After hearing argument upon rehearing and a more thorough examination of the record and briefs filed by able counsel, I am unable to concur in the conclusion reached by my Brothers.
This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, to recover possession of plaintiff's surplus allotment, containing 120 acres of land situated in Creek county. The plaintiff was an adult citizen of the Creek Nation of one-eighth Indian blood. The allegations of her petition, in so far as it is necessary to notice them herein, were, in effect, that on the 3d day of January, 1906, she executed an oil and gas mining lease to the defendants, Senes W. and Charles H. Anthony, embracing said 120 acres of land; that on the 2d day of July, 1907, she executed a deed of warranty to one of said defendants, purporting to convey the same tract of land; that on the 9th day of August, 1907, she made, executed, and delivered to the same defendants another deed of warranty purporting to convey to the said defendants the same tract of land; that said plaintiff is an uneducated woman who can neither read nor write, and that the defendants, Senes W. and Charles H. Anthony, procured plaintiff to sign and deliver to them said deeds of July 2, 1907, and August 9, 1907, respectively, upon the false and fraudulent statements and representations made to her that said deeds *Page 382 were renewals of said oil and gas mining lease of January 3, 1906; that said deed of July 2d was executed before the removal of the restrictions upon her surplus allotment, and was therefore null and void; that said deed of August 9, 1907, was void because no consideration whatever was paid therefor, and that the same was obtained fraudulently, as aforesaid, and for the purpose of an attempted ratification of said deed of July 2, 1907. The answer of the Anthonys consisted: (1) Of a general denial of each and every allegation of the petition not specifically admitted; (2) an admission, to the effect that the plaintiff executed and delivered to them the deed of August 9, 1907, and a special denial that the execution of said deed was induced by any fraud or false representations, alleging that the full consideration stated therein was paid for the land described therein, and that the plaintiff understood the full meaning, purport, and effect of said conveyance; and they specially denied that said deed of August 9, 1907, was taken in ratification of any former deed, alleging that said deed was taken as a separate and distinct conveyance for an adequate consideration, which has been fully paid.
The answer of the defendant Prairie Oil Gas Company, which deraigned its title through the Anthonys, was, in effect, the same as the answer of the Anthonys, with the exception that it undertook to plead facts which, it contends, entitle it to the status of an innocent purchaser. Thereafter the plaintiff filed her reply to the answers of the defendants, in which she denied every statement and allegation contained in said answers, except such as admitted statements in plaintiff's petition. After various preliminary motions had been overruled, the cause was tried to a jury. The plaintiff in her own behalf testified, in substance, that by reason of certain false representations *Page 383 and statements made to her by her husband, she was led to believe that the instrument presented to her for signature at the time she executed the two deeds to her surplus allotment were renewals of the oil and gas lease formerly given to the Anthonys, as alleged in her petition. Other witnesses were offered for the purpose of corroborating this theory. Whereupon the plaintiff rested her case. Thereupon the Prairie Oil Gas Company, Senes W. Anthony, and Charles H. Anthony, separately demurred to the evidence offered by the plaintiff, for the reason that the evidence, if taken as true, and every legal presumption resolved in its favor, failed to constitute a cause of action against said defendants. Thereupon the following statement was made by the court:
"If the only question in this case at this time is the question of fraud, the court would, under the testimony in this case, sustain the motion, but an additional question enters into this case of the attempted ratification of a void deed. The facts as they appear at this time are that a deed was taken which was absolutely void, on that date, $2,000 was paid, and a new deed is taken a few days later, which under the law a deed could be taken, and the consideration is the same as in the first deed, and recites a consideration of $3,600. * * * If this first deed was void and the second was a ratification, then there could be no innocent purchasers, no matter how far removed, under the law in this state. The demurrer is overruled; exceptions allowed. I will instruct the jury there is not sufficient testimony to constitute fraud."
Thereupon Senes W. Anthony in his own behalf testified, in substance, that on the 9th day of August, 1907, he purchased the 120 acres of land involved herein from said plaintiff, for which the deed of that date was executed; that the consideration for said sale was $3,600, which was fully paid on that date. That the consideration *Page 384 consisted of a promissory note for $1,600 and $1,700 in cash, and $300, which was withheld, to pay for an agricultural lease held by Hackney Kennedy, which did not expire until two years from the date of the sale. In rebuttal the plaintiff testified as follows:
"Q. Mrs. Carter, you heard the testimony of Mr. Anthony just now, did you? A. Yes, sir. Q. I will ask you if, on August 9, 1907, when this second deed was signed by you, if there was anything said to you or between you and Mr. Anthony, or any agreement entered into on that day whatever between you and Mr. Anthony with respect to him retaining $300 of the purchase money that he was to pay you for that land, to pay on any lease? A. No, sir."
Thereupon the court instructed the jury as follows:
"(1) Gentlemen of the jury, you are instructed that the plaintiff has wholly failed to introduce sufficient testimony to prove fraud as alleged in her petition.
"(2) You are instructed that if you believe from a preponderance of the evidence in this case that the defendants Senes W. Anthony and Charles H. Anthony took a conveyance in the form of a deed from Annie Carter, the plaintiff, on the 2d day of July, 1907, purporting to convey the lands in controversy to the said Anthonys, and that thereafter, on August 9, 1907, they took another deed or conveyance from the said Annie Carter, for the same land, and that the said last deed was taken for the purpose of ratifying the said deed previously taken on July 2, 1907, as aforesaid, then in that case you are instructed that, owing to the restrictions on the plaintiff's land on July 2, 1907, her conveyance of that date was absolutely null and void, and not susceptible of ratification, and the said conveyance taken by the defendants from said Annie Carter on August 9, 1907, if taken for the purpose of ratification of said former deed, would be absolutely null and void, and as to whether the said deed of August 9, 1907, *Page 385 was taken by the defendants Anthony for the purpose of ratifying the said former deed of July 2, 1907, you will look to the conduct of the plaintiff and the said Anthonys; that is to say, what was done and said by them at the time of the taking of the said first deed of July 2, 1907, and as to what they did and said at the taking of the second deed on August 9, 1907; and you will consider for this purpose all of the evidence surrounding the transactions, and look to the deeds themselves, which are in evidence; and if you believe from all of the evidence that the said second deed was taken for the purpose of ratifying the said first deed, then your verdict should be in favor of the plaintiff and against the defendants Anthony, and also against the defendant Prairie Oil Gas Company, for the reason that the defendant Prairie Oil Gas Company stands in the shoes of the said Anthonys as to its title in this land, and is bound and concluded by your finding that said last deed of August 9, 1907, was made for the purpose of the ratification of said first deed of July 2, 1907.
"(3) You are further instructed that the deed executed July 2, 1907, is void and conveyed no title, and that it is claimed by the plaintiff that the deed of August 9, 1907, is an attempted ratification of said deed. Upon this point, you are instructed that the burden of proof is upon the plaintiff to establish by a fair preponderance of the testimony that the deed of August 9, 1907, is a ratification of the deed of July 2, 1907; and, if you so find by such fair preponderance of the testimony, then your verdict should be for the plaintiff in this case.
" (4) You are further instructed that if all of the consideration for the deed of August 9, 1907, as expressed therein, was paid for the execution thereof, and that none of the consideration was a part of that which was paid as consideration of the deed of July 2, 1907, then the same would not be a ratification, but would be a new and independent transaction, and the burden is upon the plaintiff to prove by a fair preponderance of the testimony that *Page 386 some of the consideration of the deed of July 2, 1907, formed a portion of the consideration, for the conveyance of August 9, 1907, and if the plaintiff has failed to establish this by a fair preponderance of the evidence, then your verdict should be for the defendant."
Thereupon the jury retired, and thereafter returned the following verdict:
"We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find for the defendants."
Thereupon the court entered judgment against the plaintiff and in favor of the defendants, quieting their title to the land in controversy, etc., to reverse which this proceeding in error was commenced.
The general assignments of error necessary to notice herein may be stated briefly as follows: (1) The court erred in holding that there was not sufficient evidence adduced at the trial to take the case to the jury on the question of actual fraud in the procurement of both deeds; (2) the court erred in submitting to the jury the question whether the deed of August 9, 1907, was given in ratification of the former deed, dated July 2, 1907.
In my opinion, the judgment of the court below should be affirmed. All the evidence offered by the plaintiff was in support of her charge of actual fraud, which, she alleged, consisted in certain false statements made to her by her husband, which induced her to believe that she was signing renewals of an oil and gas lease, when in truth and in fact she was executing deeds of conveyance. I agree with my Brothers that this evidence was so vague, uncertain, unsatisfactory, and altogether lacking in that weight and cogency necessary to set aside a deed on the ground of fraud as to warrant the court in instructing the jury that the plaintiff had wholly failed to introduce sufficient *Page 387 testimony to prove fraud, as alleged in her petition. Moore v.Adams et al., 26 Okla. 48, 108 P. 392.
On the next proposition able counsel of record for the respective parties have filed voluminous briefs, which are supplemented by many briefs prepared by counsel amici curiae. These briefs are all filed upon the assumption that the case as made by the evidence requires a construction of section 16 of the act of Congress of June 30, 1902, and section 19 of the act of Congress of April 26, 1906. The trial court also seems to have taken this view of it, and it is upon this theory that the opinion of the majority of this court is based. After a very careful examination of the record upon petition for rehearing, I am unable to see the case in that light. It is true that the plaintiff set out allegations in her petition to the effect that both deeds were violative of the federal acts, but she offered no evidence tending to support these allegations, and nothing was developed at the trial which tended to cure this omission. Every particle of evidence introduced or offered by the plaintiff was directed toward establishing the charge of actual fraud, which, according to her statement, consisted in being induced by false representations to sign the deeds, when in truth and in fact she intended to sign a renewal of an oil and gas lease, whilst every particle of evidence introduced or offered by the defendants was for the purpose of rebutting this theory. The deed of July 2, 1907, which is admittedly void as violative of the statute, contains no contract or agreement for the execution of any subsequent deed, and there was no evidence offered or introduced which tended to show that the deed of August 9, 1907, which admittedly was executed after the removal of restrictions, was made pursuant to any contract or agrement entered into before the removal of restrictions, or that it was executed for the *Page 388 purpose of ratifying any previous deed made before the removal of restrictions. On the contrary, the evidence of the plaintiff is inconsistent with the theory that the last deed was an attempted ratification of any former deed, or that she intended to execute any instrument, either lease or deed, pursuant to any contract or agreement entered into either before the removal of the restrictions or at any other time.
Ordinarily ratification, like a contract, includes within it an intention to approve, by act, word, or conduct, that which was attempted, but which was improperly or unauthorizedly performed in the first instance. Gallup v. Fox, 64 Conn. 491, 30 A. 756; Hartman v. Hornsby, 142 Mo. 368, 44 S.W. 242.
In the face of the testimony of the plaintiff herself that, at the times she signed both deeds, she thought she was signing a renewal of an oil and gas lease, I cannot conceive how it could be held that the last deed, which was executed after the removal of restrictions, was in any sense intended by her to be a ratification of the former deed, executed before the removal of restrictions. And this testimony is also repugnant to the theory that the last deed was executed pursuant to any contract or agreement entered into between the parties before the removal of restrictions. In such circumstances, it is quite clear to me that at the close of the plaintiff's evidence, there being no sufficient proof of actual fraud, and no proof offered for the purpose of showing that the last deed was violative of any statute, the trial court should have directed a verdict for the defendants.
The only additional material evidence offered was the testimony of the defendant Senes W. Anthony, which we have hereinbefore set out in substance. This evidence of *Page 389 the defendant did not, in any way, tend to show that the last deed was intended as a ratification of any former act or deed, or that it was made pursuant to any contract or agreement entered into prior to the removal of restrictions. On the contrary, it tended directly to disprove any such intention. I, therefore, conclude that there was no evidence introduced at the trial by either party which directly tended to prove that the last deed, which was given after the removal of restrictions, and based upon an adequate consideration, was an attempted ratification of the prior void deed, or that it was given pursuant to any contract or agreement between the parties entered into before the removal of restrictions. Moreover, it may be assumed that, notwithstanding the evidence was not sufficient to take the case to the jury on the question of actual fraud, or, taken literally, did not tend to establish that the last deed constituted a ratification of the void deed, or that it was given pursuant to a contract or agreement made prior to the removal of restrictions, there were some facts and circumstances developed at the trial from which an inference might reasonably be drawn by the jury that the parties entertained an ulterior motive that the last deed should constitute a ratification of the first, or that the first deed should constitute a contract or agreement for the execution of the second, and still the judgment of the court below should not be reversed. In such circumstances, the intention of the parties would be a question of fact for the jury, to be gathered, as the trial court instructed the jury in instruction No. 2 —
"from the conduct of the plaintiff and the said Anthonys; that is to say, what was done and said by them at the time of the taking of the said first deed on July 2, 1907, and as to what they did and said at the time of the taking of the second deed on August 9, 1907; and you will consider for this purpose all of the evidence surrounding the transaction, *Page 390 and look to the deeds themselves, which are in evidence."
As the jury found in favor of the good faith of the defendants on evidence which seems to me sufficient, their verdict should not be disturbed.
From the instructions given, it is apparent that the trial court was of the opinion that there was evidence adduced at the trial from which a hidden purpose by the parties to violate the statute might be reasonably inferred, although such an inference would be inconsistent with the expressed purpose of the parties themselves, as disclosed by their evidence. This was the most favorable view for the plaintiff that could possibly have been taken of the case. In my judgment, however, what was said in the case of Rankin v. Blaine County Bank,20 Okla. 68, 93 P. 536, 18 L. R. A. (N. S.) 512, wherein a somewhat similar situation arose, is applicable here:
"In the case at bar there really was no issue of fact joined by the evidence to be submitted to the jury. The court probably should have taken the case from the jury; but the mere fact that it presented a certain question to the jury, and the jury made a finding that was entirely consistent with the undisputed evidence, does not, to our mind, constitute prejudicial error, if error at all."
I am also convinced that the conclusion reached by my Brothers is inconsistent in principle with the former opinions of this court, sustaining deeds executed by Indians under somewhat similar circumstances. Henly v. Davis, 57 Okla. 45,156 P. 337; McKeever v. Carter, 53 Okla. 360, 157 P. 56;Welch v. Ellis et al., 163 P. 171, and Co-wok-o-chee v.Chapman, 171 P. 50, both not yet officially reported. The latter case seems to me to be clearly in point, and what was said in Welch v. Ellis et al., supra, in relation to the practical construction placed upon these *Page 391 restrictive statutes by the Secretary of the Interior and the Department of Justice, is peculiarly applicable to the facts and circumstances of the case at bar.
I am also of the opinion that the court is in error in holding that this is an action of purely equitable cognizance, and that the trial court erred in entering judgment upon the verdict as in a common-law action. The plaintiff alleged that she was the owner of the legal and equitable title to the land, and that the two deeds she executed were absolutely void and of no force or effect, wherefore she prayed that the defendants be ejected from the land, and that her title thereto be quieted. It is conceded that she had not been in possession of the land for several years prior to the time she filed her action, the defendants Anthony having been placed in possession by the plaintiff at the time she executed the deeds, and that they, or parties holding under them, have been in quiet possession ever since. Merely because the plaintiff may have denominated her action one to quiet title will not change the nature or character of her remedy. Harlan v. Bankers M. T. Co. (C. C.) 32 Fed. 305.
In such circumstances, the rule is well settled that, where the defendant is in possession of the land, there is nothing to hinder plantiff from maintaining an action in ejectment, and, having an adequate remedy at law, he cannot maintain an action in equity to remove cloud from title. United States v. Wilson,118 U.S. 86, 6 Sup. Ct. 991, 30 L.Ed. 110; Frost v. Spitley,121 U.S. 552, 7 Sup. Ct. 1129, 30 L.Ed. 101; Crane v. Randolph,30 Ark. 579; Blackwood v. Van Vleet, 11 Mich. 252. It has frequently been held that a grant or patent may be impeached in an action of ejectment when the issuance of such instrument is unauthorized or prohibited by statute. 9 R. C. L. 913; *Page 392 Frazier v. Jenkins, 64 Kan. 615, 68 P. 28, 57 L. R. A. 575;Kirkpatrick v. Clark, 132 Ill. 432, 24 N.E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531. But, as in my judgment there was ample evidence to support the verdict, whether the action be treated as one at law, as in the court below, or in equity, as by this court, I do not deem it necessary to discuss this question at any great length.
I am authorized to state that Mr. Justice THACKER concurs in this dissenting opinion.