We have purposely set out the complaint and answer, lengthy as they are, in full, in the foregoing statement, and have purposely omitted what purported to be a reply in the case, inasmuch as, in our view of the law, it makes no difference in this case as to whether the paper called a “reply” was in the files or not.
The action of ejectment is an, action at law, and, such being the case, under the statute (Mansf. Dig. § 5043; Ind. Ter. St. 1899, § 3248), “there shall be no reply, except upon the allegation of a counterclaim or set-off in the answer.” And the answer in this case not containing a set-off or counterclaim, the reply is to be treated as a nullity.
The action of the court in sustaining the demurrer to this reply, and requiring the plaintiff thereon to plead further, was *562error; and, in like manner, it was error to enter up judgment against plaintiff on the pleadings, provided plaintiff's complaint stated a cause of action. An examination of the complaint in this action shows conclusively that plaintiff set out a cause of action, and the denials of the truth of the statements therein formed issues in the action which should have been submitted to -a jury. Whether the new matter pleaded in the answer of the action on the part of town site commissioners constituted a defense was a matter of law to be determined by the court upon the demurrer of plaintiff thereto; but, after the court decided that the action of such commissioners was a proper matter of defense, this did not relieve the defendant from being required to sustain the same by proof, as he would be required to do in any particular special defense; and for the court to enter up judgment upon the pleadings without settling the issues of fact was error, for which this case should be reversed, and the case remanded for trial of the issues raised therein.
The effect of the pleadings in this action show that, after this suit was begun in the United States Court at Wagoner, proceedings were had before the -town site commissioners for the determination of the exact question in dispute; that such board of town site commissioners, without awaiting the result of the action of the United States Court, proceeded to investigate the dispute between the parties, and, upon such investigation, determined the matter in favor of the defendants herein, and awarded the right to purchase to them; and that defendants then came into the suit in court, claiming the award of the board as a defense. To this claim plaintiffs interposed their demurrer, and the court overruled such demurrer, and we are asked now to say whether the action of the court in overruling this demurrer was correct or erroneous. Congress has by law determined that town property in the Creek Nation shall be appraised by a board of town site commissioners appointed in a special way, and the town *563site board in this case, properly constituted, had the right to determine, in a proper way, and upon compliance with the law, to which of these claimants the right of purchase of these lots should be awarded; but Congress at no time has ever attenrpted to deprive the courts of jurisdiction to determine the ultimate rights of parties claimant of those town lots, and the courts at all times are invested with authority, in proper proceedings, to determine the rights of parties without reference to what the board of town site commissioners may have at any time determined. In this case the court properly overruled the demurrer interposed by plaintiff to defendants' answer, but the fact of what was the action of the board of town site commissioners, or whether such board had acted at all, or whether the action of such board was in accordance with the law, and entitled the defendant to recover in this action, were matters which the court below should have investigated, as well as the fact of whether or not plaintiff was entitled, by reason of his.antecedent settlement, and possession of the premises, to recover the same from the defendant. The case is therefore, accordingly reversed and remanded, with directions to the lower court to proceed with the same in proper manner and in accordance with this opinion.
Reversed and remanded.
Raymond, C. J., and Townsend, J., concur.