Opinion
Filed February 7, 1900.
PUBLIC LAND — Homestead — Adverse Claimants — Injunction. Where adverse claimants are residing upon a tract of land, and each claiming the same as a homestead by virtue of priority of settlement, and the land department makes a final award thereof, the losing party cannot properly claim the right to continue his residence upon the land for the purpose of bringing a suit in equity to declare a trust against his successful adversary, when he has already resided upon the land a sufficient length of time, under the law, to enable him to make final proof for the land.
(Syllabus by the Court.)
Error from the District Court of Kay County; before Bayard T. Hainer, District Judge.
S. H. Harris, for plaintiff in error.
E. Bee Guthrey, for defendant in error Ellis.
J. R. Scott, for defendant in error Lee.
STATEMENT OF THE CASE.
This is an action commenced by the defendant in error Herbert E.Ellis, plaintiff in the court below, against Geo. P. Endicott and Sam Lee. Said action was by petition, asking for a mandatory injunction. Summons was issued and served on the defendant. To which petition, defendant demurred. Thereafter, on the 26th day of July, 1898, the plaintiff filed an amended petition in said cause, without leave of the court. Thereafter, on the 6th day of September, said amended petition was re-filed by leave of court. Thereafter the plaintiff filed his amended and supplemental petition in said cause. To which amended and supplemental petition defendant demurred.
Said demurrer was by the court overruled, to which the defendant excepted. Defendant then filed his answer to said amended and supplemental petition. Thereafter plaintiff filed his reply to defendant's answer. Afterwards, on the 5th day of October, 1898, said cause came on for trial before the court, whereupon proceedings were had, and evidence given. Upon said trial, hearing, and consideration of said cause, the court rendered judgment in favor of the plaintiff and against the defendant, to which the defendant excepted. Thereafter, and within the time allowed by law, the defendant filed his motion for a new trial, which motion was by the court overruled, to which the defendant excepted. From which judgment and rulings of the court the defendant appeals and brings the cause here for review.
Opinion of the court by
The facts in this case contained, and the principles of law herein involved, are practically the same as those involved in the case of E. F. Black v. Walter P. Jackson, decided in this court, February 12, 1898, and reported in volume 6, page 751, Oklahoma Reports, and as the views therein expressed, and the law therein laid down, meet with our approval, the rule there established will be followed in this case, and the judgment of the district court affirmed.
Hainer, J., having presided in the court below, and McAtee, J., not sitting; all of the other Justices concurring.