Sec. 82. Action by infant after disability removed.

Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability has been removed.27

In an action prosecuted by an infant plaintiff by next friend, during the pendency of which action plaintiff attains his majority, the plaintiff, if he desire, may then continue the action in his own name. The prosecution of an action by next friend is a protective shield thrown around the infant; and an objection in the motion for new trial, and the assignments of error against such change in style, will not be considered on appeal to this court.2

28

The infant is the party to the action, though brought by the next friend.29

Sec. 82a. Restoration of purchase money in suits to disaffirm -Contract by infant for improvements.

Upon the disaffirmance of a conveyance made by a minor Creek freedman, he will be required to restore such of the consideration received as remains in his hands; but such restoration will not be required where it has been wasted, disposed of, or consumed during minority, and his estate has not been benefited thereby.30

Civil Procedure are mandatory, and the mode therein pointed out for service of summons upon a minor defendant under the age of fourteen years, must be strictly pursued, or judgment rendered against him will, as far as his rights are concerned, be void. Melcher v. Schluter, 98 N. W. 1,082.

27 Snyder, 5,549; Wilson, 4,215; Crapster v. Taylor, 74 Kan. 771, 87 Pac. 1,138.

28 Webb V. Harris, 121 Pac. (Okla.) 1,083.

29 Williams v. Richey, 3 Dill, 406. 30 Gill v. Haggerty, 122 Pac. (Okla.) 641; Blakemore v. Johnson, 24 Okla. 544, 103 Pac. 554; Colbert v. Alfrey, 168 Fed. 231, 93 C. C. A. 517; Bragdon v. McShea, 26 Okla. 35, 107 Pac. 916; Stevens v. Elliott, 118 Pac. (Okla.) 407; Eureka v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Railway Co. v. Higgins, 44 Ark. 293; McGreal v. Taylor, 167 U. S. 688, 17 Sup. Ct. 961, 42 L. Ed. 326.

In a suit in equity, by a minor Creek freedman to cancel and annul a deed executed by her during minority, it is unnecessary to formally allege an offer to do equity by returning the consideration received by her during minority.31 A deed so made by such person is void.32

31

Sec. 82b. Conveyance by married minor Creek freedman,

void.

The marriage of a Creek freedman under the age of twenty-one years, does not affect the restrictions imposed by acts of Congress and treaty provisions against the sale of his allotments during minority; and a conveyance by such minor of his allotment is void, notwithstanding his marriage prior to the execution of such conveyance.33

A minor within the meaning of the Federal law, includes males under the age of twenty-one years and females under the age of eighteen years, and the marriage of such minor does not confer upon him or her the authority to sell his or her allotted lands independent of the jurisdiction and supervision of the probate courts of the State.34

35

A contract entered into subsequent to the passage of the Curtis Bill, and prior to the Creek Treaty,36 purporting to bind certain infants for the purchase price of improvements upon lands in the Creek Nation, taken by them as allotments, executed by their natural guardian, who did not submit himself or his actions to a court having jurisdiction, is void as to such infants.37

31 Stevens v. Elliott, 118 Pac. (Okla.) 407.

32 Stevens v. Elliott, 118 Pac. (Okla.) 407. This was in violation of Sec. 16, Act of June 30, 1902. 33 Gill V. Haggerty, 122 Pac. (Okla.) 641; Jefferson v. Winkler, 26 Okla. 653, 110 Pac. 755.

34 Jefferson v. Winkler, 26 Okla. 653, 110 Pac. 755; Gill v. Haggerty, 122 Pac. (Okla.) 641.

35 Act June 28, 1898, Chap. 517, 30 Stat. L. 495.

36 Act March 1, 1901, Chap. 676, 31 Stat. L. 861.

37 Beck v. Johnson, 23 Okla. 812, 101 Pac. 1,109.

CHAPTER V.

THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER EXECUTION AND ORDERS OF SALE-THE JUDGMENT.

In the preparation of the discussion of this subject, the author has not been unmindful of the fact that the arrangement thereof is illogical, but it was deemed best to follow as near as practicable the arrangement of the statute on the subject, upon the theory that the practitioner would be more apt to find the law under the plan of the statute. The subject is discussed here only as it pertains to the procedure in land litigation, and as it pertains to the title of real estate. There are many other topics that might have been included in this chapter, but the limitations of this work forbade further discussion thereof.

Sec. 84. What is a judgment and what is an order?

A judgment is a final determination of the rights of parties in an action, and a direction of a court or judge, made known in writing, and not included in a judgment, is an order.

The statutory definition of a judgment has been held broad enough to comprise all final judgments and all final decrees.2

1 Snyder, 5,916; Wilson, 4,583; Kansas, 4,844 (1901), identical; Nebraska, 1,413 (1907), identical;

Ohio Gen. Code, Sec. 11,582 (1910), identical.

2 Conrad v. Evereich, 50 O. S. 480.

As in logic, a judgment is an affirmation of a relation between a particular predicate and particular subject, so, in law, it is an affirmation upon the law of the legal sequence attending a proved or admitted state of facts.3

The common law definition of a judgment is the decision or sentence of the law pronounced by a court or other competent tribunal upon matter contained in the record.* At common law an oral opinion of a judgment announced by a court in a case before it, was a good judgment and an execution could be issued upon it. Under the general codes of the various States a judgment carries with it no force until recorded. An oral judgment or decision of the court is completely under the control of its judge, or judges, until final decree is entered of record. The minutes entered by a judge in his trial docket are no part of the records in a case, and cannot in any sense be called a judgment."

A decree as defined by Judge Black,' is the determination, sentence or judgment of equity pronounced by a competent court, upon a controversy submitted for its decision. The chief points of difference between a judgment and a decree are these: A judgment in a contested case follows the finding of a verdict; a decree is the decision of a judge in an equity case, passing on all the questions raised; a judgment does not compel anything but the payment of money, and this only by the sale of the debtor's property; a decree may enforce the doing of acts other than the payment of money,

3 Black on Judgments, Sec. 1. A judgment is a final consideration and determination of a court of competent jurisdiction in a matter submitted to it. Ibid. Whitwell v. Emery, 3 Mich. 84. It is the decision or sentence of the law given by a court of justice, or other competent tribunal, as a result of proceedings instituted therein for the redress of an injury. Bouvier's Law Dictionary; see Tidd's Law

Practice, 930; Mahonings Bank's
Appeal, 32 Pa. St. 160.

4 Wiley v. Lewis, 4 N. P. (Ohio), 212; Freeman on Judgments, Sec. 2.

5 Wiley v. Lewis, 4 N. P. (Ohio), 212; but see Coe v. Erb, 59 O. S. 259.

6 Pennock v. Monroe, 5 Kan. 578; Ward v. Urmson, 59 N. W. (Neb.) 97; Brown v. Rener, 59 N. W. (Neb.) 360.

7 Black on Judgments, Sec. 1.