heir of her father, prevents the plaintiff from maintaining an action to recover the possession of the land until she has been compensated or reimbursed for the improvements so made. We understand from this contention that plaintiff in error claims that she is entitled to be reimbursed for the improvements made upon this land under and by virtue of the provisions of the occupying claimant's act.

First, we might say that, even if such a defense could be made in this kind of an action in any case, the answer of the plaintiff in error does not set up such a state of facts as would entitle her to recover for improvements under the occupying claimant's act. But this question has been settled adversely to the plaintiff's contention in the case of Cook et al. v. McCord et al., 13 Okl. 506, 75 Pac. 294. There the question is directly passed upon, and it was held that an unsuccessful contestant, who during the contest has made improvements, is not entitled to hold possession until the improvements are appraised and paid for under the occupying claimant's act.

There being no error disclosed in the record, the judgment of the district court is affirmed. All the Justices concurring, except BURWELL, J., who tried the case below, not sitting, and BURFORD, C. J., not sitting.

the board before a cause will be heard, is a reasonable rule, which a court of equity will uphold; but a failure to comply with such rule will not render void a judgment of a court of general common law and chancery jurisdiction, where the court had jurisdiction of the subjectmatter, and of the parties to the action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 941.]

2 APPEAL-REVIEW-EVIDENCE.

The evidence in this case examined, and held to be sufficient to sustain the judgment of the court.

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice John H. Burford.

Action by Julia A. Thurston against Mary Jane Washington and others. Judgment for defendants, and plaintiff brings error. Affirmed.

This was an action brought by Julia A. Thurston against Mary Jane Washington, heir of William Washington, deceased, and his unknown heirs and devisees. It involves the title to lots 21 and 22 in block 3 in that subdivision of the city of Guthrie known as "West Guthrie." The facts may be briefly stated as follows: It appears that the property in question was first claimed by Mrs. O. V. Hayes and by William Washington, each of said parties claiming to be the origInal settler and occupant of said property, and entitled to a deed thereto from the townsite trustees appointed by the Secretary of the Interior under and pursuant to act of Congress. A contest was instituted between the parties before the townsite trustees; and, under the rules and regulations of the Secretary of the Interior, the parties were required to make a deposit of $32, to defray the expenses of the proceedings. Washington failed to comply with this rule, and the lots were awarded to Mrs. Hayes, and deed was issued to her on June 15, 1893. On June 21, 1893, Mrs. Hayes conveyed the property to Carrie R. Thwing. On July 28, 1893, Washington commenced suit in the district court of Logan county against Carrie R. Thwing, alleging that he was the first settler and occupant of said lots, and the rightful owner thereof, that he was entitled to a deed to said property, and that the same had been wrongfully awarded to Mrs. Hayes, that neither Mrs. Hayes nor Carrie R. Thwing had ever improved or occupied said lots, and that Carrie R. Thwing had notice of such proceedings, and prayed that a resulting trust be declared in his favor, on the ground of misapplication of the law by the townsite trustees. It further appears that H. R. Thurston, the husband of plaintiff in error, was attorney for Willaim Washington. Both parties appeared and introduced evidence to sustain their respective contentions. The court found the issues in favor of the plaintiff and against the defendant, and entered a decree accordingly, which decree, no appeal having been taken, became in all respects final. Subsequently Washington died, leaving his widow, 90 P.-2

Mary Jane Washington, the defendant in error. It further appears that in the latter part of 1902, the plaintiff in error, desiring to purchase said lots, and acting on the belief that the judgment rendered in the case between Washington and Thwing was void, she procured a deed from Carrie R. Thwing, as well as from Mary Jane Washington, for the premises, and instituted this suit to perfect and quiet her title. Mary Jane Washington appeared and filed an answer, denying the material allegations contained in the petition, and, as a further defense to the action. alleged that the deed from her was procured through fraud and misrepresentation, and that no consideration had been paid for the procurement thereof by the plaintiff in error. The cause was submitted to the court, and the issues were found in favor of the defendant and against the plaintiff, and judgment entered in accordance therewith. The plaintiff appeals.

Cotteral & Hornor, for plaintiff in error. F. H. McGuire and L. O. Lytle, for defendants in error.

HAINER, J. (after stating the facts). But two questions are urged for a reversal of the judgment. They are (1) that the judgment upon which this action was founded was void; and (2) that the evidence was insufficient to sustain the findings and judgment of the court in this action.

Upon the first proposition, It is contended that since William Washington failed to make the deposit as required by the rules and regulations of the Secretary of the Interior, that the judgment of the district court of Logan county rendered in his favor, decreeing Mrs. Hayes and Carrie R. Thwing to hold the legal title in trust for his use and benefit, was and is absolutely void. This contention of counsel for plaintiff in error is based upon the doctrine announced by this court in the case of Twine v. Carey, 2 Okl. 249, 37 Pac. 1096, where It was held that: "A rule of the Secretary of the Interior, which requires a contestant before townsite trustees, appointed under Act May 14, 1890, c. 207, § 1, 26 Stat. 109 [U. S. Comp. St. 1901, p. 1463], to deposit $32 with the treasurer of the board before a cause will be heard, is authorized by the law, is a reasonable rule, and a contestant or claimant failing to comply with the rule cannot invoke the aid of a court of equity." This decision was rendered in June, 1894, and after the decree in controversy had become final. We do not understand that this decision holds that the fact that a party had failed to comply with the rules of the Secretary of the Interior with reference to deposit, would render a judgment of the district court even voidable, much less void. The court in this case held that such a rule having been promulgated by the Secretary of the Interior, and being a reasonable rule and regulation, the courts would enforce the same, and where it ap