fy, by a subsequent act of Congress, the pro- | of Congress supersede a prior treaty, is elevisions of a treaty with the Five Civilized mentary"-citing Fong Yue Ting v. U. S., Tribes of Indians? In the case at bar Con- 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905. gress, by virtue of the former act, which was In the Cherokee Tobacco Case, 11 Wall. 621, in effect a treaty between the Choctaws and 20 L. Ed. 227. the Supreme Court of the UnitChickasaws on the one side, and the United ed States held that an act of Congress imposStates on the other, and which was ratified ing a tax on tobacco, if in conflict with a by both Congress and the Tribes, provided prior treaty with the Cherokees, was parathat the land allotted should be inalienable, mount to the treaty. This is a very strong except as provided in section 16 thereof. case in support of the doctrine that a subseTwo years later, by an independent act, with- quent act of Congress on the same subject out the assent of the Choctaw and Chickasaw takes precedence over a prior treaty agreeNations, Congress provided that the removal ment, and this doctrine obtains not alone to of restrictions from all lands except minors the so-called treaties between the governand except as to homesteads may with the ment and the various Indian tribes, but with approval of the Secretary of the Interior be foreign nations as well. In Thomas v. Gay, removed under such rules and regulations as 168 U. S. 264, 18 Sup. Ct. 340, 42 L. Ed. 740, the Secretary of the Interior may prescribe the Supreme Court of the United States held upon application to the United States Indian that an act of May 2, 1890, creating the TerAgent at the Union Agency, etc. If Congress ritory of Oklahoma, prevails over and agai ainst has such power to alter, amend, or modify the provisions of a prior treaty between the the provisions of a treaty with the Five United States and the Osage Indians. In Civilized Tribes of Indians, then the judg- Lone Wolf v. Hitchcock, 187 U. S. 553, 23 ment of the lower court in the case at bar is Sup. Ct. 216, 47 L. Ed. 299, the Supreme correct, but, if Congress has no such power, Court held that the power existed in Conthe judgment is wrong, and must be reversed. gress to abrogate the provisions of an Indian The parties to this action concede this to be treaty, though presumably such power would the test, and agree that the answer to the be exercised only when circumstances arose question will be decisive of this case. With- which would not only justify the government out doubt the Congress of the United States in disregarding the stipulations of the treaty, has full authority to treat with the subject- but which demand in the interest of the matter of these two acts, to wit: The aliena- country and the Indians themselves, that it tion of Indian allotments, as its judgment should be so. In Lone Wolf v. Hitchcock, may direct, and in that particular the will supra, it was held that: "Plenary authority of Congress is supreme, and is not a subject over the tribal relations of the Indians has for the consideration of the courts. been exercised by Congress from the beginIn Godfrey v. Iowa Land & Trust Co., 21 ning and the power has always been deemed Okl. 293, 95 Pac. 792, it is said: "There can a political one, not subject to be controlled be no serious question of the authority of by the judicial department of the governCongress to remove restrictions upon the ment." In Tiger v. Western Inv. Co., 221 U. alienation of the lands of allottees without S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738, it was the consent of the tribe." In Wadsworth v. held that: "Congress in pursuance of the Boysen, 148 Fed. 771, 78 C. C. A. 437, in dis-law and the established policy of the governcussing the question as to whether or not a subsequent act of Congress can supersede a treaty with a tribe of Indians, it is said: "In such cases, whenever a conflict is alleged [1] In view of the general policy of the to exist between a treaty and a legislative government extending over almost the entire act of amendment, the courts, in construing history of our country, we are warranted in them while endeavoring to give force and ef- saying that Congress has had at all times, and fect to both, if they cannot be reconciled, will still has, the authority to pass any law that give effect rather to the legislative amend would be for the best interests of the Inment. A treaty is of no greater force than dians, and of the advisability, or expediency an act of Congress, and, when it becomes the of such law, Congress alone is the sole and subject of judicial cognizance in the courts, exclusive judge. The mere fact that Taylor it is held to be subject to such provisions as was a citizen does not render the guardianCongress may make by modification or amend- ship of the government over the Indian lands ment. This rests upon the established rule incompatible. Tiger v. Western Inv. Co., that the provisions of an act of Congress supra. Nor is there any merit in the theory passed in the exercise of its constitutional advanced by counsel for plaintiff that en power, when clear and explicit, will be up-forcement of the act of Congress of April 21, held by the courts, although in seeming con- 1904, would result in the taking of property flick with an antecedent treaty stipulation." without due process of law. This seems to In Ward v. Race Horse, 163 U. S. 504, 16 Sup. be the settled and established holdings of Ct. 1076, 41 L. Ed. 244, Mr. Justice White, the courts relative to this question. If Con now Chief Justice White, said in discussing gress, in its wisdom, finds that the best inthis identical question: "That a treaty may terests of the Indian, and all others concern

ment has a right to determine for itself when the guardianship which has been maintained over the Indians shall cease."

or annullment of a treaty agreement made | March 19, 1907. This, without doubt, is a with a tribe of Indians, it has full power by subsequent act to make the necessary alteration, modification, or amendment. We are of opinion that the position of defendants in the instant case is wholly untenable in the light of the foregoing authorities, which are not only persuasive in reason, and in harmony with the settled policy of the government in its dealings with the Indians, but which are also conclusive and controlling as matters of law on this court on the question involved.

cloud upon the title of the plaintiff, and he was entitled to have the same canceled and removed, and inasmuch as Congress, as we have seen, had the undoubted right and authority to alter, amend, or modify by subsequent legislation, the provisions of any treaty or agreement made with any tribe of Indians, and inasmuch as it did, by the act of April 21, 1904, by necessary implication, abrogate the provisions of the act of Congress approved June 30, 1902, in so far as restrictions or alienability were concerned, it necessarily follows that Taylor, after obtaining the patent to the land in question, and after the passage of the act of Congress April 21, 1904, and the removal of his disabilities according to law, had a right to sell said land. This being true, the plaintiff was entitled to a judgment in the court below. There being no error in the record, the judgment of the dis

PER CURIAM. Adopted in whole.

(32 Okl. 283)

FLESHER v. CALLAHAN et al. (Supreme Court of Oklahoma. March 12, 1912.)

[2] It is true in this as well as in other cases that the settled rule of construction undoubtedly is that repeals by implication will not be favored, and will not be held to exist if there be any other reasonable construction or interpretation by which both acts may be sustained, but in this case that 'question is not open for discussion, for there is a hopeless and irreconcilable conflict be-trict court of Grady county should be affirmtween the two acts of Congress, and in such ed. case the authorities are unanimous that the last will prevail over the former. In this case the act of April 21, 1904, controls and the act of July 1, 1902, in so far as it conflicts with the same, is of no force or effect, being repealed, if not directly, then by necessary implication. Counsel for plaintiff in error have not cited a single authority in support of their contention. They have pleaded 1. ADVERSE POSSESSION (§_63*)-ELEMENTS— the various acts of Congress, together with the patent to the land and the certificate of removal of disability as issued by the Indian agent, and approved by the Secretary of the Interior, and reply upon the assertion that the act of April 21, 1904, is repugnant to, and violative of, the provisions of the federal Constitution, and the former act of Congress under which the land was allotted. As has been seen, Congress, from the beginning, has exercised a supervisory care over the persons and the estate of the Indians, and, this being a political power, it remains for Congress in the exercise of its discretion and wisdom to

say what the policy of the government shall be when dealing with these dependent people. By the act of April 21, 1904, it was deemed expedient to remove the restrictions as to alienation of lands from all except as to minors, and as to homesteads subject to certain requirements provided for in said act. Whether or not this was a wise provision is not a question for the courts.

At the time of the passage of this act, the patent to Taylor had not been issued. His restrictions as to alienation were removed February 9, 1906. On February 16, 1906; he deeded the land to Campbell, and after the issuance of the patent, and on November 15, 1906, he again deeded it to Whiteheld. The plaintiff obtained title to the land from both Campbell and Whiteheld, and thereafter the power of attorney executed by Taylor to plaintiffs in error was placed of record on

(Syllabus by the Court.)

HOSTILE CHARACTER OF POSSESSION VEN-
DOR AND PURCHASER.

By the execution and delivery of a deed in premises vests in the grantee; and, if the general terms, the entire legal interest in the grantor continues in possession afterward, his possession will be that either of tenant or trusholding the premises in subserviency to the tee of the grantee. He will be regarded as grantee; and nothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself will be sufficient to change the character of his possession.

(a) In such case, the grantor is not deemed, in law, to have adverse possession against his grantee, or those deriving title from him.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 333-357; Dec. Dig. § 63.*] 2. ADVERSE POSSESSION (§ 85*)-EVIDENCE

SUFFICIENCY.

The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.

[Ed. Note.-For other cases, see Adverse

Possession, Cent. Dig. 88 498-503, 656, 660, 668; Dec. Dig. § 85.*]

3. ADVERSE POSSESSION (§ 13*)-ELEMENTS IN GENERAL.

A possession, to be adverse, must be open, visible, continuous, and exclusive, with a claim ing information upon the subject that the of ownership, such as will notify parties seekpremises are not held in subordination to any title or claim of others, but against all titles and claimants.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 65-76; Dec. Dig. § 13.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

!

(Additional Syllabus by Editorial Staff.) 4. CHAMPERTY AND MAINTENANCE (8 7*)CONVEYANCE OF LAND HELD ADVERSELY. Where land conveyed, though not in the possession of the grantor, is not held adversely by the occupant, the deed is valid.

[Ed. Note.-For other cases, see Champerty and Maintenance, Cent. Dig. §§ 54-110; Dec. Dig. § 7.*]

acknowledged and placed of record, November 22, 1909.

On cross-examination, plaintiff testified that F. B. Dale was in the possession of the lands sued for during the year 1909 as tenant of defendants, and that defendants were in possession, both at the time the deed was made from Fewell to Wilson and from Wil

5. PLEADING (§ 291*)-VERIFICATION-NECES-son to plaintiff. Counsel for defendants urge

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 864-879; Dec. Dig. § 291.*] 6. PLEADING (§ 214*) - DEMURRER TO EVIDENCE-EFFECT. A demurrer by defendant to the evidence admits the truth of all the evidence offered on the part of plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]

Commissioner's Opinion, Division No. 1. Frror from District Court, Okfuskee Coun

ty; John Caruthers, Judge.

Action by M. B. Flesher against Benton Callahan and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

C. B. Connor and W. A. Huser, for plaintiff in error. J. B. Patterson and C. W. Brewer, for defendants in error.

SHARP, C. Plaintiff sued defendants for the recovery of one quarter section of land in Okfuskee county, and for damages for withholding the possession thereof. At the conclusion of the plaintiff's testimony, the defendants interposed a demurrer, which was sustained, and judgment thereupon rendered for defendants. The only question presented is whether or not the demurrer to the evidence was properly sustained.

that, neither Wilson nor Fewell having been in possession when their deed was made, and not having been in possession or collected rent for more than a year, both of said deeds were void as to defendants, and cite Huston v. Scott, 20 Okl. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721, in support of their contention. Counsel have overlooked the fact that the rule announced in the above case applies only to persons holding adversely to the owner thereof. It was there said by Dunn, J.: "For the deed in this case is not void as between the grantor and grantee, nor due to any disability of either the former to make the transfer, or the latter to take the title. The disability does not lie there, but is inherent in the condition of the land itself,

which being held adversely under color of title, the conveyance thereof is void as against

such occupant. *

* It is a transfer of

land in adverse possession, against which the statute animadverts; but the deed made between the parties is good as between them and to all the world."

Adhering to the former opinion of this court in the foregoing case, it was held, in the syllabus of Powers et al. v. Van Dyke et al., 27 Okl. 27, 111 Pac. 939: "St. Okla. 1895, § 2026 (Wilson's Rev. & Ann. St. 1903, § 2112; Comp. Laws 1909, § 2215), making a misdemeanor the buying or selling of any pretended right or title to land, where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance, is declaratory of the common law, and a conveyance of land, made in contravention thereof by the rightful owner, as against the person holding adversely, is void."

That Billy Yahola was the original owner of the land appears to have been conceded. To bring the case within the prohibition of Plaintiff's title was by mesne conveyances, the statute construed in the foregoing opinoffered in evidence as follows: Billy Yahola ions, what proof, then, is there of an adverse and wife, Winnie Yahola, warranty deed, holding, whether under color of title or not? dated August 31, 1907, to Green A. Fewell; Can it be said that, because defendants were consideration, $3,200. This deed, duly exe- in possession of the land on the date of both cuted and acknowledged, was placed of rec- the Fewell and Wilson deeds, we must thereord in the office of the deputy clerk and ex fore presume that they were in adverse posofficio recorder of deeds at Okmulgee, in the session, within the meaning of the statute? then Indian Territory, on the day of its exe- [3] "Possession, to be adverse, must be cution. Quitclaim deed from Green A. Few-open, visible, continuous, and exclusive, with ell to S. M. Wilson, dated November 12, 1909, a claim of ownership, such as will notify consideration, $1, duly signed and acknowl-parties seeking information upon the subject edged and placed of record at Okemah, Okfuskee county, November 15, 1909. Warranty deed from S. M. Wilson and wife, Flora Wilson, to M. B. Flesher, dated November 20, 1909, consideration $2,100, duly signed and

that the premises are not held in subordination to any title or claim of others, but against all titles and claimants." Wade v. Crouch et al., 14 Okl. 593 [78 Pac. 91]. This definition of adverse possession is that adopt

ed by the Supreme Court of the United States in Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, 36 L. Ed. 532.

In Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171, it was held that evidence of adverse possession must be clear and posi[4] Where the land conveyed, though not tive, and should be strictly construed, and in the possession of the grantor, is not ad- every reasonable presumption made in favor versely held by the occupant, the deed is val- of the true owner. Woodward v. McReyid. 6 Cyc. 885; Gamble, Ex'r, v. Hamilton, 31 nolds, 2 Pin. (Wis.) 268; Campau et al. v. Fla. 401, 12 South. 229; Cornwell v. Clement, Dubois et al., 39 Mich. 274; Livingston v. 87 Hun, 50, 33 N. Y. Supp. 866. A convey- Perue Iron Co., 9 Wend. (N. Y.) 512; Crary ance, not within the spirit and policy of sec- v. Goodman, 22 N. Y. 170; Bowie v. Brahe, tion 2215, supra, will be upheld wherever 3 Duer (N. Y.) 35; Bernstein v. Humes, 72 possible, unless it is manifestly and clearly | Ala. 546. within its terms. 6 Cyc. 873; Henderson v. Peck, 3 Humph. (Tenn.) 247.

[2] In Schwallbach v. C., M. & St. P. Ry., 69 Wis. 292, 34 N. W. 128, 2 Am. St. Rep. 740, it was said, quoting from volumn 3, Washburn on Real Property, 160, *494: "The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner." It was further said by the court: "Here the testimony fails to disclose anything more than a mere occupancy or possession by any of such subsequent conveyThat was subordinate to the title of the real owner. We must hold that there is an absence in the record of any evidence of disseisin."

ances.

In Pownal v. Taylor, 37 Va. 172, 34 Am. Dec. 725, it was said in the syllabus: "Adverse possession by a defendant residing on the land will not be presumed, without some tortious act on his part, so as to defeat a conveyance by the owner, not in the actual occupancy of the land.”

[5] Defendants, in their answer, set up an unexpired lease made with Billy Yahola, dated February 18, 1908, for the year 1909. This lease was executed by Yahola six months after he had conveyed the premises to Fewell. As already shown, Fewell's deed was recorded on the day of its execution, and was therefore notice to the world that Yahola had parted with his title to the lands therein described. Counsel for defendants say that plaintiff, not having denied the execution of this lease under oath, as provided by section 5648, Comp. Laws 1909 its execution and the authority of Yahola is thereby admitted. We do not so construe the above section. The statute provides that: "In all actions, allegations of the execution of written instruments and indorsements thereon

** shall be taken as true unless the denial of the same be verified by affidavit of the party, his agent or attorney." It is therefore the execution only that is admitted, and not the right or authority of the party making it. The fact that Yahola, after making the deed to Fewell, leased the premises conveyed to defendants does not admit In Jackson v. Sharp, 9 Johns. (N. Y.) 163, 5 that any right or authority therefor in fact Am. Dec. 267, it was said that: "Every pre-existed, as against his grantee or his assigns, sumption should be made in favor of a pos- and certainly could not be considered as evisession in subordination to the title of the dence of adverse possession. true owner; an adverse possession must be strictly and conclusively proved." Rung v. Shoneberger, 2 Watts (Pa.) 23, 26 Am. Dec.

95.

It is said in Huntington et al. v. Whaley, 29 Conn. 391, that the doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.

[1] By the execution and delivery of a deed of land in general terms, the entire legal interest in the premises vests in the grantee; and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee; and nothing short of an explicit disclaimer of such relation will be sufficient to change the character of his possession, and render it adverse to the grantee.

In Alexander v. Polk, 39 Miss. 737, it was said that the presumption of law is that the In McNeil v. Jordan et al., 28 Kan. 7, it possession of land is in subordination and was said, referring to the general rule that not in defiance of the rights of the true own- one in possession, under an apparent claim of er; and that it was incumbent on the pos-ownership, is notice to the world of whatever sessor, claiming to hold adversely to the owner, to show the adverse character of his possession. In order to do this, he must show, either that the owner had actual knowledge of his claim and possession, or that his occupancy and user were so open, notorious, and inconsistent with, as well as injurious to, the rights of the owner, as from these facts to raise a presumption of such knowledge on the part of the owner.

claim the possessor asserts: "This rule, however, does not, in the nature of things, apply to a vendor remaining in possession. A purchaser from the grantee of the party in possession need not inquire whether such party has reserved any interest in the land conveyed. So far as the purchaser is concerned, the actual occupant's deed is conclusive upon that point. The object of the law in holding possession constructive notice is to protect

"All aboard!" turned and caught with his hands for the purpose of getting on, and, as he did the iron rods of the train about its entrance, so, the train moved up with a sudden jerk, jerking loose one of his hands with considerable force and throwing him around against the train, and that by the sudden jerk, and by striking him against the side of the car, he was hurt across the breast and received other injuries, it was not error for the court to submit to the jury for its determination, under caused by the negligence of the railway comproper instructions, whether the accident was

the possessor from the acts of others who do not derive their title from him, not to protect him against his own acts, not to protect him against his own deed. Therefore, where a grantor executes and delivers a deed of conveyance to go upon record, he says to the world: "Though I am yet in the possession of the premises conveyed, it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance of my grantee.' The great weight of authorities supports this conclusion." Numerous author- [Ed. Note. For other cases, see Carriers, ities are cited in this case in support of this Cent. Dig. $$ 1118, 1126, 1149, 1153, 1160, doctrine, and the same was followed in Sell-1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*]

ers et al. v. Crossan, 52 Kan. 570, 35 Pac. 205. This rule would apply, not only to Yahola, the grantor, but to all subsequent grantees of those claiming through and under him. Schwallbach v. C., M. & St. P. Ry, supra.

It is a familiar rule that, whenever both parties claim under the same person, neither of them can deny his right, and, as between | them, the elder is the better title, and must prevail. Gilliam v. Bird, 30 N. C. 280, 49 Am. Dec. 379, and note, in which the authorities are discussed at length.

Adhering to the rule that all presumptions must be indulged in favor of the rightful owner, and that proof of adverse title must always be established, it was error for the trial court to sustain the demurrer to the evi

dence.

[6] Defendants, by their demurrer, admitted the truth of all the evidence offered on the part of the plaintiff, together with such inferences and conclusions as might be reasonably drawn therefrom. Solts v. Southwestern Cotton Oil Co., 28 Okl. 706, 115 Pac. 776; Moore v. First Nat. Bank, 121 Pac. 626, and cases cited. It follows, therefore, that, if plaintiff was the owner of the premises, he is in law presumed to have the right of possession, at least until a better right is established.

For the reasons stated, the judgment of the trial court should be reversed, and the cause remanded.

pany.

2. TRIAL (§ 260*)-INSTRUCTIONS-REQUESTS -INSTRUCTIONS ALREADY GIVEN.

It is not error to refuse to give an instruction that correctly states the law, if subthe charge of the court to the jury, and the stantially the same instruction is embodied in charge, taken as a whole, correctly states the law applicable to the facts in the case.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 3. WITNESSES (§ 336*) — IMPEACHMENT MISSIBILITY OF EVIDENCE.

AD

On the trial of a civil action at which the plaintiff testifies as a witness in his own behalf, it is competent for defendant to prove that plaintiff, in furtherance of the identical in, had been guilty of base, dishonorable, or cause, and for the purpose of prevailing therecriminal conduct. Such evidence is admissible in behalf of defendant, both to discredit the plaintiff as a witness, and to throw suspicion upon the justice of his cause of action.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1112; Dec. Dig. § 336.*] 4. APPEAL AND Error (§ 205*)-RECEPTION OF EVIDENCE OFFER AFTER OBJECTION SUSTAINED.

Where the purpose of a question objected to and the nature of the expected answer thereto is evident, specific offers of proof are not required to entitle the party to a review of tion, if an exception thereto has been duly saved. a ruling sustaining an objection to the ques

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1281, 1282; Dec.Dig. § 205.*] Error from Pontotoc County Court; H. Joel Terrell, Judge.

Action by W. U. Walker against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

W. F. Evans, R. A. Kleinschmidt, and Fred E. Suits, for plaintiff in error. Duke Stone, for defendant in error.

HAYES, J. Defendant in error, hereinafter called plaintiff, brought this action in the court below against plaintiff in error, hereinafter called defendant, to recover damages for injuries alleged to have been received by him while he was trying to board one of defendant's passenger trains at the town of Eldorado, in this state.

By two of its assignments, defendant complains of the action of the court in overruling a demurrer to plaintiff's evidence and a motion to direct a verdict for defendant. Counsel for defendant have treated these two