PAYNE v. FOSTER

PAYNE v. FOSTER
1893 OK 17
33 P. 424
Decided: 07/01/1893
Supreme Court of Oklahoma

PAYNE
v.
FOSTER

Appeal from district court, Logan county; E. B. Green, Judge.

Bill by Ransom Payne against John Foster, W. S. Robertson, A. C. Schnell, and Xenophon Fitzgerald. Defendants had decree dismissing the bill on demurrer, and plaintiff appeals. Affirmed.

Amos Green and H. S. Cunningham, for appellant.
Horace Speed, U. S. Atty., for appellees.

PER CURIAM.

This was a bill in chancery, in the district court of Logan county, brought by appellant against the appellees, for the purpose of obtaining title to the N. W. 1/4 of section 9, township 16, range 2 W., being a part of the town site of what was formerly East Guthrie, and now included in the town site of the city of Guthrie, in the county of Logan, and territory of Oklahoma. A demurrer was interposed in the court below, raising the question of the qualification of appellant as a homestead entryman, under the act of congress of March 2, 1889, and was sustained, to appellant's bill of complaint; and a decree was rendered on the demurrer, dismissing the bill, at appellant's costs, and wholly denying the relief prayed for; and the record is brought into this court by appeals, and the action of the court below on the demurrer is assigned for error.

This case is, in all particulars except one, like the case of Smith v. Townsend, 1 Okla. 117, 29 P. 80. Appellant was a deputy United States marshal, and in the line of duty, at 12 o'clock, noon, of April 22, 1889, and claims that he is not disqualified by reason of being within the limits of the lands, which were opened to settlement, by the proclamation of the president, at that hour. But in the same case of Smith v. Townsend, 13 Sup. Ct. Rep. 634, (recently heard and affirmed in the supreme court of the United States,) in the construction of the acts of congress of March 1 and 2, 1889,1 that court has brought appellant within the disqualifying provisions of those acts, and it must be so held by this court upon the authority of that case; and the decree of the district court will be affirmed, with costs.

FOOTNOTES