Rowland v. Morgan, Case Number: 26338
| Decision Date | 08 December 1936 |
| Docket Number | Case Number: 26338 |
| Citation | 1936 OK 786,178 Okla. 600,63 P.2d 712 |
| Parties | ROWLAND et al. v. MORGAN |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL - Sufficiency of Plaintiff's Evidence to Withstand Motion to Direct Verdict for Defendant.
When the evidence is sufficient to support a verdict in favor of the plaintiff, a motion to direct a verdict in favor of the defendant is properly overruled.
2. INDIANS - Purpose of Federal Restrictions on Leasing Restricted Lands of Members of Five Civilized Tribes.
The primary purpose and intent of section 2 of the Act of Congress of May 27, 1908 (35 Stat. L. 312), is to protect a certain class of citizens of the Five Civilized Tribes against improvident contracts.
3. SAME - Validity of Agricultural Lease Made by Mississippi Choctaw on Homestead Allotment During Existence of Prior Lease.
A valid lease for agricultural purposes may be made by a restricted Mississippi Choctaw Indian on his homestead allotment during the existence of a prior valid lease, provided it is made for fair rental near the termination of the existing lease and is not made for a term of more than one year from its date.
4. TRIAL - Sufficiency of Instructions - Refusal of Requested Instructions.
It is not error to refuse to give a requested instruction which clearly states the law if the matters requested are substantially embodied in the charge given by the court to the jury; or an instruction which is not clear and complete both in form and substance.
5. APPEAL AND ERROR - Harmless Error - Improper Remarks by Court.
Under the provisions of section 3206, O. S. 1931, a cause will not be reversed on account of improper or unwarranted remarks made by the court in the progress of the trial unless from an examination of the entire record it appears that a miscarriage of justice has resulted or that a party has been deprived of a substantial constitutional or statutory right.
Appeal from District Court, Marshall County; Porter Newman, Judge.
Action in ejectment and for damages by E.A. Morgan against Dr. C.W. Rowland and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Reuel W. Little, for plaintiffs in error.
Don Welch, for defendant in error.
¶1 This action was instituted in the district court of Marshall county by E.A. Morgan, as plaintiff, against C.W. Rowland and J.B. Divens, as defendants. In this opinion we will refer to the parties in the order of their appearances in the trial court.
¶2 The plaintiff alleged that he was entitled to the possession of the homestead allotment of Lemmie Wallace, a full-blood Mississippi Choctaw Indian, by virtue of an agricultural lease executed by the allottee under date of November 27, 1933; that the defendants were in the unlawful possession of said premises. Defendants answered and alleged that said lease was void for want of consideration, and for the further reason that it was in effect an overlapping lease made in violation of the Act of Congress relative to the execution of leases by full-blood Indians (Act May 27, 1908 [35 Stats. L. 312]); under stipulation of parties the plaintiff introduced the homestead deed from the Choctow Nation to Lemmie Wallace and an agricultural lease from said allottee to the plaintiff bearing date of November 27, 1933, and which purports to lease the lands in controversy to the plaintiff for a term of one year from its date, and rested. Demurrer of the defendants to the plaintiff's evidence was overruled. Defendants then, under the stipulation of the parties, introduced an agricultural lease from the allottee to the defendant Dr. C.W. Rowland, which lease bore date of December 30, 1932, and described the lands in controversy, and which was for a term of one year from its date; a release by J.F. Alexander under date of November 27, 1933, which released an agricultural lease previously executed by the allottee under date of August 21, 1933, to the said Alexander and an agricultural lease executed by the allottee to the defendant Dr. C.W. Rowland, which lease bore date of December 1, 1933, and was for a term of one year from date and purported to lease the lands in controversy. The defendant Rowland testified that he was in possession of the premises on November 27, 1933, and had been in such possession for approximately 15 years prior thereto, and that it was not necessary to make a lease prior to December 1st in order to control the cultivation of the land. Deposition of the allottee, Lemmie Wallace, was introduced and read, wherein the allottee testified that he had been leasing the premises involved to the defendant for a number of years; that he had executed an agricultural lease on said hands to J.F. Alexander in August, 1933; that he did not know the plaintiff, and that about November 27, 1933, Alexander, together with other parties unknown to the witness, came to see him with reference to a lease on his lands; that he understood that they wanted a new lease in place of the lease which he had executed to Alexander the preceding August; that he signed such lease, but was not paid any additional compensation therefor; that on December 1, 1933, he again leased the premises to Dr. C.W. Rowland for a cash consideration which was paid. Demurrer of the plaintiff to this evidence was overruled. Rebuttal evidence of plaintiff was to the effect that he was in no manner interested in the lease between the allottee and Alexander and had not participated therein or had any connection therewith; that, however, before he would accept a lease from the allottee he required a release from Alexander, and that he had paid the full consideration for his lease to Alexander in the presence of the allottee, and that it was proper to obtain the lease on November 27, 1933, in order to control the cultivation of the premises. Both sides thereupon moved for directed verdict. Without ruling thereon the court proceeded to instruct the jury orally. Defendants excepted to this action of the court and submitted three written requested instructions. The court refused to give either of the requested instructions and evidenced his refusal thereon in the manner provided by statute. The jury returned a verdict in favor of the plaintiff. The defendants appealed from the judgment rendered on the verdict and the order overruling and denying their motion for new trial. The plaintiff departed this life and the cause has been revived against Eva McGahey, the administratrix of his estate.
¶3 Defendants assign eight specifications of error in this court and present them under four propositions. These may be summarized as: (a) Error in denial of their request for a directed verdict; (b) error in refusing to give certain requested instructions; (c) failure of the court to define the issue and give appropriate instructions on its own motion; (d) that certain remarks of the court constituted an invasion of the province of the jury and prevented defendants from having a fair trial.
¶4 As we have said in Abbott v. Dingus, 44 Okla. 567, 145 P. 365:
"It is only when the evidence, with all the inferences the jury could justifiably draw from it, will be insufficient to support a verdict for plaintiff that the court is authorized to direct a verdict for defendant; and unless the conclusion follows as a matter of...
To continue reading
Request your trial