Cade v. Vickers

• Court: Oklahoma Supreme Court
• Writing for the Court: WILLIAMS, J.
• Citation: Cade v. Vickers, 31 Okla. 131, 1912 OK 15, 120 P. 611 (Okla. 1912)
• Decision Date: 09 January 1912
• Parties: CADE v. VICKERS et al.

120 P. 611

31 Okla. 131, 1912 OK 15

CADE v. VICKERS et al.

Supreme Court of Oklahoma

January 9, 1912

Syllabus by the Court.

Same as paragraph 1 of syllabus in Northwest Thresher Company v McCarroll et ux., 118 P. 352.

Error from District Court, Woods County; R. H. Loofbourrow, Judge.

Action by C. M. Cade against Blanche Vickers and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Stanard Wahl & Ennis and H. A. Noah, for plaintiff in error.

E. W Snoddy, for defendants in error.

WILLIAMS J.

This proceeding in error is to review the judgment in an action wherein the plaintiff in error, as plaintiff, sued the defendants in error, Blanche Vickers, Don Vickers, and Florence Westfall, respectively the widow and children of G W. Vickers, deceased, to foreclose a lien on certain lots in the city of Alva, by virtue of a mortgage executed by the said decedent on the 6th day of June, 1903. Said decedent, on said date, for value, executed and delivered to said plaintiff his certain promissory note, in writing, in the sum of $500, due on the 6th day of September, 1903, providing for interest, attorney's fees, etc. Said note was secured by said mortgage, which was executed by the said decedent. Said decedent also signed the name of the defendant in error, Blanche Vickers, his wife, thereto.

The final affidavit made by the decedent as a homestead claimant is in part as follows: "I, George W. Vickers, having made a homestead entry of the N. 1/2 S.W. 1/4 and S. 1/2 N.W. 1/4 section No. 25, in township 6 of range No. 19 W. I. M., subject to entry at El Reno, Oklahoma, under section No. 2289 of the Revised Statutes of the United States, do now apply to perfect my claim thereto by virtue of act June 6, 1900, of the Revised Statutes of the United States; and for that purpose do solemnly swear that I am a native-born citizen of the United States; that I have made actual settlement upon and have cultivated and resided upon said land since the 28th day of May, 1903, to the present time; that no part of said land has been alienated, except as provided in section 2288 of the Revised Statutes, but that I am the sole bona fide owner as an actual settler; that I will bear true allegiance to the government of the United States; and, further, that I have not heretofore perfected or abandoned an entry made under the homestead laws of the United States."

The testimony of said decedent as a homestead claimant, in making his final proof, is as follows: "George W. Vickers being called as a witness in his own behalf in support of homestead entry No. -- for N. 1/2 S.W. 1/4 and S. 1/2 N.W. 1/4 Sec. 25, T. 6 N., R. 19 W., testifies as follows: Q. 1. What is your name as you wish it to appear in your patent; age, and post office address? A. George W. Vickers; 52 years old; Hobart, Okl. Q. 2. Are you a native-born of the United States, and, if so, in what state or territory were you born? A. Yes; Ohio. Q. 3. Are you the identical person who made homestead entry No. 9824 at the El Reno, Okl., land office on the 2d day of December, 1902, and that is the true description of the land now claimed by you? A. Yes; N. 1/2 S.W. 1/4 and S. 1/2 N.W. 1/4 Sec. 25, Tp. 6 N., R. 19 W. I. M. Q. 4. When was your house built on the land, and when did you establish actual residence therein? (Describe said house and other improvements which you have placed on the land, giving total value thereof.) A. The house was built in May, 1903, and established residence on the 28th day of May, 1903; frame house, 10X14; 1 door, 2 windows, 60 acres under fence, 35 acres under cultivation, well, cave; valuation, $250. Q. 5. Of whom does your family consist; and have you and your family resided continuously on the land since first establishing residence thereon? (If unmarried, state the fact.) A. Wife and two children; yes. Q. 6. For what period or periods have you been absent from the homestead since making settlement, and for what purpose; and, if temporarily absent, did your family reside upon and cultivate the land during such absence? A. None. Q. 7. How much of the land have you cultivated each season, and for how many seasons have you raised crops thereon? A. Cultivated 35 acres one season. Q. 8. Is your present claim within the limits of an incorporated town or selected site of a city or town, or used in any way for trade and business? A. No. Q. 9. What is the character of the land? Is it timber, mountainous, prairie, grazing, or ordinary agricultural land? State its kind and quality, and for what purpose it is most valuable. A. Prairie land; most valuable for farming. Q. 10. Are there any indications of coal, salines, or minerals of any kind on the land? (If so, describe what they are, and state whether the land is more valuable for agricultural than for mineral purposes.) A. No indication of coal, salines, or mineral; most valuable for farming. Q. 11. Have you ever made any other homestead entry. (If so, describe same.) A. No. Q. 12. Have you sold, conveyed, or mortgaged any portion of the land, and, if so, to whom and...