« SebelumnyaLanjutkan »
to have jurisdiction of the person of the de- homestead entry thereon. The allowance of fendant.
such entry at that time, and while Ilolt's ap There being no proposition that can be con- plication to file declaratory statement was sidered except those arising upon the motion rending and suspended, was held by the Deto set aside the judgment, which proposition partment of the Interior to be erroneous; involves alone the question of service, and but, in view of the fact that Murphy's entrs these matters having been waived by the gen- was of record, the department ruled that eral appearance, and the argument of the Murphy would be allowed 30 days from the propositions not pertaining to the question of date of notice to show cause why his entry service and all matters pertaining to service should not be canceled and Ilolt's applicabeing shown by the record to have become tion placed of record. This order brought res adjudicata, and there being no other on before the department i contest between proposition presented to this court, the judg- Murphy and Holt which resulted ultimately ment of the probate court will be affirmed. in a determination by the Secretary of the All the Justices concurring, except IRWIN, J.,
Interior in favor of IIolt's right to enter the absent.
land. Pending the contest between Ilolt and Murphy, Ilolt died, and his rights were re
vived in the name of Amelia M. Holt, plain(19 Okl. 131) HOLT v. CLASSEN et al.
tiff herein, as sole surviving heir, and she
thereafter was represented before the depart(Supreme Court of Oklahoma. Sept. 4, 1907.)
ment by the defendant C. W. Ransom, who PUBLIC LANDS-ENTRIES-PRIORITIES.
on June 14, 1897, and after the determinaA settlement or entry on public land al- tion by the Secretary of the Interior of the ready covered of record by another entry, valid
right of the heirs of Levi IIolt to enter the upon its face, does not give a second entryman any right in the land notwithstanding the fact tract as a homestead, filed in the local office such entry may subsequently be relinquished or a waiver of the preference right of such heirs ascertained to be invalid by reason of facts
to make homestead entry of the tract in acdehors the record of such entry; and one first
cordance with the decision of the Secretary entering after the relinquishment or cancellation has priority over one attempting to enter of the Interior, and asked on behalf of such prior to such relinquishment or cancellation. heirs to withdraw all claims in consideration Following McMichael v Murphy. 197 U. S.
(as recited in said waiver) of the receipt of 301, 25 Sup. Ct. 460, 49 L. Ed. 766. (Syllabus by the Court.)
$2,000 to them in hand paid by Samuel Mur
phy, which waiver was signed by C. W. Error from District Court, Oklahoma Coun
Ransom and acknowledged before S. M. Dilty; before Justice James K. Beauchamp.
ley, register of the local land office, and the Action by Amelia M. Holt against A. H.
defendant Samuel Murphy was thereafter Classen and others. Judgment for defend- permitted to make homestead entry of the ants and plaintiff brings error. Affirmed.
tract. The amended petition upon which this ac- The petition of the plaintiff then alleges tion is predicated sets forth that the plain- that the act of Ransom in waiving plaintiff's tiff is the sole surviving heir of Levi Holt. right was without her knowledge or consent ; who on or about the 11th of March, 1890, fil- that no part of the consideration received ed his soldier's declaratory statement and by Ransom was ever paid to her; that she application to make homestead entry on the relied upon Ransom as her attorney to keep S. W. 14 of section 27, township 12, range 3 her informed as to her rights, but that he deW. I. M., in the proper United States land ceived her by concealing from her the fact that office in accordance with the laws of the a preference right of entry had been awarded United States, and established rules of the to the heirs of Levi Holt, and of the fact land department. It appears from the peti- that he had entered a waiver of the rights tion and exhibits that one Ewers White was of said heirs to the tract as alove stated; at the time a homestead entryman of the and that she did not discover the fraud untract involved, that his entry had been con- til about the Sth day of September, 1901. tested by one Blanchard, and White's home- The petition of plaintiff further recites that stead entry was held for cancellation by the the defendants on the 11th day of June, commissioner of the general land office. 1897, conspired and confederated with the IIolt's declaratory statement and application said Ransom to cheat and defraud plaintiff to enter the land was made during the time, out of her right to silid land, and acted toand while White had a right to appeal from gether with said Ransom in excuting and the decision of the commissioner to the Sec- filing said waiver is above set forth, and retary of the Interior, which appeal was in charges that the defendant C. W. Ransom, due time perfected, and White's entry there- for a consideration paid by the other defendby preserved in tact pending a determination ants, and by the assistance and counsel of by the Secretary of the Interior of the mat- the other defendants, except the Classen ters presented by such appeal. While the Company, filed a waiver of all of plaintiff's right of White to the land was pending be- rights to said land, in the local land office. fore the Secretary, White, on November 29. It is further charged that on the 19th of 1990, relinquished his homestead entry to January, 1898, the defendant fraudulently the tract, and Murphy was allowed to make procured a patent to the land to be issued
to said land by deeds and mortgages in such fr
ny the government to the defendant Samuel | Tnis presentation of the issue narrows the Murphy, and that he thereafter fraudulently question for our determination to tbe single conveyed 120 acres of said land to the other proposition: Was the tendered entry of Tolt defendants, retaining to himself 40 acres rightfully received and held suspended at · thereof. The petition then in detail charges the time it was tendered March 11, 1890, and specific acts of fraud on the part of each one while the homestead entry of Ewers White of the defendants (except the Classen Com- remained in tact upon the land? pany) participated in by all the defendants, It will be observed that Holt's application each and all of which acts were entered into, was not in any sense an application to contest done, and performed with the intent and pur- the validity of any existing entry of or right pose of each of said defendants, thereby to to the land, but was an application to enter the cheat and defraud the plaintiff out of her saine and file thereon a soldier's declaratory right to enter said premises awarded her by statement, which application was by the offithe said decision of the Secretary of the In- cials of the local land office received, but held terior. The acts of the several defendants suspended pending a complete determination by which the plaintiff claims to have been of the then existing rights of White et al., undefrauded consisted in manipulating the title der the entries which segregated the tract
from the public domain. If the land was in way as to place the same beyond the reach fact segregated from the public domain at of any action by the plaintiff to recover the the time IIolt tendered such entry, the local same, and as well also to distribute the val- land office had no jurisdiction to accept anue of said premises ratably among the said other original right or application to enter the defendants. The value of said premises is land, which in and of itself would be an alleged to be the sum of $175,000, and to
act of segregation. It is true that one that extent the plaintiff alleges she has been homesteader believing himself entitled to the damaged by the wrongful and fraudulent land may enter a contest for the determinaacts of the said defendants set out in the pe- tion of such right against all existing entries tition.
or applications, but this is the extent of his To the petition of the plaintiff each of the right under such conditions. A tendered defendants filed their separate demurrers homestead entry or application to enter a upon three grounds: (1) That the action
tract of land alreally segregated from the was barred by the statute of limitation ; (2)
public domain carries with it no legal right that it did not state facts sufficient to con.
thereto. A homestead right to a tract of the stitute a cause of action; and (3) that there
public domain may be initiated in two ways: is a misjoinder of parties defendant. The
First, by an actual bona fide settlement upon cause coming on before the trial court upon the land ; second, by a homestead entry therethese demurrers, the court sustained the of at the local land office. A valid initiatory same as to each of the defendants upon the
right may be secured in either of these ways, second ground, and from this ruling and
and one is as effective as the other. The judgment of the court the cause comes to
first of these inceptive rights that is exerthis court for review, upon the error alleged cised establishes an inchoate right to the to have been committed in sustaining such
land. If each of these rights are initiated at demurrers. The foregoing is a statement of
the same time by different persons, the land the material facts set out in the petition
office will call a hearing to determine which, and exhibits thereto attached.
in point of time, was first, and award the John S. Jenkins, for plaintiff in error. J.
land accordingly. If a tract of land already
segregated from the public domain by an exH. Everest and C. T. Smith, for defendants in error.
isting entry could have another valid right thereto attached, as an original homestead
right, then such right might be initiated by GILLETTE, J. (after stating the facts as settlement as well as by a tendered entry above). In considering this case, based upon at the land oflice; but this proposition is the facts above stated, we shall consider the squarely denied by the decision of the Susame in the light only as presented by the i preme Court of the United States in Vcbrief of the plaintiff in error, and in such Michael v. Murphy, 1997 U.S. 304, 25 Sup. CI. brief the plaintiff in error states: "There is 460, 19 L. Ed. 700, involving this same tract but one question raised in this case: Did the of land. In that case it appears that, while application of Levi Holt to enter the land White's homestead entry was still in tact, of in controversy initiate a right to said land record, JICMichael, on June 3, 1889, attempt. in favor of Levi Ilolt, which application was ed to initiate a homestead right thereto by esmade, and received by the register and re- tablishing a residence thereon. He was ejectceiver of the local land office, and the legal ed from the land, and the land having subsefees tendered on the 11th day of March, 1890, quently been patented to one Jurphy, whose and suspenled on the same day, to await right thereto attached by a homestead entry the determination of White et al., on appeal; allowed subsequently to the settlement right said application being made four days after of McMichael, he (MoMichael) brought suit the final julgment of the commissioner, and against Murphy seeking thereby to have Murbefore an appeal was taken to the Secretary?” . ply's title to the land held a trust for his
use and benefit. This court denied him that qualification of the entryman to make it, right McMichael v. Murphy, 12 Okl. 155, 70 nevertheless operates to so segregate the tract Pac. 189), and the Supreme Court of the involved from the public domain as to preUnited States, reviewing this decision (197 U. clude the initiation of another homestead S. 304, 25 Sup. Ct. 460, 49 L. Ed. 766), says: right to the same tract by entry, until the "Following the adjudicated cases, we hold voidable entry has been canceled. that White's original entry was prima facie The authorities here cited, we think, justivalid, i. e., valid on the face of the record, fy the conclusion that the question presented and McMichael's entry, having been made at in this case by the plaintiff in error should be a time while White's entry remained uncan- determined in the negative. celed, or not relinquished, of record, confer- The judgment of the court below is therered no right upon him, for the reason that
fore affirmed. All the justices concurring, ex
, White's entry, so long as it remained undis- cept IRWIN, GARBER, and HAINER, JJ., turbed of record, had the effect to segregate absent. the lands from the public domain and make them not subject to entry. Upon White's relinquishment they again became public
(19 Okl. 106)
FIRST NAT. BANK OF BARTLESVILLE lands, subject to the entry made by Murphy."
v. BLAKEMAN. 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
1. WITXESSES - GEXERAL REPUTATION - Evi
DENCE. and the initiation of a homestead right by set
On the trial of a cause to a jury, where tlement, but holds that lands are segregated the defendant testifies as a witness in his own by a homestead entry, from the public do- behalf and is not impeached in any manner
recognized by the rules of evidence, it is remain, and no valid entry can thereafter be
versible error to permit him to introduce evimade upon the land until it is restored to the dence of his general reputation for truth and public domain by a cancellation of the entry veracity. that segregated it. Following this decision of [Ed. Note.-For cases in point, see Cent. Dig. the Supreme Court of the United States, the
vol, 50, Witnesses, $$ 1084-1080.] Supreme Court of this territory, in Holt v.
The rule stated in the opinion as to when Murphy, 15 Okl. 12, 79 Pac. 265, a case in
a party will be allowed to corroborate his own volving this same tract of land and the testimony by evidence of previous good charrights thereto of these same parties, held: acter. “(1) A homestead entry, valid upon its face,
[Ed. Note. For cases in point, see Cent. Dig.
vol. 50, Witnesses, $ 1281.] constitutes such an appropriation and withdrawal of the land as to segregate it from the
(Syllabus by the Court.) public domain, and, so long as it remains a
Error from District Court, Pawnee Counsubsisting entry, precludes it from subsequent ty; before Justice Bayard T. Hainer. entry. (2) A homestead application to enter land
Action by the First National Bank of already covered by a subsisting homestead en- Bartlesville against George W. Blakeman. try can confer no right whatever upon the ap- Judgment for defendant, and plaintiff brings plicant. (3) Where an application to enter land error. Reversed and remanded. already covered by homestead entry is receiv
Biddison & Eagleton, for plaintiff in error. ed by the local land office and rejected, and
Wrightsman & Fulton and James B. Diggs, an appeal is taken from such action, it is not
for defendant in error. a pending application that will attach on the cancellation of the previous entry, since the
BURFORD, C. J. The plaintiff in error, appeal cannot operate to create, as matter
the First National Bank of Bartlesville, comof law, any right not secured by the applica
menced its action in the probate court of tion.” The rule thus laid down by this court
Pawnee county against the defendant in eris in accord with the determination of the
ror, George W. Blakeman, to recover judgSupreme Court of the United States in Hodg
ment upon a promissory note for the sun es v. Colcord, 193 U. S. 192, 24 Sup. Ct. 433,
of $319.30, bearing date January 21, 1902, 18 L. Ed. 677, wherein said court uses the
payable to T. C. Milton, or order, and purfollowing language: “Gayman's homestead porting to be signed by Geo. W. Blakeman. entry was prima facia valid. There was
The note was indorsed by Milton to the nothing on the face of the record to show
plaintiff in error, and, payment being rethat he had entered the territory prior to the
fused after maturity, the bank sued Blaketime fixed for the opening thereof for settle
man as maker of the note. Blakeman dement, or that he had in any manner violated | nied under oath the execution of the nott. the statuie or the proclamation of the Presi.
The cause went to the district court on apdent. This prima facie valid entry removed peal for trial de novo. The case was tried the land, temporarily at least, out of the pub- to a jury on the sole issue as to the genlic domain, and beyond the reach of other uineness of the signature of the maker of homestead entries." An examination of the the note. A number of witnesses testified to case last above cited shows that such an the facts relevant to the issue, and the deentry, although void, by reason of the dis- | fendant, Blakeman, testified as a witness in his own behalf, denying unequivocally that he There are a few general principles which had signed or authorized the signing of the pervade all the adjudicated cases, and these note sued on. No person testified to having have been carefully stated and learnedly seen him sign the note, and the payee, Mil- considered by the eminent text-writers on ton, was not produced as a witness by either Evidence, and we may safely base our con party: There was some testimony by ex- clusions upon a consideration of their laperts as to the genuineness of the signature. bors. There was no evidence offered for the pur- One of our earliest American writers uppose of impeaching the testimony of Blake- on the law of evidence, and one whom every man, nor wils there, on cross-examination of lawyer and jurist of to-day venerates, Prof. Blakeman, my attempt made to show that Greenleaf, in volume 3, 8 4699, of the fifteenth he had made contradictory statements, or edition of his work says: "Where evidence tbat he had committed any criminal or im- of contradictory statements by a witness, or moral acts. No evidence was offered attack- of other particular facts, as, for example, ing his general reputation for truth and that he has been committed to the House veracity. During the trial the defense of- of Correction, is afforded by way of imfered several witnesses, and, after qualify- peaching his veracity, his general character ing them as character witnesses, they were for truth being thus in some sort put in permitted to testify, over the objection and issue, it has been deemed reasonable to adexception of the plaintiff, that the reputation mit general evidence that he is a man of of Blakeman for truth and veracity was strict integrity and scrupulous regard for good in the neighborhood in which he lived.
truth. But evidence that he has on other The case was submitted to the jury, and ver- occasions made statements similar to what dict returned in favor of the defendant, he has testified in the cause is not admisBlakeman. The bank filed a motion for new sible, unless where a design to misrepresent trial, in which it alleged as error the ruling is charged upon the witness in consequence of the court in admitting the evidence of of his relation to the party or to the cause, the general reputation of the defendant. The in which case it seems it may be proper to motion was overruled, and judgment ren- show that he made a similar statement bedered for the defendant. The bank appeals, fore the relation existed. So, if the charand assigns as error the overruling of its acter of a deceased attesting witness to a motion for new trial.
deed or will is impeached on the ground of But one question is presented or argued fraud, eridence of his general good character by counsel for plaintiff in error. The sole is admissible. But mere contradiction among question for our determination is: Was it witnesses examined in court supplies no reversible error for the court to permit the ground for admitting general evidence as to defendant, whose character had not been at- character." tacked, to introduce evidence of his general We find the subject thus discussed in Unreputation for truth and veracity? The
derhill on Evidence, $ 352: "The direct implaintiff in error insists upon the extreme
peachment of a witness by any of the means rule that it is never permissible to offer evi
which have been above explained creates dence of general reputation unless the gen- and issue respecting his general character for eral character for truth and veracity is at- truthfulness. Evidence to support this, and to tacked by the adverse party, while the de- show that he is a person in whose testimony fendant in error insists upon the other ex
the jury may have confidence, is therefore treme—that anything which tends to dis- relevant. But evidence of reputation is not credit the testimony of a witness is an im- relevant merely because there is a contradicpeachment of the witness, and entitles him tion between adverse witnesses, or because the to offer testimony in support of his general
creclibility of a witness is shaken on cross-exreputation for truthfulness. Both parties are
amination, though its admission in such cases sustained by respectable authority, but we may not be reversible error. A distinction think neither of them suggests the safe has sometimes been made by which it has rule. The question as to when and under
been held that general evidence of the charwhat conditions a witness may be corroborat- acter of the witness for truthfulness is not ed by evidence of Sweral good character is relevant, if he was impeached merely by one that has been as much discussed by text- showing that he had made contradictory writers and jurists, and upon which there statements. This distinction is repudiated by is as irreconcilable confusion, as many others a majority of the decisions, which support found in the books in this country of many the proposition that general evidence of the jurisdictions. This court has never been character of the witness as a truthful person called upon to adopt a rule on the subject, is always admissible, whenever any attempt, and we feel it our duty to explore the field though it may have been unsuccessful, has fully and select the path which seems to lead been made to impeach it, as, for example, to the most logical and beneficial results. where another witness is asked what is his It is useless to attempt to reconcile the many character for truth, and replies that it is judicial decisions upon the main subject and good." its related branches; nor would it be prof- In 3 Jones on Evidence, $ 870, the author, itable to make a critical review of them. in discussing this question, says: "While it is clear that a direct attack upon the repu- , ciple, and perhaps for stronger reasons, it tation of a witness admits evidence to sus- is no ground for the introduction of evidence tain his credibility, the question whether to sustain the character of a witness that such evidence is rendered admissible by col- other witnesses have contradicted him by lateral attack is involved in more difficulty. | testifying to a different state of facts; and It has sometimes been held that, if it ap- this remains true, although the contradicpears from the cross-examination of a wit- tion is of such a character as to incidentally ness that he has been guilty of immoral con- impute immorality or crime." duct or charged with a criminal offense, he That learned and scholarly jurist, Mr. may be sustained by evidence of good char- Justice Elliott, upon the subject under conacter for truth. So it was held that, when sideration, in his work on Evidence (volume a witness was assailed by evidence that he 2, § 995), says: "When the reputation of in had been suborned and paid for his testi- witness for truth has been impeached, the mony, his good character for veracity might | party calling a witness has a right to call be shown. So the same class of testimony other witnesses to prove that his reputation has been received in an action on an insur- is good. Good character, it has been held, ance policy, where the defendant had sought may be shown, where the witness has been to prove that the plaintiff had burned his impeached by proof of conviction of criine. building and made false proofs of loss, and But this principle is not always applied, at in an action for forgery, where the defend- least where there is no real attack by way ant sought to prove that a witness for the of impeachment. If the witness has been imstate had himself committed the forgery, peached by proof that he made contradictory proof of the good character of such witness and inconsistent statements out of court, was allowed. As we hare seen, although it some of the cases allow his good character is held in some of the cases that answers on to be shown in corroboration, while others cross-examination which tend to disparage refuse to admit such testimony. However, the character of the witness are sufficient to render testimony of good character comto render admissible sustaining evidence of petent and admissible in support of the withis good character, and although there is con- ness, an attack must necessarily have been siderable authority in the decisions to sup- made on his character.” And in section 971 port this view, the practice would undoubt- he proceeds to show how a witness may be edly lead to great confusion and the multi- impeached, by showing, either by cross-explicity of collateral issues, unless carefully amination or by opposition witnesses, bias, guarded by the discretion of the trial judge. malice, prejudice, interest, or corruption; by It is well settled that when, either by cross- showing inconsistent and contradictory stateexamination or other evidence, it is shown, ments of the witness; by showing general that the witness has been convicted of a bad character, or reputation for truth and crime, his good reputation for truth since veracity. such conviction may be shown; and such In Bradner on Evidence, $ 16, it is said: testimony is not received where it appears "Testimony to support the character of a that the witness was acquitted, or merely witness cannot be given in evidence, unless charged with crime, without a conviction.
the credibility of the witness is impeached." So, where a witness admitted on cross-ex- Prof. Wigmore, in his critical and extenamination that he had been drunk on vari. sive contribution to the literature of the law, ous occasions, it was held that this did not has gone over this subject more 'analytically render testimony admissible as to his gen- and completely than any other text-writer, eral good character for veracity." And in and in section 1101 of Wigmore on Evisection 871 the same author says: “It has dence he gives us the following: "Good sometimes been held that, where proof has character for veracity is as relevant to inbeen offered of the inconsistent or contra- dicate the probability of truth-telling as bad dictory statements of a witness, his credit character for veracity is to indicate the prohmay be sustained by proof of his good repu- ability of the contrary. But there is no tation for truth and veracity; that, since the reason why time should be spent in proving object of the attack is to impeach the wit- that which may be assumed to exist. Every ness, the mode of such attack is immaterial, witness may be assumed to be of normal and the same reason exists for sustaining the
character for veracity, just as he is assumed witness as where witnesses are called to tes
to be of normal sanity. Good character, tify to his bad reputation. But it is the bet- therefore, in his support, is excluded until ter view, and one sustained by the weight his character is brought in question, and it of authority, that in such cases the witness becomes worth while to deny that his charcannot be fortified by eridence of good char- acter is bad. The question thus alway's acter. Although the contradiction in his arises under the general rule: When is the statements may tend to show that he ought witness character brought into question by not to be believed in the particular case, the opponent, so as to open the way to evithis does not necessarily touch his general dence of good character in denial?
This good character for truth or integrity, since must depend on the nature of the opponent's the inconsistency may be the result of mis. impeaching evidence. It may be a direct astake or forgetfulness. On the same prin- sault on the witness' character, in which