Volume 14 — Oklahoma Reports

<p>1. DIVORCE — Alimony. In the trial of a divorce case where the court grants the husband a divorce on the ground of adultery, it may also award to the wife a reasonable amount out of the husband’s estate, as permanent alimony.</p> <p>2. SAME — Evidence. It is not reversible error to exclude competent evidence tending to establish adultery on the part of the wife, when the court, on the other evidence introduced*upon the trial, granted a divorce to the husband on that ground.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Blaine County; before James K. Beauchamp, Trial Judge. </p>

<p> Error from the District Court of Woods County; before John L. Pancoast, Trial Judge. </p>

Error from District Court of Logan County; before Jno. H. Burford. Trial Judge. STATEMENT OE FACTS. In this ease, Bert Welty, the plaintiff in error, was indicted in the district court of Noble county for the crime of murder, alleged to have been committed in the Otoe and Missouri Indian Reservation, on the 16th day of May, 1901. Upon the motion of the plaintiff in error the venue was changed to Logan county.

<p> Error from the Prolate Court of Logan County; before C. W. Goodrich, Trial Judge. </p>

Error from the. Probate Court of Woods County; before Jeff Bower, Trial Judge. STATEMENT OR FACTS. On the first dav of July, 1903, the plaintiff in error, D. M. Osborne and Company, recovered a judgment against E. Hughey, one of the defendants in error, in the probate court of Woods county, Oklahoma Territory, for the sum of $383 and costs, and on the same day plaintiff in error caused an execution to issue out of said court based upon the said judgment.

Error from the District Court of Payne County; before Jno-II. Burford, Trial Judge. STATEMENT OE EACTg. This case was commenced in the district court of Payne county, Oklahoma Territory, on the 13th day of January, 1902, by the defendant in error, against the plaintiffs in error, to recover damages in the sum of five hundred dollars, for a breach of covenant in a warranty deed.

Error from the District Court of Kingfisher County; before 'C. F. Invin, Trial Judge. STATEMENT OF FACTS. This action was brought by the plaintiffs in error, B. F. Kilpatrick, as administrator, and Katie Kilpatrick and Mary A. Kennedy, daughters and heirs at law of. John O’Conner, deceased. The object of the action was to set aside a deed from John O’Conner and wife to B. C. Brennan, the defendant.

<p>¡Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge.</p>

<p>1. ATTACHMENT — Motion to Quash. Where the return of an officer to a writ of attachment is regular in form, and the property is held by him under such writ, the burden is upon the debtor, in a motion to quash for irregular service, to show that the writ was in fact not served as stated in the return.</p> <p>2. HERD LAW — Trespass, Damages for. The district court and the supreme court of this Territory will take judicial knowledge that Canadian county is not located in that part of the Territory where persons may permit their stock to run at large, under the provisions of article 2, of chapter 2, of the Session Laws of 1899.</p> <p>S. EVIDENCE. Where a judgment is reasonably supported by the " evidence, it will not be disturbed on appeal.</p> <p>(Syllabus .by the Court.)</p>

<p>1. COMPOSITION — Underhand Agreements — Public Policy. Where in the case of a failing debtor, a general composition is had with creditors, by the terms whereof the debtor’s liabilities are to be settled for less than the face value of his obligations, and one creditor who goes into a contract of general composition common to the others, at the same time has an underhand agreement with the debtor to receive a larger per cent, such agreement is fraudulent and void, because subversive of sound morals and public policy.</p> <p>2. PROMISSORY NOTE — Consideration—Duress. Where in an attempt at composition among creditors, one creditor demands and accepts a note and mortgage to secure the amount coming to him, over and above the amount agreed upon as the basis of composition, without other or further consideration than that the same shall represent an amount due such creditor after a composition has been effected, such note and mortgage is void for want of consideration. And where, when a composition has been effected, a demand is made upon the debtor for a re-execution of the note and mortgage, and the debtor receives into his hands such note and mortgage, and destroys the same, refusing to re-execute it, and is arrested charged with the larceny of the same, and to secure a release from such arrest and prosecution, re-executes such note and mortgage, such transaction gives to the instrument no new life. It was void for want of consideration when executed, and equally void when re-executed, and in addition was void for duress in securing its re-execution.</p> <p>(Syllabus by the Court.)</p>

<p>CONTRACT OF INSURANCE — Severable, When. Where an insurance policy is issued, and different classes of property are insured, each class being- separated from the others and insured for a specific amount, and there is a breach of the conditions of the contract as to one class of the property insured, the contract should be considered as not one entire in itself, but as one which is severable, and in which the separate amounts specified may be distinguished, and a recovery had for one or more of them without regard to the other, provided the contract is not affected hy any question of fraud, act condemned by public policy, or any increase of the risk of the company on the whole property insured .because of the breach.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Custer County; before O. F. Irwin, Trial Judge.</p>

Error from the District Court of Canadian Countyj before C. F. Inui/n, Trial Judge. STATEMENT OF FACTS. This is an action of replevin in which the plaintiff seeks to recover a crop of wheat and oats alleged to be of the value of $1,620.00. The land on which the wheat and oats in controversy in this case grew was an Indian allotment, and the property of an Indian named Bear Robe.

<p>1. RECORD — Presents no Error Arising Upon the Evidence, When. Where the record in this court in a case upon appeal does not show that it contains all the evidence presented at the hearing below, it presents no error that can be reviewed by this court arising upon a question of evidence.</p> <p>2. CERTIFICATE OF TRIAL JUDGE — Imports, What. The certificate of the trial judge in settling- a case made imports the truthfulness of the statements contained in the case, and nothing more.</p> <p>3. RECO'RD — Contents, How Ascertained. What is contained in the case made must be ascertained from the statements therein, and not from the certificate of the trial judge appended thereto.</p> <p>4. CERTIFICATE — Will Not Supply Omissions In Record, When. A statement in the certificate of the trial judge when settling the ease, that it contains all the evidence introduced at the trial, is not sufficient to show that the record does contain all of the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. REPLEVIN — Burden on Plaintiff. The burden is on the plaintiff in a replevin action to establish his right to recover, by a preponderance of the evidence.</p> <p>2. CHATTEL MORTGAGE — Slight Misdescription of Property Immaterial, When. Where one is in possession of facts from which he .. must, as a person of ordinary intelligence, know that certain cattle are included in a chattel mortgage, the fact that one of the brands is described as being on the left hip instead of on the right hip is immaterial, and he must use reasonable care to avoid loss.</p> <p>3a SAME — Foreign—Negotiable Promissory Note — Rights of Assignee. In Kansas the transfer by endorsement of a negotiable promissory note carries with it the assignment of a chattel mortgage given to secure it, and, there being no law requiring an assignment of a chattel mortgage to be filed or recorded, one who purchases such note for value before maturity, will be protected in his security, without filing or recording an assignment of such mortgage, against all subsequent purchasers and encumbrancers, regardless of their good faith.</p> <p>4. SAME — Interest of Mortgagee. As a general rule, a mortgagee and his assignee acquire only a lien on the interest of the mortgagor in the property mortgaged.</p> <p>5. SAME — Removal of Property. Where a chattel mortgage is executed on property in Kansas, and duly filed for. record, it will be binding on the property after it is removed to this Territory.</p> <p>(Syllabus by the Court.)</p>

<p>I. MISDEMEANORS — Separate .Trials — Not Entitled to, When. Where two or more persons are indicted under a statute of the United States for a misdemeanor, they are not entitled, as a matter of right, to separate trials. Separate trials may be granted or refused in the discretion of the trial court.</p> <p>2. JURORS — Challenges of. The rule of procedure which gives to the prosecution and defendant each three peremptory challenges does not mean where two or more defendants are tried jointly for a misdemeanor, that each defendant may challenge three jurors, but that all of the defendants may jointly challenge that number.</p> <p>3. SAME — Court May Excuse. A trial court, in the exercise of a sound discretion, may at any time before the jury is sworn to try a criminal case, on its own motion, excuse any juror who it thinks is biased or prejudiced, or for any reason not a fit person to sit on the Case, and need not assign any reason therefor.</p> <p>4. INDICTMENT — Endorsement of Names on. Under the criminal procedure of Oklahoma, a trial court may permit the prosecution to endorse the names of witnesses on the indictment at any time, upon furnishing to the defense a list of the names.</p> <p>5. PROCEDURE. It is not error for a trial court to open up a case after both the prosecution and defendant had rested, and permit the prosecuting- officer to further cross-examine some of the witnesses for the defendant, unless it is affirmatively shown by the record that the defendant was prejudiced thereby.</p> <p>6. EVIDENCE. Where all of the evidence, although conflicting, reasonably supports a verdict, the judgment rendered thereon will not be disturbed.</p> <p>(Syllabus .by the Court.)</p>

Error from the District Court of Payne County; before Jno. II. Burford. Trial Judge. STATEMENT OF FACTS. This is an action brought by the First National Bank of Hennessey, Kingfisher county, O. T., against .the defendant, J: P. Hesser, sheriff of Payne county, 0. T. The plaintiff brings action in replevin, basing title upon a chattel mortgage executed to it by one G. W. Baker, for an actual loan of $860.00, at Hennessey, 0.

<p> Error from, the District Court of Oklahoma, County; before B. F. Burwell, Trial Judge. </p>

Error from the District Court of •Blaine County; before James K. BeauchampTrial Judge. STATEMENT OR TACTS. This case was originally brought in the justice court before Victor Payne, a justice of the peace, at Watonga, Blaine county, Oklahoma, to recover a balance due on account from Ed Gillespie, the defendant, to the B. S. Flersheim Mercantile Co., plaintiff. The case was tried to a jury, which trial resulted in a verdict in favor of the defendant.

Error from the District Court of Greer County; before James E. Beauchamp, Trial Judge. STATEMENT OF FACTS.

<p>1. APPEAL — Harmless Error. When errors are assigned, which, if* they exist, are purely technical, and such as do not affect any substantial right of the parties, this court will not reverse a decision of the district court on account of such errors.</p> <p>2. GENERAL STATUTE — Construction of. A general statute is not to be considered as applying to cases covered by a special act on the same subject so as to change the procedure of such special statute.</p> <p>(Syllabus by the Court.)</p>

<p>1. CRIMINAL LAW — Indictment, Clerical Error Does Not Invalidate, When. Where an indictment is sufficient in all other respects, a mere clerical error or mistake in the spelling- or use of a word, does not render the indictment invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.</p> <p>2. SAME — Ruling on Evidence — Harmless Error in, Not Reversible. Errors of the trial court in its rulings upon the admission of testimony, which in no way could prejudice or tend to prejudice or affect the substantial rights of the party complaining, are not sufficient grounds for the reversal of a judgment.</p> <p>. 3. SAME — Conviction of Lesser Offense — Degree. The jury in a crim>-inal case may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, and whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty, and when there is a reasonable doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.</p> <p><Syllabus by the Court.)</p>

<p>Error from the District Court of Comanche County; before F. E. Gillette, Trial Judge-.</p>

<p>1. SALE — Delivery. Where range stock is the subject of a contract of sale, a gathering together of the stock and turning it out of the enclosed pasture of the seller into the enclosed pasture of the purchaser for the purpose of perfecting such sale, is a sufficient delivery and change of possession to satisfy the statute requiring an immediate delivery followed -by an actual and continued change of possession.</p> <p>2. EVIDENCE — Cross-Examination. On cross-examination of a witness, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief.</p> <p>3. SAME — Title—Subsequent Declaration of Vendor, Inadmissible, .When.' After a party has parted with the title and possession of personal property, his declarations made subsequently respecting the ownership or title to the property, as a general rule, cannot be introduced in evidence by a third party to defeat the title of his vendee.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Garfield County; before Clinton F. Irwin, Trial Judge.</p>

<p>1. TRIAL TO COURT — Findings When Not Disturbed. Where the evidence reasonably tends to support the findings of the trial court, this court will not disturb such findings.</p> <p>2.. RIGHTS, NOT ACQUIRED IN VIOLATION OF LAW. Even though no penalty is attached to a prohibitory law, no rights can be acquired in violation of law, and as between two adverse claimants to public land, one of whom has initiated his claim in violation 'of law, and the other in obedience to law, the courts will favor the one who observes the requirements of the law.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Garfield County; before J. L. Pancoast, Trial Judge.</p>

Error from the District Court of Kay County; before Bayard T. Mainer, Trial Judge. STATEMENT OE PACTS. This is an action to quiet title to lot 20, block 38, in the townsite of Hartman, a legal subdivision of the city of Ponca City, in Kay county, Territory of Oklahoma. This action was commenced in the district court of Kay •county, September 1, 1900, and on November 23 following, defendant, The Ponca City Land and Improvement Co., filed its answer and cross petition.

<p>Error from Lhe Probate Court of Garfield County; before M. G. Garber, Trial Judge.</p>

<p> Error from the District Court of Kay County; before Bayard T. Earner, Trial Judge. </p> <p>STATEMENT OE FACTS.</p> <p>On the 26th day of May, 1902, the defendant in error commenced an action of injunction in the district court of Kay county, setting forth that by consideration of the land department of the United States she had been awarded title to the northeast quarter of section 27, township 28 north, range 1 east of the Indian, Meridian, and that by reason thereof she was entitled to the use, occupation and enjoyment of said tract, and had reduced the same to possession by exterior fencing, and by interior fencing enclosing pasture, and that the defendants had come upon said land from time to time since May 16, 1892, and occupied plaintiff’s house thereon, and had forcibly entered plaintiff’s enclosure, had ousted plaintiff’s tenant therefrom, and were preparing to seize plaintiff’s cultivated fields and crops growing thereon, and that the acts of the defendants were in furtherance of a design to oust plaintiff from said tract, seize the crop, and force plaintiff to bring an action at law to recover possession, and setting forth that their claim of right so to do was through one George W. Smothers, who was formerly in possession of said tract, but who had been removed therefrom by an action at law, and she prayed for, first, a temporary restraining order restraining them from in any way performing any further act upon said land, or in any wise interfering with plaintiffs operations thereon until the application for temporary injunction could be heard, and that upon hearing a temporary injunction be granted, commanding them to refrain from in any way interfering with plaintiff’s full and complete use, possession -and enjoyment of said land, and that upon trial such injunction be made perpetual. Upon filing this petition, application was made to the probate judge, in the absence of the district judge, for a temporary restraining order, and on the 37th day of May, 1903, the probate court granted the said motion, and made its order restraining defendants from doing or committing any act upon said land which tended to interfere with plaintiff’s full use and enjoyment of the premises.</p> <p>On the 3nd day of June, 1903, application was made to the district judge for a temporary injunction, both parties appearing, upon which hearing the temporary restraining order of the probate court was Vacated and set aside, and a temporary injunction granted in consideration of the evidence then offered, which order of the district court was as follows:</p> <p>“That the defendant, William Lowry, have the possession of the house situated on the N. E. 1-4 of' section 37, in township 38 north, range 1 east of the I. M. in ICay county, Oklahoma Territory, and also have possession of the land now in wheat and oats upon said premises.</p> <p>“That each party have' the land and crops part in and planted by each respectively, and each shall not interfere with the other in the quiet enjoyment thereof.</p> <p>“It is further ordered, that the plaintiffs and the defendant, William Lowry, have the joint occupancy of the pasture situated upon the above described premises until the further order of the court or judge. This order to go into effect upon the plaintiff giving bond in the sum of three hundred dollars, to be approved by the clerk of the district court of Kay county, O. T., in accordance with the statute in such case made and provided.</p> <p>“It is further ordered, that the said William Lowry be permitted to harvest the growing crops consisting of wheat and oats upon said premises, and hold the landlord’s share of said crop, being one-third interest in said crop, subject to the further order of tire court or judge. All of which order is to be enforced until the further order of this court or judge thereof.”</p> <p>Upon application to the court William Mitchell was af-terwards permitted to intervene as a party defendant in said cause, and he filed his answer asking to bo decreed to be the owner of the land in controversy, and William Lowry also answered denying, first, all the allegations of the petition, and alleging that ho had boon in the uninterrupted possession of the land for more than three years, and since the death of Luke Mitchell, the original entryman upon said land; that he first leased it from George Smothers, administrator of Luke Mitchell, and afterwards from "William Mitchell, the son and heir at law of Luke Mitchell. Which answer admitted that Lizzie Mitchell since the death of Luke Mitchell had procured a final entry of said .tract of land in her name as the wife of Luke Mitchell and admitted that she was married to Luke Mitchell prior to his death, but averring such marriage relation to have, been fraudulent and void because of the fact that at the time of such marriage she had another husband living.</p> <p>This injunction case on the docket of Kay county was No. 20112, and while this action was pending in said court for final disposition the defendant in error, Lizzie Mitchell, commenced in the probate court oí said Kay county an action of forcible entry and detainer against the plaintiffs in error by serving upon them a notice to quit, and alleging title and right of possession in herself, arid that the defendants forcibly and unlawfully received and have ever since forcibly and unlawfully held possession. • In answer to which William Lowry and wife and the other defendants alleged by way of pica in abatement the pendency of case No. 3063 in the district court, which was denied by Lizzie Mitchell, and a hearing had in said probate court, resulting in a judgment which sustained the plea in abatement, and an order dismissing the action.</p> <p>Said cause was thereupon appealed to the district court; and on the second day of March, 1893, a hearing was had upon said plea in abatement in the district court, resulting in a judgment reversing the judgment of the probate court, and ordering that the plea in abatement be dismissed. A motion was then made to require the plaintiff, defendant in error, to elect upon which cause, 3063 or 3139,' she would proceed, which motion was overruled, and cause 3139 proceeded to trial, the plaintiffs in error objecting at each step to a hearing in said cause, and asking that the same he dismissed because of the same having been brought during the pendency on the docket of said court of cause 3063, which involved the same rights, the trial - of the cause resulting in a judgment ousting the defendant in error from possession.</p>

<p>1. STEALING DOMESTIC ANIMAL — Allegation of Value Not Necessary, When. In the prosecution of a ease where the defendant is charged with stealing a domestic animal, the indictment being drawn under article one of chapter twenty of the Session Laws of 1895, it is not necessary that the indictment should contain an allegation of the value of the animal alleged to have been stolen.</p> <p>2. SAME — Evidence of Value Not Necessary, When. In the trial of a case where the defendant is charged under article one of chapter twenty of the Session Laws of 1895 with stealing a domestic animal, the Territory is not required to prove on the trial the value of the property stolen.</p> <p>3. WHAT ALLEGATION NOT TRAVERSABLE. Where an indictment for stealing a domestic animal fails to fully describe the property alleged to have been stolen, and avers that a better description cannot be given, 'such allegation of description is not traversable, and the defendant will not be allowed to introduce evidence tending to show that the grand jury did have or could have obtained a more perfect description.</p> <p>(Syllabus by the 'Court.)</p>

<p>JSrror from the District Court of Canadian County; before C. F. Irwin, Trial Judge.</p> <p>STATEMENT OR FACTS.</p> <p>Prior to the bringing of this action the American Soda Fountain Company consigned to E. S. Rhoads, at El Reno, O. T., certain soda water apparatus, which were stored at the Rock Island freight depot, and upon which there was an unpaid freight bill due the railroad company for the sum of $122.58.</p> <p>On January 28, 1902, an agent of the American Soda Fountain Company sold this apparatus to the firm of G-er-Ter’s Bakerj', at El Reno, O. T., and at that time entered into a written contract of sale. The contract is prepared upon one of the regular printed blanks of the company, a considerable portion of which has no reference or application to the sale in question, and should be treated as surplusage, After eliminating largely all irrelevant matter contained in this instrument, it reads as follows:</p> <p>“El Reno, O. T., Jan. 28, 1902.</p> <p>“American Soda Fountain Co.,</p> <p>Boston, Mass.</p> <p>“Forward the following described soda water apparatus, and upon receipt of bill of lading or tender of goods I will honor sight draft Apr. 2, 1902, or other demand for $200.00, and the balance I promise to pay in monthly sums as follows: $50.00 per month till paid, with interest at six per cent from date of shipment with each payment, and for such balance and interest will execute and deliver contract notes of like tenor and form to the one printed on the back of this order, and maturing as above set forth and will execute such other papers as may be necessary under the laws of this state to protect the title of American Soda Fountain Company against all third parties. I agree to insure said apparatus for $-, the loss, if any, payable to American Soda Fountain Co., as its interest may appear, and to keep the same insured until all payments are made.</p> <p>“The delivery of said apparatus etc., to be conditioned upon compliance with the above terms and conditions, and said apparatus to remain the property of American Soda Fountain Co., till paid for.</p> <p>“Description of apparatus:</p> <p>“The Gibson Soda App. Onyx body, W. & G. top, originally" shipped E. S. Rhoads; 14 syrup faucets; 2 soda draught tubes; 3 mineral draught tubes; 15 ft. tumbler drainer and sink; 1 App. Base marble slab. Price $1400. “When shipped:</p> <p>“Delivered to purchasers in C. R. I. & P., freight depot. Freight and setting up charges to be paid by consignee.</p> <p>“This order cannot be countermanded and this is fully understood by the signers. There axe no other conditions or agreement's with your salesman except those herein stated, and no claim will be made for anything not specified herein.</p> <p>“Gerrer’s Bakery.”</p> <p>The property described in the contract was exhibited to one of the Gerrers in the railroad freight depot and he agreed to take it on the terms of sale as specified in the contract. The consignee accompanied the parties to the depot and gave his check to the railroad agent for $62.50 to apply upon the freight 'account, and the agent for the Soda Fountain Company agreed that the company would pay the remainder of the freight.' This was not paid, and had not been paid at the time of trial, and the check given by Ehoads was protested and not paid, and the railroad company still holds the property for the amount of the freight expense account.</p> <p>The Gerrers refused to take the property, and notified the company to consider the order canceled. The company presented notes for the deferred payments as provided in the contract, and demanded payment of the $200, and execution of the notes. Gerrers refused to pay any money or sign the notes, and the company brought this suit to recover the full contract price of $Í400. The defendant F. X. Ger-rer answered denying under oath that he was a partner of the firm of Gerrer’s Bakery, and also denied the execution of the contract. The other two defendants answered jointly/ and denied under oath that the partnership was composed of the three Gerrers, as alleged in the petition. They also answered by general denial, and specially denied that the firm of Gerrer’s Bakery was liable on the contract set out, for the reason that it was executed upon the express condition that the company would pay the freight due on the goods, and that the freight had never been paid by anyone.</p> <p>The ease was tried to the court, and after plaintiff introduced its evidence and rested, the defendants demurred' to the evidence. The court sustained the demurrer, and gave judgment for the defendants for costs.</p> <p>The evidence conclusively showed that E. X. Gerrer was not a member of the copartnership) known as Gerrer’s Bakery, but that the firm was composed of John and Albert Ger-rer, the other two defendants in the case. It was also shown that at the time the agent exhibited the goods in the depot that the railroad agent and the consignee Rhoads were present, and it was there agreed that the freight account should be paid by Rhoads and the company. The company admitted that such was the agreement. It was further shown that none of this sum had ever been paid, and that the railroad company had the goods in its possession, and was holding them for the freights.</p> <p>The plaintiff appealed, and it is alleged that the court erred in-sustaining the demurrer to the evidence.</p>

Error from ike District Court of Oklahoma County; before B. F. Burwellj Trial Judge. STATEMENT OE I'ACTS.

Error from the District Court- of Garfield County; before ■James K. Beauchamp, Trial Judge. STATEMENT OE PACTS. This was an action originally commenced before E. N. Hall, a justice of the peace in and for Enid City Township, Garfield county, O. T., in which the plaintiff, Mrs. G. F. Keller, sought to recover from the defendant John S. Abbott for the rent of certain premises occupied by him.

Error from the District Court of Logan County; before Jno. II. Burford, Trial Judge. STATEMENT OE FACTS.

<p>Error from the District Court of Logan County; before Jno. 77. Burford. Trial Judge</p>

Error from the District Court of Blaine County; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. The Jünid and Anadarko Kailway Company instituted proceedings in Blaine county, Oklahoma, to condemn a right of way for its railroad over and across the southwest quarter of section number one (1), township thirteen (13) north, range eleven (11) west of the Indian Meridian.

Error from the District Court of Kingfisher County; before Clinton F. Irwin, Trial. Judge. STATEMENT OE EAOTS.

<p>Error from the District Court of Blaim County; before James E. Beauchamp, Trial Judge.</p>

Error from the District Court of Blaine County; before James K. Beauchamp, Trial Judge. STATEMENT OE FACTS. This action was originally commenced in the probate court of Blaine county and after trial and judgment therein appealed to the district court.

Error from ilia District Court of Comanche County; before F. E. Gillette, Trial Judge. STATEMENT OE PACTS. At the October term, 1902, of the district court of. Comanche county, O. T., the grand jury returned an indictment against the plaintiff in error, N. Jones, charging him with selling liquor to Indians. On the 4th of April, 1903, a trial was had before a jury, resulting in a verdict of guilty.

<p>1. PERJURY — Proof, What Sufficient. On the trial of a charge for perjury, the evidence need not he limited to proof of exact words alleged — proof of the substance is sufficient.</p> <p>2. VERDICT — Evidence to Support, When Sufficient. In a criminal case, this court will not disturb the verdict of the jury unless there is an entire absence of testimony on some material issue, or the evidence so clearly preponderates in favor of the defendant as to suggest the possibility that the verdict was the result of misapprehension or partiality.</p> <p>3. INCAPACITY TO COMMIT CRIME — -Age of Accused — How Presented. That the defendant is incapable of committing crime by reason of being -under fourteen years of age, cannot be presented the first time by motion for new trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Payne County; before Jno. H. Burford, Trial Judge. </p>

Error from the District Court of Oklahoma, Countyj before Benj. F. Burwell, Trial Judge. STATEMENT OE FACTS. October 19, 1889, plaintiffs in error gave defendant in error their note for $1000.00, secured by mortgage on real estate in Douglas county, Nebraska. June 13, 1896, suit was brought to foreclose the mortgage. Summons was issued and personal service had upon both defendants. A decree of foreclosure was entered October 27, 1896.

<p> Error from the District Court of Oklahoma County; before Benj. F. Burwell, Trial Judge. </p>

<p> Original Proceeding in Mandamus. </p>

<p> Original in the Supreme Court. </p>

Error from the District Court of Greer County; before Jno. II. Burford, Trial Judge. STATEMENT OE EACTS. This action was commenced in the district court of Greer county, to cancel a deed purporting to have been executed and delivered by J. A. Powers to I. J. Eude, as trustee, conveying forty acres of land, tlie said I. J. Eude having subsequently conveyed a portion of said land to the Chicago, Eock Island & Pacific Eailway Company.

<p>APPEAL — Case Made. A case made which does not contain a copy or statement of the pleadings, any motion for a new trial, or' any final order of judgment of the trial court, but merely a purported transcript of the stenographer’s notes of the evidence, presents no question to this court for review.</p> <p>(Syllabus by the Court.)</p>

<p>JUDGMENT DISCHARGING BANKRUPT — Will 'Not Be Disturbed, When. On appeal from a judgment of discharge in bankruptcy, where the objection to the discharge was that the bankrupt did not keep proper books of account, and purposely mutilated the same and fraudulently refused to account for all of his property, and where upon the hearing for discharge, thirty witnesses were</p> <p>examined, and the question was one exclusively of fact, and for a correct determination depended entirely upon the credit to he given to the several witnesses, and where the witnesses appeared personally before the referee, and the referee recommended the discharge, and the trial court sustained the referee in such recommendation, and where the evidence was conflicting hut sufficient to sustain the conclusion of the referee and the trial court, this court will not disturb the judgment of the trial court.</p> <p>(Syllabus by the Court.)</p>

<p>1. CAPACITY TO SUE — Practice. An objection that one has no ' legal capacity to sue goes to his right to maintain a suit at all, as, for instance, that he is an idiot, an insane person, a minor, etc., and does not include the objection that the action is not prosecuted in the name of the real party in interest.</p> <p>2. JOINT TENANTS — FRAUD. G. H. Logan and it. C. Brennen bought land and had it conveyed to themselves jointly. Brennen farmed the land to wheat, Logan paying for half of his time and half of the expense incident to raising the wheat and marketing the same: Held, That these facts, in the absence of an agreement to that effect, do not constitute a partnership, but that the parties ■ were simply joint owners of the land and crops; and the fact that Brennen sold all of the wheat raised on the land for the year 1901 to the appellee, under an agreement that it should be applied on his son’s debt to appellee, did not prevent Logan from maintaining a suit against the appellee for his share of the wheat, as the agreement between the appellee and Brennen was a fraud against him: The appellee being in possession of such facts and circumstances as charged him with knowledge of Logan’s interest in the wheat; but even if not in possession of such facts and circumstances, the plaintiff should recover, because the defendant, not having parted with anything of value at the time it received the wheat, was in no worse condition than when it bought it, and therefore should have returned the wheat to Logan, or paid him the contract price therefor.</p> <p>(Syllabus by the Court.)</p>

<p>1. COUNTY SEAT ELECTION — Who May Contest. Where an election has been held under the provisions of chapter 23 of the Statutes of 1893, for the purpose of removing a county seat, and from the face of the returns it appears that a majority of all the votes were not cast in favor of any one town, and the county commissioners have ordered a second election, such order is, in effect, so far as the first election is concerned, an order directing- that the county seat remain at its original location, and the legality of the first election may be tested by a legal voter in the county if he . shows by his petition, by proper allegations, that a majority of all the legal votes at such, first election were cast in favor of his candidate; it being the intention of the legislature that a majority of the votes cast shall control, no matter whether they shall be cast at the first or subsequent election.</p> <p>2. PRACTICE — Petition Insufficient, When. A petition in an action to contest an election which alleges generally that the judges and - clerks of election permitted a certain number of illegal votes to be cast in favor of a certain town for county seat, and that without such illegal votes the plaintiffs’ candidate would have been elected, and setting out the number of votes which the petitioner claims each candidate legally received and which, if correct, would give to the petitioners’ candidate a majority of all of the legal votes, cast, is not sufficient to state a cause of action. The pleader must set out the facts from which the court can say as a matter of law that the votes were illegal, and that without such illegal votes the result of the election would have been in favor of plaintiffs’ candidate.</p> <p>3. SAME — Validity of Statute Will Not be Passed Upon, When. Where a plaintiff brings a suit under a territorial statute, and the defendant on the trial objects to the introduction of any evidence by the plaintiff, for the reason that the petition fails to state a caus<^ of action, the court should first determine as to whether the plaintiff’s petition is good, conceding the validity of the statute, and if not sufficient the objection should be sustained without passing upon the power of the legislature to enact the law, it being the rule that a court will not pass upon the power of the legislature to enact a law until some one comes into court who shows by his pleadings that he is entitled to the benefit of its provisions.</p> <p>(Syllabus by the Court.)</p>

<p>WRITTEN AGREEMENT — Alteration by Parol. An oral agreement which alters an agreement in writing is not valid or binding, unless such oral agreement is executed, and proof of its existence is not competent to vary the terms of a written instrument.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.</p>

Error from the District Court of Nolle County; before Bay-ard T. Rainer, Trial Judge. 8. R. Rams, for plaintiff in error. STATEMENT OE PACTS. Balph Wells, the plaintiff in error, was indicted by the grand jury at the December, 1901, term of the district court of Noble county, charged with the murder of one James M. Powell.

Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. STATEMENT OE FACTS.

<p>PRACTICE — Dismissal of Case — Should be Reinstated, When. When a cause, is dismissed for want of prosecution, and an application is filed to vacate such order and reinstate the case on the ground of unavoidable casualty, which the party could not have reasonably foreseen, the trial court should exercise a wise discretion in the interest of justice; and when it clearly appears by affidavits of responsible persons that the party was unavoidably absent from the trial; that his defense was mei'itorious; that he appeared within twenty-five minutes after the time set for the trial, and before court adjourned; and that he was absent by reason of the lateness of a train, which, had it been run on schedule time would have enabled him to carry out his intention of arriving in the court room two .hours earlier than he did, the case should be reinstated.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of 'Creer County; before F. B. Gillette, Trial -Judge. STATEMENT OE EAOTS.

<p>1. INDICTMENT — Demurrer. A demurrer to an indictment in the following form: “It does not substantially conform to chapter 68, Statutes of Oklahoma, 1893, entitled Procedure Criminal/’ is too indefinite in its terms and will not be considered upon review, unless the éxact defect intended to be reached is pointed out by the brief of counsel who complain of the judgment of the court in overruling the same.</p> <p>2. SAME — Larceny by Fraud and Stealth. An indictment which in a single count charging the crime of grand larceny alleges that the property was taken by fraud and stealth will not be held insufficient upon an objection to the introduction of testimony upon the ground that the indictment charges two separate and distinct offenses, 'or that the indictment is uncertain, and fails to charge larceny under the statute, or because the offense is charged to have been committed* in the different ways in which the statute designates the same may be accomplished.</p> <p>3. SAME — When Sufficient. Where in an indictment for larceny the property is charged to have been taken -by fraud and stealth, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud, and in such cases the crime of larceny may be satisfactorily shown by proof that at the time of taking it was taken with the felonious intent to convert it to the taker’s own use, and to deprive the owner thereof, regardless of the fact as to whether the taking was accomplished by fraud or by stealth.</p> <p>4. SAME-'-Venue. An indictment charging a criminal offense which shows that it was found by a grand jury of a county of this Territory duly impanelled, charged and sworn to inquire into and true presentment make of- all public offenses against the Territory of Oklahoma triable within the county of . (naming it), and that the defendant on a day certain (naming it), in said county of . (naming it), did then and there, etc., suffi- • ciently charges the venue in the Territory of Oklahoma, and in the county named.</p> <p>;5, LARCENY- — 'EMBEZZLEMENT—Distinction. The distinction between larceny where the taking is fraudulent, and embezzlement, is determined with reference to the time when the intent to wrongfully convert the property to the taker’s use, occurs. If the property in the hands of the taker amounted to a bailment, or if the property went into the possession of the taker with knowledge of the owner on account of any fraudulent representation by the taker, and the taker received the same, intending at the timé of its reception to convert the same to his own use and deprive the owner thereof, the crime is larceny. If, on the other hand, the taker receives the property as a bailment of the same, or with the knowledge and consent of the owner, intending at the time a compliance with the terms of the bailment, or to conform to the owner’s wishes concerning- the property in his possession, and afterwards converts the property to his own use and fails to account for the same upon demand, the crime is embezzlement.</p> <p>'6. EVIDENCE — Memory, Refreshing From Memoranda. It is not error, where during the progress of a trial an officer who has taken goods upon a legal process is testifying, to permit such officer to refresh his memory from a copy of his return upon process showing the property taken by himself, which copy has been made by a typewriter in his (the officer’s) presence and under his direction. It is not error, "where, for the purpose of expediting the business of the court, the court permits a witness to use for the purpose of refreshing" his memory a copy of a legal instrument which has been made under the direction of the court and furnished the witness by the court.</p> <p>7. SAME — Of Other Stolen Prpperty. Where in the trial of a criminal cause, the defendant was charged with the larceny of numerous items of merchandise, possession of which had been recovered through the service of a writ of replevin and the execution of a search warrant, it was not error to permit the officers serving such process to show what property was so recovered, notwithstanding the fact that some of the property so recovered was not enumerated in the indictment or charged to have been stolen.</p> <p>.8. SAME — Gross-Examination—Privileged Subjects. A practicing physician and his wife, prosecuting witnesses in a cause wherein a charge of grand larceny is being tried, may not be compelled upon cross-examination to answer questions touching the marriage relations between them for the purpose of affecting their credibility as witnesses concerning such larceny; nor can such physician rightfully be compelled to answer questions which intimate that he has at some time been guilty of producing an abortion, for the purpose of affecting his credibility as such .witness.</p> <p>*9. SAME — Cross-Examination—Limit as to Former Trial. Where a court stenographer has testified to questions propounded to a witness upon a former trial and answers thereto, and for the purpose of answering such questions has been permitted to use his shorthand notes of the testimony at the former trial, and upon cross-examination is asked to read from his shorthand notes all of the testimony given by such witnesses at such former trial, it is not error to sustain objection to such question.</p> <p>'10. INSTRUCTIONS TO JURY. It is not reversible error for .the court to refuse an instruction which reads: “And if after retiring to your jury room there remains a reasonable doubt in the minds of any one of the jurors as to the guilt- or innocence' of the defendant, then the jury cannot convict the defendant,” where the court has given in its general instructions a correct instruction touching their duties in case they entertain a reasonable doubt of defendant’s guilt, and which instruction given by the court is addressed to the jury as a whole instead of to the individual jurymen as asked for in the instruction refused.</p> <p>"11. SAME — As to Grand and Petit Larceny. Where grand larceny is charged in an indictment, and the court in its instructions to the jury has once plainly and distinctly informed the jury of the distinction between grand and petit larceny, and instructed them that they can convict of the crime of grand larceny only in case they find the value of the property taken to have been more than twenty dollars, and that their verdict should be that of guilty of petit larceny in case they find the value of the property- does not exceed twenty dollars, it is not error if such instruction as to value is not repeated in another instruction given where the elements of the crime are defined.</p> <p>12. FRAUD OR STEALTH — Taking by. Where a statute defines the crime of grand larceny to be the taking of personal property by “fraud or stealth,” and an indictment charges the taking of the property by fraud and stealth, it is not error to instruct the jury that before they can find the defendant guilty they must be satisfied beyond a reasonable doubt “that it (the property) was taken either by fraud or stealth, or by fraud and stealth.”</p> <p>13. REPLEVIN OF STOLEN PROPERTY — 'Effect of. Where possession of stolen property is recovered by a writ of replevin, it is not error to instruct the jury as follows: “But the fact that this, replevin suit was cómmenced, and the fact that the defendants or one of them gave a redelivery bond and retained the property, in no wise relieves him or them of criminal responsibility for the larceny of the property.” Such instruction does not invade the province of the jury in determining the weight and effect of’the testimony.</p> <p>14. LARCENY--From Trunk in Possession. An instruction which advises the jury that the crime of larceny is committed by opening a trunk unauthorizedly and taking therefrom the contents, feloniously intending to appropriate the same to the taker’s own use and benefit, where such trunk has been left by the owner in the custody of such person so opening the same, is correct. Such taking would not necessarily constitute the crime of embezzlement.</p> <p>15. TRIAL — Presence of Defendants. Where the record of the trial shows that after a noon adjournment of the court the defendants were present at the convening of the court when the trial was resumed, and during that afternoon hearing in the case the jury were given a ten minutes’ recess, during which time the court had under advisement a legal question presented in the case, it is not necessary that the record should show that the defendants were present upon the resumption of the trial after determihing such legal objection. They will be presumed to have been present during that afternoon session of the court, unless the record affirmatively shows their absence.</p> <p>(Syllabus by the Court.)</p>

Error from the District, Court of Washita County; before Clinton F. Invin, Trial Judge. STATEMENT OF FACTS. An action by defendant in error, John A. Hughes, as plaintiff in the district court of Washita county, against the plaintiff in error, John P. ’Whitaker, and C. Mt Barnes, Win.

<p>1. GRAND JURY — Summoning of — Jurisdiction of District Courts. The district courts of Oklahoma possess common law jurisdiction, and these courts have the power and authority to invoke the common law method of summoning: a grand jury when no other provision is made hy statute, or when the provision so made is inadequate.</p> <p>2. CRIMINAL LAW — Evidence—Larceny—Declarations of Accused. Where a person is arrested and is in the possession of the property alleged to have been stolen, any statement or declaration made by him at the time of the arrest in reference to the possession thereof, is admissible in evidence as explanatory of'the character of his possession, and constitutes a part of the res gestae, hut any statement or declaration made by the' accused in reference to the property stolen, when not in the possession thereof, is no part of the res gestae, and is therefore inadmissible in his behalf.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Rules of Supreme Court — Dismissal. Rule six of the rules of practice of this court, requires the plaintiff in error to serve a brief on counsel for defendant in error within forty days after filing his petition in error, and at the same time to file fifteen copies of said brief with the clerk of the supreme court. In case of failure to comply with these requirements the court may dismiss the cause, or may reverse or affirm the judgment.</p> <p>2. SAME — Judgment, Presumption in Favor of. It is not the duty of this court to search a recox'd to discover errors not pointed out. A judgment is presumptively correct, and in the absence of a brief in support of a petition in error, this court will generally, in civil causes, rely upon such presumption, and dismiss the appeal.</p> <p>3. SAME — Failure to File Brief — Effect. A failure to file "a brief is a waiver of the right to be heard on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. </p> <p>STATEMENT.. OE EACTS.</p> <p>This is an action for contribution, 'brought by Phoebe ‘Gitchel against Jacob B. Striclder, as a co-surety on two . promissory notes, alleged to have been paid by the plaintiff. 'The material averments in the petition are, that on March 20, 1899, the firm of Striclder Brothers, composed of H. E. Striclder, J. E. Strickler, A. L. Strickler, and Edna J. Strick-ler, who were doing a general merchandise business in S-hel-don, in the State of Illinois, under tbe firm name and style of Strickler Brothers, made, executed and delivered' a certain promissory note, in the sum of $2,000.00, to Louis J. Goldman, payable on January 1, 1900. Said note was signed by Strickler Brothers, Jacob- B. Strickler, the defendant, and Phoebe Gitchel, the plaintiff.</p> <p>On September 9, 1899, another note was executed to the Citizens Bank, of Sheldon, Illinois, for $2,000.00, payable six months after date, signed by Strickler Brothers, Edna J. Strickler, Phoebe Gitchel, and Jacob B. Strickler.</p> <p>The plaintiff further alleged that Phoebe Gitchel and Jacob B. Strickler were sureties upon said notes. That the firm of Strickler Brothers, and Edna J. Strickler, became- and were insolvent prior to the-maturity of said notes, and that they failed and refused to pay. the same, and that both of said notes, together with all accrued interest, were paid by Phoebe Gitchel, and that she is the owner and holder thereof. That since the payment of said notes said Strickler Brothers and Edna J. Strickler have remained insolvent, and have not paid any portion of said notes to this plaintiff, and .that the said co-surety upon said notes, Jacob B. Strickler, has also failed and neglected to pay any portion thereof to this plaintiff.</p> <p>To this petition of the plaintiff the defendant, Jacob-B. Strickler, filed an answer, in which he admitted the execution of the notesj as alleged in the plaintiff’s petition, but denied that tbe plaintiff ever paid either of said notes, or any part thereof; and denied every other material allegation contained in the said petition. The defendant further alleged that after the execution of said notes, and prior to the 'maturity thereof, the plaintiff purchased an interest in the business of said firm of Striekler Brothers, and became a member of said firm, and assumed and agreed to pay the indebtedness of said firm, including the notes herein sued on. 'That thereafter the said Striekler Brothers, of which firm the plaintiff was a member, turned over to one Mendenhall, cashier of the Citizens Bank of Sheldon, Illinois, all of their .stock of merchandise and real estate, under an agreement with said Mendenhall that he should pay all the indebtedness of the said firm, including the notes herein, and that .said property was of greater value than the debts of said firm, .and that both of the notes sued on in this action were fully paid by the said Mendenhall out of the proceeds of the said property, and were not in any manner paid by the plaintiff.</p> <p>To this answer, the plaintiff filed a reply consisting of a general denial as to all new matter alleged in the answer.</p> <p>Upon the issues thus joined, the cause was tried to a jury, and a verdict ^ivas returned in favor of the plaintiff and against the defendant for $2,576.73, being an amount •equal to one-half of the notes, together with interest. This verdict was approved by the court, and judgment rendered in accordance therewith. A motion-for a new trial was duly filed by defendant, which, upon consideration by the .court, was overruled, exceptions saved, and the cause appealed to this court.</p>

<p>Error from the District Court of POttawa.tomie County; before Benj. F. Burwell, Trial Judge.</p>

<p>REVIEW — Case Made Must Contain Entire Record, When. Unless a case made contains a recitation to the effect that all of the evidence taken upon a trial is included therein, this court will not consider any assignment of error which necessitates a review or consideration of such evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. DORMANT JUDGMENT — Revived. A dormant judgment can not be revived, without the consent of the defendant, unless such re-vivor is applied for within one year after the same has become-dormant.</p> <p>2. SAME. A dormant judgment can only be revived by fin order of the court, or by a judge thereof as provided by article 19, chapter 66, Wilson's Statutes 1903.</p> <p>(Syllabus by the Court.)</p>

<p>1. GRAND JURY — Summoning of — Jurisdiction of District Courts. The district courts of Oklahoma possess common law jurisdiction,, and these courts have the power to invoke the common law method of summoning- grand jurors when no other provision is made-by statute, or when the provision so made is inadequate.</p> <p>2. SAME. Where no election has been held in a newly organized county, and, in consequence, no jury lists prepared and returned to the county clerk, as provided by statute, it is competent for the court or judge to issue an open venire, directed to the sheriff, or other competent officer, to summon the requisite number of grand jurors, who possess the necessary qualifications under the provisions of our statute.</p> <p>3. CRIMINAL LAW — -Evidence—Res Gestae. Where, upon the trial of an indictment for murder, it was shown by the evidence that three highwaymen attacked four persons, who were driving in a wagon on the public highway, and, without a moment’s warning, shot and mortally wounded one of the party, who, a few hours-thereafter died, testimony concerning the taking of the money and effects of the parties immediately after the shooting was admissible on the ground that it was a part of the res gestae, and as showing a motive for the commission of the homicidal act.</p> <p>4. SAME — Murder, Venue. A person, charged with the commission of the crime of murder must be indicted and tried in the county where the injury which caused the death was inflicted, and not at the place where the death occurred.</p> <p>5. SAME. In a murder case, where the evidence shows that the mortal wound was inflicted in Oklahoma, and the death occurred' in the Indian Territory, the jurisdiction to indict, try, convict and' sentence the murderer is in Oklahoma.</p> <p>6. SAME. Where a new county or jurisdiction is established after the commission of a crime, the defendant must be indicted, tried' and sentenced in the jurisdiction comprising the territory in which the offense was -committed, and not in the county to which the-unorganized territory was attached for judicial purposes at the time of the commission of the offense.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPELLATE COURT — Powers of. An appellate court has not only the power to determine its own jurisdiction, but may also inquire into the jurisdiction of the court from which the appeal is taken.</p> <p>2. SAME. While the district court is not authorized to review the judgments of ‘the probate court taken to it by appeal, yet it has power to hear a motion to dismiss for want of jurisdiction.</p> <p>3. JUSTICE COURTS — Jurisdiction. Courts of justices of the peace are courts of special and limited jurisdiction, and jurisdiction of the subject-matter and of the parties must be made to affirmatively appear. No presumptions are indulged in favor of jurisdiction.</p> <p>4. SAME. Where jurisdiction has once attached, the usual presumptions are always entertained as to all subsequent proceedings, and where it affirmatively appears that the justice acquired jurisdiction both of the subject-matter and of ‘the persons of the defendants, then the same presumptions are indulged in favor of the regularity and validity of the proceedings of justice courts as are extended to courts of general jurisdiction.</p> <p>5. DISTRICT COURT — Error to Dismiss Appeal, When. It is error for the district court to dismiss a cause appealed from the probate court acting with the jurisdiction of a justice of the peace, for the reason that the record fails to disclose that a continuance for more than ninety days was with the consent of the parties.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court 'of Blaine County; before James K. Beauchamp, Trial Judge. STATEMENT OE EACTS. This was an action in replevin brought by Michael Dob-rinski .against James C. Eobb, Henry Klein and Frederick Haffner, to recover the possession of about seventeen hundred bushels of wheat.

'Error from the District Court of Kingfisher Countyj before C. F. Irwin, Trial Judge. STATEMENT OE PACTS. This is an action commenced in tire district conrt of Kingfisher county by the defendant in error against plaintiffs in error, as sureties on a bond of Homer L. Chaanness, as cashier of the Bank of Hennessey.

<p>APPEAL — Newly Discovered Evidence. Where the issues upon a petition for new trial on the ground of newly discovered evidence are tried to the court and there is ample evidence to support the finding of the court, this court will not disturb the finding upon the weight of the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. TAX DEED — Void on Its Face, When. Where the recital in a tax deed shows a sale to the county, and a deed obtained by virtue of the sale to the county, the deed must contain a recital to show the right of the county to purchase at such taxi sale; and unless such deed contains such a recital, it is void on its face. •</p> <p>2. SAME — Practice. "Where a tax deed is void, it is not necessary for the owner, in an action of ejectment, to tender or pay any of the taxes, interest and, penalties for which the property was, illegally taxed and sold, and the tax deed issued.</p> <p>3. ADVERS'E POSSESSION DEFINED. A possession, to he adverse, must be open, visible, continuous and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles and claimants.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Nolle County; lefore Bayard T. Earner; Trial Judge.</p>

<p> Error from tlie District Court of Caddo County; before F. E. Gillette, Trial Judge. </p>

<p>1. PROMISSORY NOTE — Stipulation for Attorney’s Fees — Effect-A promissory note which contains the following- stipulation in relation to attorney’s fees, to wit: “It is stipulated by the parties to this note, that in event the same is collected by an attorney, or by any proceedings at law, an attorney’s fee consisting of $10.00 and ten per cent of the amount so collected shall be paid by the makers hereof to the holder of the same,” destroys the negotiable character of the instrument, and thereby makes it nonnegotiable.</p> <p>2. NON-'NEGOTIABLE INSTRUMENT — Innocent Purchasers. Anon-negotiable instrument, although transferred to an innocent purchaser before maturity and for a valuable consideration, is subject to all the legal defenses which might be interposed against the note in the hands of the original payee.</p> <p>(Syllabus by the Court.)-</p>

<p>FAILURE TO FILE BRIEFS — Rule 6. Where a plaintiff in error in a civil' action fails to file briefs as required by rule 6 of the rules, of practice of this court, the appeal will be dismissed on motion’ of defendant in error.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Nolle County; before Bayard T. Earner, Trial Judge.</p> <p>STATEMENT OF FACTS.</p> <p>This was an action by the plaintiff Cagle to have the patent conveying title to the S. W. 1-4 of section 23, township 23 north, range 1 west I. M., to Peyton E. Dunham by the government, declared to be held in trust for the use and benefit of the plaintiff, and for judgment conveying the legal title to plaintiff.</p> <p>The petition sets forth the qualifications of plaintiff to acquire lands from the government under the homestead laws, and the fact of his settlement upon the lands in question as a homestead settler thereon after twelve o’clock noon of September 16, 1893, the date upon which said land was open to settlement under proclamation of the president, and the fact of his continuous occupation of and residence upon and cultivation of the same in fnll compliance with the provisions of the homestead law, and the further fact of his presentation to the local land office of his application to make homestead entry therefor. That Peyton R. Dunham, the patentee, was an adverse claimant to said tract of land, and as such filed a contest against the plaintiff, which-came to hearing before the register and receiver in March, 1897, resulting in a decision by the local offices in favor of plaintiffs, and recommending the dismissal of said contest, from which decision the defendant (Dunham) appealed to the commissioner of the general land office, where the decision of the register and receiver was on January 1, 1901, affirm-' ed. That thereupon Dunham appealed said cause to' the secretary of the interior, who on July 15, 1901, reversed the decision of the commissioner and local office, and awarded the land to Dunham. The plaintiff afterwards and in due time moved the department for a review- of that decision awarding the land to Dunham, which application was denied by the secretary of the interior. The plaintiff after-wards filed before the department a second motion for review, which was heard in July, 1902, and again denied, and plaintiff’s application to make homestead entry of said land was refused, and the land finally awarded to Dunham.</p> <p>Plaintiff’s petition then set forth and declares that the decision of the local land office and commissioner was a true and correct decision in said cause; and that the honorable secretary of the interior decided the plaintiff to be the first settler upon said tract and qualified as such, but that he had failed to maintain his residence thereon as required by the homestead laiw. The petition then states that the decision of the secretary of the interior was procured and induced by .the testimony of Dunham and seven other witnesses, naming them, and that said witnesses, through the procurement of the defendant, wilfully and knowingly testified falsely touching plaintiff’s residence upon the land, and in substance and effect each and all of said witnesses, including the defendant himself, with the, intention of deceiving the land dej)artment of the government and of cheating and defrauding the plaintiff out of said land, testified that from September 16, 1893,-to a period in 1897, the plaintiff had been upon said land only occasionally, and had not resided thereon continually as required by the homestead law, and that by reason of such testimony the honorable secretary of the interior was misled and deceived, and failed to find the truth touching plaintiff’s residence upon the land; that the testimony of the defendant and all of said witnesses was false, by reason whereof the decision of the honorable secretary was given, and avers that if said witnesses had testified truthfully, the honorable secretary would have decided the case in favor of the plaintiff, and, finding a continuous residence in good faith by plaintiff upon the land between the dates above ihentioned, would have awarded the land to plaintiff. The petition further avers that final proof was made by defendant, resulting in a patent issued August 22, 1902, and delivered to the defendant Peyton E. Dunham at a cost to him of $23.25, which amoxint of money is tendered to defendant, and plaintiff brings the same into court for that purpose.</p> <p>Attached to the petition as exhibits are the several decisions of the land department which show the conclusions as stated in the petition, and show that after the first hearing in said cause, a decision in said cause was reached by the local office in favor of 'the plaintiff Cagle, holding him qualified and that he complied with the requirements of the homestead law, which was appealed by Dunham to the commissioner of the general land office, and a conclusion there reached reversing the local office, and awarding the land to Dunham, because Cagle’s limited residence on the land did not comply with the requirements of the homestead law. This decision was in turn reversed by the interior department, holding the proof sufficient in reference to Cagle’s residence on the land, and upon motion for review the interior department preliminarily sustained the motion, and ordered the case back to the local office, with direction that a further hearing be had at an early day, and directed the local office to again consider the case upon the testimony first bad, together with the testimony taken upon such rehearing, giving as a reason-that no satisfactory conclusion could be predicated upon the record as then made. Such rehearing was had in February and March, 1900, after which, upon the request of both parties, the local officers visited the land and made personal inspection of the improvements, and on August 29, 1900, the local office" rendered its decision in favór of Dunham, recommending that his entry remain intact.</p> <p>From this decision Cagle appealed to the commissioner, and the commissioner in a long and exhaustive opinion reversed the decision of the local office, holding Cagle’s residence on the land sufficient, and Dunham's entry subject to Cagle’s prior right. From this decision Dunham appealed to the secretary of the interior, who, in turn, reversed the commissioner g of the general land office^ and directed that Dunham’s entry be allowed to remain intact. Cagle thereupon filed a motion for a review of this decision by the secretary of the interior, who on that motion in a long and exhaustive opinion sustained his former decision, and denied the motion. The case was again brought before the interior department upon a petition of Cagle for a review of the departmental decision, which petition was denied by acting secretary Ryan, and the case closed in the land department of the government, thus finally awarding the land to Dun-ham.</p> <p>To the petition in this ease, asking that the patent for the land subsequently issued be declared a trust in favor of the plaintiff, the defendant demurred, which demurrer was by the trial court sustained, and said cause dismissed, from which judgment the cause now comes to this court upon petition in error, asking a. reversal of the judgment.</p>

<p>Error from the Disirici Court of, Garfield County; before . James K. Beauchamp, Trial Judge.</p>

<p> Error from the District Court of Logan County; before Jno. II. Burford, Trial Judge. </p>

<p> Error fromjhe District Court of Woods County; before J. L. Pancoast, Trial Judge. </p>

<p>NUISANCE. Where the injury complained of is not, per se, a nuisance, hut may or may not become so, according to the circumstances; and "where it is remote, uncertain, and speculative, or productive of only possible injury a court of equity will not interfere.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Garfield Countyj lefore James K. Beauchamp, Trial Judge. </p>

Error from the District Court of Payne Countyj before Jno. H. Bur ford, Trial Judge. STATEMENT OE FACTS.

<p> Error from the District Gourt of Oklahoma County; before Clinton F. Irwin, Trial -Judge. </p> <p>STATEMENT OE EACTS.</p> <p>This is an action for specific performance of an alleged agreement to conve}'- real estate, brought in the district court of Oklahoma county, Oklahoma, by Oscar D. Halsell, Oscar G. Lee, Leonidas L. Land, Daniel P. "Wright and Jean H. Everest, plaintiffs, against William C. Renfrow and R. J. Edwards, defendants. The material averments of the petition are substantially as follows: That on and prior to February 14, 1901, W. C: Renfrow the defendant, was the owner of a tract of land in Oklahoma county, Oklahoma, described as follows: A part of the north half of the northwest quarter (1-4) of section four (4), in township eleven (11) north, range three (3) west of the Indian Meridian, more particularly described as follows: Beginning a.t a point where the middle alley between Noble and Chickasaw streets in South Oklahoma Addition to Oklahoma City intersects the? east line of said quarter section, running thence west on a line parallel with the north line of said quarter section to the west line thereof; thence north along said west line five hundred and eighteen (518) feet to the southwest corner of the parcel deeded to Francis Ivetch; thence north on a line parallel with said north line twelve hundred and twenty-two and forty-three hundredths (1222.43) feet to the southeast corner of the land deeded to Francis Ketch; thence north on a line parallel with the west line of said land three hundred and ninety-two (392) feet to the north line thereof; thence east along the north line of said land to a point five hundred and eighty 1580) feet west to the northeast corner of said land; thence south on a line parallel with the cast line of said land three hundred (300) feet; thence east on a line parallel with the north line of said land one hundred and eighty (180) feet, thence south on a line parallel with the east line of said laud three hundred and eighty (380) feet to the southwest corner of the Washington public school grounds on said land; thence east to the east line of said land; thence along said east line to the place of beginning. That George J. Shields was a real estate dealer at Oklahoma City and was duly authorized by Renfrow to sell said lands to such purchaser as he might be able to obtain for the price of ten thousand dollars. That these plaintiffs offered Shields ten thousand dollars for said land. That Shields accepted said offer for Renfrorv and plaintiffs paid him on the purchase price thereof, the sum of $500.00 which Shields received and accepted as the agent of Renfrow. That Shields the same day wired Renfrow at Joplin, Missouri that he had sold the land for five (?) thousand dollars. That in answer to said telegram Renfrow by wire ratified and confirmed said sale. That in pursuance of said agreement Renfrow made, subscribed and acknowledged a deed, describing said land, and reciting a consideration of ten thousand dollars, and brought said deed to Oklahoma City for the purpose of consummating said sale. That at the time of making said agreement of sale, the parties in good faith believed that Renfrow was the owner of forty acres of land as described, but on investigation, it was discovered that Renfrow’s vendor had conveyed a small portion of.said land to another person, and it was mutually agreed to deduct $200 from the purchase price as consideration for said deduction in land, and Renfrow agreed to execute another deed, correctly describing said land and omitting said portion previously sold. That Renfrow prepared a new deed, conforming to the corrected description, and after signing and acknowledging same, deposited the same with the Western National Bank with directions to deliver the same to plaintiffs on the payment of the balance of tire purchase money. That plaintiffs thereafter tendered to the bank the balance due as purchase price of said land and demanded the deed, but that the bank refused to deliver said deed for the reason that Renfrow had directed them to demand] a greater sum than was due.</p> <p>That R. J. Édwards, with full notice and knowledge of plaintiff's rights and their claim to said land, entered into a fraudulent arrangement by which Renfrow conveyed said land to him.</p> <p>That the defendants refuse to convey said land to plaintiffs, although they are ready and willing and able to pay the whole of the purchase price of said land, and now offer to do so. That after the purchase of said land and with the knowledge and consent of said Renfrow and before the conveyance to Edwards, the plaintiffs went into actual possession of said land, and thereupon discovered that one Springmeyer was in actual possession of a portion of said land under a lease which would not expire for many months, and said Renfrow refused and neglected to surrender to them full possession, but consented • to such occupancy as they might enjoy in connection with said tenant. That they, with the consent of Ren'frow, went upon said land and tore down fences and destroyed improvements found on the land. That the five hundred dollars paid to Shields on said purchase price is retained by Renfrow.</p> <p>Wherefore plaintiffs pray for a decree of specific performance, that the deed to Edwards be cancelled, and that if there are any incumbrances on the land that proper deductions be made in the purchase price and judgment rendered accordingly.</p> <p>This suit was commenced March 8, 1901.</p> <p>The defendant Edwards answered first by general denial, and admitted that he had purchased the land in question from Eenfrow and paid bina therefor the sum of ten thousand dollars. That he went into possession on the 9th day of March, 1901, and had been-in undisputed and sole possession ever since said date, and until January, 1902, when the plaintiffs undertook to unlawfully and wrongfully take possession of said land and began the erection of a building thereon.</p> <p>The defendant Eenfrow for his separate answer denied that he had ever made a contract of sale of said land to plaintiffs; that Shields was authorized to sell said land or make any contract of sale, and admitted that he had been the owner of said land, and that on March 2, 1901, he sold and conveyed said la,nd by warranty deed to his co-defendant, E. J. Edwards.</p> <p>The answers of both Edwards and Eenfrow were verified by affidavit.. The plaintiff replied by general denial.</p> <p>The cause was tried to the court and finding and judgment for the defendants.</p> <p>Upon the trial the evidence introduced fairly and reasonably supports these conclusions: That about the first of February, 1901, the defendant, AY. C. Eenfrow, was the owner of the real estate in controversy; that lie had recently purchased it and placed it in the hands of Shields, a real estate agent at Oklahoma City, for sale. The authority of Shields as agent was not in writing, and he had no authority to make a contract of sale. The price placed upon the property by Eenfrow was $10,000. Eenfrow lived at Joplin, Missouri, and the land was in Oklahoma City, where the plaintiffs all resided. Shields offered the property to the plaintiffs and they agreed to take it at the price of ten thousand dollars, and they paid Shields five hundred dollars upon the agreement to purchase;, which sum he still retains. Shields notified Renfrow 'by wire as follows: “Oklahoma City, 0. T., Feb. 14, 1901. W. C. Renfrow, Joplin, Mo. Have sold the forty acres ten thousand cash, five hundred forfeit,' Answer. George J. Shields.” To this Renfrow sent the following answer: “Joplin, Mo., February 14, 1901. George J. Shields, Oklahoma City, O. T.. I confirm sale by you ten thousand cash, five hundred forfeit. W. C. Renfrow.” Following this telegram, Mr. Renfrow went to Oklahoma City and there met the plaintiffs, and all the subsequent negotiations were carried on personally and orally. It was discovered that a prior owner of the tract in controversy had conveyed a lot 50 by 100 feet to C. A. Compton, and also made a lease upon the entire tract to one Springstine, who was in actual possession and refused to surrender. It developed that Renfrow could not deliver possession to ihe purchasers, and considerable time was spent in trying to agree upon terms for final completion of the sale. Renfrow proposed to deliver the plaintiffs the deed for all except the Compton lot, for which he would make a deduction of two hundred dollars in the purchase price, and to give such possession as he had, and to give full possession as soon as he could obtain it, or that he would pay the expense of an action to procure possession from Springstine, and employed an attorney for that purpose. The plaintiffs agreed to the $200 deduction for the Compton lot, but refused to take the deed or pay the purchase money unless Renfrow would give possession at once and get' Springstine to vacate within thirty days, as they desired to plat the land and put it on sale at once. Before Renfrow arrived in Oklahoma City some of the plaintiffs had gone on the land with a surveyor and were staking it off into lots and blocks and were tearing down fencing and removing posts. This work was stopped by the tenant Springstine, and the plaintiffs made no further effort to assert possession until the expiration of the lease, and long after this suit had been brought. ' Renfrow then went' back to Joplin, and on February 25, sent to the Western National Bank at Oklahoma City a deed properly executed, conveying said land to Oscar D. Halsell, except the Compton lot' and the Frisco railroad right of way, which were excepted, and directed the bank to deliver the deed on payment of $9,500. On the same day Renfrow wrote Mr. Hal-sell as follows:</p> <p>“Joplin, Mo., Feb. 25, 1901.</p> <p>“Mr. Oscar D. Halsell,</p> <p>“Oklahoma City, O. T.</p> <p>“My dear sir:</p> <p>“I have this clay mailed to the Western National Bank the deed to the Cunningham tract, and have instructed them to turn same over to 3ou upon your depositing $9,500 to my credit, and $500 to the credit of G-eo. J. Shields, and-I shall expect this to be done between banking hours on Wednesday, the 27th inst'., as Mr. Everest notified me on Saturday night that he would expect me to perfect title within thirty days, and was kind enough to extend me that length of time (only I presume.)</p> <p>“I have concluded that I will bring this matter to a close at once and shall give you the opportunity of taking up the deed on Wednesday, or will consider the proposition at an end.</p> <p>“Most respectfully,</p> <p>“W. C. ReNRRow.</p> <p>“P. S. I write Mr. Shields to-day and instruct him fully in the matter.”</p> <p>Mr. Halsell also made the following tender in writing to the bank:</p> <p>“Oklahoma City, O. T., 2 — 27—1901.</p> <p>“I hereby tender F. R. Holt cash $9,300 together with $500 now in the hands of Geo-. J. Shields, agt. of W. C. Eenfrow, as payment in full according to agreement with said Eenfrow for tract of land known as Cunningham tract of land, and possession thereof, deed of which is now in hands of F. R. Holt, cashier.</p> <p>“O.. D. Halsell.</p> <p>“Witness.</p> <p>“L. L. LAND.</p> <p>“O'. G. Lee.</p> <p>“The above $9,300 tendered and refused by F. E. Holt,. Cashier, 2 — 27—1901.”</p> <p>On the same day Mr. Halsell wrote Mr. Eenfrow as follows:</p> <p>“Oklahoma City, O. T., 2 — 27—1901. “Mr. W. C. Eenfrow, .</p> <p>“Joplin, Mo.</p> <p>“Dear Sir: I am in receipt of your letter of Feb. 25th, in which you call my attention to the fact that you have-sent deed for Cunningham tract of land to Western National Bank, and that upon payment of $9',500.00 placed to your credit and $500.00 placed to the credit of Geo. J. Shields, same will he delivered to me. Will say, that I to-day tendered to Mr. E. F. Holt, Cashier of the Western National Bank, $9,300 in cash, together with $500.00 held by Geo. J. Shields, your agent, and the $200.00 3ou agreed to allow for land sold off of said tract, would make $10,000 which you were to receive for the tract of land known as the Cunningham land.</p> <p>“I requested Mr. Holt to deliver me deed and possession of land, in consideration of tender of this money, all of which he refused to do. We have certainly lived up to our part of the contract and will just as surely expect yon to do the same. Yon conld not, under any circumstances, expect us to deliver you over the money for this land without giving us possession, neither would you buy a tract of land of me, or anyone else, with any cloud over the title. We stand ready to fulfill our part of the contract to the letter, without any variations, and I taire it you are a business man and an honest man, and will certainly fulfill yours. ,</p> <p>“Yours truly, .</p> <p>“0. D. Halsell.”</p> <p>To this letter the following answer was sent:</p> <p>“Joplin, Mo., March 1, 1901.</p> <p>“Mr. Oscar D. Halsell,</p> <p>“Oklahoma City, 0. T.</p> <p>“My Dear Sir:</p> <p>“Your letter of the 27th just received, and I note what you say about tendering Mr. Holt, Cashier of the Western National Bank of your city, $9,300 in cash and $500 held by Mr. Geo. J. Shields, my agent, and that you requested Mr. Holt-to deliver you the.deed and possession of what is known as the Cunningham tract.</p> <p>“Now, Mr. Halsell, possession is what caused me so much disappointment and prevented me from closing 'the deal with you the day after my arrival in Oklahoma City, and the question o'f possession and how to obtain it was gone over and fully discussed in your presence and the presence of your associates by my attorney, Mr. Shartel, at his office, who expressed doubt at the time about getting possession at a very early date, provided the lessee should give an appeal bond. After going over the matter as I supposed satisfactory to all, I tendered you my deed with such possession as I could give at the time, and which was not satisfactory to you and associates, and it was finally agreed to leave the matter with Mr. Everest to decide, and who came down to see me at the Lee Hotel that evening, and in endeavoring to get at a satisfactory understanding of the matter, he informed me that he had decided to give me thirty days to perfect my title. I remarked, ‘Suppose that I cannot perfect my title in thirty days, then what?’ His reply was, ‘That it would be a question of damages to be determined later.’ I was not pleased with his demands, ■especially as I had no desire to throw the trade, so by the time I had reached Joplin the following day, I had made up my mind to give you the second opportunity of taking the'property with such title and possession as I got when I became purchaser of same, and if not satisfactory to you I would call the trade off, all of which I have done.</p> <p>“Yesterday I had the saíne offer as made by Mr. Shields for you, except that the party agreed to take chances in obtaining possession himself. I wired that I would accept his proposition, and in case he makes satisfactory arrangements with me this week I shall close the deal with him.</p> <p>“I regret that I found matters in such a shape on my arrival there which prevented me giving you immediate possession of the property* as it was my intention and desire to •do, and I wish you could have felt safe in accepting the deed with chances of possession later on, as I agreed to bear all expenses of a suit for possession. I could only offer you such title as I had, and I gave you the opportunity of taking that, and which you would have been as safe in accepting as any one else.</p> <p>"As to the $200 referred to I would have arranged that by taking a quit claim deed back from you and paying.you $200 as a consideration, with the hope that Mr. Cunningham would reimburse me to that extent, and which I believe he would have done.</p> <p>“I especially note what you say about your 'being ready to fulfill your part of the contract to the ‘letter,’ and without ‘variations,’ and as an honest man and a business man expected me to do the same. No one can know better than yourself how easily a person can unexpectedly be placed in a position where it is impossible for- him to carry out a contract to the ‘letter/ and without ‘variations/ You have doubtless made many sales to your customers to deliver goods at a certain price, and because of some unforseen rise in the ■ price or other causes you refused to fill or ship the order. You well know that it was impossible for me to put you in possession, and my failure to do so was no greater disappointment to you than myself, and I regret' exceedingly the termination of this matter.</p> <p>“Most respectfully,</p> <p>“W. C. EeNKRow.”</p> <p>This concluded the negotiations, and, a few days later, Eenfrow conveyed the land to Edwards, who paid him ten thousand dollars, and paid the tenant five hundred dollars to obtain possession.</p> <p>The district court rendered judgment" for the defendants, and the plaintiffs after motion for new trial, bring the cause here for review.</p>