Winebrenner v. Forney

The appellee holds the government patent to the southwest quarter of section 19, township 26 north, range 1 east, of the Indian meridian in Kay county, Oklahoma territory. The appellant claimed an equitable right to the land, and brought this suit to have the defendant declared a trustee of the title for his benefit. A demurrer to a second amended petition was sustained by the trial court, and a decree entered dismissing the suit. This decree was affirmed by the supreme court of the territory (69 Pac. 879), and from that decision this appeal was taken. The tract is within that portion of the Cherokee Outlet opened to settlement by the President's proclamation of August 19, 1893, and the only question, as agreed by counsel on both sides, is whether appellee was disqualified by reason of being within prohibited limits on September 16, 1893, the day on which by the President's proclamation the land was opened for settlement.

Messrs. S. H. Harris and J. J. Darlington for appellant.

Messrs. A. G. C. Bierer and Frank Dale for appellee.

Mr. Justice Brewer delivered the opinion of the court: