Linam v. Beck , 51 Okla. 727 ( 1915 )

The vital question involved in this case is the age of the grantor at the time he executed the deed to plaintiff conveying the lands in controversy. The evidence shows that the deed was executed by said allottee subsequent to the passage of Act Cong. May 27, 1908, c. 199, 35 Stat. 312. The enrollment records of the Five Civilized Tribes, which are conclusive as to the age of said allottee, were introduced in evidence, and show that said allottee was enrolled September 20, 1900, at which time he was ten years of age. Cornelius v. Yarbrough, 44 Okla. 375, 144 P. 1030;Duncan v. Byars et al., 44 Okla. 538, 144 P. 1053; Scott v.Brakel et al., 43 Okla. 655, 143 P. 510; Campbell v.McSpadden, 44 Okla. 138, 143 P. 1138; Charles v. Thornburgh,44 Okla. 379, 144 P. 1033; Phillips v. Byrd, 43 Okla. 556,143 P. 684. Therefore said allottee was not 21 years of age until September 20, 1911, and the deed executed by him September 6, 1911, to plaintiff herein was void. Jackson v.Lair, 48 Okla. 269, 150 P. 162; Reid v. Taylor, 43 Okla. 816,144 P. 589.

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

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

By the Court: It is so ordered.