The motion for new trial was denied the same day the stipulation was filed. The record discloses that judgment was rendered on the 19th day of October, 1923, and the motion was filed October 23, 1923. The grounds for a new trial set forth in the motion are identical with the assignment of errors. A new trial was not asked for newly discovered evidence. No showing of any kind or character was made that plaintiff in error was unavoidably prevented from filing the motion for a new trial within three days after the judgment was rendered.

(Okl.

2. Novation 11-Evidence held not admissible to establish novation, in absence of plea.

evidence tending to establish novation over obIt is error to permit the introduction of jection, in the absence of such pleading.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Rogers County; C. W. Mason, Judge.

Suit by the McPike Drug Company against
Edward M. Williams and another.
ment for defendants, and plaintiff appeals.
Judg-
Reversed and remanded, with directions.
tiff in error.
Robson & Bayless, of Claremore, for plain-

of Claremore, for defendants in error.
F. E. Riddle, of Tulsa, and Joe Chambers,

sale of the property (which consisted of a
drug store stock), upon the condition that
all of the creditors would accept 50 per cent.
of the amount of their accounts from the
purchaser as payment in full.
plea of novation does not appear in the an-
The specific
swer The affirmative defense pleaded as
new matter was payment.

LYONS, C. Plaintiff sued defendants to recover a balance due on account. Defendants admitted the correctness of the account, This court, in a long line of decisions, has but pleaded payment. At the trial the de uniformly held that in the absence of a fendants offered evidence tending to estabshowing that the moving party had been un-lish the following state of facts, to wit: A avoidably prevented, the trial court, except for newly discovered evidence, cannot consider a motion for new trial filed more than three days after the verdict is entered. Board of Commissioners of Pottawatomie County v. Grace, 23 Okl. 35, 99 P. 653; Eggleston v. Williams, 30 Okl. 129, 120 P. 944; Joiner v. Goldsmith, 25 Okl. 840, 107 P. 733; Allen v. Gates, 38 Okl. 408, 134 P. 51; Western Coal & Mining Co. v. Tulloss, 43 Okl. 298, 142 P. 1035; Ewert v. Wills et al., 72 Okl. 23, 178 P. 87; Watkins Medical Co. v. Lizar et al., 78 Okl. 302, 190 P. 552; Southern Surety Co. v Hatch, 89 Okl. 76, 213 P. 728. In Roberts v. Seals, 43 Okl. 467, 143 P. 199, it was expressly held that "an agreement of counsel cannot work to effect an extension beyond the time specified in the statute." This court is therefore without jurisdiction to review the errors of law occurring at the trial. No other questions are presented for consideration by the assignment of er

rors.

The appeal should be dismissed.

[1] The rule is that a novation is in the nature of a release or discharge, and is new matter, which must be specially pleaded. Temple et al. v. Teller Lumber Co., 46 Colo. 497, 106 P. 8; Martin v. Leeper, 48 Okl. 219, 149 P. 1140, the syllabus of which is as follows:

"The requisites of a novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishment of the old obligation, and the validity of the new

one."

Okl. 67, 148 P. 161.
See, also, Gaar, Scott & Co. v. Rogers, 46

The case of Continental Gin Co. v. Arnold, 52 Okl. 569, 153 P. 160, lays down the rule as follows:

"The term 'payment,' in its legal import, means the satisfaction of a debt by money or the representative of money, and not by nova

MCPIKE DRUG CO. v. WILLIAMS et al. tion, compromise, or accord and satisfaction.

(No. 11772.)

"An 'accord and satisfaction' is an executed agreement whereby one of the parties under

(Supreme Court of Oklahoma. Nov. 25, 1924.) takes to give, and the other to accept, in sat

(Syllabus by the Court.)

1. Novation 1, 11-Novation is new matter; novation must be specially pleaded.

A novation is in the nature of a release or discharge, and is new matter, which must be specially pleaded.

isfaction of a claim arising either from contract or tort, something other or different from what he is, or considers himself, entitled to.

"Accord and satisfaction, and other transpromise agreement, executory accord, and actions closely allied thereto, such as a comnovation, in order to be available as a defense, must be specifically pleaded."

(230 P.)

4. Statutory provisions.

[2] The learned trial court took the view | cise time of the change has not been clearly that the evidence offered was admissible unascertained. der the plea of payment, and, while the matter is not entirely free from doubt, we have concluded that in this case the evidence was not admissible under such plea, and that it was requisite for the pleader to have specifically alleged a novation, in order to make such evidence admissible. In the instant case the defense of novation was not pleaded in the answer, and, since timely objection was made to the introduction of evidence tending to establish such defense, the trial court committed error in permitting such evidence to be admitted.

The judgment of the trial court is therefore reversed, and the cause remanded, with directions to grant a new trial.

SANDLIN V. TIGER. (No. 10143.) (Supreme Court of Oklahoma. Nov. 12, 1924.) (Syllabus by the Court.)

1. Marriage 40(4), 50(1)—Marriage provable by circumstantial evidence; presumed that man and woman openly cohabitating and holding each other out as husband and wife

have previously entered into actual marriage. Marriage may be proven by circumstantial evidence, and since the presumption is in favor of marriage and against concubinage, the fact that a man and woman have openly cohabited together as husband and wife for a considerable length of time, holding each other out and recognizing and treating each other as such by declarations, admissions, or conduct, and are accordingly generally reputed to be such among their relatives and acquaintances, and those who come in contact with them, may give rise to a presumption that they have previously entered into an actual marriage although there may be no direct testimony to that effect.

2. Marriage 15-Common-law marriages valid after Arkansas laws extended to Indian Territory.

After the laws of Arkansas were extended in force in the Indian Territory so as to apply to all persons therein, marriages among members of Indian Tribes, in accordance with the common law, are valid.

3. Marriage 40(4), 51-Illicit intercourse during courtship does not as matter of law incapacitate parties from subsequently assuming common-law marriage relations; cohabitation after illicit relations presumed to be matrimonial.

Illicit intercourse during courtship does not, as a matter of law, incapacitate the parties from afterwards assuming marriage relations, and where it is shown that the parties afterwards cohabited together in good faith and held themselves out as husband and wife, the presumption obtains in harmony with the general policy of the law to promote and encourage good morals that the parties had reformed, and the change from illicit to matrimonial relations may occur, although the occasion or pre

Section 6005, Revised Laws 1910, provides: "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 5. Indians 18-Noncitizen heirs may inherit from estate of deceased Creek allottee dying since admission of state.

The devolution of an estate of a deceased Creek allottee, having died since the admission of Oklahoma into the union is governed by the laws of descent and distribution of the state of Oklahoma and noncitizen heirs may inherit.

Commissioners' Opinion, Division No. 5. Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

Action by Barney Tiger, a minor, by his legal guardian Robert McRay against WilFrom a judgliam A. Sandlin and others. ment for plaintiff the named defendant appeals. Affirmed in part.

Ralph Welch, Kirk B. Turner, and Martin E. Turner, all of Eufaula, and William A. Collier, of Oklahoma City, for plaintiff in

error.

Clark Nichols and H. B. Reubelt, both of Eufaula, for defendant in error.

FOSTER, C. This action was commenced in the district court of McIntosh county of Oklahoma on the 17th day of March, 1917, by defendant in error, Barney Tiger, by his legal guardian, Robert McRay, plaintiff below, against the plaintiff in error, William A. Sandlin, defendant below, to quiet title to certain lands described in the petition for the possession thereof, and for damages for the wrongful detention thereof. The parties will be hereinafter referred to as they appeared in the court below.

In his second amended petition the plaintiff alleged that the land in controversy constituted the homestead allotment of one Amos Tiger, a full-blood Creek Indian, duly enrolled as such, opposite roll No. 7945, of the approved rolls of the five civilized tribes of Indians who had died intestate on the 31st of December, 1909, and claimed the title and right of possession to said lands as the sole surviving issue of a valid common-law marriage, contracted by the deceased allottee, Amos Tiger, and Lena Tiger, née Pigeon, by which he inherited said land in fee simple.

The defendant claimed title through a deed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

courtship is relied upon to establish that the relation of the parties was immoral in its inception, and could not ripen into a valid marriage.

executed on the 28th day of March, 1910, by, had illicit intercourse with Amos during their Salina Powell, a surviving sister of the deceased allottee, Amos Tiger, and Charles W. Powell, her husband, joined in by the said Lena Tiger, née Pigeon, to B. O. Sims, who were alleged to be the only heirs at law of the said Amos Tiger.

By subsequent conveyances the defendant claimed title to all of said land, and filed an answer in which he asked that the title be quieted in him. A jury was waived, and on the 26th day of February, 1918, the cause was tried to the court, which rendered a general judgment and finding in favor of the plaintiff upon all issues involved, and quieted the title of the plaintiff in said land against the claim of the defendant.

From the judgment so rendered, the defendant appeals to this court assigning several errors. It is contended that the finding of the trial court to the effect that Amos Tiger, in his lifetime, was lawfully married to Lena Tiger, née Pigeon, and that plaintiff was the lawful issue of said marriage, born during lawful wedlock, is not supported by the evidence, and that the trial court erred in refusing to set the judgment aside and grant the defendant a new trial. With this contention we cannot agree.

[3] Upon a review of the authorities, and especially after reviewing the case of White v. White, 82 Cal. 427, 23 P. 276, 7 L. R. A. 799, cited and relied upon by the defendant, we do not think that illicit intercourse during courtship incapacitates the parties from afterwards assuming marriage relations, and where it is shown that the parties afterwards cohabited together in good faith and held themselves out as husband and wife, the presumption would obtain, we think, in harmony with the general policy of the law to promote and encourage good morals, that the parties had reformed, and that the change of relation assumed by the parties in attempting to live together in good faith as husband and wife sufficient to rebut the presumption of adulterous intent evidenced by illicit intercourse during courtship. As was said by the Supreme Court of California, in the case of White v. White, supra:

ningham v. Cunningham, and Lapsley v. Grier-
ticular examination of the above cases, it is
son, which seem to go further. But on a par-
manifest that the *
court that decided
these cases did not intend to hold that in the
case where the intercourse in its inception was
illicit, that that circumstance prevented the
establishment of the marriage status by the
subsequent conduct of the parties showing a
pute that they had interchanged the requisite
general, undivided, and uniform habit and re-
matrimonial consent.

* It should be

"The state of illicit intercourse is presumed to continue until the evidence shows that the intercourse of the parties has become matri[1] The conclusion of the trial court is monial. No greater change than that supported, we think, by the testimony of above indicated is required. There are some various witnesses, many of whom were neigh-expressions in opinions in the cases of Cunbors and associates of Amos Tiger and Lena Pigeon, to the effect that they lived together as husband and wife and held themselves out as such to the public for a number of years and were so recognized in the community where they resided. While the exact date on which they commenced matrimonial relations does not clearly appear in the evidence, the conduct of the parties and holding them selves out as husband and wife for a number of years during which time a child, Tache, was born, concerning whose legitimacy no serious question had ever been raised, and the conduct of the public generally are sufficient, we think, to raise the presumption that a common-law marriage contract had been entered into within the rule of law laid down in the case of Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 2 L. R. A. (N. S.) 353;ing courtship is insufficient to establish that Linsey v. Jefferson, 68 Okl. 156, 172 P. 641, and other Oklahoma cases recognizing the validity of common-law marriages. In addition to these circumstances, clearly established by the great preponderance of the evidence, there is testimony in the record that Lena and Amos expressly assumed matrimonial relations toward each other after which they continued the relation of husband and wife.

It is seriously contended by the defendant in his brief that the uncontroverted evidence showed that the relation assumed by Amos and Lena was meretricious and not matri

stated here that a change from illicit to licit or matrimonial relations may occur and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained."

[2] Applying the rule of the above case to the facts in the instant case we are of the opinion that proof of illicit intercourse dur

the subsequent relation maintained by the parties was not matrimonial. It is next contended by the defendant conceding a common-law marriage was entered into by Amos Tiger and Lena Pigeon, that said marriage was not a valid marriage because neither the laws of the Creek Nation nor the laws of the state of Arkansas, in force in the Indian Territory at the time the alleged marriage in question was contracted, recognized a common-law marriage as a lawful marriage, and he cites the cases of Furth v. Furth, 97 Ark. 272, 133 S. W. 1037, Ann. Cas. 1912D, 595 (decided January 16, 1911) where the Su

(230 P.)

It is stated in the body of the opinion in the Furth Case that the question of whether or not, under the Arkansas marriage statute, a common-law marriage could exist had been an open question in the state of Arkansas,

and that the Arkansas court had not passed upon the question until the rule in the Furth Case holding invalid a common-law marriage

in Arkansas, was announced.

dian marriages, heretofore regarded as legitimate.

of land titles in Oklahoma we are constrain; Recognizing the importance of the security ed that we should not at this late day deviate from the interpretation placed upon the Arkansas law by our own court in the long line of decisions referred to.

It is next urged by the defendant that have existed between Amos and Lena, the though a valid common-law marriage may finding of the trial court that Amos Tiger is not supported by the evidence. There is was the parent of the plaintiff, Barney Tiger, testimony to the effect that on August 31, monial marriage with a white woman by the 1908, Amos Tiger entered into a valid cerename of Mida Worley. There is testimony in the record to the effect that Barney Tiger was born long prior to this date and during the period of actual cohabitation between

Amos and Lena, and some two years prior to their separation.

the testimony of neighbors and acquaintancThe testimony of the mother, supported by es, most of whom fix the birth of Barney long prior to the separation of Amos and Lena, no

Our own Supreme Court in the early case of Clarkson v. Washington, 38 Okl. 4, 131 P. 935, put an interpretation on the decisions of the Arkansas courts, construing the Arkansas marriage statute at variance with the holding in the later case of Furth v. Furth, supra, basing its decision upon Jones Jones, 28 Ark. 19, when extended over the Indian Territory, and made applicable to all persons therein, made common-law marriages contracted in the Indian Territory valid doubt led the trial court to adopt a view with marriages, and this holding has been follow-respect to parentage of Barney in keeping with his legitimacy. Much of the testimony ed in numerous subsequent cases, among in record opposed to this view was indirect which the following may be mentioned: Oklahoma Land Company v. Thomas, 34 Okl. 681, 127 P. 8; Butler v. Wilson, 54 Okl. 229, 153 P. 823; James v. Adams, 56 Okl. 450, 155 P. 1121; Linsey v. Jefferson, 68 Okl. 156, 172 P. 641; Chancey v. Whinnery, 47 Okl. 272, 147 P. 1036; Sealey v. Smith, 81 Okl. 97, 197 P. 490. In the last-mentioned case our court, speaking through Mr. Justice Ken

namer said:

"After the laws of Arkansas were extended in force in the Indian Territory so as to apply to all persons common-law marriages have been recognized as valid."

While it is perhaps true that the rule announced in the Furth Case, supra, announces the rule of the Arkansas court on the question of the validity of a common-law marriage in Arkansas, prior to statehood, it is plain to be seen that our own court, in a long line of decisions, has placed a different interpretation upon the holdings of the Arkansas court construing the Arkansas marriage statute in relation to the validity of commonlaw marriages, than found expression in the later case of Furth v. Furth, supra, and this interpretation, however erroneous it may have been, has come to be recognized in the courts of Oklahoma as a rule of property.

Numerous transfers of property based upon this interpretation had occurred, prior to the holding in the Furth Case, and to overturn this interpretation at this late day would, in our judgment,, only serve to unsettle titles and bastardize the issue of many Creek In

and circumstantial by white witnesses, whose opportunity for knowing of the facts concerning the parentage of this Indian boy could not have been equal to those who testifiled to his birth during wedlock. It is not surprising that the trial court in this situation should have adopted a view of the testimony that would prevent bastardizing the plaintiff.

The exact date of the birth of Barney is not shown by the direct testimony of any witness; some fix it as early as 1905, and some as late as 1909. If he was born in 1905 or 1906 his birth would occur in wedlock. If he was born in 1909 he would probably be illegitimate. In these circumstances the presumption in favor of legitimacy will prevail.

We think the finding of the trial court that Barney was born in wedlock is supported by the weight of the evidence. If the plaintiff was born in lawful wedlock, it follows that neither parent will be permitted to deny the legitimacy of their offspring. Bell v Territory, 8 Okl. 75, 56 P. 853. And the alleged statements of Amos and Lena, in the years 1909 and 1910, denying the paternity of Amos cannot be received.

[4] It is next contended that the trial court erred in refusing to permit the defendant to introduce in evidence certified copies of birth affidavits, executed by the mother, Lena Tiger, and the grandmother, Matie Pigeon, at the time of the enrollment of Tache Tiger, containing statements that Lena Tiger was not the lawful wife of Amos Tiger, and cites

We do not agree with the defendant, how-tained. But after the instruments had been ever, that the case should be reversed with directions to enter judgment in favor of the defendant. There is no controversy between the parties that Amos Tiger was survived by his lawful noncitizen wife, Mida Tiger, but she was not made a party to this action in the trial court.