Volume 198 — Oklahoma Reports

(Syllabus.) APPEAL AND ERROR — <italic>Conclusiveness of trial court's</italic> <italic>findings in equity case.</italic> In an action of equitable cognizance the findings of the fact of the trial court will not be disturbed unless clearly against the weight of the evidence.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Proceeding to review order</italic> <italic>or award — Dismissal of cross-appeal where cross-petition</italic> <italic>not filed within 20 days.</italic> Under the provisions of 85 O.S. 1941 § 29[<cross_reference>85-29</cross_reference>], it is necessary that a proceeding to review an order or award be filed within 20 days after a copy of such order or award is sent to the parties. <italic>Held,</italic> that a cross-petition must be filed within 20 days after such an order or award is sent, and where said cross-petition is not filed within the time provided by statute, any proceeding based thereon will be dismissed.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Consent of</italic> <italic>consolidated district to annexation of territory not</italic> <italic>necessary.</italic> It is not necessary that a consolidated school district to which another school district seeks to be annexed as provided in Senate Bill No. 5, S. L. 1943, page 208, 70 O. S. Supp. 1943 §§ 891.1 — 891.11, give its consent to the annexation.

(Syllabus.) 1. BAILMENT — <italic>Judgment proper against bailor who</italic> <italic>failed to show negligence of bailee resulting in loss of</italic> <italic>goods.</italic> When bailor fails to introduce any evidence establishing negligence of bailee resulting in loss of goods after the legal presumption of negligence has been destroyed, judgment should be against the bailor. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support findings in jury-waived case.</italic> If there is any evidence, including reasonable inference tending to support the findings of the court where a jury is waived, this court will not reverse for insufficient evidence.

(Syllabus.) TAXATION — <italic>Accretions to fractional lots of section</italic> <italic>bordering on stream not subject to sale for taxes separately</italic> <italic>assessed.</italic> Where fractional lots of a section bordering a stream are assessed for taxation by the lot numbers designated in the government survey, with or without any designation of acreage, such assessment includes any accretions thereto, and where the taxes levied pursuant to such assessment are paid by the landowner the accretions are not subject to sale for alleged delinquent taxes separately assessed by the county assessor.

(Syllabus.) DIVORCE — <italic>Dismissal of appeal for failure to comply</italic> <italic>with order for payment of child support.</italic> Where, during an appeal by the defendant from an order of the trial court denying a motion to modify a divorce decree as to custody of the minor children of the parties, it is made to appear to this court that an order of the trial court for support money for the minors has not been obeyed and this court calls for a response to the motion to dismiss on said ground and the said defendant makes no response to the order of this court and shows no reason why he has failed to meet the requirements of the order of the trial court, this court may, in its discretion, dismiss said appeal.

(Syllabus.) 1. TRIAL — <italic>When defendant not entitled to directed</italic> <italic>verdict.</italic> The trial court commits no error in overruling defendant's motion for a directed verdict where there is competent evidence tending to support the material allegations of plaintiff's petition. 2. WATERS AND WATERCOURSES — <italic>Action against oil</italic> <italic>company for damages for injury to milk cows from drinking</italic> <italic>polluted creek water — Causal connection between</italic> <italic>negligence and injury shown.</italic> Record examined; <italic>held,</italic> evidence sufficient to show causal connection between the negligence alleged in plaintiff's petition and the injury sustained. 3. SAME — <italic>Loss of milk and value of aborted calves</italic> <italic>proper elements of damages.</italic> In an action for damages for injury to milk cows from drinking salt water, loss of milk and the value of aborted calves resulting therefrom are proper elements of damages recoverable in such action. 4. APPEAL AND ERROR — <italic>Error in sustaining objection</italic> <italic>to question on cross-examination harmless where</italic> <italic>substantially same question was later asked and</italic> <italic>answered.</italic> The error, if any, in sustaining an objection to a question propounded on cross-examination of a witness is harmless where substantially the same question but differently worded is thereafter asked by counsel and answered by witness.

(Syllabus.) 1. APPEAL AN ERROR — <italic>Scope of review in appeal from</italic> <italic>order denying motion for order nunc pro tunc.</italic> Upon an appeal from an order denying a motion for an order nunc pro tunc,<page_number>Page 58</page_number> where the sole ground upon which the motion was denied was that the evidence was not sufficient to sustain the motion, or to require the trial court to correct the record, this court will consider only the sufficiency of the evidence, and will not determine whether the judgment which the motion sought to establish is valid or void. 2. SAME. Where, at a hearing on a motion for an order nunc pro tunc, the only evidence is a portion of the transcript of former trial, and on appeal it is presented to this court on the same record, this court is in as favorable position to pass upon the weight and cogency of the evidence as the trial court, and it is its duty to do so.

(Syllabus.) 1. APPEAL AND ERROR — COURTS — <italic>Reversal and</italic> <italic>remand of probate case to district court for new trial</italic> <italic>— Effect of district court's remanding cause to county</italic> <italic>court without retrial.</italic> Where on appeal of a cause from the district court to this court, said cause is reversed and remanded to said court for a new trial, and upon receipt of the mandate, the district court inadvertently and erroneously orders the matter remanded to the county court without retrial, said order is void insofar as it purports to vest the county court with jurisdiction to grant such new trial and can be set aside at a succeeding term without notice to the parties. Such an order, however, is not void insofar as it relinquishes the district court's control of the cause as to a matter within the proper scope of the county court's jurisdiction. 2. SAME — <italic>Vacation of erroneous order remanding</italic> <italic>cause to county court not barred by subsequent</italic> <italic>proceedings.</italic> Under the circumstances of this case, the fact that other proceedings were had in the county court, and the district court, after the erroneous order was made, created no bar of estoppel or abandonment to the subsequent vacation of that order.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed where petition in</italic> <italic>error not filed within six-months Period.</italic> Where petition in error is not filed in this court until after the expiration of six months from the date of the judgment or order appealed from, the appeal will be dismissed for want of jurisdiction.

(Syllabus.) TAXATION — <italic>Right of holder of resale tax title to</italic> <italic>cancellation of lien of paving tax bills.</italic> Where a tax lien created by a special assessment has been canceled by a tax resale, the owner of the land is entitled to have his title quieted as against the holder of the tax bill for the payment of which such special assessment was levied, and to have a judicial determination of such cancellation.

(Syllabus.) ADOPTION — <italic>Consent of parent not required where he</italic> <italic>has been divorced on ground of cruelty.</italic> The consent of a parent, who has been adjudged guilty of cruelty in a divorce proceeding and a divorce having been granted by reason of such cruelty, is not required in an adoption proceeding by reason of the provisions of 10 O.S. 1941 § 41[<cross_reference>10-41</cross_reference>] et seq.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Award for additional partial</italic> <italic>permanent disability was erroneous where claimant's back was</italic> <italic>reinjured after having suffered back injury which totally and</italic> <italic>permanently disabled him from performing labor involving</italic> <italic>lifting of heavy objects.</italic> By a back injury received in 1940, claimant was totally and permanently disabled from performing manual labor which involved the lifting of heavy objects, and thereafter in 1944, while engaged in such labor reinjured his back by strain aggravating and rendering acute the condition already existing by reason of the previous injury. The medical evidence showed that his previous condition had not improved or healed but that by the injury in 1940 he was, and always would be, wholly disabled from performing work involving heavy lifting.<italic>Held,</italic> that an award for additional partial permanent disability because of the subsequent injury was erroneous.

(Syllabus.) 1. CARRIERS — <italic>Action for damages to freight —</italic> <italic>Burden of proof shifted to defendant by making of prima</italic> <italic>facie case.</italic> A common carrier is a qualified insurer of goods entrusted to it for transportation, and where loss of or injury to the goods while in its possession as such carrier is shown, a prima facie case is made against it, and if it relies on exceptions to such rule as a defense, the burden is on it to show that the loss occurred from some cause exempting it from liability. 2. SAME — <italic>Defective crating of goods as</italic> <italic>defense.</italic> In an action against a common carrier to recover damage to a shipment of goods occurring while the goods were in its possession a defense based on the theory that the damage was caused solely by defective crating, if sustained by the evidence, will constitute a good defense to such cause of action. 3. SAME — <italic>Evidence supported judgment for</italic> <italic>defendant.</italic> Record examined; <italic>held,</italic> evidence sufficient to sustain the judgment.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Cause and extent of</italic> <italic>disability as question of fact — Sufficiency of conflicting</italic> <italic>evidence to support findings and award.</italic> The cause and extent of the disability resulting from an accidental injury is a question of fact, and where the evidence is in conflict and there is any competent evidence reasonably tending to support the finding of the State Industrial Commission, an order or award based thereon will not be disturbed on review.

(Syllabus.) ESTOPPEL — <italic>Owner of unrecorded interest in realty, by</italic> <italic>agreement with apparent owner for sale, was estopped to</italic> <italic>assert such interest against purchaser.</italic> Where the owner of an unrecorded one-fourth interest in real property enters into an agreement with the apparent owner thereof that the apparent owner may sell and dispose of the same, and in pursuance of such agreement a third party purchases from the apparent owner said property and makes a substantial payment thereon, the holder of the unrecorded interest is estopped to assert the interest not disclosed by the record against the agreement of the apparent owner with the purchaser.

(Syllabus.) 1. LANDLORD AND TENANT — WAR — <italic>Sufficiency of</italic> <italic>notices to tenant preliminary to forcible detainer action</italic> <italic>pursuant to certificate of permission from O. P. A.</italic> Where the certificate issued by the Office of Price Administration provides that an action may be brought for the possession of premises by the landlord against the tenant on or after the 10th day of January, 1945, and an action is commenced on the 11th day of January, 1945, for possession of the premises in the justice of the peace court in forcible entry and detainer, the fact that the 30-day notice to vacate the premises and the notice to quit prior to the commencement of an action in forcible entry and detainer is given before said date does not deprive the court of jurisdiction to hear and determine the action or render the commencement of the action in forcible entry and detainer permature. 2. SAME — <italic>Substantial compliance with statutes</italic> <italic>governing notices.</italic> A substantial compliance with the law relating to the giving of notices of filing of the action in forcible entry and detainer is all that is required.

(Syllabus.) 1. WIILS — <italic>Testamentary capacity — Mental</italic> <italic>incapacity to manage property not conclusive.</italic> An adjudication of a testator's mental incompetency to manage his property is to be considered in the determination of his testamentary capacity, but such evidence is not conclusive proof thereof. 2. SAME — <italic>Evidence of mere ailing or weakened</italic> <italic>condition.</italic> Evidence of a testator's ailing or weakened physical condition is not proof in itself of his testamentary incapacity; in order to constitute such proof, said condition must be shown to have rendered him incapable of understanding the nature and consequences of his acts at the time he made the will. 3. SAME — <italic>Proof that testator was victim of some</italic> <italic>delusion not conclusive.</italic> To defeat a will on ground that a testator lacked testamentary capacity, it is not sufficient merely to establish that the testator was a victim of some delusion, but the evidence must go further and establish that the will itself was the product of that delusion and that the testator devised his property in a way which, except for that delusion, he would not have done. 4. SAME — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment on issue of testamentary capacity.</italic> The judgment of the trial court on the issue of testamentary capacity in proceedings to contest a will, will not be disturbed unless it is against the clear weight of the evidence.

(Syllabus.) 1. TAXATION — <italic>Lien created by levy of special tax</italic> <italic>under city charter and assessment ordinance inferior to</italic> <italic>state's lien for ad valorem taxes and purchaser at resale</italic> <italic>for ad valorem taxes took title superior to lien of</italic> <italic>delinquent special assessments.</italic> A lien created by the levy of a special tax under a city charter and assessment ordinance providing that the lien thereby created shall be superior to all liens except city, county, and state liens is inferior and subject to the lien of the state for ad valorem taxes; and where the real estate upon which the special tax lien attaches is sold at resale for delinquent ad valorem taxes a purchaser at such sale takes title superior and paramount to such part of the special assessment lien as is theretofore due and delinquent. 2. SAME — <italic>Right of purchaser at tax resale to have</italic> <italic>title quieted as against holder of tax bill for payment of</italic> <italic>which special assessment was levied.</italic> Where a tax lien created by a special assessment has been canceled by a tax resale, the owner of the land is entitled to have his title quieted as against the holder of the tax bill for the payment of which such special assessment was levied, and to have a judicial determination of such cancellation.

(Syllabus.) 1. PLEADING — <italic>Judgment on pleadings not proper where</italic> <italic>issues of fact to be determined.</italic> A motion for judgment on the pleadings cannot be sustained where there are issues of fact to be determined. 2. JUDGMENT — <italic>Estoppel by judgment — Identity</italic> <italic>of parties.</italic> For a judgment to be an estoppel, there must be an identity of parties, as well as of subject matter; and the parties between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered in the same capacities and in the same antagonistic relation, or in privity with the parties to such former action. 3. SAME — <italic>Plaintiff held not estopped by former</italic> <italic>judgment since defendants therein were sued in different</italic> <italic>capacities.</italic> Record examined and compared with record and opinion in Butterick Co., Inc., v. Molen, <cross_reference>192 Okla. 602</cross_reference>, <cross_reference>138 P.2d 89</cross_reference>,<italic>Held</italic>: Former trial and appeal is not res judicata of present trial and appeal.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of appeal where no</italic> <italic>notice given in open court of intention to appeal at time</italic> <italic>judgment rendered or within ten days thereafter.</italic> Where a party desiring to appeal fails to give notice in open court of his intention to appeal to this court at the time judgment is rendered or within ten days thereafter if motion for new trial is unnecessary, this court is without jurisdiction to review such judgment and an appeal therefrom will be dismissed.

(Syllabus.) WILLS — DEEDS — <italic>Delivery of deed to third</italic> <italic>person to be delivered to grantee only if grantor predeceased</italic> <italic>grantee does not vest present title in grantee and deed is</italic> <italic>ineffective as will where not executed with formalities</italic> <italic>required for execution of will.</italic> The delivery by the grantor of a deed to a third person to be delivered to the grantee upon the death of the grantor, only on condition that the grantor predeceases the grantee, does not vest a present title in the grantee, but is testamentary in character nd is ineffective as a conveyance, and is also ineffective as a will where not executed with the formalities required for the execution of a will.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment in equity case.</italic> In an action of equitable cognizance this court will examine the record and weigh the evidence, but it will not disturb the judgment of the trial court unless it is found to be clearly contrary to the weight of the evidence. 2. DIVORCE — <italic>Equitable division of jointly acquired</italic> <italic>property — Equal division not required.</italic> On granting divorce to either husband or wife the trial court is required to make a just, fair and equitable division of the property acquired jointly during marriage, and in so doing the court is not required to divide property equally between the parties, but is given wide latitude in determining what part of jointly accumulated properties shall be given each of the parties.

(Syllabus.) 1. JUSTICES OF THE PEACE — <italic>Sufficiency of judgment</italic> <italic>though not technically exact.</italic> The judgment of a justice of the peace, although informal and not technically exact, is sufficient, if taken as a whole, it shows that a conclusion was reached and entered which was intended as a final determination of the action then pending. 2. SAME — <italic>Failure of justice to certify transcript</italic> <italic>upon appeal a mere irregularity which may be waived.</italic> The fact that the justice of the peace in transmitting the record on appeal to the appellate court fails to certify his transcript does not constitute a jurisdictional defect but constitutes a mere irregularity which may be waived; and where such question is not raised in the trial court it is waived and cannot be presented to this court on appeal. 3. FORCIBLE ENTRY AND DETAINER — <italic>Theory of defense</italic> <italic>properly submitted in instructions.</italic> Record examined; <italic>held,</italic> the trial court committed no error in that it failed to instruct upon defendant's theory of the case or in the instructions given.

(Syllabus.) 1. NEGLIGENCE — <italic>Negligence as question for jury</italic> <italic>under conflicting evidence.</italic> Where there is evidence on the question of negligence on which reasonable men might differ as to the facts established and from the inference to be drawn therefrom, the question is one for the jury. 2. MUNICIPAL CORPORATIONS — <italic>Sufficiency of notice to</italic> <italic>fasten liability on city for defective sidewalk as question</italic> <italic>of fact for jury.</italic> The sufficiency of notice to fasten liability upon a city for defective sidewalk is a question of fact to be determined by a jury under all the circumstances surrounding the particular case. It is not essential that the corporation shall have actual notice. If the defective condition of the street or sidewalk has existed for such a period of time that by the exercise of ordinary care and diligence the city authorities could have repaired the defect and placed the street or sidewalk in a reasonably safe condition, and it fails to do so, then it is liable for any injuries that may be occasioned thereby by reason of such negligence, provided the injured party was in the exercise of ordinary care.

(Syllabus.) OIL AND GAS — <italic>Powers reserved in mineral deed held</italic> <italic>not inheritable or assignable.</italic> Where the granting clause of a mineral deed is clear and unambiguous and conveys an undivided one-eighth interest in the oil, gas and other minerals in and under and that may be produced from the lands described in such deed, but by subsequent provisions retains to the grantor certain powers and privileges relating to possible development and production of oil and gas therefrom, which reserved powers are not exercised by the grantor during his lifetime, are personal to the grantor and lapse at his death, the language used in connection with and related only to said reserved powers do not render the granting clause ambiguous nor do such powers survive to the devisees or assigns of the grantor.

(Syllabus.) 1. CHAMPERTY AND MAINTENANCE — <italic>Invalidity of deed as</italic> <italic>to person in adverse possession.</italic> A deed of real property by a grantor out of possession, where neither such grantor nor those under whom he claims have been in possession of such real property, or received the rents and profits therefrom, for more than one year next preceding the date of the deed, is champertous and void as against any person or persons in adverse possession thereof. 2. NEW TRIAL — <italic>Newly discovered evidence of merely</italic> <italic>impeaching nature.</italic> Newly discovered evidence to impeach or discredit witnesses is not ground for new trial.

(Syllabus.) 1. CONSPIRACY — <italic>Essentials of conspiracy —</italic> <italic>Degree of proof required.</italic> In order to establish a conspiracy, evidence<page_number>Page 127</page_number> must be produced from which a party may reasonably infer the joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise. Disconnected circumstances, any one of which, or all of which, are just as consistent with a lawful purpose as with an unlawful undertaking, are insufficient to establish a conspiracy. The evidence must do more than raise a suspicion. It must lead to belief. 2. SAME — <italic>Defendant held not entitled to directed</italic> <italic>verdict.</italic> Record examined. <italic>Held,</italic> under the facts and circumstances in evidence, the court did not err in overruling motion of defendant Ruby May Hancock for directed verdict. 3. CANCELLATION OF INSTRUMENTS — <italic>Deeds fraudulently</italic> <italic>obtained properly canceled after verdict for plaintiffs for</italic> <italic>damages resulting from fraud.</italic> Where, in an action for damages with general prayer for other relief, the right of plaintiffs rests upon the truth of the allegations that certain deeds executed by plaintiffs to defendants were obtained by fraud and deceit, and plaintiff prevails on the issue of fraud and deceit and is awarded a verdict for damages by a jury and judgment is entered thereon, it is proper for the court to award the further relief of a decree canceling the deeds of record. 4. TRIAL — <italic>Issue without supporting evidence</italic> <italic>erroneously submitted to jury.</italic> Where, upon trial of cause to a jury, there is no evidence germane to an issue of fact made by the pleadings, it is error for the court to submit such issue to the jury for determination. 5. APPEAL AND ERROR — <italic>Affirmance upon consideration</italic> <italic>of remittitur of excess of judgment.</italic> Where, upon review by this court, it is determined that reversible errors occurred upon the trial of the cause and it further appears that the sole effect thereof was to award plaintiffs a judgment that is excessive and the amount of such excess is mathematically ascertainable, this court may affirm the judgment upon condition the plaintiffs file within the time allowed a remittitur of the excess of the judgment in the amount determined by this court.

(Syllabus.) MARRIAGE — <italic>Common-law marriage where parties continue</italic> <italic>to live together after removal of legal impediment to</italic> <italic>marriage.</italic> The removal of a legal impediment to marriage while parties continue to live together as husband and wife gives rise to a "common-law marriage," even though one or both of the parties knew of the impediment.

(Syllabus.) 1. DIVORCE — <italic>Discretion of trial court as to</italic> <italic>awarding small child to mother though divorce granted by</italic> <italic>reason of her fault.</italic> In a divorce action involving custody of a female child less than three years old, an order of the trial court awarding custody of the child to its mother will not be disturbed on appeal unless an abuse of discretion is shown, even though the divorce is granted by reason of the fault of the mother. 2. DIVORCE — <italic>Equitable division of property in</italic> <italic>kind.</italic> A division of property in kind between divorced parties being authorized by statute, and there being no showing that it was not jointly acquired during coverture, will not be disturbed on appeal in the absence of a clear showing that it is unreasonable or inequitable.

(Syllabus.) LANDLORD AND TENANT — <italic>"Tenant at sufferance" defined</italic> <italic>— No notice required to terminate tenancy.</italic> A tenant at sufferance is one who rightfully comes into possession of real estate for a certain period of time and continues to hold possession after the expiration of the rightful tenancy, without the express or implied consent of the owner. Notice is not required to terminate a tenancy at sufferance.

(Syllabus.) TAXATION — <italic>Burden of proof on one attacking resale</italic> <italic>tax deed valid on its face.</italic> A tax resale deed, valid on its face, is independent of all other claims of title, and it is incumbent upon person attacking validity of such deed to go forward with proof showing its invalidity.

(Syllabus.) DESCENT AND DISTRIBUTION — <italic>Statutory provision for</italic> <italic>equal division of jointly acquired property between heirs of</italic> <italic>both spouses upon death of surviving spouse without issue</italic> <italic>held not applicable where title was in latter.</italic> Where a husband and wife accumulate property by their joint industry during coverture, title to said property being vested in the husband, and the wife predeceases the husband, who thereafter remarries and dies intestate and without issue, and without disposing of the jointly acquired property, the proviso in the second subdivision of 84 O.S. 1941 § 213[<cross_reference>84-213</cross_reference>] is inapplicable, and does not affect or govern the devolution of the jointly acquired property.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of plaintiff's evidence to</italic> <italic>withstand demurrer and motion for directed verdict.</italic> When there is any competent evidence offered by the plaintiff reasonably tending to establish plaintiff's cause of action alleged in his petition, and which reasonably tends to support a verdict and judgment for plaintiff, defendant's demurrer to the evidence and motion for a directed verdict should be overruled. 2. APPEAL AND ERROR — <italic>Harmless error — Remarks</italic> <italic>of court during trial.</italic> Remarks of the court during the trial of a cause will not constitute reversible error, unless it be made to appear that complainant's rights were prejudiced thereby. 3. TRIAL — <italic>Sufficiency of instructions in</italic> <italic>entirety.</italic> If the instructions as a whole cover all the issues and properly state the law applicable, they are sufficient.

(Syllabus.) 1. PROHIBITION — <italic>Remedy to prevent intolerable</italic> <italic>conflict of jurisdiction between courts of equal</italic> <italic>jurisdiction.</italic> Prohibition is an appropriate remedy to prevent an intolerable conflict in the exercise of jurisdiction between courts of equal jurisdiction. 2. EXECUTORS AND ADMINISTRATORS — <italic>Granting of</italic> <italic>letters of administration imports jurisdiction.</italic> The granting of letters of administration by a county court imports jurisdiction in the court so to do, and it will be inferred from the fact that such letters were granted that a resident decedent whose estate is being administered died a resident of the county in which letters of administration are first granted.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of plaintiff's evidence to</italic> <italic>withstand motion for directed verdict.</italic> Where there is any competent evidence offered by the plaintiff reasonably tending to establish the cause of action alleged in the petition, and which would reasonably tend to support a verdict and judgment for him, defendant's motion for a directed verdict should be overruled. Greis, Trustee, et al. v. Mitchell, <cross_reference>185 Okla. 136</cross_reference>, <cross_reference>90 P.2d 894</cross_reference>. 2. DAMAGES — <italic>Right of plaintiff to recover for all</italic> <italic>damages though increased by his bona fide efforts to reduce</italic> <italic>loss.</italic> Where the person, injured by the wrongful act of another, uses reasonable care to reduce the loss to him, he can recover from the wrongdoer in full for all damages, even though his own efforts to reduce the loss have increased it. 3. SAME — <italic>Question for jury whether plaintiff's</italic> <italic>attempt to reduce damages was in good faith.</italic> Whether, under all the facts and circumstances in evidence, a person, injured by the wrong done him by another, acted in good faith in an attempt to reduce the damages caused him by such wrongful act, is a question of fact for the jury. 4. LIMITATION OF ACTIONS — <italic>When cause of action</italic> <italic>arises for injuries resulting from permanent</italic> <italic>improvement.</italic> In cases of injuries resulting from permanent improvement, as to the time when the right of action arises, where the injury is the natural result of the erection of the permanent improvement, or may be regarded as obviously consequential, the cause of action arises at the time of the construction of the improvement; but<page_number>Page 172</page_number> where the injury is not such natural result, or not obviously consequential, the right of action arises at the time of the actual injury. 5. SAME — <italic>Question for jury whether injury was</italic> <italic>obvious at time permanent improvement was constructed.</italic> Where, in an action to recover damages resulting from permanent improvement, the evidence is such that certain material elements going to the cause of the injury may or may not be obvious at the time the improvements are constructed, the question whether such injury was obvious at the time the improvement was constructed is a question of fact for the jury. 6. LICENSES — <italic>Revocability of parol license to enter</italic> <italic>upon real estate.</italic> A parol license to enter upon real estate is revocable at the pleasure of the licensor, but it is well settled that such license cannot be revoked when the lisensee, on the faith of the license, with the knowledge of the licensor, has expended his money and labor in carrying out the object of the license. 7. LIMITATION OF ACTIONS — <italic>Action for damages for</italic> <italic>injuries to land caused by permanent public improvement</italic> <italic>— Admissibility of evidence tending to show injury was not</italic> <italic>obvious at time improvement was constructed.</italic> Where, in an action to recover damages for injuries to plaintiff's land, caused by the constructiin of permanent public improvements, the question of whether the injury complained of was the natural result of the improvement, or obviously consequential, is an issue, it is error to exclude evidence tending to show that at the time the improvement was being constructed the officers in charge of the public improvement contended, as against the protest of plaintiff, that the construction of the improvement would not injure plaintiff's land.

(Syllabus.) APPEAL AND ERROR — JUDGMENT — <italic>Discretion of</italic> <italic>trial court as to vacating judgment.</italic> An application to vacate a judgment is addressed to the sound legal discretion of the trial court and the order made thereon will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.

(Syllabus.) 1. SCHOOLS AND SCHOOL DISTRICTS — <italic>Annexation of</italic> <italic>territory to consolidated district without election not</italic> <italic>authorized.</italic> The proviso in section 6915, O.S. 1931 (70 O.S. 1941 § 251[<cross_reference>70-251</cross_reference>]), relating to the annexation of territory to a consolidated school district, was specifically repealed by section 9, ch. 24, S.L. 1941. 2. SAME — <italic>Under act of 1943 election required for</italic> <italic>annexation of territory to any district.</italic> Since the effective date of Title 70 §§ 891.1 et seq., O.S. Supp. 1941 [S.B. 5, ch. 24, S.L. 1943,] no part of a school district can be annexed to any other district except in the manner provided, which, under facts presented, requires the issue to be submitted to the legal voters of the "territory affected."

(Syllabus.) APPEAL AND ERROR — MORTGAGES — <italic>Discretion of</italic> <italic>trial court in refusing to confirm sheriff's sale of</italic> <italic>land.</italic> The court will not reverse an order of the trial court refusing to confirm a sheriff's sale of land under special execution in a mortgage foreclosure proceeding unless there is an abuse of discretion on the part of the trial judge.

(Syllabus.) 1. JUDGMENT — <italic>Petition to vacate on ground</italic> <italic>defendant's counsel did not appear at trial by reason of</italic> <italic>fraud practiced by plaintiff — Judgment's recital of</italic> <italic>counsel's appearance not conclusive.</italic> Recital in judgment as a fact that on the day of trial defendant was represented by counsel who appeared and participated therein is not conclusive of such fact upon trial of petition to vacate judgment on ground of fraud where it is alleged that defendant was not represented and defendant's counsel did not appear by reason of fraud practiced by the plaintiff. 2. SAME — <italic>"Fraud" justifying vacation of judgment</italic> <italic>not necessarily intentional fraud.</italic> "Fraud," which justifies vacation of judgment, does not necessarily mean intentional or deliberate fraud. Equity looks to the effect rather than to the means employed. And where by reason of one's conduct the court has been deceived and thereby made an instrument of injustice to another the court in order to vindicate justice will intervene to prevent the perpetrator from reaping the benefit of the advantage unfairly gained. 3. SAME — <italic>Extrinsic frauds.</italic> The frauds which justify the vacation of judgments are frauds that are extrinsic or collateral to the matter tried. 4. SAME — <italic>Fraud practiced upon party or court.</italic> Ordinarily it is fraud which prevents a party from fairly exhibiting his case in court or fraud practiced upon the court, or its process, and not fraud in the cause of action, which will authorize a court to set aside a final judgment. 5. SAME — <italic>Sufficiency of allegation that</italic><page_number>Page 188</page_number><italic>plaintiff's attorneys contrary to agreement took judgment in</italic><italic>foreclosure action without notice to defendant's attorneys.</italic> Where it is alleged by defendant in a petition to vacate a judgment on foreclosure that after the issues in foreclosure proceeding were completed there were pending negotiations for a settlement of the issues and as an incident thereto attorneys for plaintiff advised attorneys for defendant that plaintiff would not take judgment in said cause without previous notice to defendant's attorneys, and thereafter attorneys for plaintiff, without notice to defendant or her attorneys, and in their absence, took judgment in the cause, the allegation, as an allegation of fraud, is sufficient to withstand a demurrer to the petition to vacate. 6. SAME — <italic>Statute of limitation upon right to vacate</italic> <italic>judgment for fraud tolled by judgment debtor's filing</italic> <italic>petition in bankruptcy under Frazier-Lemke Act.</italic> The running of the statute of limitation upon a judgment debtor's right to maintain an action to vacate the judgment on the ground of fraud is tolled by the judgment debtor's filing in the Federal Court a petition in bankruptcy under authority of the Frazier-Lemke Act, as amended. 7. SAME — <italic>"Valid defense" required to be shown need</italic> <italic>not be defense to whole cause of action.</italic> The term "valid defense" which must be shown in order to obtain relief from a judgment in an action to vacate, has reference to a defense which has such merit that the law will recognize it and give effect thereto. It is not necessary that there be a valid defense to the whole cause of action, and one is to be regarded as having a valid defense where the original judgment was obtained for a larger amount than was actually due, by reason of the inclusion therein of an item for which mortgagor was not liable. 8. STATES — <italic>Consent of state not required for</italic> <italic>prosecuting action to vacate judgment in foreclosure taken</italic> <italic>by state.</italic> Where the State of Oklahoma, as plaintiff in a foreclosure action, obtains judgment against the defendant therein, and thereafter by petition, as prescribed in 12 O. S. 1941 § 1033, defendant seeks vacation thereof on ground of fraud, consent of the state is not necessary to the prosecution of such action.

(Syllabus.) 1. COVENANTS — <italic>Covenant excluding negroes from</italic> <italic>restricted area not invalidated by changes in surrounding</italic> <italic>territory.</italic> If no radical change has occurred in the condition and use of property covered by a restriction contract excluding negroes from restricted area, the fact there have been changes in the territory immediately surrounding the restricted area ordinarily will not be sufficient to cause a court of equity to refuse to enforce the restriction contract. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In an equity case the Supreme Court will examine the record and weigh the evidence, but will not reverse the judgment unless clearly against the weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of appeal on</italic> <italic>jurisdictional grounds in accordance with motion where no</italic> <italic>response filed.</italic> Where the defendant in error has filed a motion to dismiss upon jurisdictional grounds, and this court has ordered the plaintiff in error to respond thereto and no response has been filed, and an examination of the record, together with the authorities cited, reasonably sustains the grounds of the motion to dismiss, it is not the duty of this court to inquire further into the jurisdiction of the appeal, but it may, in its discretion, dismiss the appeal.

(Syllabus.) 1. COMPROMISE AND SETTLEMENT — <italic>Sufficiency of</italic> <italic>doubtful claim as consideration though later shown to be</italic> <italic>unfounded.</italic> A doubtful or disputed claim honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with reasonable belief of the party asserting it, and concerning which an honest controversy may arise, is sufficient to constitute a good consideration for a contract of compromise and settlement, although it may subsequently develop that such claim was unfounded. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In cases of equitable cognizance this court will examine the entire record and weigh the evidence, but unless the judgment rendered is clearly against the weight of the evidence it will not be disturbed on appeal.

(Syllabus.) PLEADING — <italic>Liberal construction of petition attacked</italic> <italic>by general demurrer.</italic> The rule is settled that, on demurrer to the petition as defective in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed and all its allegations, for the purposes of the demurrer, taken as true, and such demurrer can be sustained only where the petition presents defects so substantial and fatal as to authorize the court to say that, taking all the facts to be admitted, they furnish or state no cause of action whatever.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Review of awards —</italic> <italic>Conclusiveness of findings of facts on nonjurisdictional</italic> <italic>questions.</italic> The finding of facts as to nonjurisdictional questions by the Industrial Commission is conclusive upon this court, and an award based thereon will not be disturbed where there is competent evidence in support of same. 2. SAME — <italic>Disability requiring testimony of experts</italic> <italic>to determine cause and extent.</italic> Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon, when reasonably supported, will not be disturbed.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Calculation of award</italic> <italic>for</italic> 50 <italic>per cent permanent partial disability to leg and 10</italic> <italic>per cent total disability to body under "other cases"</italic> <italic>provision.</italic> Where there is a 50 per cent permanent partial loss of a leg, an award based upon a factor of 87 1/2 weeks is arbitrarily required by the Workmen's Compensation Act, and where there is also a disabling injury under the "other cases" provision of the act, which injury alone disabled the person 10 per cent of his total ability, an award based upon a total factor of 137 1/2 weeks will be sustained.

(Syllabus.) TAXATION — <italic>Special assessment lien canceled by resale</italic> <italic>of property for ad valorem taxes where all installments of</italic> <italic>assessment were past due.</italic> A lien created by a city ordinance and evidenced by a special assessment tax bill pursuant to provisions of the city charter which make such lien superior to all other liens except those for state, county and city taxes, is canceled by a sale of the<page_number>Page 245</page_number> property at a sale and resale thereof for delinquent ad valorem taxes where no question is raised as to the regularity and validity of the proceedings leading to such sales and all the installments of the assessment are past due at the time of resale; a purchaser at such resale takes title to the property discharged from such special assessment lien.

(Syllabus.) 1. CORPORATION COMMISSION — <italic>Appeal to Supreme Court</italic> <italic>— Orders to be sustained if supported by substantial</italic> <italic>evidence.</italic> Under article IX, section 20, Constitution of Oklahoma, as amended, on appeal from the Corporation Commission this court is required to review the evidence, and must sustain the order appealed from if it is supported by substantial evidence. 2. AUTOMOBILES — <italic>Showing of public convenience and</italic> <italic>necessity justifying permit for extension of motor bus</italic> <italic>line.</italic> Where motor carrier under existing permit operated from Atoka to Norman, the Corporation Commission was justified in extending carrier's line from Norman to Oklahoma City, with restrictions against transporting local passengers in either direction between these two points, where it was established at the hearing that public convenience and necessity required through passenger service to Oklahoma City from the cities and towns served by the carrier. 3. SAME — <italic>"Necessity" for motor bus service</italic> <italic>defined.</italic> The word "necessity" means a public need, without which the public is inconvenienced to the extent of being handicapped in the pursuit of business or wholesome pleasure, or both — without which the people generally of the community are denied, to their detriment, that which is enjoyed by other people generally, similarly situated.

(Syllabus.) 1. TRIAL — <italic>Province of court and jury as to issues</italic> <italic>and evidence.</italic> What issues are on trial and what evidence is to be deemed pertinent thereto<page_number>Page 258</page_number> are questions of law for the court. The conclusions of fact to be drawn from the evidence introduced and their sufficiency in the determination of such issues are primarily questions for the jury to decide. 2. TRIAL — <italic>Withdrawal by court of any ground of</italic> <italic>recovery not supported by evidence.</italic> Where there is more than one alleged ground of recovery, and there is an absence of evidence to support any one of such grounds, it is the duty of the court to withdraw it from the consideration of the jury. 3. TRIAL — <italic>Court not required to instruct jury on</italic> <italic>failure of proof of one of several facts alleged to</italic> <italic>constitute breach of single legal duty where such alleged</italic> <italic>fact is not decisive of question of breach.</italic> Where several facts are alleged as constituting a breach of a single legal duty, the failure of proof to sustain any one of such alleged facts which alone is not decisive of the question of the breach bears merely on the sufficiency of the proof, which is a question that is within the province of the jury. And in such situation no duty devolves upon the court to instruct the jury thereon. 4. TRIAL — <italic>Refusal of requested instruction not</italic> <italic>error if it requires correction.</italic> Where no duty devolves upon the court to instruct on a matter independently of a request therefor, it is not error to refuse to give a requested instruction which cannot be given without correction or amendment. 5. SAME — <italic>Sufficiency of instructions in</italic> <italic>entirety.</italic> Instructions, as a general rule, should be construed together as a whole, and, when so construed, if they properly state the law, they will not be held to be objectionable, although some of them, or portions thereof, standing alone, might be misleading or may be technically inaccurate. 6. APPEAL AND ERROR — <italic>Review — Verdict</italic> <italic>attacked on ground of excessive damages.</italic> When a verdict is attacked on the ground that it is excessive, this court will not disturb it unless the jury has committed some gross and palpable error, or acted under bias, influence, or prejudice, or has ignored the rule of law by which damages are awarded.

(Syllabus.) 1. GIFTS — <italic>Requisite proof to establish gift inter</italic> <italic>vivos.</italic> After the death of an alleged donor, in order to establish a gift inter vivos, the evidence must be clear, explicit and convincing in support of every element necessary to constitute a valid gift. 2. SAME — <italic>Actual delivery by donor unnecessary when</italic> <italic>donee is already in possession of property.</italic> Actual and personal delivery by the donor is not necessary when the donee is already in possession of the property given and the intention to surrender all right to the property is fully and clearly manifested.

(Syllabus.) WITNESSES — <italic>Party who acquired title to cause of</italic> <italic>action from decedent incompetent to testify as to</italic> <italic>transactions with decedent.</italic> The inhibition provided by 12 O. S. 1941 § 384 is directed at a party who has acquired title to the cause immediately from a deceased person, when he becomes a witness and offers to give testimony in respect to transactions or communications had personally with the deceased.

(Syllabus.) LANDLORD AND TENANT — <italic>Right of tenant to defend quiet</italic> <italic>title action brought against him by landlord.</italic> While it is the general rule that a tenant is estopped to dispute his landlord's title without delivering up possession of the premises, such rule is subject to the exception that where the landlord sues the tenant and presents therein an issue of title greater than that which affects the relation growing out of the tenancy, and seeks to have his title declared and quieted against a claimed title by the tenant, the tenant may defend therein and assert his title as against his landlord.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment quieting title.</italic> Where, upon review of judgment quieting title upon ground same is not sufficiently supported by the evidence, it appears that the evidence as a whole is clear and convincing in overcoming opposing presumptions and in sustaining the finding of the court, the same will be affirmed. And in such situation, for purpose of review, it is unnecessary to determine whether in order to sustain the judgment in the particular case the measure of proof is a mere preponderance of the evidence or more.

(Syllabus.) TAXATION — <italic>When unallotted land of Choctaw and</italic> <italic>Chickasaw Nations sold under supervision of Department of the</italic> <italic>Interior becomes taxable.</italic> Where unallotted lands of the Choctaw and Chickasaw Nations are sold under the supervision of the Department of the Interior and the purchase price is fully paid and certificate of sale issued to the purchaser, such lands thereupon become subject to assessment for ad valorem taxation on the first day of January following, notwithstanding a deed thereto has not been issued to the purchaser pursuant to such sale, but prior thereto said lands are not taxable.

(Syllabus.) 1. TRIAL — NEGLIGENCE — <italic>In negligence case</italic> <italic>held error to instruct on unavoidable accident.</italic> The giving of an instruction, in an action for damages based on negligence, relating to unavoidable accident, is error where the issue is simply the negligence of plaintiff or defendant. 2. SAME — <italic>Comparative negligence doctrine not</italic> <italic>recognized.</italic> The doctrine of comparative negligence does not obtain in this state.

(Syllabus.) 1. OIL AND GAS — <italic>Validity of order of Corporation</italic> <italic>Commission providing separate spacing and drilling unit for</italic> <italic>each of seven common sources of supply underlying same</italic> <italic>surface area.</italic> An order of the Corporation Commission, providing a separate spacing and drilling unit for each of seven common sources of supply underlying the same surface area, which does not combine the separate common sources of supply, is not invalid. 2. SAME — <italic>Power of Corporation Commission to extend</italic> <italic>boundaries of common source of supply.</italic> The Corporation Commission has the power to enlarge and extend the boundaries of a common source of supply when oil development or the trend of such development shall indicate that an additional area should be included therein. 3. SAME — <italic>Order not reversed by Supreme Court if</italic> <italic>sustained by substantial evidence.</italic> This court will not reverse an order of the Corporation Commission extending the boundary of a well-spacing and drilling area if sustained by substantial evidence.

(Syllabus.) 1. OIL AND GAS — <italic>Validity of order of Corporation</italic> <italic>Commission providing separate spacing and drilling unit for</italic> <italic>each of seven common sources of supply underlying same</italic> <italic>surface area.</italic> An order of the Corporation Commission providing a separate spacing and drilling unit for each of seven common sources of supply underlying the same surface area, which does not combine the separate common sources of supply, is not invalid. 2. SAME — <italic>Power of Corporation Commission to extend</italic> <italic>boundaries of common source of supply.</italic> The Corporation Commission has the power to enlarge and extend the boundaries of a common source of supply when oil development or the trend of such development shall indicate that an additional area should be included therein. 3. SAME — <italic>Uniform application of well-spacing order</italic> <italic>to all property within area determined to be underlaid by</italic> <italic>same common source of supply.</italic> Well-spacing and drilling order must be applied equally and uniformly to all property located within an area determined by Corporation Commission to be underlaid by same common source of supply.

(Syllabus.) 1. TAXATION — <italic>Right to corrective deed and effect</italic> <italic>thereof where resale deed defective.</italic> A purchaser at a tax resale who has received a defective deed is entitled to a new correcting deed, and when a correcting deed is issued it relates back to the time of sale and becomes effective from that date. 2. SAME — <italic>Either plaintiff or defendant attacking</italic> <italic>tax deed must comply with tender statute.</italic> Where either plaintiff or defendant seeks to avoid a tax deed or a claimed title asserted under a tax deed he must comply with the applicable provisions of the statute relating to tender. (68 O. S. 1941 §§ 453 and 455.)

(Syllabus.) LIMITATION OF ACTIONS — <italic>Actions in forcible entry and</italic> <italic>detainer barred after two years.</italic> Actions in forcible entry and detention are barred by the statute of limitations unless commenced within two years of the accrual thereof.

(Syllabus.) 1. COVENANTS — <italic>Enforcement of reasonable covenants</italic> <italic>restricting use of real property — Construction of</italic> <italic>covenants.</italic> Covenants restricting the use of real property, although not favored, will nevertheless be enforced by the courts, where the intention of the parties in their creation is clear, and the restrictions or limitations are confined within reasonable bounds. In construing such covenants, effect is to be given to the intention of the parties as shown by the language of the instrument, considered in connection with the circumstances surrounding the transaction and the object sought to be accomplished by the parties. 2. SAME — <italic>Restriction limiting use of lots to</italic> <italic>residential purposes held not unreasonable.</italic> Where, in pursuance of a plan, a section of an addition is designed to be purely residential in character and, in order to make it more attractive as such, the use of the lots therein is by the terms of the plat and dedication restricted to residential purposes, <italic>held,</italic> such restriction is not unreasonable in contemplation of law. 3. SAME — <italic>Use of lots for church building excluded</italic> <italic>by terms of restriction.</italic> The phrase, "All lots in this plat are restricted to residences only," is clear and explicit in excluding the use of lots for any purpose other than residential, and the use of lots for the erection and maintenance of a church thereon is excluded by the terms of such restriction. 4. SAME — <italic>Restriction excluding use of lots for</italic> <italic>church purposes not void as against public policy.</italic> Where, by the terms of a restriction limiting the use of lots to residential purposes, the use thereof for church purposes is excluded, such restriction is not void as against public policy.

(Syllabus.) 1. FRAUD — <italic>Circumstances as proof of fraud.</italic> Circumstances by their number and joint operation, especially when corroborated by moral coincidences, may be sufficient to constitute conclusive proof of fraud, although they are inconclusive if separately considered. 2. SAME — <italic>Fraud of defendant in failure to pay off</italic> <italic>mortgage with plaintiff's money as agreed.</italic> Where the petition alleges and the proof supports an agreement by the defendant to take the money of plaintiff and in consideration thereof satisfy a second mortgage and the evidence discloses a breach of such agreement, a judgment for the plaintiff will be sustained. 3. APPEAL AND ERROR — <italic>Correct judgment not disturbed</italic> <italic>because trial court assigns wrong reason for its</italic> <italic>entry.</italic> It is a settled rule that where the pleadings support and the proof discloses a<page_number>Page 305</page_number> right in the plaintiff to recover, a judgment for such plaintiff will not be disturbed because the trial court assigns the wrong reason for entering such judgment.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Interlocutory orders not</italic> <italic>reviewable by Supreme Court.</italic> Under the provisions of 85 O. S. 1941 § 29, no appeal on proceeding to review can be instituted in this court from an intermediate or interlocutory order made by the Industrial Commission, but such proceeding for review is applicable only to a final order of said commission.

(Syllabus.) 1. ADVERSE POSSESSION — <italic>Essentials of adverse</italic> <italic>possession to ripen into title.</italic> The title to land cannot be acquired by adverse possession unless possession is open, notorious, hostile, exclusive, continuous, under claim of ownership and uninterrupted for the full statutory period of 15 years. 2. LANDLORD AND TENANT — <italic>Tenant may attorn to</italic> <italic>purchaser of landlord's interest at execution sale.</italic> A tenant may attorn to the purchaser of the premises of his landlord sold at execution sale to satisfy a judgment rendered against his landlord. 3. EQUITY — <italic>Essentials of "laches."</italic> The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case and according to right and justice. Laches, in legal significance, is not merely delay, but delay that works a disadvantage to another and causes change of condition or relation during the period of delay. 4. EJECTMENT — <italic>Judgment for plaintiff</italic> <italic>sustained.</italic> Record examined: <italic>held,</italic> evidence sufficient to sustain the judgment.

(Syllabus.) TRIAL — <italic>Insufficiency of plaintiff's evidence to</italic> <italic>withstand demurrer or motion for directed verdict.</italic> Where plaintiffs' evidence wholly fails to sustain the allegations of the petition, or some material element thereof which is indispensable to its recovery, it is not error for the court to sustain a demurrer thereto or direct a verdict for the defendant.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain plea of accord and satisfaction in action on</italic> <italic>note.</italic> In an action on a promissory note where the defendant admits the execution thereof, pleads accord and satisfaction and the evidence reasonably tends to support such defense, the finding of the jury in favor of the defendant thereon will not be disturbed on appeal. 2. PRINCIPAL AND AGENT — <italic>Authority of collection</italic> <italic>agent to cancel debt in consideration of transfer of title</italic> <italic>and possession of mortgaged chattels.</italic> An agent with express authority to accept payment of balance due on a note, and authorized and directed by the principal to take voluntary possession of mortgaged chattels and title thereto, has authority, in absence of proof to the contrary and notice of such limitation on the authority, to make an agreement to cancel the debt in consideration of transfer of title and possession.

(Syllabus.) 1. DRAINS — <italic>Statutory provisions for sale of land</italic> <italic>for delinquent ad valorem taxes applicable to delinquent</italic> <italic>drainage assessments.</italic> The provisions of the statutes for the sale of real estate for delinquent ad valorem taxes and the resale thereof are applicable to delinquent drainage assessments. 2. TAXATION — <italic>Either plaintiff or defendant seeking</italic> <italic>to avoid tax deed must comply with provisions of tender</italic> <italic>statute.</italic> Where either plaintiff or defendant seeks to attack or avoid a tax deed or a claimed title asserted under a tax deed, he must comply with the applicable provisions of the statute relating to tender. (68 O. S. 1941 §§ 453 and 455.)

(Syllabus.) 1. DIVORCE — <italic>Equitable division of jointly acquired</italic> <italic>property.</italic> On granting a divorce to either the husband or wife the court is required by 12 O.S. 1941 § 1278[<cross_reference>12-1278</cross_reference>] to make a just, fair, and equitable division of the property acquired by the parties jointly during their marriage. In doing so the court is not required to divide the property equally between the parties, but is given a wide<page_number>Page 319</page_number> latitude in determining just what part of the jointly accumulated properties shall be given to each of the parties. 2. SAME — <italic>Judgment for alimony held excessive and</italic> <italic>modified.</italic> Record examined, and <italic>held,</italic> that the judgment for permanent alimony is excessive and is modified by reducing the allowance from $3,000 to $1,500, payable at the rate of $25 per month, and by modifying the time as to the commencement of payments.

(Syllabus.) 1. DIVORCE — <italic>Question of fairness of property</italic> <italic>division approved by court not to be considered in later</italic> <italic>proceedings to collect unpaid installments of child support</italic> <italic>money.</italic> The question of the fairness or unfairness of a division of property between husband and wife in a divorce action, approved by the court, is not to be considered in proceedings to collect unpaid installments of support money awarded to the mother of a minor child of the parties, instituted more than seven years after the decree of divorce and division of property. 2. COURTS — <italic>Exclusive jurisdiction of court in</italic> <italic>proceedings in garnishment after judgment.</italic> In proceedings in garnishment after judgment, the court in which judgment was rendered has full power to hear and determine all questions arising after judgment, and no other court of coordinate jurisdiction has power to interfere.

(Syllabus.) 1. ASSIGNMENTS — <italic>"Assignment" defined.</italic> An assignment is an expression of intention by one that his rights shall pass to and be owned by another. 2. SAME — <italic>Legal and equitable assignments</italic> <italic>distinguished.</italic> A legal assignment must relate to a thing in being, not an expectancy or contingency; whereas an equitable assignment covers contingent interests, expectancies, and things potential. 3. SAME — <italic>Equitable assignment by debtor to creditor</italic> <italic>whereby creditor is to be paid from fund expected to become</italic> <italic>due to debtor.</italic> An agreement between a debtor and creditor that the creditor shall be paid from a fund or debt if and when the same becomes due to the debtor, coupled with an order or direction to the person who may become indebted to the debtor to pay the debt to the debtor's creditor, constitutes an equitable assignment that is enforceable. 4. APPEAL AND ERROR — TRIAL — <italic>Conclusiveness</italic> <italic>of court's findings in jury-waived case — Trial court may</italic> <italic>not disregard positive, credible, and uncontradicted</italic> <italic>evidence of plaintiff.</italic> In the trial of a law action where a jury is waived, the findings of the trial judge upon conflicting evidence have the effect of a verdict of a jury and are conclusive on appeal; but where the plaintiff only introduces evidence and this evidence is clear, positive, uncontradicted, and not inherently improbable, the trial judge is not at liberty to abritrarily disregard the same and render a judgment contrary thereto.

(Syllabus.) TRIAL — <italic>When verdict properly directed for</italic> <italic>defendant.</italic> A verdict should be directed for defendant only when the evidence, with all inferences reasonably deducible therefrom, is insufficient to support a verdict for plaintiff.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal rendered moot and dismissed</italic> <italic>where parties resumed marital relation after appeal from</italic> <italic>judgment denying annulment of marriage.</italic> In an action to annul a marriage where annulment is denied and appeal prosecuted to this court, and pleadings filed in this court disclose that since such appeal the interested parties have voluntarily resumed, and continue to maintain, their marital relation, the appeal is moot and will be dismissed.

(Syllabus.) ACCOUNT, ACTION ON — <italic>Burden of proof — Verified</italic> <italic>general denial put in issue an alleged credit without which</italic> <italic>cause of action would be barred.</italic> Where an action is based upon a verified<page_number>Page 362</page_number> itemized account, the items of which are evidenced by written orders, to which defendant pleads by verified general denial and by the affirmative defenses of limitations and payment, the burden of going forward with the evidence does not shift to defendant until plaintiff has established a prima facie case of defendant's liability. The verified denial in such a case puts in issue an alleged credit shown on the account and without which plaintiff's cause of action would be barred.

(Syllabus.) 1. WILLS — SPECIFIC PERFORMANCE — <italic>Sufficiency</italic> <italic>of petition in action by residuary legatees under joint</italic> <italic>will against devisees in will subsequently executed by</italic> <italic>survivor.</italic> A petition which alleges the execution of a joint will pursuant to the terms of a contract and the acceptance of benefits thereunder by the survivor, states a cause of action in favor of the residuary legatees therein as against the devisees in a will subsequently executed by such survivor, and is not subject to demurrer. 2. SAME — <italic>Jurisdiction of district court to enforce</italic> <italic>rights of beneficiaries in joint and mutual will where</italic> <italic>survivor has accepted benefits thereunder.</italic> The district court has jurisdiction of an action to enforce the rights, if any, of beneficiaries in a joint and mutual will, and to impress the property of the testator with a trust for their benefit, where one of the makers has died, and the other has accepted benefits under said will.

(Syllabus.) 1. CONSTITUTIONAL LAW — COVENANTS — <italic>Validity</italic> <italic>of agreement by owners of lots in certain city block not to</italic> <italic>convey or lease to persons of Negro race.</italic> An agreement by owners of lots in a certain block in a city, that no one of such owners, his or her heirs, executors, administrators or assigns will ever, within a given period, sell, lease, or give away any of the lots so owned or any interest therein to any person of the African or Negro race, is not void as against public policy and such a contract is not prohibited by the Fifth, Thirteenth, and Fourteenth Amendments to the Federal Constitution. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In an action of equitable cognizance, the findings and decree of the trial court will not be disturbed on appeal unless they are clearly against the weight of the evidence.

(Syllabus.) 1. DEEDS — <italic>Burden of proof to establish lost</italic> <italic>deed.</italic> A person seeking to recover under a lost deed has the burden of proving its execution, delivery and material contents, by clear and convincing evidence. 2. STATUTE — EVIDENCE — <italic>In action on foreign</italic> <italic>judgment laws of other state in absence of proof presumed</italic> <italic>to be the same as Oklahoma's.</italic> In a suit on a judgment rendered in another state, where there is neither pleading nor proof that the laws of the other state gave it any effect different from the effect it would have in Oklahoma, it must be construed according to the laws of Oklahoma. 3. DIVORCE — <italic>Conclusiveness of decree as to property</italic> <italic>rights.</italic> Under 12 O. S. 1941 § 1279, a divorce granted at the instance of one party is a bar to any claim of either party in and to the property of the other, except in cases where actual fraud shall have been committed by or on behalf of the successful party.

(Syllabus.) 1. EASEMENTS — <italic>Where owner of adjoining lots has</italic> <italic>subjected one to burden in favor of other, conveyance of</italic> <italic>one lot presumed to be with reference to then condition of</italic> <italic>property.</italic> Where the owner of adjoining lots subjects one to a burden in favor of the other and thereafter sells and conveys one of such lots, the contracting parties, in absence of evidence to the contrary, are presumed to contract with reference to the condition of the property at the time of the sale. 2. SAME — <italic>Easement originating from grant of one</italic> <italic>tract by owner of adjoining tracts.</italic> An easement over part of land adjoining other land conveyed by owners of both tracts to another derives its origin from a grant and cannot legally exist where owner of servient land was never seized of both tracts. 3. SAME — <italic>Easement passing to grantee of one lot by</italic> <italic>implication.</italic> Where owner of adjoining lots so employs one of them that the other derives continuous, permanent, and apparent benefit from first lot and sells lot in favor<page_number>Page 375</page_number> of which such quasi easement exists, such easement, being necessary to reasonable enjoyment of property granted, passes to grantee by implication. 4. SAME — <italic>Easement as property right which will</italic> <italic>support quiet title action.</italic> An easement is a legal property right transferable with the real estate to which it is appurtenant, whether mentioned in the deed or not, and will support an action to quiet title.

(Syllabus.) 1. INSURANCE — <italic>Action to recover for alleged loss</italic> <italic>under theft provision of automobile insurance policy</italic> <italic>— Proof of theft required.</italic> In an action to recover for loss alleged to have been sustained under the theft provision of an automobile insurance policy, the burden is upon the plaintiff to establish by a preponderance of the evidence a taking and an asportation of the vehicle with the intent to deprive the true owner thereof. If no such intent existed, but on the other hand there existed intent on the part of the taker to return the property after a temporary use, there can be no recovery. 2. SAME — <italic>Error in instructing verdict for plaintiff</italic> <italic>where evidence was in conflict as to whether car was taken</italic> <italic>with intent to steal same.</italic> Where the plaintiff introduces evidence of the taking and asportation of his property, by stealth or fraud, and the damage or destruction of said property in the process of asportation, and there is evidence introduced tending to show the existence of an intent on the part of the taker to return the property after a temporary use, a conflict in the evidence is thus presented, the intent of the taker is a question of fact for determination by the jury, and it is error to instruct a verdict for the plaintiff.

(Syllabus.) 1. TAXATION — <italic>Tax deed issued pursuant to 1938</italic> <italic>resale of property in city of Tulsa canceled only such</italic> <italic>special assessment installments as were delinquent at time</italic> <italic>of resale.</italic> A valid resale tax deed issued pursuant to the 1938 tax resale covering property in the city of Tulsa had the effect of canceling all installments on special assessments for street improvements issued under the charter provisions of said city that were delinquent and unpaid on February 1 prior to the resale, but it did not cancel the installments not then delinquent. 2. SAME — LIMITATION OF ACTIONS — <italic>Causes of</italic> <italic>action not barred by limitations or laches as to</italic> <italic>installments not delinquent.</italic> Record examined, and <italic>held,</italic> that the causes of action are not barred by limitations or laches as to the two installments not delinquent on February 1st prior to the resale.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Duty of Industrial</italic> <italic>Commission to make specific findings of fact as well as</italic> <italic>conclusions of law.</italic> It is the duty of the State Industrial. Commission to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant. 2. SAME — <italic>Order vacated where findings and</italic> <italic>conclusions too indefinite for judicial</italic> <italic>interpretation.</italic> Where the findings of fact and conclusions of law of the State Industrial Commission are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings.

(Syllabus.) 1. TAXATION — <italic>Income of resident from "business</italic> <italic>transacted" outside state not taxable.</italic> The entire income of an individual Oklahoma resident derived from wages, salaries, commissions, professional or occupational earnings, or other compensation received from personal services, is taxable in this state without regard to the place wherein the services were performed. That portion of the income, however, derived from "business transacted" outside the state as distinguished from "professional" or "personal" services is nontaxable in this state. 68 O.S. 1941 § 876[68-876]. 2. SAME — <italic>Income of architect-engineer from</italic> <italic>construction of war plant in another state held not taxable</italic> <italic>since services were rather those of contractor.</italic> Record examined, and <italic>held</italic>: The income<page_number>Page 385</page_number> sought to be taxed herein is nontaxable because derived from "business transacted" outside state rather than from "professional" or "personal" services.

(Syllabus.) 1. DIVORCE — PARENT AND CHILD — <italic>Welfare of</italic> <italic>child paramount consideration in awarding custody.</italic> Under 10 O.S. 1941 § 21[<cross_reference>10-21</cross_reference>], as governed by the rules prescribed in 30 O.S. 1941 § 11[<cross_reference>30-11</cross_reference>], a court, in awarding the custody of a minor child, must be guided, first, by what appears to be for the best interest of the child in respect to its temporal, mental, and moral welfare. In deciding what is for the best interest of the child in this respect, a court should well consider the influences and protection afforded by a paternal affection if such be manifest, particularly where the child is of tender years. 2. SAME — <italic>Decrees as to care and custody of child</italic> <italic>may be modified from time to time.</italic> Decrees as to the care and custody of a minor child may be modified from time to time. 3. SAME — <italic>Decree divesting mother of custody of</italic> <italic>minor daughter and awarding</italic><page_number>Page 387</page_number> <italic>same to paternal grandmother reversed.</italic> A decree divesting the mother of the care and custody of a minor daughter, in the absence of a finding that the mother is an unfit person, and awarding the care and custody to the child's paternal grandmother, is reversed under the record presented.

(Syllabus.) 1. WITNESSES — <italic>Wife competent to testify where she</italic> <italic>and husband were joint parties in action to cancel deeds to</italic> <italic>jointly acquired property held in his name.</italic> A husband held legal title to real property jointly acquired by the husband and wife. The husband and wife joined in a warranty deed conveying the land to the daughter, reserving a life estate. They subsequently joined in an action against the daughter and her husband to cancel the deed. The daughter and her husband filed a cross-petition to have title quieted in the daughter. <italic>Held</italic>: The plaintiff, wife, was a competent witness. 2. TRUSTS — <italic>When "resulting trust" arises.</italic> A resulting trust is one where the legal estate in property is conveyed or transferred, but the intent appears or is inferred from the terms of the disposition or from accompanying facts and circumstances that the beneficial interest is not to be enjoyed with the legal title. In such case, the trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended and whom equity deems to be the real owner. 3. SAME — <italic>Resulting trust not within statute of</italic> <italic>frauds.</italic> A resulting trust is not within the statute of frauds and may therefore be established by parol testimony. 4. SAME — <italic>Sufficiency of evidence to establish</italic> <italic>resulting trust.</italic> Where the court's finding of facts sufficient to create a resulting trust is supported by the clear weight of the evidence, the judgment based thereon will not be disturbed.

(Syllabus.) APPEAL AND ERROR — <italic>Nullity of case-made not settled</italic> <italic>as required by statutes.</italic> Where there has been neither a settlement of the case-made as required by 12 O.S. 1941 § 958[<cross_reference>12-958</cross_reference>], nor a stipulation of settlement as authorized by 12 O.S. 1941 § 966[<cross_reference>12-966</cross_reference>], such case-made is a nullity, and where the alleged errors can only be reviewed by case-made the appeal will be dismissed.

(Syllabus.) 1. DEDICATION — <italic>Dedication of streets deemed perfect</italic> <italic>when lots sold with reference to recorded plat.</italic> When lots are sold with reference to a recorded plat, a dedication of the streets as laid out in such plat is deemed perfect, without any affirmative official or other action on the part of the municipality or public. 2. SAME — <italic>Dedication of way not invalidated by lack</italic> <italic>of connection with established public way.</italic> The fact that the way dedicated to the public does not connect with an established public way does not invalidate such dedication. 3. NUISANCE — <italic>Right of action for abatement by one</italic> <italic>specially injured not barred by laches or estoppel.</italic> Where a party is specially injured by a public nuisance and brings an action to abate the same, lapse of time will neither legalize the same nor estop the injured party from bringing an action to effect its abatement. 4. SAME — <italic>Right of abutting owner to enjoin</italic> <italic>obstruction of public way without showing right of passage</italic> <italic>from such way to public highway.</italic> The owner of land abutting upon a<page_number>Page 396</page_number> public way which is obstructed so as to cut off or materially interfere with his passage thereover to and from his land suffers a special injury which entitles him to maintain an action to enjoin such as a public nuisance. And the fact that such owner as plaintiff does not show in himself a clear right of passage from such way to a public highway is no defense to his right of action.

(Syllabus.) JUDGMENT — STATES — <italic>Dormancy statute not a</italic> <italic>statute of limitation and is applicable to lien of judgment</italic> <italic>recovered by state on promissory notes.</italic> A statute limiting the existence of a judgment lien on a debtor's realty to five years if no execution is issued is not a statute of limitation within the rule that<page_number>Page 399</page_number> statutes of limitation are not binding on the state, and is therefore applicable to a judgment recovered by the state on promissory notes; and the judgment cannot be enforced against the property in the hands of a purchaser in the absence of revivor within the time prescribed after dormancy.

(Syllabus.) 1. STATUTES — <italic>Legislative intent prevailing over</italic> <italic>literal import of words employed.</italic> Where the legislative intent is plainly discernible from the provisions of statute when considered as a whole, the real purpose and intent of the legislative body will prevail over the literal import of the words employed. 2. COVENANTS — <italic>Test as to whether court of equity</italic> <italic>should refuse to enforce restrictions on use of real</italic> <italic>property because of change of conditions of surrounding</italic> <italic>property.</italic> In determining whether a court of equity should refuse to enforce valid restrictions on the use of real property because of change of conditions of the surrounding property, the test is whether the original purpose and intention of the parties creating the restrictions has been so destroyed by the changed conditions, without fault on the part of those who seek to be relieved, that the restrictions are no longer of substantial benefit to the residents, and the original purpose cannot be reasonably effected by granting equitable relief. Each case must be decided on the equities as they are presented. 3. SAME — CONSTITUTIONAL LAW — PERPETUITIES — <italic>Evidence did not establish waiver or abandonment of</italic> <italic>restriction against use of property by negroes and such</italic> <italic>restriction held not to violate constitutional provisions</italic> <italic>nor statute prohibiting suspension of absolute power of</italic> <italic>alienation.</italic> Record examined, and <italic>held,</italic> that the holding of the trial court that the evidence<page_number>Page 401</page_number> does not establish a waiver or abandonment of the restriction sought to be enforced by plaintiff, is not clearly against the weight of the evidence. <italic>Held,</italic> further, that the restriction sought to be enforced does not violate the provisions of the Constitution of the United States, or the Constitution of this state, and is not prohibited by 60 O. S. 1941 § 175.47.

(Syllabus.) DIVORCE — <italic>Dismissal of appeal for noncompliance with</italic> <italic>appellate court's order to pay alimony or expense money.</italic> Where plaintiff in error is ordered by this court to pay alimony or expense money and refuses to comply with said order, the court may in its discretion dismiss the appeal.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>In case of injury to two</italic> <italic>specific members percentage of total disability should be</italic> <italic>determined with due regard to actual cumulative effect of</italic> <italic>injuries and not by arbitrary application of mathematical</italic> <italic>formula.</italic> In a case wherein an injured workman has suffered injury to two specific members, it is for the determination of the Industrial Commission as to the percentage of total disability with due regard to the cumulative effect of said injuries. The commission should make a determination thereof based upon the evidence introduced, both expert and otherwise, and should call upon their own general knowledge and experience as men of common understanding and judgment. The arbitrary application of a mathematical formula, taking the percentage of disability to each member of the body separately, adding same together and dividing by two, cannot be applied to determine the degree of total disability, unless it reasonably appears from the record that same substantially reflects the degree of disability.

(Syllabus.) OIL AND GAS — <italic>Provision of lease for its termination</italic> <italic>upon failure of lessee to pay stipulated delay rental was not</italic> <italic>affected by further provision that lease should not terminate</italic> <italic>until lessor gave lessee notice of such failure to pay</italic> <italic>rental.</italic> The provision of an oil and gas lease that if drilling operations are not commenced by a fixed date the lease shall terminate as to both parties unless the lessee shall by said date pay a certain sum of money as a rental to cover the privilege of deferring the commencement of drilling operations, is not affected by a further provision that failure to pay rentals when due shall not operate to cancel the lease until lessor gives lessee notice by registered mail of said failure to pay rental, since the lease by its terms would be terminated before the latter contingency could arise.

(Syllabus.) 1. PLEDGES — <italic>Pledge terminated by payment of debt</italic> <italic>secured.</italic> A pledge of personal property as security for the payment of a debt is terminated by payment and discharge of the debt secured. 2. BAILMENT — <italic>Gratuitous bailment terminated by</italic> <italic>bailor's demand for possession and refusal of demand</italic> <italic>constitutes conversion.</italic> A gratituous bailment with no duration specified may be terminated by the bailor at any time by demand for possession of his property, and a refusal thereof by the bailee constitutes a conversion. 3. SAME — LIMITATION OF ACTIONS — <italic>Demand for</italic> <italic>possession of bailed property must be made within</italic> <italic>reasonable time.</italic> When demand and refusal are necessary to constitute a conversion of bailed property, such demand must be made within a reasonable time, not beyond the period of limitations prescribed by statute.

(Syllabus.) 1. NEGLIGENCE — <italic>Negligence of driver of automobile</italic> <italic>imputable to owner who accompanied him on joint</italic> <italic>journey.</italic> The negligence of the driver of a motor vehicle is imputable to the owner where the owner is personally present in the vehicle and the owner and the driver are engaged in a joint business journey or enterprise. 2. EVIDENCE — <italic>Report made by highway patrolman based</italic> <italic>upon hearsay not admissible in negligence action.</italic> A voluntary report made by a state highway patrolman, pursuant to official duty, based upon hearsay, is not admissible in evidence to prove any fact disclosed therein, in a negligence action. 3. TRIAL — <italic>Plaintiff's motion for directed verdict</italic> <italic>in negligence case properly denied where evidence as to</italic> <italic>negligence was in conflict.</italic> It is not error to deny a motion for directed verdict for plaintiff, in a negligence action, where there is either conflict in the evidence as to primary negligence or there are facts and circumstances in evidence from which the jury might find contributory negligence on the part of plaintiff. 4. APPEAL AND ERROR — <italic>Refusal of plaintiff's motion</italic> <italic>to declare mistrial in negligence case because question of</italic> <italic>automobile insurance was injected was not reversible error</italic> <italic>where incompetent evidence stricken and jury admonished to</italic> <italic>disregard.</italic> Where a defendant in a negligence action, growing out of a collision between motor vehicles, is improperly asked whether he carried insurance on his motor vehicle, and defendant answers in the negative, but the question and answer are stricken by the court and the jury is specifically instructed not to consider same, and it is apparent from the whole record that the plaintiff was not prejudiced by such question and answer, there is no reversible error in refusing to declare a mistrial. 5. NEW TRIAL — <italic>Waiver of alleged misconduct of</italic> <italic>defendant in conversing with jurors by failure to make</italic> <italic>objection at time misconduct observed.</italic> Where a plaintiff observes what he deems improper conduct of defendant in alleged conversation with jurors during the trial, and plaintiff makes no objection at the time but allows the case to go to the jury without mention of the alleged misconduct, seeking a favorable verdict, he waives such alleged misconduct.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Dismissal of action sustained</italic> <italic>if correct under any theory where exact theory of trial</italic> <italic>court not reflected by record.</italic> Where the trial court has sustained a motion to dismiss an action and the record on appeal does not reflect the exact theory advanced and adopted by the court, the dismissal will be sustained if correct under any theory presented in this court. 2. APPEAL AND ERROR — <italic>Error never presumed but must</italic> <italic>be affirmatively shown.</italic> Error is never presumed by this court; it must always be affirmatively shown by the record, and where this is not done, the judgment must be affirmed.

(Syllabus.) 1. DIVORCE — <italic>Discretion of court as to allowance of</italic> <italic>alimony to wife granted divorce — Financial condition of</italic> <italic>parties to be considered.</italic> Where a divorce is granted the wife by reason of the fault of the husband, the allowance of permanent alimony rests in the sound judicial discretion of the trial court, and is to be exercised with reference to established principles, and in view of all the circumstances, such as the husband's estate and ability at the time the divorce is granted, and the wife's condition and means. 2. SAME — <italic>Invalidity of alimony award of portion of</italic> <italic>restricted lands of fullblood Indian.</italic> The trial court, in a divorce action, cannot award to the plaintiff, as alimony, a portion of the restricted lands of her fullblood Indian husband.

(Syllabus.) TAXATION — <italic>Statutory penalty for failure to list</italic> <italic>personal property by May 1st held mandatory and applicable to</italic> <italic>all taxpayers and not violative of due process clause.</italic> The penalty prescribed by 68 O. S. 1941, section 15.12, for failure of a taxpayer to list or return its personal property for taxation on or before May 1st of the taxing year, applies to all taxpayers, individual or corporate, who are required to list their property with the county assessor, and who fail to do so on or before May 1st. The penalty is not arbitrary, unreasonable or excessive, and the imposition thereof as provided in said section does not deprive the taxpayer of his property without due process of law in violation of the State and Federal Constitutions.

(Syllabus.) 1. INSURANCE — <italic>Fraternal beneficiary associations</italic> <italic>exempt from payment of gross premium tax.</italic> Royal Neighbors of America, a fraternal beneficiary association, as defined by Title 36, O. S. 1941 § 271, is not liable for the payment of premium taxes imposed upon insurance companies by Title 36, O. S. 1941 § 104, as amended by Title 36, S. L. 1945, ch. 1. 2. SAME — <italic>Fraternal beneficiary associations exempt</italic> <italic>from general provisions of insurance laws of state.</italic> By the provisions of 36 O. S. 1941 § 271, fraternal beneficiary associations are exempt from the general provisions of the insurance laws of this state and no law shall apply to them unless they be expressly designated therein.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of conflicting</italic> <italic>evidence to sustain award.</italic> In reviewing an award of the State Industrial Commission this court will not review conflicting evidence to determine its weight and value, nor will it disturb an award supported by competent evidence.

(Syllabus.) 1. PLEADING — <italic>Demurrer for misjoinder of causes of</italic> <italic>action.</italic> In order to withstand demurrer for misjoinder of causes of action, the relief sought in each cause must to some extent affect each of defendants in the other. 2. WATERS AND WATERCOURSES — ACTION — <italic>Separate</italic> <italic>causes of action where one pollutes two streams which</italic> <italic>traverse plaintiff's land.</italic> Where on pollutes two streams which separately enter upon and separately pass over land of another, the injuries suffered are distinct and give rise to separate causes of action. 3. SAME — <italic>Separate causes of action where polluted</italic> <italic>stream passes through separate tracts of land of</italic> <italic>plaintiff.</italic> Where one pollutes a stream which passes through one tract of land of another and thereafter in its course enters and passes through another tract of such other person, the injury to each tract gives rise to a separate cause of action.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Subsequent injury to</italic> <italic>"physically impaired person" — Apportionment of liability</italic> <italic>between employer and Special Indemnity Fund.</italic> In making an award for multiple injuries under 85 O. S. Supp. 1943, § 172, the State Industrial Commission should find the percentum of total permanent disability suffered by the claimant as a result of all injuries received by him, and should also find the percentum of such permanent disability attributable to the specific injury last suffered. The award against the employer should be for the percentum of disability caused by the last injury and the remainder should be charged against the Special Indemnity Fund.

(Syllabus.) LICENSES — <italic>Act levying tax on deposits in</italic> <italic>coin-operated music boxes and machines held to include</italic> <italic>machines requiring insertion of coin to secure musical</italic> <italic>selection by telephone request.</italic> The provisions of H. B. 59, Session Laws 1943, 68 Okla. Stat. Ann. §§ 1541-1544, levying a tax of ten per cent (10%) on the gross deposits in coin-operated music boxes and machines, including all mechanical devices operated by means of insertion of a coin, token or similar object which cause such device to play or reproduce music, are sufficiently broad to include machines which require insertion of a coin for the patron to make a selection by telephone request, the music thereafter being reproduced for the patron by telephone connection from a separate point of origin.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Duty of Industrial</italic> <italic>Commission as to findings of fact and conclusions of</italic> <italic>law.</italic> It is the duty of the State Industrial Commission to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant. 2. SAME — <italic>Order vacated where findings and</italic> <italic>conclusions too indefinite for judicial</italic> <italic>interpretation.</italic> Where the findings of fact and conclusions of law of the State Industrial Commission are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings.

(Syllabus.) 1. INSURANCE — <italic>Fraternal insurance —</italic> <italic>Invalidity of assignment of benefit certificate.</italic> A certificate of insurance issued by a fraternal order to a member under the provisions of 36 O. S. 1941 §§ 271, 282 and 283 is not assignable by the insured member to one not authorized to receive the benefits as provided by said sections. 2. SAME — <italic>Cash surrender value of benefit</italic> <italic>certificate not assignable to secure loan.</italic> The cash surrender value of a certificate of insurance issued by a fraternal order to a member under the provisions of 36 O. S. 1941 §§ 271 and 283 is not assignable by the insured member in consideration of a loan by assignee to the insured.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Nullity of case-made not</italic> <italic>served within time allowed.</italic> A case-made not served under the provisions of 12 O. S. 1941 § 958 or some authorized order or extension is a nullity and presents nothing to this court for review. 2. SAME — <italic>County judge acting for district judge not</italic> <italic>authorized to grant order extending time for making and</italic> <italic>serving case-made.</italic> A county judge, acting in lieu of the district judge in a matter pending in the district court, is not authorized to grant an order extending the time in which to make and serve a case-made under 12 O. S. 1941 § 958, or any related provisions of the statute of this state.<page_number>Page 489</page_number>

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Continuing jurisdiction</italic> <italic>of Industrial Commission to enter award for permanent</italic> <italic>disability.</italic> Under its continuing jurisdiction the State Industrial Commission can enter an award for permanent disability at any time after claim has been filed or jurisdiction obtained, where no former award for permanent disability has been entered or denied.<page_number>Page 490</page_number> 2. SAME — <italic>Cause and extent of disability as</italic> <italic>questions of fact — Conclusiveness of findings.</italic> The cause of disability and the extent thereof resulting from an accidental injury are questions of fact within the jurisdiction of the Industrial Commission, and where there is any competent evidence reasonably tending to support the finding of the State Industrial Commission as to such disability, an award based thereon will not be disturbed on review.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Liability of Special</italic> <italic>Indemnity Fund where claimant is previously "physically</italic> <italic>impaired person" — Evidence did not support finding that</italic> <italic>back injury combined with previous injury to eyes resulted in</italic> <italic>"greater degree of disability."</italic> An award against the Special Indemnity Fund, under the provisions of 85 O. S. 1943 Supp. § 172, is authorized only when an accidental personal injury to a previously "physically impaired person" as therein defined results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone; record examined and <italic>held:</italic> that the finding of the commission herein that respondent's disability to his back, in combination with his previous disability, was materially greater in degree than that resulting from the subsequent injury alone is not supported by any competent evidence.

(Syllabus.) 1. OIL AND GAS — <italic>Right of action for damages for</italic> <italic>breach of warranty against lessor whose title fails and</italic> <italic>lessee continues in possession of land under lease from</italic> <italic>true owner.</italic> Where lessor grants an oil and gas lease for a valuable consideration and warrants title to mineral interest in lands described in the lease, and the lessor's title fails, but lessee obtains right and continues in possession of the land under a lease from the true owner, the lessee is entitled to recover from the original lessor in an action for damages for breach of warranty. 2. SAME — <italic>Measure of damages recoverable by</italic> <italic>lessee.</italic> The measure of damages for breach of a covenant of warranty of title in an oil and gas mining lease is that provided by 23 O. S. 1941 § 25. The provision of statute extends the detriment caused by the breach of the covenant of warranty to include the price paid lessor, with interest thereon during the time which the lessee derived no benefit from the property, not exceeding six years, together with expenses properly incurred by the lessee in defending possession. 3. SAME — <italic>Record sustained recovery of amount of</italic> <italic>bonus and delay rentals paid lessor with interest.</italic> Record examined, and <italic>held:</italic> Lessee is entitled to recover from lessor the amount of bonus paid for the lease together with delay rentals, with interest thereon from the time of payment.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Lack of statutory</italic> <italic>authority to translate loss of minor specific members into</italic> <italic>injuries to other specific members without competent</italic> <italic>evidence.</italic> There is no statutory authority for translating total or partial loss of minor specific members consisting of thumbs, fingers, and toes into injuries to other specific members or into injuries to the body as a whole without competent evidence in support thereof. 2. SAME — <italic>Binding effect of stipulation that certain</italic> <italic>evidence of prior injury to claimant should not be</italic> <italic>considered as against Special Indemnity Fund.</italic> Where, during the progress of a hearing before the State Industrial Commission on a claim for compensation under the Workmen's Compensation Act, it develops that claimant had sustained a prior injury and Special Indemnity Fund is made a party to the proceeding and thereafter counsel for claimant and Special Indemnity Fund enter into a stipulation providing that the medical evidence theretofore introduced as to the prior injury sustained by claimant should be withdrawn and not considered as against Special Indemnity Fund and that the extent of disability sustained by reason of the prior injury should be governed by the evidence thereafter introduced, both parties will be bound thereby and claimant will not be heard to say that it was the duty of the commission to consider such former evidence, notwithstanding the stipulation. 3. SAME — <italic>Award held excessive as against Special</italic> <italic>Indemnity Fund.</italic> Record examined; <italic>held,</italic> the award under the evidence is excessive as against Special Indemnity Fund.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Invalidity of order by</italic> <italic>equally divided commission on appeal from trial</italic> <italic>commissioner.</italic> Where an order is entered by a single trial commissioner and an appeal is taken as provided by 85 O. S. 1941 § 29 to the commission en banc, and two commissioners, one of which is the trial commissioner, attempts to sustain the action of the trial commissioner and two commissioners dissent therefrom, the fifth member of the commission not voting, no order has been entered either making or denying an award as provided by 85 O. S. 1941 § 75, or as provided for appeals under 85 O. S. 1941 §§ 29 and 77.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to</italic> <italic>support award.</italic> An award of the State Industrial Commission will not be set aside by this court on review because of insufficiency of the evidence where there is competent evidence reasonably tending to support the same.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Invalidity of order by</italic> <italic>equally divided commission on appeal from trial</italic> <italic>commissioner.</italic> Where an order is entered by a single commissioner and an appeal is taken as provided by 85 O. S. 1941 § 29 to the commission en banc, and two commissioners, one of whom is the trial commissioner, attempts to sustain the action of the trial commissioner and two commissioners dissent therefrom, the fifth member of the commission not voting, no order has been entered either making or denying an award as provided by 85 O. S. 1941 § 75, or as provided for appeals under 85 O. S. 1941 §§ 29 and 77.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence in equity</italic> <italic>case.</italic> Supreme Court will review evidence in an action of equitable cognizance, but will not reverse the findings of the trial court and judgment based thereon unless it is clearly against weight of evidence.

(Syllabus.) 1. COSTS — <italic>Surety on plaintiff's cost bond liable</italic> <italic>for costs incurred on appeal where judgment in his favor</italic> <italic>was reversed.</italic> A surety on a cost bond given by plaintiff at the commencement of an action under the provisions of 12 O. S. 1941 § 921 is liable for costs, incurred on appeal to this court as well as costs below, where a judgment in favor of plaintiff is on appeal reversed and judgment entered on the mandate in favor of defendant. 2. APPEAL AND ERROR — <italic>Case brought to Supreme Court</italic> <italic>on appeal not new suit but continuance of old one.</italic> The lodging of an appeal in this court does not constitute the institution of a new or original suit, but is a mere continuance in this court of the suit commenced in the trial court.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review of equity case —</italic> <italic>Conclusiveness of findings.</italic> In an action of equitable cognizance trial court's findings are presumed to be correct and a judgment based thereon will not be set aside unless against clear weight of evidence; a general finding is finding of each special thing necessary to sustain a general judgment, and special findings made without request carry the same weight as if requested. 2. TAXATION — <italic>Statutory tender of taxes not required</italic> <italic>where pleadings contain prima facie showing that</italic> <italic>assessments of lands were void.</italic> Where the pleadings of the party contain prima facie showing that the assessments of his lands were void, no tender of taxes, etc., as required by 68 O. S. 1941 §§ 453 and 455 is necessary prior to determination of that issue. 3. TAXATION — <italic>Separate parcels of land separately</italic> <italic>owned cannot be assessed together.</italic> Separate parcels of land belonging to different individuals cannot be assessed together. 4. SAME — <italic>Tax sale void where based on void</italic> <italic>assessment.</italic> If an assessment of property for taxation is void, a sale based on such assessment is likewise void.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Judgment not reversed because</italic> <italic>of inaccurate instruction on measure of damages where</italic> <italic>proper instruction not requested.</italic> Where there is competent evidence tending to show damages alleged, and the verdict is not excessive, and when the complaining party does not request the trial court to give an instruction correctly stating the measure of damages, a judgment will not be reversed because the court's charge does not accurately define the measure of damages. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support verdict and judgment.</italic> The finding of a jury and judgment of the court thereon will not be disturbed on appeal where there is any competent evidence reasonably tending to support the same.<page_number>Page 518</page_number> 3. TRIAL — <italic>Objection to form of verdict waived</italic> <italic>unless made before jury discharged.</italic> Objection to the form of verdict ordinarily is deemed waived unless made at time verdict is returned and before the jury is discharged.

(Syllabus.) BASTARDS — <italic>Sufficiency of acknowledgment of paternity</italic> <italic>contained in will subsequently invalidated.</italic> By the provisions of 84 O. S. 1941 § 215, no specific form is prescribed for acknowledgment of the paternity of a child born out of wedlock. Where the father has voluntarily executed an instrument in the presence of witnesses which purports to be a will in which he acknowledges that he is the father of said child and makes provisions for such child from his estate, although said instrument is ineffectual as a will by reason of the subsequent marriage of the testator, if such will contains language which directly, unequivocally and unquestionably refers to said child as being of his blood and related to him naturally, such acknowledgment is sufficient to satisfy the requirements of the statute.

(Syllabus.) 1. TRUSTS — <italic>Action for accounting by junior</italic> <italic>lienholder against senior lienholder who held in trust</italic> <italic>legal title to interest in Osage Indian headright —</italic> <italic>Equitable owner of headright interest not necessary party</italic> <italic>defendant.</italic> Where the legal title of an interest in an Osage Indian headright is held in trust by a creditor of the equitable owner, who makes a subsequent assignment to another creditor, the latter may maintain an action against such trustee for an accounting, and to enforce payment to him on his debt, of receipts from the property, after payment of the prior obligation, without making the equitable owner a party defendant, when no relief is sought against such owner. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment.</italic> The judgment of a trial court will not be reversed on the ground of insufficiency of the evidence unless it is against the clear weight thereof.

(Syllabus.) 1. CONTRACTS — <italic>"Severable contract" defined.</italic> A severable contract is one susceptible of division and apportionment in its nature and purpose, and having two or more parts, not necessarily dependent on each other, nor so intended by the parties, in respect to matters and things contemplated and embraced in the contract, and whether a contract is entire or severable is primarily a question of intention to be determined from language used by the parties and the subject matter of agreement. 2. SAME — COUNTIES — <italic>Architect's contract for</italic> <italic>his services on new courthouse project held severable so</italic> <italic>that "upon completion of specifications and general working</italic> <italic>drawings" he was entitled to payment specified in contract</italic> <italic>though project was later abandoned by county.</italic> The contract herein between an architect and the board of county commissioners, providing for the architect to make preliminary studies, the drawing of plans and specifications, and the supervision of the erection of a building, for which services the contract provides he shall be paid a certain percentage of the total "upon completion of the preliminary studies", and a further percentage "upon completion of specifications and general working drawings", construed and<italic>held</italic> to be a severable contract, and where said architect has fully performed the services relating to "the completion of specifications and general working drawings", he is entitled to recover the payment specified in the contract for such services performed by him even though the board of county commissioners thereafter abandon the project and determine not to erect said building.

(Syllabus.) 1. GUARDIAN AND WARD — <italic>Validity of contingent fee</italic> <italic>contract of guardian with attorney for recovery of lands</italic> <italic>for ward's estate — Contract effective as equitable</italic> <italic>conditional conveyance.</italic> Where the guardian of a minor enters into a contingent fee contract with an attorney to handle litigation for the recovery of lands for the ward's estate whereby said attorney is to receive a specified undivided interest in said lands, and the contract is duly approved by the county court as necessary for the proper protection of the ward's estate, such contract is valid and binding upon the ward, and constitutes an equitable conditional conveyance of the interest to the attorney, to take effect on successful completion of the legal services. 2. SAME — <italic>Partition of land owned by minor and</italic> <italic>another — Party electing to purchase minor's interest</italic> <italic>required to pay cash.</italic> Where E. and G., a minor, each owns an undivided one-half interest in certain real estate and E. files partition suit and in said cause elects to purchase the minor's interest the consideration to be paid for the minor's interest must be in cash, and if the purchase is not for such a cash consideration, the deed is void on the face of the record and may be set aside by G.

(Syllabus.) 1. CONTRACTS — <italic>Measure of damages for breach of</italic> <italic>contract.</italic> The measure of damages for breach of contract, unless otherwise expressly provided, is the amount which would compensate the party aggrieved for all the detriment proximately caused thereby or which would be likely to result therefrom. 2. APPEAL AND ERROR — <italic>Inaccurate instruction on</italic> <italic>measure of damages was not reversible error where correct</italic> <italic>instruction was not requested.</italic> Where there is competent evidence tending to show damages alleged, and the verdict is not excessive, and when the<page_number>Page 552</page_number> complaining party does not request the trial court to give an instruction correctly stating the measure of damages, a cause will not be reversed because the court's charge does not accurately define the measure of damages. 3. CONTRACTS — <italic>Reasonable time for performance of</italic> <italic>act where no time stated.</italic> A contract cannot be said to be unilateral or lacking mutuality where the agreement entered into between the parties is binding on each party alike touching its ultimate performance, although no definite time is stated in the contract in which performance shall commence. In such case it will be presumed that performance is to be commenced within a reasonable time. 4. OIL AND GAS — <italic>There was no fatal variance between</italic> <italic>allegations of petition and proof in action for damages for</italic> <italic>breach by well owner of contract for cleaning out</italic> <italic>well.</italic> Record examined; <italic>held,</italic> there is no fatal variance between allegations of plaintiff's petition and the evidence.

(Syllabus.) ACCORD AND SATISFACTION — <italic>Part payment made with aid</italic> <italic>of third person as consideration for discharge of entire</italic> <italic>liquidated debt.</italic> An exception to the general rule that part payment is not consideration for discharge of the entire liquidated debt exists where part payment is made by or with aid of third person.

(Syllabus.) WATERS AND WATERCOURSES — <italic>Action against railroad to</italic> <italic>recover damages to crops from flood waters — Evidence</italic> <italic>insufficient to sustain allegations of negligence in</italic> <italic>construction and maintenance of railroad's borrow pits.</italic> Where the gist of an action is damage to plaintiff's crops, allegedly caused by negligence and wrongful acts of defendants in constructing "borrow pit" upon own right of way, by which flood waters from drainage canal escaped and overflowed onto plaintiff's land some distance away, and the evidence shows that "borrow pit" upon the right of way was not connected with drainage canal and there is no evidence showing improper or negligent construction of such "borrow pit," but only evidence is that drainage canal, after approximately 30 years, had eroded its bank to such extent that it became possible for flood waters in canal to enter "borrow pit" and then flow onto plaintiff's land and cause damage, the evidence is insufficient to sustain the allegations of the petition and a demurrer to the plaintiff's evidence was properly sustained.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Authority of Industrial</italic> <italic>Commission to construe its ambiguous former order.</italic> Where the State Industrial Commision makes an award that is ambiguous as to its finality, the commission may thereafter in further proceedings in said cause place its own construction on said order. 2. SAME — <italic>Mandatory duty to make or</italic><page_number>Page 560</page_number><italic>deny award where claimant files application to reopen on change</italic><italic>of condition.</italic> When a claim for compensation under the Workmen's Compensation Law (85 O. S. 1941 § 1 et seq.) is filed with the State Industrial Commission and following a further order the claimant files an application for further disability based on a change of condition, it becomes the mandatory duty of such commission to make or deny an award determining such further claim.

(Syllabus.) 1. TAXATION — <italic>Intangible tax provision not</italic> <italic>opplicable to suit commenced in September on debt incurred</italic> <italic>earlier in month.</italic> In an action commenced in September to recover on an indebtedness incurred earlier in the same month, the plaintiff need not allege and prove payment of the intangible tax or excuse nonpayment as provided in 68 O. S. 1941 § 1515. 2. PRINCIPAL AND AGENT — <italic>Agency as question of fact</italic> <italic>when resting in parol.</italic> In law actions in this jurisdiction the question of agency, when resting in parol, is a question of fact to be determined by the trier of facts. 3. SAME — HUSBAND AND WIFE — <italic>Mere relationship</italic> <italic>does not make husband agent of wife.</italic> The relationship of husband and wife will not, unaccompanied by other circumstances, authorize the conclusion that the husband is the agent of his wife; but such fact may be taken into consideration, and is usually entitled to considerable weight when taken in connection with other circumstances as tending to establish the facts of agency.

(Syllabus.) 1. BOUNDARIES — <italic>Effect of 15 years' acquiescence by</italic> <italic>adjoining landowners in road as boundary line.</italic> Where a road, near an unsurveyed section line separating the respective farms of adjoining landowners, is mutually recognized and accepted by said owners and their predecessors in title for more than fifteen years, as the boundary line, the parties are precluded from claiming that it is not the true line. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In a case of equitable cognizance, the judgment of a trial court will not be reversed on the ground of insufficiency of the evidence unless it is against the clear weight thereof.

(Syllabus.) 1. LOST INSTRUMENTS — <italic>Burden of proof to establish</italic> <italic>lost deed.</italic> A person seeking to recover under a lost deed has the burden of proving its execution, delivery and material contents, by clear and convincing evidence. 2. DEEDS — <italic>Proof of delivery of deed —</italic> <italic>Intention of grantor.</italic> Where there is a dispute as to whether a deed has been delivered so as to vest in the grantee a present title, the question is one of fact to be determined from the facts and circumstances peculiar to each case; and is largely a question of intention on the part of the grantor to be ascertained from the acts and declarations of the grantor preceding, attending, and subsequent to the execution of the instrument. 3. SAME — APPEAL AND ERROR — <italic>Review —</italic> <italic>Sufficiency of evidence as to delivery of lost deed.</italic> In reviewing a judgment in an action of equitable cognizance in which the evidence must be clear and convincing, such as the delivery of a lost deed, this court will weigh the evidence to determine whether it satisfies such standard of proof.<page_number>Page 595</page_number> 4. SAME — <italic>Evidence held insufficient to establish</italic> <italic>delivery of lost deed.</italic> Record examined, and <italic>held,</italic> that the finding of the court that plaintiff's evidence, tending to establish the delivery of a lost deed with intent to vest a present title in grantee, does not meet the standard of proof required, is in accordance with the evidence.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error in giving</italic> <italic>instruction favorable to appellant.</italic> The giving of an erroneous instruction which is more favorable to the plaintiff in error than to the defendant in error will not constitute error which demands a reversal of the judgment. Helmerich Payne, Inc., v. Nunley, <cross_reference>176 Okla. 246</cross_reference>,<cross_reference>54 P.2d 1088</cross_reference>. 2. OIL AND GAS — <italic>Action for damages caused by waste</italic> <italic>oil flowing over land — Violation of statute by lessee as</italic> <italic>negligence per se.</italic> Violation of statute requiring oil lessee to prevent waste oil and refuse from flowing over surface of land is negligence per se, and no other negligence need be pleaded or proved in action for damages caused by violation of statute (52 O. S. 1941 § 296; Texas Co. v. Mosshamer, <cross_reference>175 Okla. 202</cross_reference>,<cross_reference>51 P.2d 757</cross_reference>). An instruction so advising a jury, in an action for damages caused by waste oil, <italic>held</italic> a proper instruction. 3. APPEAL AND ERROR — <italic>Harmless error — Remarks</italic> <italic>of trial judge.</italic> ". . . Remarks of a trial judge will not be grounds for reversal where substantial rights of complaining party have not been violated." Empire Oil Ref. Co. v. Fields, <cross_reference>188 Okla. 666</cross_reference>,<cross_reference>112 P.2d 395</cross_reference>.

(Syllabus.) 1. JUDGMEMT — <italic>Judgment becomes dormant upon death of</italic> <italic>party.</italic> A judgment in this state becomes dormant upon the death of a party. 2. SAME — <italic>Time for revivor of judgment against</italic> <italic>personal representatives of deceased judgment debtor.</italic> Revivor of a judgment against a deceased debtor can only be had against his personal representatives; where the proviso of 12 O. S. 1941 § 1072 does not apply the revivor may not be made without consent of the representative unless within one year from the time it could have been first made; if the appointment and qualification of such representative is not unreasonably delayed, an order of revivor, after notice duly given, may be entered at any time before the expiration of one year from the date of qualification under such appointment. 3. SAME — <italic>Appointment and qualification of</italic> <italic>administratrix held not unreasonably delayed so that</italic> <italic>judgment could have been revived within one year</italic> <italic>thereafter.</italic> Record examined, and <italic>held:</italic> That a delay of 26 days after death of judgment debtor before appointment and qualification of personal representative was not unreasonable.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Grounds for excusing</italic> <italic>giving of statutory notice of injury by claimant.</italic> 85 O. S. 1941 § 24 provides that the State Industrial Commission may excuse the giving of the statutory written notice therein provided for on the ground that the injured employee for some reason could not give the notice or on the ground that the employer or the insurance carrier, as the case may be, has not been prejudiced by failure to give the statutory written notice. 2. SAME — <italic>Duty of Industrial Commission to make</italic> <italic>finding excusing giving of statutory notice where issue</italic> <italic>raised.</italic> Where the statutory written notice required by 85 O. S. 1941 § 24 is not given and this issue is raised, it is the duty of the State Industrial Commission to make a finding excusing the giving of the statutory written notice in accordance with the statute before proceeding to make an award. 3. SAME — <italic>Finding held not to comply with statutory</italic> <italic>provisions.</italic> The finding of the State Industrial Commission to the effect that the employer or the insurance carrier, as the case may be, had actual notice and for this reason the injured employee is excused from giving the statutory written notice is not a compliance with the provisions of 85 O. S. 1941 § 24, requiring the excusing of the giving of the statutory written notice.

(Syllabus.) 1. STATES — <italic>Legislative appropriation of portion of</italic> <italic>tax on fire insurance premiums for use and benefit of</italic> <italic>firemen's relief and pension fund is not a "gift"</italic> <italic>prohibited by Constitution.</italic> The appropriation by House Bill 402, S. L. 1945 (11 O. S. Supp. 1945 § 372) of 5/8 of the annual tax of 4% on all premiums collected by all fire insurance companies in this state, for the use and benefit of the firemen's relief and pension fund, is not a gift, loan, or pledge of the credit of the state, and is not a donation or gift to any company, association, or corporation, public or private. 2. MUNICIPAL CORPORATIONS — <italic>Firemen's relief and</italic> <italic>pension fund not municipally owned fund.</italic> The firemen's relief and pension fund is not a municipally owned fund, but a trust fund for the benefit of those to whom payments are finally made; payments are considered as compensation for services previously rendered. 3. STATES — <italic>Appropriations for firemen's relief and</italic> <italic>pension fund are for public purpose.</italic> Legislative appropriations providing a firemen's relief and pension fund are for a public purpose. 4. SAME — <italic>Constitution does not require estimate by</italic> <italic>State Board of Equalization of amount to be appropriated</italic> <italic>for any given purpose.</italic> Section 23, art. 10, of the Constitution, as amended by Referendum 80, does not require an estimate by the State Board of Equalization of the amount to be appropriated for any given purpose. 5. CONSTITUTIONAL LAW — <italic>Provision authorizing cities</italic> <italic>to pension firemen is specific grant of power to cities and</italic> <italic>not limitation on power of Legislature.</italic> Section 41, art. 5, of the Constitution, authorizing cities to pension meritorious and disabled firemen, is a specific grant of power to the cities and is not a restriction, limitation, or exclusion of the power of the Legislature upon the same subject.

(Syllabus.) OIL AND GAS — <italic>Mineral deed by owner of tract of land</italic> <italic>held to except from grant the minerals under railroad right</italic> <italic>of way.</italic> P., the fee simple owner of lands covered by a producing oil and gas lease, executed a deed to "an undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Garvin County, State of Oklahoma, to wit: (Then follows the legal description of 120 acres in Sec. 25, Twp. 4 N., R. 1 W.), except and less 3.10 acres for railroad right of way and also less all that part of . . . lying and being west of the right of way of U.S. Highway 77, being 3.58 acres, more or less, containing 113.32 acres, more or less, together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for oil, gas and other minerals, . . .";<italic>Held,</italic> said granting clause is plain and unambiguous, excepting from the grant the 3.10 acres of minerals comprising the railroad right of way.

(Syllabus.) 1. DRAINS — <italic>Statutory provisions for sale of land</italic> <italic>for delinquent taxes applicable to delinquent drainage</italic> <italic>assessments.</italic> The provisions of the statutes for the sale of real estate for delinquent ad valorem taxes and resale thereof are applicable to delinquent drainage assessments. 2. JUDGMENT — <italic>Defense of res judicata not available</italic> <italic>where issues and facts not the same and could not have been</italic> <italic>presented in first suit.</italic> Res adjudicata as a defense cannot be sustained where issues and facts involved are not the same and could not have been presented in first suit.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of instructions in</italic> <italic>entirety.</italic> Where the instructions, taken together and considered as a whole, fairly present the law applicable to the issues raised by the pleadings on which competent evidence has been introduced, they are sufficient. 2. APPEAL AND ERROR — <italic>Conclusiveness of verdict on</italic> <italic>fact questions.</italic> The verdict of a properly instructed jury in a law action is conclusive as to all disputed questions of fact; and, when such verdict is reasonably supported by any competent evidence, verdict will not be disturbed on appeal. 3. LANDLORD AND TENANT — <italic>Liability to tenant for</italic> <italic>negligent repair work.</italic> Where a landlord voluntarily repairs, or attempts to repair premises, he may be held liable for damage resulting to the tenant from his negligence in execution of the work.

(Syllabus.) 1. TAXATION — <italic>Erroneous land description in notice</italic> <italic>of resale for taxes — Substantial compliance with statute</italic> <italic>required.</italic> When a notice of resale for delinquent taxes (68 O. S. 1941 § 432b) is erroneous or inexact as to the land description, the court may examine into the law or fact question to determine whether such notice is in substantial compliance with such statute. 2. SAME — <italic>Sufficiency of land description as</italic> <italic>question of fact.</italic> In a notice of resale of land prescribed by 68 O. S. 1941 § 432b, the description of the land is sufficient if the notice as a whole will enable the owner and prospective purchasers to become informed that certain land is to be sold and enable them to identify and locate the land with substantial certainty. In determining such matters a fact question may be involved and the trial court's determination in that respect will not be disturbed by this court unless clearly against the weight of the evidence. 3. SAME — <italic>Evidence sustained finding that notice of</italic> <italic>resale failed to comply substantially with statute.</italic> Record examined, and <italic>held,</italic> that the general finding of the trial court, having the effect of a finding that the notice of resale failed to substantially comply with statute, is not against the clear weight of the evidence.

(Syllabus.) 1. AGRICULTURAL — TRUSTS — <italic>Court properly</italic> <italic>refused to impress trust on insurance company for benefit</italic> <italic>of members of unincorporated farmers association whose</italic> <italic>officers largely organized and managed insurance company as</italic> <italic>separate legal entity.</italic> Where a nonstock, nonprofit, unincorporated association, dedicated to the advancement of the producers of agriculture, is instrumental in the organization and incorporation of an insurance company to write a certain type of insurance which the association is not authorized to write on property in agricultural communities, and it thereupon transfers 500 of said policies to the new company together with the unearned premiums in the total sum of $10,000, and said company operates as a separate legal entity for a period of six years although office space and utility services are furnished to it free of charge by the association, and the officials of both organizations are substantially the same; under such facts the trial court did not err in refusing to impress a trust on the insurance company for the benefit of the members of the association. 2. SAME — <italic>Court properly refused to impress trust on</italic> <italic>funds representing unearned premiums on insurance policies</italic> <italic>transferred from unincorporated association to newly formed</italic> <italic>insurance company.</italic> Trial court's finding that a trust should not be impressed on funds representing unearned premiums on certain insurance policies where both the policies and the funds were transferred simultaneously from an unincorporated association to a newly formed insurance company will not be disturbed on appeal. 4. AGRICULTURE — <italic>Application for injunction and for</italic> <italic>appointment of receiver and for accounting properly</italic> <italic>denied.</italic> Record examined, and <italic>held,</italic> that the trial court did not err in denying application for injunction, for appointment of receiver, and for accounting.

(Syllabus.) 1. CARRIERS — <italic>Delivery of freight conditioned upon</italic> <italic>production of "order" bill of lading properly</italic> <italic>indorsed.</italic> Freight shipped under "order" bill of lading may ordinarily be delivered only on production of the bill of lading, properly indorsed. 2. SAME — <italic>Rights of carrier under statute.</italic> Title 13 O.S. 1941 § 97[<cross_reference>13-97</cross_reference>] vests in the carrier a right and privilege to demand surrender of a bill of lading or reasonable indemnity against claims thereon, before delivering the freight.

(Syllabus.) 1. ADVERSE POSSESSION — <italic>Degree of proof required to</italic> <italic>establish title by prescription.</italic> Title by prescription under the doctrine of adverse possession of land is not made out by inference, but must rest upon clear and positive proof. Every presumption is in favor of possession of land in subordination to the title of the true owner. 2. SAME — <italic>Mere permissive use of land for school</italic> <italic>purposes for 40 years did not result in prescriptive title</italic> <italic>to mineral interest in land which could be conveyed by</italic> <italic>school district.</italic> The acceptance and continued use of land for school purposes under oral permission from the owner, and followed by occupancy of the land for more than 40 years, does not, under the doctrine of adverse possession, afford the school district a title by prescription to mineral interest in the land such as may be conveyed by the school district.

(Syllabus.) 1. CONTRACTS — <italic>Time not of essence unless so</italic> <italic>provided in contract.</italic> Time is never considered as of the essence of a contract, unless by its terms expressly so provided. 15 O. S. 1941 § 174. Although no particular form of expression is necessary, it must appear from the plainly expressed provisions contained in a contract, independent of all extraneous matter or circumstances, that it was the intention of the parties thereto that time should be of the essence thereof. 2. VENDOR AND PURCHASER — <italic>Remedies of vendor upon</italic> <italic>default in payment under executory contract for sale of</italic> <italic>realty wherein time was not of essence.</italic> Where, in an executory contract for sale of real property, time is not of the essence of the contract, and default in payment by the purchaser terminates the contract only at the option of the vendor, notice of intention to declare the contract at an end must be given and demand made to remedy the default within reasonable time, before ejectment may be maintained, or vendor may, without notice or demand, bring an action in equity to rescind the contract and for possession as incidental relief.

(Syllabus.) APPEAL AND ERROR — RECEIVERS — <italic>Abuse of court's</italic> <italic>discretion in appointing receiver and in authorizing payments</italic> <italic>— Reversal of judgment with directions that receiver be</italic> <italic>surcharged with all funds disbursed by him.</italic> Where an entire record is such as to show that the trial court abused its discretion in appointing a receiver and in authorizing payments to him, and further justifies the conclusion that such receiver has practiced a legal fraud upon the court in the premises, and that receiver has not faithfully performed the duties of a receiver, this court on appeal may direct that such receiver be surcharged with all funds paid out by him.

(Syllabus.) MASTER AND SERVANT — COMMERCE — <italic>Provisions of</italic> <italic>Federal Fair Labor Standards Act not applicable to employee</italic> <italic>of wholesaler of fruit and vegetables supplying only local</italic> <italic>retailers.</italic> The provisions of the Federal Fair Labor Standards Act (29 U.S.C.A. §§ 201 to 219, inclusive) are not applicable to an employee of a wholesaler of fruit and vegetables, supplying only local retailers, which buys merchandise from dealers in other states delivered at its warehouse, coming to rest and becoming a part of the stock of the wholesaler, from which it is sold and delivered to the retail trade, much of it in the same condition in which received, where the wholesaler owns all its merchandise, makes its own deliveries and makes no sales on commission or on orders with shipment direct from the foreign dealer or producer to the retail purchaser.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Coal miner who in</italic> <italic>loading coal over period of time bruised his knee resulting</italic> <italic>in infection and permanent injury held to have sustained</italic> <italic>"accidental injury."</italic> Employee in coal mine, who in loading coal over a period of time bruised his knee in the manner disclosed by the record resulting in infection and permanent injury, held to have sustained an accidental injury within the meaning of the Workmen's Compensation Law. 2. SAME — <italic>Cause and extent of disability, questions</italic> <italic>of fact — Conclusiveness of findings.</italic> The cause and extent of a disability resulting from an accidental injury are questions of fact, and if there is any competent evidence reasonably tending to support the findings of the State Industrial Commission, an award based thereon will not be disturbed on review.

(Syllabus.) ABATEMENT AND REVIVAL — <italic>Revivor of actions —</italic> <italic>Sufficiency of notice by publication.</italic> Under Title 12 O. S. 1941 § 1067, providing for notice by publication in proceedings for revivor of actions, publication of such notice on the 5th, 12th and 19th days of October, 1944, was sufficient<page_number>Page 661</page_number> for a hearing held on the 30th day of said month.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error in giving</italic> <italic>instruction inapplicable to case.</italic> An instruction which states a correct proposition of law, but which has no application to the issues involved, or the proof, will not warrant a reversal of the case, unless it is apparent that the erroneous instruction probably misled the jury. 2. APPEAL AND ERROR — <italic>Harmless error in argument to</italic> <italic>jury.</italic> A cause will not be reversed on account of improper argument of counsel to the jury where it is apparent that the losing party has not been materially prejudiced thereby.

(Syllabus.) APPEAL AND ERROR — <italic>Order on motion to vacate</italic> <italic>appointment of receiver not reviewable on petition in error</italic> <italic>and transcript.</italic> An order on a motion to vacate the appointment of a receiver is not a part of the record proper, and cannot be reviewed by this court on petition in error and transcript.<page_number>Page 678</page_number>

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Municipally owned</italic> <italic>utilities — Neither rates nor disposal of profits</italic> <italic>prescribed by statute or Constitution.</italic> Neither the Constitution nor statutes specifically prescribe what rates may be charged for a municipally owned utility nor to what purpose the profits derived therefrom must be appropriated. 2. SAME — <italic>Sewers are "public utilities" within</italic> <italic>constitutional provision.</italic> Sewers are "public utilities" within the meaning of the term as used in section 27, art. 10, of the Constitution. 3. SAME — <italic>Water consumption as proper basis for</italic> <italic>computing charge for use of sewer.</italic> Municipality may fix, as a basis for computing charge for use of sewer, the volume of water delivered to the user through the water meter. 4. SAME — CONSTITUTIONAL LAW — <italic>City ordinance</italic> <italic>imposing service fee for use of sewer held not to deprive</italic> <italic>such user of property without due process of law.</italic> An ordinance imposing service fee for use of public sewer and basing the amount thereof on amount of water used, and making the person purchasing the water liable therefor does not deprive such user of property without due process of law.

(Syllabus.) 1. DEEDS — <italic>Action to cancel deed on ground of fraud</italic> <italic>and undue influence — Sufficiency of plaintiff's evidence</italic> <italic>to make prima facie case.</italic> Fraud and undue influence will not be presumed, but ordinarily must be proven by clear, cogent and convincing testimony. However, where fraud and undue influence are alleged and facts sufficient to show inadequacy of consideration and a confidential relationship are proven, the one occupying such a position of confidence will be required to go forward and make a full and complete disclosure showing absolute good faith and that there was no fraud or undue influence practiced in a transaction between the parties. 2. SAME — <italic>Requisites of undue influence vitiating</italic> <italic>conveyance.</italic> Undue influence, to vitiate a conveyance, must destroy the grantor's free agency at the time the conveyance is executed and must in effect substitute the will of another for that of the grantor. 3. SAME — <italic>Deed held not executed by reason of fraud</italic> <italic>or undue influence.</italic> Record examined, and held, that deed was not executed by reason of fraud or undue influence.

(Syllabus.) OIL AND GAS — <italic>Mineral deed held to convey net</italic> 1/16<italic>th interest in minerals produced and not</italic> 1/16<italic>th interest</italic> <italic>in royalties.</italic> A mineral deed which, in the granting clause, conveys an "undivided one-sixteenth (1/16) interest in and to all of the oil, gas and other minerals in and under and that may be hereafter produced" from certain land, and which reserves to the grantor the right to lease the land for such purposes, and which then provides that the grantee shall receive an undivided one-sixteenth part of all oil, gas, or other minerals that may be produced under the existing or any future lease, and which provides that the grantor shall be entitled to all rentals and consideration received for the execution or renewal of the existing or any future lease and that the grantee shall receive no part of the "rents, royalties, or delay money due or paid by reason thereof," means that the grantee is entitled to a net one-sixteenth interest in such minerals produced, and not a one-sixteenth interest in the royalties.

(Syllabus.) 1. MORTGAGES — <italic>Scope of inquiry upon confirmation of</italic> <italic>foreclosure sale to mortgagee — Examination into equities.</italic> The district court has jurisdiction both in law and in equity, and 12 O. S. 1941 § 765, which provides that the court examine the proceedings of the officer in making a sale of real estate under execution, and after examination of the sale proceedings make proper order in reference to the legality of such sale, does not limit the power of the court, in refusing to confirm a sale, to the mortgagee solely to a question of whether the sale has been made in conformity with the statute when meritorious equitable grounds of objections have been presented in proper pleadings. 2. SAME — <italic>Withholding of confirmation of sale where</italic> <italic>confirmation would work gross inequity.</italic> A foreclosure sale is not fully a sale<page_number>Page 698</page_number> until confirmed by court order, and when an objection to confirmation of sale to the mortgagee is filed containing an appeal to the equity powers of the court, the court may examine into the equities arising out of the transaction and may withhold confirmation of sale if to confirm would work gross inequity.