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1902 OK 64
69 P. 1077
12 Okla. 137
Decided: 07/18/1902
Supreme Court of Oklahoma


Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.


¶0 FORCIBLE ENTRY AND DETAINER--Proper Remedy to Dispossess Unsuccessful Homestead Claimant. Where adverse claimants are residing upon land and each claiming the same as a homestead by virtue of prior settlement, and the land tribunal makes a final adjudication in such cause, the successful party, who has a homestead entry thereon, may maintain an action of forcible and unlawful detainer against the unsuccessful party, to obtain possession thereof, and which he refuses to surrender upon being given statutory notice to quit.

Hackney & Lafferty, for plaintiff in error.
No briefs filed for defendant in error.

The plaintiff and defendant were contestants for the southwest quarter of section twenty-three, township twenty-eight north of range three east, I. M. The contest was prosecuted through all the departments of the land department, and the land finally awarded to Noell, and he was permitted to file homestead entry therefor, and subsequently commenced this action of unlawful and forcible detainer before a justice of the peace of Kay county; judgment for Noell in the justice court; Steele appealed to the district court; trial in the district court, and upon the conclusion of the plaintiff's evidence, the defendant demurred, which demurrer was by the court overruled, and the defendant introduced no evidence; finding and judgment for plaintiff; motion for a new trial was overruled and the plaintiff in error brings the case here by petition in error for review. Affirmed.


¶1 The facts in this case are substantially the same as the facts in the case of William Burns v. Charles P. Noell, this volume; and upon the authorities in that case, and the cases therein cited, the judgment of the trial court is affirmed, with costs to plaintiff in error.

¶2 Hainer, J., who presided in the court below, not sitting; Irwin, J., absent; all the other Justices concurring.