This was an action of forcible entry and detainer, commenced by Penny, the defendant in error, in the probate court of Kay county, Oklahoma territory, a court adjudged by the supreme court of the territory to have jurisdiction in such actions by virtue of § 4805, art. 13, chap. 67, and § 1562, art. 15, chap. 18, Rev. Stat. 1893. A judgment for the plaintiff was affirmed by the supreme court of the territory (69 Pac. 499), and thereupon the case was brought here on a writ of error. The testimony on the trial developed these facts: The parties contested in the Land Department the right to enter the tract in controversy as a homestead. The plaintiff's contention was sustained, and he was permitted to make entry. Having received the homestead certificate, he commenced this action.

Messrs. Samuel H. Harris and J. J. Darlington for plaintiff in error.

Messrs. A. G. C. Bierer, Frank Dale, and C. W. Ransom for defendant in error.

Mr. Justice Brewer delivered the opinion of the court: