Volume 19 — Oklahoma Reports

<p>1. PUBLIC LANDS — 'Grant in Aid of Railroads — 'Right of Way— Homestead Entry, A railroad company appropriating land for its right of way across a tract of land covered by the homestead entry of another becomes an unlawful trespasser and obtains no right either in law or equity to the land.</p> <p>2/ ■ SAME. A homestead entry, vali'd upon its face, constitutes' such an appropriation and withdrawal of the land as to segregate itf from the public domain, and precludes it from subsequent appropriation for right of way for railroad purposes under the act of 1875, granting right of way to railroad companies through the public lands of the United States.</p> <p>3. SAME — Cancellation of Entry — Effect on Right of Way — Case. Where A has a homestead entry upon a tract of government land subject to -homestead entry, and B enters thereon while said entry is intact, and makes settlement, and a railroad company enters and appropriates a strip one hundred (100) feet wide across said tract for its right of way, having filed its articles of incorporation an'd profile maps wit-h the secretary of the interior, and the same having received his approval under the act of 1899, providing for condemnation proceedings and payment; and thereafter B, by contest proceedings in the United States land office secures the relinauishment of A to be filed in the United States land office, and immediately thereafter makes homestead entry for said tract under a preference right as successful contestant, and complies with all the provisions of the law to preserve said entry, Held, that the cancellation of A’s entry did not cause a reversion of the right of way to the railroad company under the act of 1875, granting right of way to railroad companies through the public lands of the United States.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan Countyj before Jno. H. Burford, Trial Judge. STATEMENT OE THE CASE. This was a civil action, tried in the district court of Logan county to collect a promissory note executed by the defendant in error to the plaintiff in error, of which the following is a copy: “$500.

<p>1. PROCESS — Service by Publication — Strict Compliance With Statutes. Where publication is relied on and jurisdiction is sought to be obtained of the defendant in an action by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute.</p> <p>2. DIVORCE — Service by Publication — Affidavit—Case. An affidavit in an action for divorce, as a basis for service for publication, in the following form: “Salia M. Cordray, being first duly sworn, upon oath say's that she is the plaintiff in the above entitled cause, and that defendant, J. W. Cordray, is not a resident of the territory, but to the best of her knowledge and belief is a resident of ., and that service of summons in this case can not be 'had upon the said defendant in the territory of Oklahoma,” does not comply with the provisions of the statute and a judgment rendered in such case is void for want of jurisdiction over the defendant.</p> <p>3. SAME. Such affidavit is defective, first, in that it fails to state what, if any, diligence was used to procure personal service of' summons upon the defendant; second, in that it fails to state the nature of the action; third, that it fails to state that at the time ■of the making of the affidavit the defendant 'was out of the territory of Oklahoma.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Oklahoma County; before Wm. P. Harper, Trial Judge. </p>

<p> Error from the Probate Court of Oklahoma County; before Wm. P. Harper, Probate Judge. </p> <p>STATEMENT OE CASE.</p> <p>, The defendant in error, Street, -leased the Alamo Hotel in Oklahoma City, by written lease for a term of one year at a rental of $200 per month to the plaintiff in error, Higgins, and his associates. Higgins, with the consent of Street, sublet the hotel to Mrs. Tedford, who occupied it for a few months and paid the-rent to Street, except $50 which was paid by Higgins at one time-when she was in default. Street consented to the subletting, but refused to accept Mrs. Tedford as his tenant or to release Higgins from payment of the rent. When Mrs. Tedford paid him rent, he receipted Higgins for the rent ancRgave him credit for it. Mrs. Tedford vacated the hotel before the lease expired, and notified both Street and the agent of Higgins that -she had vacated the property. Higgins was in California and had left his business in the hands of his attorney, M. M. Eulton, of Oklahoma City. Mrs. Tedford notified Fnlton when she left the building, and Street notified Fulton that he would hold Higgins for the rent. Higgins was notified by Fulton, but took no action in the matter. Street then took possession, made some necessary repairs, and leased the hotel on account of Higgins for $125 per month and gave him credit for this amount each month during the .unexpired term.</p> <p>This action is by Street to recover from Higgins on the original lease the rent for the time the building was unoccupied after Mrs. Tedford vacated it and the difference between the amount Higgins agreed to pay and the amount received' front the last lessee for the unexpired term of Higgins’ lease, together with some expenses incurred in repairs and in reletting the premises. Issues were formed, and the case tried to a jury, and verdict returned in favor of Street for the amount claimed by him. Judgment was rendered on the verdict, and, after motion for new trial , was overruled and exceptions saved, Higgins appeals to this court.</p>

<p>1. ATTORNEY AND CLIENT -Authority of Attorneys — Judicial Notice. In this territory, attorneys at law receive their license, and are authorized by the supreme court to engage in the practice of the law, and to transact business as attorneys at law, and the courts of the territorv will take .iudicial notice of the fact that one appearing and acting as an attorney is or is not duly authorized.</p> <p>2. SAME — Scope of Authority. Any duly authorized attorney may, after the subject matter has been placed in his hands, give any notice affecting the substantial rights of his client which the client himself might have given, and those affected by such notice must take notice of it.</p> <p>3. SAME — Dispute of Authority — Burden of Proof — Presumptions. Where notice material to the maintenance of a suit has been given by an attorney, those disputing the authority of the attorney and who rest their defense, in an action based thereon, upon the fact that they dispute the attorney’s authority to give important notices, must maintain such defense in court, for a court of record in Oklahoma will presume that an attorney admitted to the practice is acting in all matters affecting his client’s rights, with authority from the client he represents.</p> <p>(Syllabus by the Court.)</p>

<p>1. BILLS AND NOTES — Action—Pleading—Public Policy — Railroad Bonus. -A petition praying for judgment upon a promissory note containing a provision showing that it was executed in consideration of the benefits arising to the maker by reason of the construction of a railroad from a given place to another place named, by a time stated, and which is made payable to a construction company, without naming the railroad to be built, or any railroad company as an interested party, does not present such a auestion of public policy as to make such petition demurrable upon that ground.</p> <p>2. SAMÉ — Answer—Burden of Proof. Where, in an action upon a promissory note which sets forth as the consideration thereof the construction of a railroad to a given point by a given time, an answer is filed setting up a distinct contract providing for the-conveyance of real estate as the consideration for the execution and delivery of sai'd note, and where the reply to such answer denies under oath the execution and delivery of such contract, the burden of proving the execution and delivery thereof is upon the defendant, and a failure to prove the execution and delivery of such contract precludes its being received in evidence, and is a failure of that ground of defense.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Woods County; before J. L. Pan-coast, Trial Judge. </p>

<p>1. WRIT OR ERROR — Brief—Failure to Flie — (Reversal. Where the plaintiff in error has completed his record and filed it in this, court and has served and filed a brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, the alleged errors, will be taken as confessed and the judgment may be reversed' without an examination of the record.</p> <p>2. SAME — Rule 6 Invoked. By rule 6 this court, where the defendant in error in a civil cause fails .to file a brief in support of the judgment attacked by the appeal, the court is given the 'discretion to either affirm or reverse the cause, and may-reverse the judgment without examining the record.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Gaa-field County; before M. C. Garber, Probate Judge. </p>

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

<p> Error from the District Court of Noble County; ■ before Bayard T. Hainer, Trial Judge. </p>

Error from the District Court of Canadian Countyj before C. F. Irwin, Trial Judge. STATEMENT OE PACTS. This is an action brought by the plaintiff in error against the defendants in error, in the district court of Canadian county, to recover the sum of $97.50.

<p> Error from the District Court of Kay County; before Bayard- T. ' Hainer, Trial Judge. </p>

<p>1. WIHI'jlESSES — General Reputation — Evidence of I nadinissable, When. On the trial of a cause to a jury, where the defendant testifies as a witness in his own behalf, and is not impeached' in any manner recognized by the rules of evidence, it is reversible erro'r to permit him to introduce evidence of his general reputation for truth and veracity.</p> <p>2. SAME. The rule is stated in the opinion, as to when a party will' be allowed to corroborate his own testimony by evidence of previous good character.</p>

<p> 'Error from the Probate Court of Lincoln County; before Fred A. Wagoner, Probate Judge. </p>

<p>1. LAKCENY — Indictment—Felonious Intent. In a prosecution for larceny of domestic animals, an. indictment which charges that the defendants “did then and there unlawfully, wilfully and feloniously, by stealth, take, steal and carry away, without the consent and against the will of the true owner,” certain personal property “with the unlawful and felonious 'intent then and there” of the defendants “to deprive tne said B. C. Knee thereof and to, convert the same to their own use and benefit,” sufficiently charges a felonious intent to convert.</p> <p>2. JUDGES — Change of Judge — Powers of Substituted Judge. Where an application for change of judge is granted on March 22, 1905, and the clerk of the district court of Comanche county is ordered to notify the clerk of the supreme court at Guthrie of sucli change of judge; and where, on the same day, at Woodward, Oklahoma, at chambers, an order is made by the chief justi'cel assigning another judge to “hold the district court in the county* of Comanche * * * and to try, hear and determine any, and all cases and matters that may come before him in saiidi district during the absence” of the regular presiding judge therefrom — Held, the judge so assigned has jurisdiction to try, hear and determine any case or matter which may come before him while acting under such order of the chief justice.</p> <p>3. CRIMINAL LAW — Accomplices—Evidence—Corroboration—Sufficiency — Larceny. Evidence of witnesses other than accomplices examined: Held, to be sufficient to tend to connect the defendant with the commission of the offense.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Bayard T. Rainer, Trial Judge. STATEMENT OE PACTS. This action was brought by J. A. Willoughby, receiver of the Capitol National Bank of Guthrie, to recover from the defendant one thousand dollars, the amount of the levy of the comptroller of the currency upon ten shares of stock of the said bánk belonging, ■as alleged, to defendant. The assessment was made by the comptroller May,9, 1904.

<p> .Error from the District Court of Oklahoma County; before James K. Beauchamp, Trial Judge. </p> <p>STATEMENT OF PACTS.</p> <p>The amended petition upon which this action is predicated „ sets forth- that the plaintiff is the sole surviving heir of Levi Holt, who on or about the 11th of March, 1890, filed his soldier’s declaratory statement and application to make homestead entry on the southwest quarter of section 27, township 12, range 3 W. I. M., in the proper U. S. land office in accordance with the laws of the United States and established rules of the land department. It appears from the petition and exhibits that one Ewers White was at the time a homestead entryman of the tract involved, that his entry had been contested by one Blanchard, and White’s homestead entry was held for cancellation by the commissioner of the general land office. Holt’s declaratory statement and application to enter the land-was made during the time, and while White had a right to appeal from the decision of the commissioner to the secretary of the interior, which appeal was- in due time perfected and White’s entry thereby preserved intact pending a determination by the secretary of the interior of the matters presented by such appeal. While the right of White to the land was pending before the secretary, White, on November 29, 1890, relinquished his homestead entry to the tract, and Murphy was allowed to make homestead entry thereon. The allowance of such entry at that time, and while Holt’s application to file declaratory statement was pending and suspended, was held by the department of the interior to be erroneous; but, in view of the fact that Murphy’s entry was of record, the department ruled that Murphy would be allowed thirty days from the date of notice to show cause why his entry should not be cancelled and Holt’s application placed of record. This order brought on before the department a contest between Murphy and Holt which resulted ultimately in a determination by the secretary of the interior in favor of Holt’s right to enter the land. Pending the contest between Holt and Murphy, Holt died, and his rights were revived in the name of Amelia M. Holt, plaintiff herein, as sole surviving heir, and she thereafter was represented before .the department by the defendant, C. W. Ransom, who on June 14, .1897, and after the determination by the secretary of the interior of the right of the heirs of Levi Holt to enter the tract as a homestead, filed in the local office a waiver of the preference right of such heirs to make homestead entry of the tract in accordance with the decision of the secretary of the interior, and asked on behalf of such heirs to withdraw all claims in consideration (as recited in said waiver) of the receipt of $2,000 to them in hand paid by Samuel Murphy, which waiver was signed.by C. W. Ransom and acknowledged before S. M. Dilley, register of the local land office, and the defendant Samuel Murphy was thereafter permitted to make homestead entry of the tract.</p> <p>The petition of the plaintiff then alleges that the act of Ransom in waiving plaintiff’s right was without her knowledge or consent ;■ that no part of the consideration received by Ransom was ever paid to her; that she relied upon Ransom as her attorney to keep her.informed as to her rights, but that he deceived her by concealing from her the fact that a preference right of entry had been awarded to the heirs of Levi Holt, and of the fact that he had entered a waiver of the right of said heirs to the tract as above stated; and that she did not discover the fraud until about the 8th day of September, 1901. The petition of plaintiff further recites that the defendants on the 14th day of June, 1897, conspired and confederated with the said Ransom to cheat and defraud'plaintiff out of her right to said land, and acted together with said Ransom in executing and filing said waiver as above set forth, and charges that the defendant C. W. Ransom, for a consideration paid by the other defendants, and by the assistance and counsel of the other defendants, except the Classen Company, filed'a waiver of all of plaintiff’s rights to said land, in the local land office. It is further charged that on the 19th of January, 1898, the defendant fraudulently procured a patent to the land to be issued by the government to the defendant Samuel Murphy, and that he thereafter fraudulently conveyed 120 acres of said land to the other defendants, retaining to himself 40 acres thereof. The petition then in detail charges specific acts of fraud on the part of each one of the defendants (except the Classen Company) participated in by all the defendants, each and all of which acts were entered into, done, and performed with the intent and purpose of each of said defendants, thereby to cheat and defraud the plaintiff out of her right to enter said premises awarded her by the said decision of the secretary of the interior'. The acts of the several defendants by which the plaintiff claims to have been defrauded consisted in manipulating the title to said lands by deeds and'mortgages in such way as to place the same be3>ond the reach of any action by the plaintiff to recover the same, and as well also to distribute the value of said premises ratably among the said defendants. The value of said premises is alleged to be the sum of $175,0.00, and to that extent the plaintiff alleges she has been damaged by the wrongful and fraudulent acts of the said defendants set out in the petition.</p> <p>To the petition of the plaintiff each of the defendants filed their separate demurrers upon three grounds: (1) That the action was barred by the statute of limitations; (2) that it did not state facts sufficient to constitute a cause of action; and (3) that there is a misjoinder of parties defendant. The cause coming on before the trial court upon these demurrers, the court sustained the same as to each of the defendants upon the second ground, and from this ruling and judgment of the court the cause comes to this court for review, uponffhe error alleged to have been committed in sustaining such demurrers. The foregoing is a statement of the material facts set out in the petition and exhibits thereto attached.</p>

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

<p>1. INTOXICATING LIQUORS — Licenses—'Refusal by City. Where a dealer in Intoxicating- liquors has obtained a county license' authorizing- him to sell such liquors within a city of the first,, class, such city has no power to refuse a city license to /such person upon presentation of his county license, filing his 'bond with the county 'Clerk, and paying, to the city treasurer the amount required by the city ordinance for such license.</p> <p>2. SAME — Qualifications of Licensee — City Cannot Prescribe Additional. The qualifications of one who has obtained a county license has been determined, and the mayor and city council of a city of the first class have no power to by ordinance prescribe additional qualifications.</p> <p>3. SAME — Municipal Regulation of Sale. The mayor and city council of a city of the first class may by ordinance regulate t|he‘ places where intoxicating liquors are sold and may designate the portions of such city where saloons may be conducted and where they may not, and an applicant for county license in such city must take notice of such ordinance when properly enacted and published.</p> <p>4. SAME — Unlawful Sale — 'Nuisance. The unlawful sale of intoxicating liquors does not per se constitute the place where such liquors are sold a public nuisance. The character of the place must depend upon the special facts, which must be specifically averred and proved.</p> <p>b. SAME — Abatement and Injunction. There is no statute in this territory authorizing a court to proceed by injunction to restrain the unlawful sale of intoxicating liquors, and a court of equity’ will not interfere upon the bare fact alone that the place where liquors are sold is unlicensed.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. ERROR, WRIT OF — Review—Questions of Fact — Sufficiency of Evidence. A case will not be reversed for insufficiency of evidence where the evidence is such as to reasonably support the' judgment.</p> <p>2. MECHANICS’ LIENS — Right to Lien — Subcontractor of a Subcontractor Not Entitled to. A subcontractor of a subcontractor is not entitled to a lien on a building under the provisions of the statutes of Oklahoma of 1893 regarding “liens of mechanics and others.” The right to a lien under such statutes -is confined to artisans, laborers, contractors and subcontractors..</p> <p>3. SAME — Claims Against Subcontractor — Rights and Duties. When a contractor for the erection of a building lets a subcontract to a portion thereof, and the subcontractor permits liens to be filed against the building, the contractor is not required under the law to defend against the respective amounts of such liens. It is the duty of the subcontractor and those claiming liens under him to defend against the allowance by the court of excessive or unjust claims. The contractor, under such circumstances, may refuse to pay any lien claimant the amount of his lien until after he establishes the correctness thereof in court, and before a proper court adjudicates the correctness of the same the contractor would pay it at his peril..</p> <p>4. SAME. An original contractor is entitled to have all of the terms and conditions of a contract with a subcontractor fulfilled for the amount stated therein; and, when liens are filed against the building involved, it is the duty of the original contractor to advise the court by proper pleadings and proof as to the terms' and conditions of the contract, the amount of money advanced thereunder, and of the balance due or to become due, together, with such other information as will enable the court to properly dispose of the liens. If he does this, and then pays out such' sums as the court may direct to the persons named by the court after the liens have been established, and the amount due from the subcontractor to the lien claimant has been duly decreed by the judgment of the court, he will be subject to no further liability in relation to such liens.</p> <p>5. SATVIE. It is the duty of a person claiming a lien under a subcontractor for labor' performed on a building to first establish by a judgment of court the amount due from the subcontractor to him, and to secure a decree establishing the lien before the original contractor is under any moral or legal obligations to pay the lien claimant the same; and, even then, due regard must be had for .the amount of the contract under which the labor has been performed, and also as to whether or not tjie terms and conditions of the contract have been fulfilled, as it is not the intention of the law to require the one letting such a contract whether he be the owner or original contractor, to pay more than the contract calls for in compensation for the services to be rendered.</p> <p>(Syllabus by the Court.)</p>

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

<p>SPECIFIC PERFORMANCE — Contract—Validity—Alienation by Homesteader. A contract toy a bomesteader to alienate a portion of the tract while occupied by him as such, when he shall acquire title from the United States, is against public policy and void„ and no action' either at law or equity can be predicated thereon.</p> <p>(Syllabus by the Court.)</p>

<p>1. BILLS AND NOTES — Consideration—Personal Benefit. Where a Benefit is conferred by a third party or a detriment suffered by the payee of a note at the instance of the maker thereof, it will be sufficient consideration to support the note, even though the maker thereof received no personal benefit by reason of t'he execution and delivery thereof.</p> <p>2. SAME — Estoppel—Case. Where a joint and several promissory note is secured by a chattel mortgage, and a third party signs, the note some time after the execution and delivey upon the consideration that the payee or holder will release or waive his mortgage security, which is done, when sued individually on the note, he is estopped from claiming that he signed the note without the knowledge of the original makers.</p> <p>(Syllabus by the Court.)</p>

<p>WRIT OF ERROR — Record—Necessary Averments — Review. This court will not review any question dependent upon an examination of the evidence for its determination, where the record fails to disclose, by averment or its equivalent, that it contains all the evidence introduced on the trial.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. APPEAL — Review—Sufficiency of Evidence. A judgment will not be reversed by this court on account of the insufficiency of evidence, when the evidence reasonably supports the same.</p> <p>'¿. SAME — Findings of Trial Court — Case. When a trial court, in a case tried to it without a jury, finds that one of the parties was guilty of fraud and undue influence, and that the other party was incapable of contracting by reason of being intoxicated at the time, and the evidence reasonably supports such findings, they will not be disturbed by this court on appeal, on the theory that they are against the weight of the evidence.</p> <p>3. TRIAL — General Findings. A general finding for a party to an action is equivalent to finding in his favor each fact in issu'e in the case.</p> <p>(Syllabus by the Court.)</p>

<p>1. 'HOMICIDE — indictment—Error Not Reversible, When. Where one is indicted for murder, but the indictment, although sufficient to charge manslaughter in the second degree, is not a gooc(! indictment for either murder or manslaughter in the first degree, and the defendant is put on trial for murder, and the jury return a verdict of manslaughter in the second degree, the defendant cannot complain that he was tried upon the theory that the indictment was a good indictment for murder, unless it appears from the record that the defendant may have been prejudiced thereby; and prejudice will not be presumed from the fact alone that the prosecution and the court proceeded upon the theory that the indictment was a good indictment for murder.</p> <p>2. CRIMINAL LAW — Appeal—Instructions—Harmless Error. Where one is on trial for a crime which is divided into degrees, and the court commits error in instructing the jury upon the law applicable to the higher degree of such crime, but properly instructs the jury as to the lower degree, and the jury returns a verdict of guilty of the lower degree, the defendant cannot complain. One can only complain of errors which may have affected his rights.</p> <p>3. SAME — Evidence—Conversations of Defendant. A prosecution may, on a trial, show by the testimony of other witnesses a conversation between a defendant and another party; and it may prove the statements made by both the defendant (which are in the nature of admissions against his interests) and by the other party to the defendant. But it is for the jury to say, from all of the conversation, as to whether or not the statements made by the defendant are admissions against his interests</p> <p>4. SAME — Sufficiency of Evidence. A verdict will not be set aside . for lack of evidence where the evidence reasonably supports it.</p> <p>(Syllabus by the Court.)</p>

<p>1. JURY — Right to Jury Trial — Exemptions. A motion to discharge exempt property from attachment is triable to the court or judge, and neither party is entitled to a' jury.</p> <p>2. HOMESTEAD — Exemption—Tort of Father. The homestead of the family is exempt to the family and cannot be taken on attachment for the tort of the husband and father.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Review—Insufficient Record. When on the trial of a case in the district court the defendant interposes a demurrer to plaintiff’s evidence, which is sustained by the court ard the cause dismissed, such ruling will not be reviewed by this court on appeal, unless the case-made contains all of the evidence introduced upon such trial; and where the case-made contains a-statement that all of the evidence introduced upon the trial is contained therein, but the record upon its face shows that it does not and that a material plat or chart was omitted therefrom, the record is the best evidence, and will prevail over such statement.</p> <p>(Syllabus by the Court.)</p>

<p>1. ‘ SHERIFFS — Fees and Costs — Return—‘Conclusiveness. The return of a sheriff on an order of replevin is conclusive and binding against him; and where he shows by his return that he delivered cattle seized by him under the writ to the defendant, with the consent of the plaintiff, within ten days after taking such property under such writ, he cannot be allowed as a part of the cost^ of the case for feeding and caring for such cattle for a period of seventy days.</p> <p>2. SAME — ¡Proper Expenses in Replevin. Where a sheriff takes charge of property under an order of replevin, he can only he allowed for caring for the same during the time that he is in possession thereof.</p>

<p> Error from the District Court of Patones County; before Bayard, T. Rainer, Trial Judge. </p>

<p>ATTACHMENT — Claims by Third Persons — Void Assignment — Burden of Proof. Where an assignment for the benefit of creditors is void, but the assignee has taken possession of the property, an'd the sheriff levies upon such property under an order of attachment in an action against the assignor, and finally sells the property under an order of sale which recites the judgment of the court for the amount recovered in the case, and also an order sustaining the attachment and for the sale of the property, in an action by the assignee against the sheriff for conversion, the burden of proof is upon the assignee to establish his right to recover by a preponderance of the evidence. In such circumstances the order of sale, which was regular upon its face, will-, prevail over the void assignment; and, where the record shows that an assignment is void, proof of such assignment will not defeat an attachment proceeding against the assignor. The property will be treated as the property of the assignor and measured by the same rules that would obtain without said assignment, and even possession of the property by the assignee at the time of the attachment will not inure to his benefit.</p> <p>(Syllabus by the Court.)</p>

<p>JUSTICES O'F THE PEACE — Appeal—Taken to Probate Court, When. Under the provisions of section one of article nine of chapter twenty-eight of the Session Laws of Oklahoma of 1905, which provides that “in all cases not otherwise especially provided for by law, either party may appeal from the final judgment of thej justice of the peace to the probate court of the county where the judgment was rendered,” etc., an appeal may be taken from a judgment of a justice of the peace to the probate' court only when the judgment is by confession or where there has been a jury trial and neither party claimed more than twenty dollars in his bill of particulars, as all other appeals were already provided for, in that the statutes in force at the time the section above quoted was enacted required that appeals, other than those named herein, be taken from the justice’s court to the district court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Cowl of Kiowa Countyj before J. L. Pan-coast, Trial Judge. </p>

<p> Error from, the Prolate Gowt of Logan County; lefore J. Q. Strang, Trial Judge. </p>

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

<p>1. OBSCENITY — Offense Against Public Morals — Evidence—Case. One Bessie Patterson applied to the defendant, W. H. Gunn, at his office, for employment as an-office girl. The two were in the-office alone. The defendant requested the prosecutrix to submit to a physical examination in order that he might determine if she was virtuous, and upon her refusal he ran his hands under! her clothes and placed them upon her lower limbs and used vile, indecent, lewd, and lascivious language to her. Held, that such acts did not constitute a violation of section 2552 of the Statutes of Oklahoma of 1893, which makes it a misdemeanor to “wilfully and wrongfully commit any act * * which openly outrages public decency, and is injurious to public morals.” The acts complained of were not open or public, and did not outrage, public decency nor injure public morals, but constituted a personal injury inflicted privately.</p> <p>U. SAME. The section of the statute under which the defendant was convicted is intended to cover only those acts for the punishment of which no other penalty is by statute provided.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Pottawatomie County; before William N. Maben, Probate Judge. </p>

<p>1. MECHANICS’ LIENS. — Materialman’s Lien — Government Land— Leasehold Estate. Where one causes to be erected a building on real estate in his possession, and material furnished for such purposes is not paid for, a materialman’s lien may be had under the laws of Oklahoma, even though the person for whom such building was erected is not the owner of .a perfect legal title. A leasehold estate (if the building is erected within the authority conveyed by such instrument) is a- sufficient title of ownership to authorize such a lien; and, in default of payment, such lien may be foreclosed and the rights of the lessee in the land or t*. the occupancy thereof under his lease, as well as the building, may be sold to satisfy the judgment.</p> <p>COUKTS — Jurisdiction. Where a court has jurisdiction over the persons to an action, by legal service or voluntary appearance, and the cause is the kind of a cause triable in such court, it has jurisdiction of the subject of the action and power to render any rightful judgment therein.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — (Review—Harmless Errors. Although a petition fails to state a cause of action for affirmative relief in the first instance, still, where the defendant files an answer and cross-petition and the facts pleaded in the pjetition constitute a defense to 'thd cross-petition, and the parties go to trial on such pleadings, and the court, on the merits, finds against the cross-petitioner, meré irregularities will be ignored, and only those errors considered which may have affected the substantial rights of the parties.</p> <p>2. MORTGAGES — Foreclosure—Defenses—Fraud and Want of Consideration. Where a mortgage on real estate is executed without consideration, and by reason of fraudulent representations made by the mortgagee to the mortgagors, such fraud and want of ' consideration may be shown at any time by the mortgagors in an action by the. mortgagee to foreclose.</p> <p>8. APPEAL — Review—Sufficiency of Evidence. Where a judgment is reasonably supported by the evidence, it will not be disturbed on appeal to this court on the ground that it is against the weight of the evidence.</p> <p>(Syllabus by the Court.)</p>

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

<p>'i. APPEAL — Review—Sufficiency of Evidence. Where the evidence reasonably supports the verdict, the finding of fact will not be disturbed by this1 court.</p> <p>2. SAME — 'Harmless Error. Errors committed by a trial court which do not affect the substantial rights of the party against whom it was committed will be ignored on appeal.</p> <p>3- HUSBAND AND WIFE — Presumption—Agency. Where a wife requests medical treatment for an infant, it will be presumed, in the absence of proof, that she is acting as the agent of her husband; but such presumption may be overcome by evidence.</p> <p>4. PARENT AND CHILD — Parent’s Liability for Medical Expenses. A father is liable for medical or surgical services rendered his child at the request of his duly authorized agent; also, for hospital service received under similar circumstances.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of P.awnee County; before Bayard T. Rainer, Trial Judge. </p>

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

<p>1. PUBLIC LAN'DS — Homestead Eentry — Relinquishment—Title to Growing Crops. Where one sows wheat on land embraced in a homestead entry under a contract that he is to have two-thirds of the crop and the entryman one-third, and before the maturity of the crop the entryman sells his improvements and growing crops to another and relinquishes his homestead entry, so that such other person may file on the land, and such other person files on the land, he acquires not only the right of possession ta the land itself, but also title to all improvements and growing crops thereon.</p> <p>2. CROPS — Cropper's Contract — Rights Conferred. A cropper’s contract, whereby one agrees to cultivate the land of another and is to receive as compensation therefor a share of the crops grown, does not create the relation of landlord and tenant. Except where it is otherwise provided therein, such a contract grants possession of the land only as,an incident to the work that is to. be performed, and confers no general right of occupancy of and control over the land cultivated. s</p> <p>3. APPEAL — Review—Evidence—Harmless Error. Error committed by a trial court in excluding a written instrument from evidence will not justify a reversal of the judgment where secondary evidence is received in lieu thereof and it is apparent that the party offering such instrument was not prejudiced by its exclusion; the facts sought to be established thereby and proven by parol' evidence not being disputed.</p> <p>(Syllabus by the Court.)</p>

<p>1. STREET RAILWAYS — Traveler—Contributory Negligence. A driver of a vehicle who suddenly turns his team to cross a street railway track without looking and listening for an approaching ear, and without taking the ordinary care and precautions .imperatively required of all who place themselves in a similar position of danger, is guilty of contributory negligence as a matter of law.</p> <p>2. TRIAL — Duty to Direct Verdict, When. While questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by the jury, yet, when the undisputed evidence is so conclusive that the court ought to set. aside a verdict returned in opposition to it, it is the duty of the court to withdraw the case from the consideration of the jury and direct a verdict.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from an Order of the District Judge of Noble County dissolving Temporary Injunction; before John H. Burford, Trial Judge. </p>

<p>1. ATTACHMENT — Bond to Pay Judgment — Action Thereon— Necessary Averments. In an action on an undertaking given by the defendant in an attachment case, under section 4107 of the Statutes of Oklahoma of 1893 to secure the release of the attached property, it is necessary to aver and show by the evidence that the attached property was restored to the defendant; or there can be no recovery on the undertaking.</p> <p>2. REFORMATION OF ^INSTRUMENTS — Equitable Relief Denied, When. Equity will not subject the property of one party to the) payment of the debt of another; and a mistake will not be corrected in an equitable action, unless the plaintiff .shows by his bill that without such correction it will suffer loss or injury, but even then the court will not enter a decree that will injure another in order, that the '.plaintiff may not suffer loss.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. LIMITATION OF ACTIONS — Suspension—Delay. A person can not prevent the operation of the statute of limitations by delay in taking action incumbent upon him.</p> <p>2. ABATEMENT AND REVIVAL — Death of Party — Strict Compliance With Statute. Section 4624, Wilson’s Statutes, fixing one year as the time within which an action may be revived in the names of the representatives or successors of the plaintiff, is not a mere limitation upon a remedy, but conditions the very right to revive; and parties seeking to avail themselves of its benefits must strictly comply with its terms.</p> <p>3. SAME — Consent of Defendant, When Necessary. Under section 4624, Wilson’s Statutes, upon the death of the plaintiff an . order to revive an action in the names of the representatives or successors of a plaintiff shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made. The statute is not suspended until the appointment of the legal representatives, but begins to run after the expiration of a reasonable time from the death of the plaintiff in which a legal representative might have • been appointed.</p> <p>4. SAME — Case. Where the plaintiff in an action died on the 10th day of April, 1902, and without the consent of the defendant the order of revival in the name of the administratrix was made on the first day of December, 1903, and thereafter upon the hearing it was found that the order was not made within one year from the time it might have been first made, Held, that the action was barred by the statute, and section 4624 warranted a 'dismissal of the action.</p>

Error from the District Court of Pottawatomie County; before B. F. Burwell, Trial Judge. STATEMENT OE THE CASE. Tbe plaintiff in error, L. C. Lane, commenced Ms action in tbe district court of Pottawatomie county against the Choctaw, Oklahoma & Gulf E. E. Co. for the purpose of recovering damages for injuries alleged to Have been caused by the negligence of the denfendanffs servants in the operation of a railway train upon which he was a passenger in May, 1902.

<p>1. PRINCIPAL AND AGENT — Relationship—Case. A contract, whereby the owner of an addition to a town gives to another the management and exclusive sale of the same for a period of ten years, and agrees to pay to such person twenty-five per cent. of the proceeds of sales, after deducting the current expense, and also agrees that, if any part of the addition remains unsold at the end of that time, it shall be appraised and the owner td have three-fourths thereof and the other party one-fourth, constitutes the relation of principal and agent, and does not vest the agent with any interest in the real estate itself.</p> <p>2. SAME — Termination of Agency — Death of Party. Where the relation of principal and agent exists, the death of either party terminates the agency, except where the agent has a pecuniary interest of his own in the execution of the agency.</p> <p>3. PLEADING — Petition—Demurrer. Where a petition neither states a cause of action in equity or at law, a demurrer thereto should be sustained.</p>

<p>1. TAXATION — Property Subject — Assessment in Two States. Personal property, assessed in another state on January 1st of a given year, and brought in and acquiring a situs in this territory-prior to the first day of March of the same year, is assessable and liable for taxes for that year in Oklahoma.</p> <p>2. SAME. The territory has the right to tax property brought into fKe territory for the same year that it has paid taxes in another state or territory.</p> <p>(Syllabus by the Court.)</p>

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

<p>SALE — Offer and Acceptance — Immaterial Variances. An offer of sale of -personal property and its acceptance' must receive a reasonable construction, and the proposer is bound by its acceptance in that sense. Immaterial variances between the offer and its acceptance will be disregarded.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. CRIMINAL LAW — Verdict—Impeachment by Juror. Upon the trial of a criminal cause, a juror who participates in the verdict will not be permitted to impeach his verdict by affidavit, deposition, or sworn statement. Public policy forbids that a juror should be heard to discredit his verdict.</p> <p>2. SAME — Remarks by Judge — Harmless Error. An erroneous statement of the law, made by the trial judge in a colloquy with counsel during the argument to the jury, will not be sufficient grounds upon which to set asi'de the verdict, where it is obvious from the entire record that it could not have prejudicially influenced the verdict.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Day County; before J. L. Pan-coast, Trial Judge. STATEMENT OE FACTS.

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

<p>CRIMINAL LAW — New Trial — Newly Discovered Evidence — Sufficiency. A motion for a new trial upon the ground of newly discovered evidence, made after the term at which the defendant was convicted and sentenced, which motion sets forth the evidence relied on, is not sufficient to justify a new trial of the cause, unless from a consideration of it the court can determine that the result of the trial would probably have been different had such new evidence been heard upon the trial.</p> <p>(Syllabus by the Court.)</p>

<p>TAXATION — Property Subject — Personalty on Military Reservations. The taxing officers of Comanche county, Oklahoma, have IheTawful right to levy and collect taxes on personal property belonging to private individuals and located on the Port 'Sill military reser • vation, which is wholly within such county and constitutes a part thereof. The legislative power of the territory extends to all rightful subjects of legislation, and the only property which congress has prohibited the territory from taxing is the property of the United States.</p> <p>(Syllabus by the Court.)</p>

<p>1. MECHANICS’ LIENS — Property Subject. By the provisions of section 4817, Wilson’s ,Stat. 1903, one who, under contract with • the husband of the owner of land, furnishes material for the erection of a building upon said land, is entitled to a lien upon such land and the improvements thereon for the amount due for such material.</p> <p>2. SAME — Leasehold Estate Subject. A lessee, who holds under a lease from the school land leasing board, is an “owner” of land as contemplated in the mechanic’s lien law, and such a lien may attach to such a leasehold estate subject to the paramount interest of the United States, the lessor, or the holder of the fee.</p> <p>3. • BILL OF EXCEPTIONS — Necessity—Evidence Before Referee. Where a referee for the trial of a cause in the district court is not ordered to report the evidence, but is ordered to hear the evidence and report his findings of fact and conclusions of law, the evidence so taken can only be made a part of the record and subject to review by the trial or supreme court by having the referee allow and sign a bill of exceptions containing the evidence taken by him.</p> <p>4. SAME — Findings of Referee — Conclusiveness. Where the evidence taken upon a trial before a referee is not made part of the record, the findings of such referee are conclusive upon the parties as-well as the court, and cannot be reviewed.</p> <p>b. SAME — Preservation of Record. Where a party desires to have the proceedings before a referee reviewed, he should file a motion for new trial before the referee, and have the same ruled upon before the report of the referee is filed in court; and, in order to preserve a record before a referee, a bill of exceptions should be prepared and presented to the referee for his allowance and signature, to be filed in court with his report.</p> <p>(Syllabus by the Court.)</p>

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

<p> Error from,'the Probate Court of OTdahoma County; before Wm. P. Harper, Trial Judge. </p> <p>STATEMENT OF THE CASE.</p> <p>On or about the 23rd day of July, 1904, Samuel II. Kress and Claude W. Kress leased to G. W. Garrison two upper stories of a certain brick building on lot nine (9), in block thirty-five (35), in the city of Oklahoma City, Oklahoma, to be used in connection with the Illinois Hotel, which the said G. W. Garrison at that time •occupied. Prior to the completion of the said building, which was to be used in connection with the said hotel, the said G. W. Garrison sold out his interests in the Illinois Hotel, and assigned his lease on the proposed annex to said hotel to the purchaser, one Mrs. M. J. Wade. The lease provided that the lessee could assign same without the consent of the lessors. The lessee, G. W. Garrison, claims that prior to the signing of said lease and the delivery thereof he had entered into a separate and collateral agreement with the lessors, whereby it was agreed, stipulated, and understood that, in case said lessee assigned said lease, and was not in arrears with the rent at the time of assignment, he should be relieved, personally, from all liability under and by virtue of the terms of said lease contract; that this agreement was a condition precedent to the,signing of said lease contract, and that the same would not have been signed and accepted by him but for tire oral stipulations above referred to. The plaintiff in the court below brought an action against Garrison for the rent in arrears on said contract. The trial court refused to permit the defendant Garrison to testify as to the terms of said oral agreement, or to testify as to whether there was an oral agreement between the parties. • The trial court also refused to permit defendant to show that the plaintiffs had assumed control of the premises by attempting to lease them to other parties, to which ruling of the court the defendant excepted. At the conclusion of the testimony, the court directed the jury to find a verdict for the plaintiff, which was done, to which defendant excepted. Motion for new trial was filed, overruled, and exceptions allowed,, and the case is brought here for review.</p>

<p> Error from the Probate Court of Logan County; before C. W. Goodrich, Probate Judge. </p> <p>STATEMENT OF THE CASE.</p> <p>This is a proceeding supplemental to an execution to compel the satisfaction of a judgment. The plaintiff filed an affidavit on July 21, 1903, from which it appears that on the 15th day of July, 1898, a judgment was rendered in the probate court of Logan county in favor of the Arkansas City Milling Company against Benjamin F. Ryland for the sum of $¿90.89 and costs of suit taxed at $2.50, with interest at 6 per cent, per annum until paid; that an execution was issued thereon and placed in the hands of the sheriff of Logan county for service; that the sheriff returned said execution unsatisfied; that the debt at the date of the affidavit amounted to the sum of $380.65; that Ryland was a resident of Logan county, where said judgment was rendered; and that the said Benjamin F. Ryland. judgment debtor, has property which he unjustly refuses to apply towards the satisfaction of said judgment, and a request was made for an order directing the defendant to appear and answer under oath concerning his said property. Based upon said affidavit, the probate judge issued an order directing the judgment debtor to appear before said judge on the 27th day of July, 1903, then and there to answer under oath concerning his property, and the application of such property to the payment of plaintiff’s judgment, interest, and costs. Pursuant to said order, on the 27th day of July, 1903, the judgment debtor, Ryland, appeared, and, after introducing certain preliminary proof, the plaintiff caused Rjdand to be sworn as a witness and proceeded to examine him as to Ms property. He testified that he made homestead entry npon the east half and the southwest quarter of section 13, township 17 north, range 4 west, ■and made final proof thereon; that he conveyed this land to his wife fco enable her to borrow some money; that she mortgaged the tract for $600, and traded for another tract, the northwest quarter of section 7, township 17 north, range 3 west; that these transactions occurred about three years previously, and that his wife was still the owner of said tracts of land. He also testified that his wife was the owner of the northeast quarter of section 13, township 17 north, range 5 west, and also certain lots in the town of Crescent, upon which is located a cotton gin; that his wife rented the farms and had them cultivated, while he managed the cotton gin for her upon a monthly salary of $40.00; that each of the pieces of real estate was mortgaged for from $400 to $700 each, and the income from the farms and cotton gin business had mostly been consumed in operating and living expenses; that he owned no property whatever, and had in the real estate only the value of a team of mules and some other insignificant articles. The homestead was shown to be worth $3,000, another of the farms $2,500, and the other $700. It appeared that Mrs. Ryland had accumulated all this property from the $600 borrowed by her upon the homestead, and the efforts of her husband acting as her manager. She also owned some live stock and farm implements.</p> <p>Upon this showing the probate court found as follows: * * That the said Benjamin F. Ryland. has property, consisting of the N. W. quarter of section 7, township 17 N., range 3 west of the Indian Meridian-; the N. E. quarter of section 13, in township 17 N., range 3 west of the Indian Meridian, and certain property in Orescent in said county, consisting of cotton gin and the lots upon which it is situate, not exempt by law from execution, and in addition to any current wages; that all of said property is the product of his skill, labor, and management, and is in addition to the keeping of himself and family, and that the same should be applied to the payment of the judgment, interest, costs, and accruing costs in the above entitled action.” Upon said finding the following order was made: “It is therefore considered, ordered, and adjudged by the court that the same shall be applied, and the said'Benjamin F. Ryland is hereby directed and ordered to so apply said property and to pay said judgment, interest, and costs, and accruing costs, within thirty days from the date hereof. To which order the defendant at 'the time excepted.” From this last order the appeal is taken to this court.</p>

<p> Error from the District Court of Oklahoma, Oountyj before B. F. Burwell, Trial Judge. </p> <p>STATEMENT OE THE CASE.</p> <p>This was an action in ejectment brought by the defendants, in error, William M. Pyles and the minor heirs of Mrs. William M. Pyles, deceased, against the Gault Lumber Company, a corporation, to recover possession of lot 29, in block 4, in Oklahoma City. The plaintiffs alleged that they were the owners and entitled to the possession of the real estate described, and that the defendant was in possession and refused to vacate, and judgment was asked for possession and damages' for detention. The defendant filed an answer in which it admitted that the plaintiffs held the legal title to said lot, and that it was in possession of the same, but alleged that William M- Pyles authorized an agent in writing to sell said real estate for $400 cash, and that it purchased said lot from said agent and paid the sum of $50 upon the purchase price and went into possession of said property and had made valuable and lasting improvements thereon, and it offered to pay the balance of the purchase money, $350, and demanded specific performance of said contract of purchase. The plaintiffs replied by general denial. The cause was tried to a jury. Upon the trial the plaintiffs introduced proof of their'title and the possession by the defendant and rested. The defendant then showed that Pyles had written a letter to the agent from whom it purchased the propertjr, in which he stated “that he would take $400 for the lot,” and told him “that, he might sell it.” This letter was lost and it does not appear that any affort was made to have Pyles produce a copy or to admit its contents. The agent made an oral agreement with W. D. Gault, manager of the lumber company, to sell the lot to the company for $400, and- Gault agreed to take it. He paid the agent $50, and agreed to pay the balance of $350 when the deed was delivered. The sale was reported by the agent to Pyles, who at the time was residing in Indian Territory, and he sent a deed to the agent, executed by him, and conveying the lot to the Gault Lumber Company. Mr. Gault took the deed to his attorney, who examined it, and after which Gault returned it to the agent, and refused to accept it because it was not executed by or on behalf of the minor heirs who owned an undivided interest in the real estate. Pyles at the time had no authority to sell the real estate of the minor heirs. Proceedings were begun in the probate court of Oklahoma county for the purpose of obtaining an order of that court for the sale of the interest of the minor heirs, but no such order was ever made. After Gault had rejected the Pyles’ deed and knew of the defect in the title, and that the minor heirs had not, through any authorized proceeding, agreed to the sale of the lot, the lumber company moved its business onto the lot and put about two hundred loads of dirt on the lot to fill it up for business purposes. After this had been done, Pyles called upon the agent and procured the rejected deed. He refused to accept the $50 held by the agent, and joined with the infant owners in bringing this action. Upon the showing above made, the court directed a verdict for the plaintiffs, and gave judgment for possession, and this is assigned as error.</p>

Error from the Probate Court of Noble County; before Ethan Allen, Probate Judge. STATEMENT OE THE ClSE.

Error from the Probate Court of Oklahoma County; before Wm. P. Harper, Probate Judge. STATEMENT OR RACTS. During the year 1905, Williamson-Halsell-Erasier Company, defendant in error, was engaged in the wholesale grocery business in Oklahoma City, Oklahoma Territory.

Error from the District Court of Comanche County; before F. E. Gillette, Trial Judge. STATEMENT OF THE CASE.

<p>1. BILLS AND NOTES — Non-negotiable Motes — iBona Fide Purchase! — Defenses. A non-negotiable note, transferred to an innocent purchaser before maturity and for a valuable consideration, without notice, either actual or constructive, to the maker thereof, is subject to all the legal defenses which might be interposed against the note in the hands of the original payee.</p> <p>2. MORTGAGES — Assignment —Execution—Record—Notice. Notice recording of an assignment, by a corporation, of a mortgage, without the attesting of the secretary of said corporation, as required 'by running section 921, page 331, Wilson’s Revised Statutes of Oklahoma 1903, is not constructive notice.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OF FACTS. This is the second time this case has been before this court. The record of the previous trial will be found reported in 13 Olda. 670, 76 Pac. 226.

Error from, the District Court of Washita County; before James K. Beauchamp, Trial Judge. STATEMENT OE THE CASE. At the October term, 1905, of the district court of Washita county, Oklahoma Territory, a joint indictment was returned against George Hysaw, Oscar Steudle, John Steudle, and Charlie Steudle, charging them with the larceny of two domestic animals.

<p>1. CRIMINAL LAW — Testimony of Accomplice — Corroboration Required. One accused of a crime cannot be convicted upon the uncorroborated testimony of an accomplice, and the corroboration required must be the proof of substantial facts tending to incriminate the accused, aside from and without the aid of the testimony of the accomplice.</p> <p>2. SAME — Weight of Evidence. Where there is competent corroborating evidence tending to connect the accused with the commission of the crime charged, the weight of such evidence is a matter for the jury; but, where the corroborating evidence is of such an uncertain and unsatisfactory character as not to warrant a reasonable inference of guilt, the court should set aside the verdict.</p> <p>(Syllabus by the Court.)</p>

<p> Error from, the District Court of Kay County; before Bayard T. Hainer, Trial Judge. </p> <p>STATEMENT OE THE CASE.</p> <p>This is an action commenced in the district court of Kay county, Oklahoma, in February, 1904, against the defendant Stark Brothers, plaintiffs in error here, to quiet title to the north half of the northwest quarter of section fifteen, township twenty-six north, of range two east of the Indian Meridian, in Kay county, Oklahoma Territory. Plaintiffs in their petition' state that they are the owners, and in actual possession of said land; that the defendants claim an estate in said lands adverse to these plaintiffs, the nature of said adverse claim being that defendants claim a lien contract made with one Fred Bower, who was the original entryman of said land, and that said lien contract is of record, and is a cloud upon plaintiff’s title. Plaintiffs ask that said cloud be removed. The defendants filed an answer and cross-petition, alleging that on the 21st day of August, 1894, Fred Bower was the owner of and in possession of the said land; that on said date the defendants sold to said Bower a bill of fruit trees for the sum of $450; that said Bower entered into a written contract with defendants, whereby said Bower gave to these defendants a lien on said land for the performance of' said contract, and pleaded a copy of said contract, asking affirmative relief, that the said contract be declared a first lien. The contract is as follows:</p> <p>“Form 9-y. -</p> <p>“THIS INDENTUEE made and entered into on this 21 day of Aug. A. D. 1894, by and between Fred Bower, of K. County,(residence one mile N.) county of K and of Oklahoma Ter. party of the first part, and Stark Bros, of Louisiana, county of Pike and state of Missouri, parties of the second part:</p> <p>“WITNESSETH: That the said party of the first part in consideration of said parties of the second part selling and shipping to him in the fall of 1894 to Cross, railroad freight charges prepaid, (-) fruit trees, binds himself, his heirs, and assigns to carefully plant and care for said trees on his farm containing eighty acres, situated in K county, Oklahoma, and more particularly described as follows, to-wit: N. % N. W. section 15, township 26, range 2 E., boundaries [here give name of adjoining owners] D. Mooney to the west and Thomas G-oozdanover on the east and-and to pay to the order of said second parties, their heirs, or assigns, as evidence by first party’s nine (9) promissory notes to be executed by said first party to second parties when the aforesaid trees are shipped, four hundred & fifty dollars ($450.00) due and payable as follows — all deferred payments and interest hereafter particularly specified to date from the first day of--189 — : one-tenth when trees are shipped, one-tenth in one (1) year, one-tenth in two (2) years, one-tenth in three (3) years, one-tenth in four (4) years, one-tenth in five (5) years, one-tenth in. six (6) years, and one-tenth in seven (7) years, one-tenth in eight (8) years and one-tenth in nine (9) years, with interest at the rate of six (6) per cent, per annum, and if the interest be not paid annually the same is to become as principal and bear the same rate of interest; to the payment of which sums as the same- shall become due the party of the first part binds himself, his heirs, assigns and grantees of and to the aforesaid described lands; the right being reserved to the said party of the first part to paj the full amount remaining unpaid and not yet due, together with accrued interest, at any time he may elect within the period of nine years next after date last above written.</p> <p>“And the said first party for the purpose of obtaining the aforesaid trees states that the above described real estate is free and clear of encumbrances, and that he claims the same with a perfect homestead.</p> <p>“In witness whereof, we have hereunto set our hands and seals this the day and year first above written.</p> <p>“Feed Bo wee, (Seal.)</p> <p>“StaeK Beos. (Seal.)</p> <p>“Witnessed by W. E. Morían.</p> <p>“Oklahoma Territory, County of K. ss.</p> <p>“Be it remembered that on the 22nd day of Aug. 1894, personally appeared before me, Fred Bower, and acknowledged the execution of the above contract.</p> <p>“In testimony whereof I have hereunto set my hand and affixed my oficial seal at my office in Cross, O. T., the day and year first above written.</p> <p>“G-. Q. BeaNINE, Notary Public. “[Seal] My term expires Dec. 8, 1897."</p> <p>Endorsed on back: “Fred Bower, to Stark Bros. Fruit tree contract. Territory of Oklahoma, K County, ss. Filed for record this 21 day of Sept. A. D. 1894 at 12 o’clock M., 'recorded in Mis. Book 1, page 105. J. C. JAMISON, Register of Deeds. [Seal.]”</p> <p>To this answer and cross-petition plaintiffs filed a reply. In said reply plaintiffs allege as a defense to said cross-petition that at the time of the execution of said contract Fred Bower, the maker thereof, was and now is a married man and the head of a family, and at the time he was living with his family on said land as a homestead, and at no time did the wife of said Bower sign said contract, or contract for said fruit trees in writing, or otherwise, or consent to the same, and for this reason the said contract ■created no lien against said homestead. For a further defense, plaintiffs allege that at,the time of- making said contract the title to said land was in the United States government; that the said Fred Bower, who was the maker of said contract, was a homestead ■entryman on said tract of land, and that no final proof had been made, and no patent issued, and for this reason the said land was not liable for the debt created by the purchase of said fruit trees ■as evidenced by said contract, and for a further reply and defense, plaintiffs allege a failure on the .part of the defendant Stark Brothers to perform their part of the contract, and in said reply plaintiffs ask that said contract be declared by the court not to be a lien on said real estate. On September 7, 1904, plaintiffs filed a motion for judgment on the pleadings. On the 16th of February, 1905, said motion for judgment on the pleadings was overruled. On the 15th of April, 1905, defendants demurred to plaintiffs’ reply. On the same day the court -sustained the demurrer to said reply. On the 17th day of April, 1905, defendants filed a motion for judgment on the pleadings. On the 10th of July, 1905, the court sustains the motion of defendants for judgment on the pleadings, and renders judgment in favor of the 'defendants and declared the contract to be a first lien, and directs the issuing of an order of sale. On the 17th of July, 19.05, the clerk of the district court of Kay county issued an order of sale. On the 14th of July, 1905, the plaintiffs filed a motion in the district court to set aside the judgment on pleadings, in favor of defendants, rendered on July 10, 1905, and on August 31, 1905, the court issued an order staying proceedings upon the judgment of July 10, 1905, and order of sale, upon the plaintiffs filing bond in the sum of $200. On August 31, 1905, plaintiffs filed bond. On the 12th of September, 1905, the court rendered judgment sustaining the motion to set aside the said judgment in favor of the defendants rendered on July 10, 1905, and re-instated the cause upon the docket of the court for trial, and to which ruling the defendants excepted, and asked for time to prepare and serve a case-made on appeal to the supreme court, and are granted 30 days in which to make and serve a case-made, ten days to suggest amendments, to be signed and settled on three days’ notice in writing by either party. After which the plaintiffs made application for leave to file an amended reply, which leave was granted, to which the defendants excepted. The cause was then docketed for trial at the next regular term of this court. On the 12th of September, 1905, defendants in error here, plaintiffs below, filed their amended reply and answer to the cross-petition. On the 19th of September, 1905, defendants filed a motion to require the plaintiffs to separately state and number their defenses. On the 20th of March, 1906, this motion is by the court overruled. On the 21st of March, 1906, said cause comes on for hearing on the motion of plaintiffs for judgment on the pleadings, and the motion of defendants for judgment on the pleadings, at which time the following admission was made by the defendants, and the following judgment was rendered by the court:</p> <p>“It is admitted by the defendants, for the purpose of the court passing on the motion of the plaintiffs for judgment on the pleadings, that at the time that Ered Bower, mentioned in defendants’ cross-petition, executed the contract attached to said cross-petition, he was the homestead entryman of the land described in said cross-petition, and was a married man and the head of a family, and that he and his family were residing on said land, and that the final proof for said land had not been made, and that the patent from the United States for said land was not issued until about the year 1898, or 1899, about which time patent was issued to said Ered Bower.”</p> <p>Thereupon the court ordered that the motion of the defendants for judgment on the pleadings be overruled, and the motion of plaintiffs for judgment on the pleadings should be sustained. Thereupon the court rendered judgment in favor of the plaintiffs, declaring the contract in evidence to be no lien upon the land, and taxed the costs to the defendants, to which the defendants excepted, and the case is brought here for review.</p>

Error from the District Court of Oklahoma County; before B. F. Bwrwell, Trial Judge. STATEMENT OE THE CASE. This was an action begun by J. T. Martin against the Metropolitan Kailway Company in the district court of Oklahoma county on December 16, 1903.

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

Error from the District Court of Pawnee County; before Jno. H. Burforcl, Trial Judge. STATEMENT OE CASE. Held: kept, and caused to be kept from this plaintiff the possession of said tract of land from that time until the present, and that the value of the use and occupation of said land so held by the said defendant and retained from plaintiff has been and is the sum of $800.00. “Plaintiff further alleges that subsequent to the delivery by…

Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge. STATEMENT OE THE CASE. The history of this case is as follows: An action was pending in the district court of Comanche count]^ entitled Broe v. Hale, for an accounting, wherein the title, right of possession, and earnings of certain personal property, including the subject-matter of this suit, to-wit, a certain ditcher, was involved.

Error from the District Court of Comanche County; before F. E. Gillette, Trial Judge. STATEMENT OF FACT. This was an action commenced in the district court of Comance county on the 36th day of September, 1903, to recover from the defendant damages for the breach, of a certain contract set forth in the petition of plaintiff.

<p> Error from the District Court of Pawnee County; before Bayard T. Hamer, Trial Judge. ■ </p> <p>STATEMENT OE THE CASE.</p> <p>This is an action brought in the district court of Pawnee county to declare a resulting trust to recover five lots in the town-site of Pawhuska, of which plaintiff below, defendant in error here, claims it had the preference right to purchase under the act of congress of March 3, 1905, relative to the sale of the Pawhuska townsite, by reason of having permanent improvements thereon, under the terms of that act. The character of the improvements is specifically set out in the petition. The defendant, in his answer and cross-petition, admitted the facts stated in plaintiff’s petition to be true, but claimed that the improvements were not, in law, of the substantial character required by the instructions of the department. Both parties made motion for judgment on the pleadings. Motion of plaintiff below was sustained. Judgment rendered in favor of plaintiff, exceptions saved, and the case is brought here for review.</p>

<p> Error from the District Court of Garfield County; before James ■ K. Beauchamp, Trial Judge. </p> <p>Dismissed on authority of No. 1,996, as per stipulation of parties.</p>

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

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

<p> Original Application for Mandamus. </p>

<p> Original Application for Mandamus. </p>