Ewert v. Beck

• Decision Date: 05 July 1916
• Docket Number: 4546.
• Citation: 235 F. 513
• Parties: EWERT v. BECK. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

235 F. 513

EWERT v. BECK. ^[1]

No. 4546.

United States Court of Appeals, Eighth Circuit.

July 5, 1916

Paul A. Ewert, of Joplin, Mo., in pro. per.

W. H Kornegay, of Vinita, Okl. (Judson, Green & Henry, of St Louis, Mo., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

The plaintiff in error, hereafter called plaintiff, brought an action in ejectment against defendant in error, hereafter called defendant, claiming right of possession under an instrument called a mining lease, executed to him by an Indian allottee of the land. The defendant's claim of title was based on a similar instrument executed to him by the same grantor.

Plaintiff's lease was executed on July 26, 1913, while the lease to defendant bore date of August 18, 1912, and was filed for record on the following day. The plaintiff's lease contained a clause that certain covenants of plaintiff should not be binding upon the plaintiff 'until the expiration of all prior lawful leases that may be found to exist upon said land. ' At the trial there was evidence that defendant's lease was signed and delivered in Kansas, but plaintiff contended that its validity depended upon the laws of Oklahoma, as it referred to land in Oklahoma and its covenants were to be performed there, and under the laws of that state it was void because it was executed on Sunday.

A verdict was directed for the defendant, and the propriety of that action is challenged, and it is claimed there was such evidence as to the execution of the lease on Sunday as to present an issue of fact for the jury. The defendant, the notary who took the acknowledgment of the lease, the attesting witness thereon, and defendant's brother, each testified to having been present at the time of the execution of the lease, and each clearly and circumstantially stated that it was executed and delivered by the lessee to the lessor at Baxter Springs, Kan., on Saturday, the day preceding the purported date. The defendant produced the bank check which he gave to the lessor in payment of the consideration and verified its date, which was on this Saturday. A clerk in a bank at Baxter Springs also verified the fact that the check was presented at the bank by the lessor on this Saturday and was then paid, and that it was forwarded to its correspondent bank for collection on the same day and so entered on the remittance register.

In addition to this testimony, the lessor testified that the transaction occurred on Saturday; but on cross-examination and in response to leading questions as to whether defendant did not get the lease from him in Oklahoma, and on Sunday replied in the affirmative. He also admitted that he had made similar admissions to plaintiff, and a written statement, which had been dictated by plaintiff to his stenographer, read over to the grantor, and signed by him, by mark, was introduced. The stenographer testified that the lessor had sworn to the truth of that statement. It also recited that the lease was executed and delivered on Sunday and in the state of Oklahoma. It is quite apparent, from the record of the examination of this Indian lessor, that he was ignorant, dull, and confused, and the trial court's remark at the close of his testimony, that there was not much certainty to be secured from that witness' testimony, and that he doubted very seriously whether he understood the...