Opinion of the court by

It is found as a fact by the referee that on September 8, 1891, George E. Thornton entered into an agreement with Hutchinson whereby It was agreed between them that Hutchinson should occupy the premises, and, in the event that it was decided that George E. Thornton was disqualified, then Hutchinson should have the loti», and be permitted to acquire title for himself. What he was to pay is not shown by thte evidence. This is an important finding of fact. It is necessary, to support the claim of the plaintiff, O. O. Thornton, that he should be able to show that he derived his interest from Hutchinson; and, to support any interest whatever *341 in Hutchinson, it was necessary to- show that he had die-rived it by virtue of a possession which Laid begun and existed long prior to any claim which O. O. Thornton could set up by virtue of his oiwn personal acts or possession. It is therefore necessary, in order to support the conclusion in favor of the plaintiff,(defendant in error here,) to show that Hutchinson was in fact in possession of the lots, and claiming them as his own, during the lifetime of G. E. Thornton. The testimony does not support thist contention. J. W. Cudybaek testified that about the 10th of April, 1893, he had a conversation with Hutchinson, in which “I merely asked him if he had any interest in or bought that place, [meaning the lots in question.] He said that he had not. ' I ¡said I would not get myself into any trouble. He .made the remark that, when he was taking care of any property for anybody, that he would stay with it. He just said that he wa,s taking care of it for Mr. Thornton’s estate,” (that is, the estate of G. E.Thornton.) D.H.Hull,administrator of the estate of Gr. E. Thornton, testified that he sold the improvements on all the lots to the defendant, Mrs. Jackson, and that Mr. and Mrs. Hutchinson were living in “the big house” on the lots; that “I had Hutchinson in charge of it for the Thornton property;” that Hutchinson made no claim to the improvements; that he was in. charge of it for the George E. Thornton estate. In reply to the question, “Did Hutchinson surrender the property to Mrs. Jackson after the sale of the same to Mrs. Jackson, and, if so, how soon?” Mr. Hull said, “I made arrangements with Mr. Hutchinson, in the presence of Mrs. Jackson, who bought the property, (and I think Judge Stewart was present,) to vacate the premises' *342 within ten days. I have never heard any complaint. I think it was done.” Bartell testified that two. or three weeks after the death of Thoirnton, October, 1891, “I said to Hutchinson, ‘What claim have you got on this property?’ He said, ‘None at all;’ that he was simply taking care of it for the Thornton estate.” Hutchinson himself testified that “I was first placed in possession by George E. Thornton, and, in the event it was held he could not hold, I was to' have them” (the lots.) A few minutes later, in the course of the same examination, he said that he had gotten the lots from G. E. Thornton; “I paid him a valuable consideration;” and when he deeded the lots to Oliver C. Thornton, he was conveying a title which he had secured from G. E. Thornton, and that he himself had made no improvements upon the lots. “I made no improvements on the lots myself. I had those of George E. Thornton.” And in answer to1 the question, “What-improvements, if any, did Oliver C. Thornton put on these lots, or any of them, when did he make them, and what was their va-lue?” he replied, “He got the improvements I acquired from George E. Thornton.”

We have examined the evidence carefully. It does' not support the eighth finding of fact, which was a material finding to the conclusion finally made in thle case by the referee and by the court. There is no evidence reasonably tending to support this finding of fact. There is on overwhelming preponderance of testimony that Hutchinson renounced any interest in the property; that he was there simply to care for it for the Thornton estate and that he finally released possession of any interest whatever of or from George E. Thornton, under the direction of the administrator, Hull, to the plaintiff in error here, *343 ■and that, having done so, he had nothing to turn over to Oliver C. Thornton, and that the claim which be made in his testimony, long after he bad, as the agent af the adL ministrator of the estate of George E. Thornton, turned the property over to Mrs. Jatkson, that there were improvements on the property which he acquired from George E. Thornton, and that toe toad acquired them for a valuable consideration, while toe testified also that he simply had an agreement with George E. Thornton, by which he was to take the property of Thornton if he (Thornton) failed to acquire the title to it, abundantly and overwhelmingly show that he was fabricating material to support Oliver O. Thornton’s claim.

It is also assigned as error that witnesses were permitted to testify in behalf of the plaintiff, Thornton, over the objection of Mrs. Jackson’s counsel, to statements made by Hutchinson and bis wife and by G. E. Thornton. A. E. Ellis was permitted to testify in behalf of the plaintiff below, Thornton, that he toad beard Hutchinson, while he was living on the property, say that “toe was taking care of it for Oliver O. Thornton.” O. H. Eagin was permitted to testify touching his conversations with George E. Thornton before his death, while Hutchinson was there, and that he said in that conversation that toe had Hutchinson there living upon his property, and that, in case it should be finally determined that he could not hold ttoe lots himsielf, he intended Hutchinson should have them, and that he toad had two or three similar conversations with him. Mrs. Johnson was permitted to testify to conversations with Hutchinson and his wife, in which she .said that Hutchinson and his wife .said that “they were holding them [the lots] *344 for Oliver O. Thornton.” This testimony was objected to at the time by the counsel for Mrs. Jackson, but it was thus repeatedly admitted; and, bearing as it does directly upon the contention, it must have influenced the judgment of the referee, and we think that its admission was material error, for which the case should be reversed.

It is also argued in behalf of the plaintiff in error that the sixth conclusion of law is incorrect, in view of the sixth finding of fact: It is stated in the sixth finding of fact that Albright, Harvey, and McClung staked the lots in question, but were prevented from occupying or making any improvements thereon by C. E. Thornton, under whom Hutchinson afterward claimed to hold the lots. It is found in the thirty-second and thirty-ninth findings of fact that the plaintiff in error acquired the interests, of McClung, Harvey and Thornton by quit claim deeds, for the sums, respectively, of $390, $300, and $75. The sixth conclusion of law is that “neither the defendant Lotta Jackson, nor any one under whom she claims, had ever been in possession of said lots, or any portion thereof, nor had ever up to said time occupied or made any improvements tbereon,” and “we do not understand that a mere intention to occupy or improve a town lot,, and an attempt to do so, which was1 prevented,- would constitute a sufficient occupancy thereof, within the meaning of the town-site laws.”

We think this, also1, was erroneous. We think that the effort of McClung, Harvey, and Albright to take possession, who were prevented by • Thornton ■ by force from occupying and making any improvements thereupon, was equivalent to the erection of such improvements, as against Thornton, *345 or any one attempting to set up a claim by, through, or under him; and this conclusion is covered by Downman v. Saunders, 3 Okla. 227, 41 Pac. 104. For these errors the case will be reversed,' with, direction for further proceedings.