This was an action in ejectment by Birtanna Rice against J. A. Anderson to recover certain land which was her homestead allotment. The petition was an ordinary ejectment petition. The defendant answered and asserted title in himself by virtue of two certain deeds executed to him by plaintiff. The plaintiff replied to the answer and denied all of the allegations thereof and alleged further that, if she did execute the deeds as alleged, she was a minor when they were executed and they were void for that reason.
The plaintiff introduced in evidence, without objection, the "census card" showing the enrollment of the plaintiff. This card showed that she was enrolled in September, 1898, and that she was seven years old at the time of enrollment. The second of the two deeds that she had given defendant was executed October 2, 1908. She gave the other deed July 27, 1908. The plaintiff rested when she introduced the census card, and the defendant demurred to the evidence. The court sustained the demurrer and rendered judgment for the defendant.
The validity of the act making the enrollment records conclusive evidence as to the age of allottees is settled by the cases of Yarbrough v. Spaulding, 31 Okla. 806,123 P. 843, and Bell v. Cook (C. C.) 192 Fed. 597.
The question presented here is as to the effect of the census card. It is contended by the defendant that, though it shows plaintiff was seven years old in September, 1898, it does not show that she was exactly 7 at that time and that she may have been so near eight that her eighth bithday came before the 2d of October, 1898, and therefore she may have been eighteen October 2, 1908. This position is not tenable.
In enacting section 3 of the act of May 27, 1908 (Act May 27, 1908, c. 199, 35 St. at L. 312), which made the rolls of citizenship and of freedmen conclusive evidence as to the quantum of blood of enrolled citizens and freedmen, and which made the enrollment records of the Commission to the Five Civilized Tribes conclusive evidence as to the age of citizens and freedmen, it was the intention of Congress to provide a means by which, for the purpose of that act, those facts were *Page 281 ascertainable without the necessity for oral evidence. It was not the intention to leave the question open as to when the person whose age in dispute reached his majority. If the defendant's contentions are correct, the act still left a period of a year concerning which the dispute could have continued as to whether the birthday came at the beginning, middle, or end. The records must be taken as showing the exact age and not the age at the nearest birthday. The court committed error in sustaining the demurrer to the evidence.
Defendant also contends that plaintiff could not recover because there was no proof that she paid or tendered to defendant the consideration which the defendant had paid her for the land. The suit was in ejectment, and the defendant answered, denying plaintiff's title. No equitable issue was made by the pleadings. The issue made by the pleadings was one of title. But, if the equitable defense of failure to return the consideration had been made, it could not have availed the defendant.
Plaintiff was not eighteen years old when she made the deeds and therefore had a right to disaffirm without restoring the consideration. Comp. Laws 1909, sec. 5037 (Rev. Laws 1910, sec. 4525).
See, also, Tirey v. Darneal, 37 Okla. 606, 133 P. 614;Howard v. Farrar, 28 Okla. 490, 114 P. 695.
The case should be reversed and remanded for further proceedings not inconsistent with this opinion.
By the Court: It is so ordered. *Page 282