Zachariah Foreman, a Creek freedman, commenced this action to recover possession of certain land which had been allotted to him and which he alleged had been wrongfully withheld by defendants, and for damages. Defendants answered, setting out title in themselves through a certain deed executed by plaintiff to defendant L.W. Mark, dated March 30, 1905.
The only issue submitted to the jury was whether plaintiff was 21 years of age when the deed to Marks was executed. To the interrogatory submitting this question the jury answered, "No." Over objection the court admitted in evidence the enrollment records of the Commission to the Five Civilized Tribes, consisting of the testimony of Robert Laflace, uncle of plaintiff, taken at the time of his enrollment, also the findings of the Commission and the census card, from which it appeared that plaintiff was a minor upon the date that the deed to Marks was executed. The admission of this evidence is assigned as error, and this is the sole reason urged for the reversal of this cause. The deed in question was executed before the passage of the act of Congress of May 27, 1908, and the evidence was not competent to prove the age of plaintiff under the circumstances of this case. Perkins v. Baker,41 Okla. 288, 137 P. 661; Grayson et al. v. Durant,43 Okla. 799, 144 P. 592; Smith v. Bell, 44 Okla. 370, 144 P. 1058; Harris v. Hart, 49 Okla. 143, 151 P. 1038. Because the jury returned a special verdict, it is urged that the finding made by them was merely advisory to the court, who made findings of fact and specifically found that plaintiff was a minor on March 30, 1905, which finding is supported by the evidence, and that under the well-settled rules of this court the finding by the court should not be disturbed. Plaintiff testified as to his own age, stating that he was under 21 years of age on the date of the deed, and in this he was corroborated by the testimony of the midwife who attended at his birth, but the testimony of the midwife was considerably shaken upon cross-examination. Defendants offered testimony as to the size and general appearance of plaintiff at the time, and also proved statements made by plaintiff and his father at various times, from which it would appear that he was an adult on the date that said deed was executed. Thus there was a substantial conflict in the evidence, and it is highly probable that the jury was influenced in arriving at their verdict by a consideration of the evidence complained of. Under these circumstances the error is not harmless. Meek v. Daugherty, 21 Okla. 859, 79 P. 557; Brison et al. v. McKellop, 41 Okla. 374, 138 P. 154; Harris v. Hart, 49 Okla. 143, 151 P. 1038; Guthrie v. Mitchell,38 Okla. 55, 132 P. 138.
The court, having held the evidence competent and permitted the same to be considered by the jury, undoubtedly considered it when making his findings. We say this because the court instructed the jury that, *Page 14 while these records were not conclusive upon the point at issue, they could be considered by them in connection With the other evidence. Having held the evidence competent, and refused to strike it out, the court undoubtedly considered it when making his findings. This being true, its admission was prejudicial. Kennedy v. Pawnee Trust Co., 34 Okla. 140,126 P. 548; Ins. Co. of North America v. Cochran, 59 Okla. 200,159 P. 247.
The deed was executed after the lands were selected in allotment in pursuance of an agreement so to do made before the selection. This agreement was void, and could not have been enforced against plaintiff. Lynch et al. v. Franklin,37 Okla. 60, 130 P. 599; McKeever v. Carter, 53 Okla. 360,157 P. 56; Franklin v. Lynch, 233 U.S. 269, 34 Sup. Ct. 505, 58 L. Ed. 954.
After the lands were selected, if plaintiff were an adult, there was no statute which would prohibit a sale thereof by him, as all restrictions against the alienation thereof were removed by Act of Cong. April 21, 1904, c. 1402, 33 Stat. 189. Neither would the provisions of Act Cong. April 26, 1906, c. 1876, § 19, 34 Stat. 144, render the deed void because that act was not retroactive and did not apply to conveyances executed before its passage and approval. Casey v. Bingham,37 Okla. 484, 132 P. 663.
The one vital point at issue being whether plaintiff was a minor when he executed the deed to Marks, and the testimony complained of being directed to that issue, and its consideration having undoubtedly influeced both the jury and the court, the judgment is reversed, and the cause remanded for a new trial.
All the Justices concur except KANE, THACKER, and MILEY, JJ., who dissent.