Volume 199 — Oklahoma Reports

(Syllabus.) 1. MORTGAGES — <italic>Mortgagee as proper party in action</italic> <italic>to compel application of payment and release of</italic> <italic>mortgage.</italic> A mortgagee who refuses to apply to the payment of the indebtedness a deposit in its hands, allegedly made for that purpose under terms of an oral contract between mortagor and depositor, is a proper party in an action by the mortgagor to compel such application and the release of the mortgage. 2. VENUE — <italic>Nonresident of county properly made</italic> <italic>codefendant in transitory action where resident defendant</italic> <italic>proper party.</italic> A transitory action against residents of different counties may be brought in the county in which one of the defendants resides, or may be summoned, if the resident defendant is a proper party. 12 O. S. 1941 § 139. 3. CONTRACTS — <italic>Construction and equipment of cotton</italic> <italic>gin by lessor sufficient consideration for oral agreement</italic> <italic>by lessee to pay part of purchase price of machinery.</italic> The construction and equipping of a cotton gin by lessor for lessee's use during term of lease is sufficient consideration to support an oral agreement by lessee to pay part of purchase price of machinery.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Cross-petition to review</italic> <italic>award or order dismissed if not filed within 20 days after</italic> <italic>notice of award or order.</italic> Under the provisions of 85 O. S. 1941 § 29, 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 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.) 1. FRAUDS, STATUTE OF — <italic>Effect of partial</italic> <italic>performance.</italic> A lease of real property for a period of more than one year, and an option to renew or extend the same for a like period, invalid under the statute of frauds, but otherwise valid, may be removed from the effect of the statute of frauds by part performance such as taking possession together with full or part payment of the consideration. 2. CONTRACTS — <italic>Consideration.</italic> Generally, any benefit to a promisor, or loss or detriment to a promisee, constitutes sufficient consideration for the promise.<page_number>Page 30</page_number>

(Syllabus.) 1. APPEAL AND ERROR — <italic>Power of lower court to revive</italic> <italic>judgment after appeal.</italic> The institution of a proceeding in error in the Supreme Court does not suspend the power of the district court to revive a judgment in the name of the proper party in interest pending the appeal. 2. SAME — <italic>Judgment affirmed when supported by weight</italic> <italic>of evidence.</italic> The Supreme Court will affirm trial court's judgment and order supported by the weight of the evidence.

(Syllabus.) 1. HUSBAND AND WIFE — <italic>Antenuptial contract</italic> <italic>upheld.</italic> An antenuptial contract entered into between a man and woman in contemplation of their marriage that is just and reasonable will be upheld by the courts. 2. STATUTES — <italic>Reasonable construction to avoid</italic> <italic>rendering statute useless or deleterious.</italic> Every statute should have a reasonable, sensible construction in preference to one which renders it, or a substantial part of it, useless and deleterious. 3. SAME — <italic>Clauses rearranged in order to arrive at</italic> <italic>intent of Legislature.</italic> The court in construing a statute may rearrange and transpose the various clauses thereof, if necessary so to do in order to arrive at the intent of the Legislature as expressed in the statute. 4. JUDGMENT — <italic>Judgment of district court not</italic> <italic>appealed from, affirming county court, is final in denying</italic> <italic>application for widow's allowance by reason of antenuptial</italic> <italic>agreement.</italic> A judgment of the district court, affirming on appeal a judgment of the county court denying an application for widow's allowance for the reason that she was not entitled to such allowance by reason of the antenuptial agreement, not appealed from, is a final judgment and is binding and conclusive on all parties, and the surviving widow of deceased is estopped by such judgment from renewing such application in a proceeding for distribution of the estate.<page_number>Page 48</page_number>

(Syllabus.) 1. CONTRACTS — <italic>Reasonable time for performance if</italic> <italic>time not specified.</italic> When the time for performance of a contract is not specified, a resonable time is allowed. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support judgment in jury waived case.</italic> A judgment rendered by the trial court in a law action, a jury being waived, no errors of law appearing, will not be reversed by this court where there is any competent evidence to support the same.

(Syllabus.) 1. EMINENT DOMAIN — <italic>Acquirement of fee-simple title</italic> <italic>— When condemnation proceeding must show intention to</italic> <italic>acquire such title.</italic> In order for a fee-simple title to be acquired under a statute conferring the power of eminent domain which does not require that such a title be taken, the condemnation proceedings must clearly show an intention to acquire such a title and that such a title was in fact acquired under the condemnation decree. 2. SAME — <italic>Acquirement of fee-simple title not</italic> <italic>established by mere act that condemnation award for land</italic> <italic>taken by town for sewer and septic tank purposes was paid</italic> <italic>out of proceeds of bond issue voted for public</italic> <italic>utilities.</italic> The mere fact that the condemnation award for land taken by a town under the power of eminent domain for sewer and septic tank purposes was paid out of the proceeds of a bond issue voted under section 27, art. 10 of the Constitution, does not establish that a fee-simple title was acquired. 3. SAME — <italic>Evidence did not sustain judgment quieting</italic> <italic>title in city.</italic> Record examined, and <italic>held,</italic> that the judgment of the court in favor of the plaintiff quieting title is clearly against the weight of the evidence.

(Syllabus.) 1. OIL AND GAS — <italic>Liability of lessee in damages for</italic> <italic>so locating slush pit as to render lessor's trench silo</italic> <italic>unusable.</italic> Lessee drilled a well and constructed a slush pit within 200 feet of the house and barn in violation of a written provision in the lease, without consent of lessor, thereby preventing the use of a trench silo also within the restricted area, in the processing and preservation of growing corn to be used as silage and the value of said crop was destroyed. <italic>Held,</italic> such result or damage was within the contemplation of the parties and the measure of damage is the value of crop as ensilage less the cost of harvesting and processing into ensilage. 2. APPEAL AND ERROR — <italic>Harmless error in instruction</italic> <italic>on measure of damages.</italic> An erroneous instruction on the measure of damages will be held harmless where the evidence fully sustains the verdict returned and it appears that the substantial rights of the losing party were not prejudiced thereby. 3. DAMAGES — <italic>Duty of injured person to mitigate</italic> <italic>damages.</italic> Where an injured party finds that a wrong has been perpetrated upon him, he should use reasonable means to mitigate or lessen damages. It is only incumbent upon him, however, to use reasonable exertion and incur reasonable expenses in order to do so.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Employee performing</italic> <italic>mechanical labor in construction of public road held</italic> <italic>engaged in hazardous employment under Workmen's</italic> <italic>Compensation Law.</italic> An employee who is engaged in performing mechanical labor in connection with or incident to the construction of public roads is engaged in a hazardous employment under the Workmen's Compensation Act. 85 O. S. 1941, § 2. 2. SAME — <italic>Term "employer" includes state, when</italic> <italic>engaged in hazardous work within meaning of statute.</italic> The term "employer" includes the state when engaged in any hazardous work within the meaning of the Workmen's Compensation Act in which workmen are employed for wages. 85 O. S. 1941 § 3. 3. SAME — <italic>Evidence established claimant was engaged</italic> <italic>in hazardous employment within meaning of Workmen's</italic> <italic>Compensation Act.</italic> Record examined; held, the undisputed evidence establishes that respondent at the time he sustained his injury was engaged in performing mechanical labor in connection with or incident to the construction of public roads and was therefore engaged in a hazardous employment within the meaning of the Workmen's Compensation Act.

(Syllabus.) 1. SCHOOLS AND SCHOOL DISTRICTS — <italic>Act of</italic> 1943 (70 <italic>O.S.A.</italic> 891) <italic>held to place no additional indebtedness</italic> <italic>upon annexing district as act also provides annexing</italic> <italic>district assumes ownership and control of income and</italic> <italic>revenue provided for annexed district.</italic> Section 7(a), chapter 24, Session Laws 1943, 70 O.S.A. 891.7(a), which provides that "the district to which the annexation is made shall * * * be liable for the current debts and other obligations of the annexed district" (except bonded indebtedness) does not by its terms place an indebtedness upon the annexing district in excess of the income and revenue provided for a particular year in violation of section 26, art. 10 of the Constitution, for it is also provided that the annexing district shall assume ownership and control of the income and revenue provided for the annexed district and which, by statute, is in balance with the obligations of the annexed district for that particular year. 2. CONSTITUTIONAL LAW — <italic>Chapter</italic> 24, <italic>title</italic> 70, <italic>Sess. Laws</italic> 1943, <italic>held not to violate due process</italic> <italic>clause of State Constitution.</italic> School districts being subordinate agencies of the state in which the inhabitants thereof have no vested property rights, chapter 24, title 70, Session Laws 1943, does not violate the due process clause of the State Constitution in failing to authorize the inhabitants of the district to which another district is annexed to vote on the question of annexation or provide for an appeal from the order of annexation. 3. SCHOOLS AND SCHOOL DISTRICTS — <italic>Statute held to</italic> <italic>mean majority vote of electors voting at election and not</italic> <italic>majority of all those in district.</italic> The words "majority vote" as used in section 5, Laws 1943, p. 208 (70 O.S.A. 1943 § 891.5[70-891.5]), which authorizes the county superintendent, after an election has been held as provided, to make an order of annexation "in the event the question of annexation shall receive a majority vote," means the vote in favor of annexation of a majority of the voters present and voting at such election.

(Syllabus.) 1. VENDOR AND PURCHASER — <italic>Right of bona fide</italic> <italic>purchaser to rely on record title.</italic> Where the owner of land gives another an absolute deed to the land subject to an unrecorded agreement between themselves qualifying the title ostensibly conveyed, and the grantee conveys the land to others, a subsequent purchaser who purchases in reliance on the record title and has no actual notice of the former owner's claim is protected under 46 O. S. 1941 § 11. 2. SAME — <italic>Possession of grantor not constructive</italic> <italic>notice of his claims as against bona fide purchaser from</italic> <italic>his grantee.</italic> The general rule that possession of real property carries with it the presumption that the possession of the occupant is rightful and that it is the duty of those dealing with others than the party in possession to inquire into the claim of the party in possession, has no exception where the party in possession is the grantor in a recorded<page_number>Page 97</page_number> deed; under such circumstances an innocent purchaser from his grantee is protected against the claims of such grantor in possession.

(Syllabus.) 1. COVENANTS — <italic>Contract restricting use of lots in</italic> <italic>block held effective when including fractional interest of</italic> <italic>record owner when determining whether</italic> 51 <italic>per cent of record</italic> <italic>owners signed agreement.</italic> Where the owners of lots in a certain block of a city enter into a written contract, that no one of such owners will, within a given period, sell, lease or give away any of the lots so owned to any person of the African or Negro race and the contract provides that it shall not be effective until it is signed by the owners of 51 per cent of the lots within said block and one of the parties thereto owns only a fractional interest in several of the lots in said block, the fractional interest of such owner should be taken into consideration in determining as to whether the owners of 51 per cent of the lots had signed the agreement. 2. REFORMATION OF INSTRUMENTS — PLEADING — <italic>Reformation to correct description and to conform to</italic> <italic>intention of parties may be granted upon proper pleadings</italic> <italic>and showing.</italic> Where, in the execution of a contract prohibiting the sale of lots to a person of the Negro race, the lot of one of the parties thereto and intended to be covered by the contract is through mistake or inadvertence erroneously described, the court may, upon proper pleadings and proper showing, reform the contract and correct the description so as to conform to the intention of the parties; and the contract may be reformed as to subsequent purchasers of lots in the restricted area who are not innocent<page_number>Page 100</page_number> purchasers and who are made parties to the action. 3. VENDOR AND PURCHASER — <italic>Purchaser of land takes</italic> <italic>with constructive notice of what appears in conveyance</italic> <italic>constituting chain of title.</italic> A purchaser of lands takes them with constructive notice of whatever appears in the conveyances which constitute his chain of title; and, if sufficient appears therein to put a prudent man on inquiry, which would, if prosecuted with ordinary diligence, lead to actual notice of a right or title in conflict with that he is about to purchase, and he fails to make such inquiry, the law will charge him with actual notice he would have received if he had made it. 4. 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 the court in its equity power to refuse to enforce the restriction contract. 5. APPEAL AND ERROR — <italic>Finding and judgment of trial</italic> <italic>court not against clear weight of evidence will not be set</italic> <italic>aside on appeal.</italic> Record examined; held, contention of defendants that plaintiff cannot maintain an action to enforce the contract herein for the reason that there is no mutuality of interest as between her and other parties to the contract cannot be sustained.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal where appeal without</italic> <italic>merit.</italic> Appeal by transcript where all alleged errors are predicated upon refusal of trial court to grant trial by jury and the journal<page_number>Page 107</page_number> entry of judgment recites that jury was waived by the parties is wholly without merit and will be dismissed.

(Syllabus.) 1. TAXATION — <italic>Rights under resale tax deed to</italic> <italic>minerals under land.</italic> Possession of land under a resale tax deed is possession of the oil, gas, and other minerals thereunder, where there has been no production of such minerals prior to the taking of possession by the tax deed holder. 2. SAME — <italic>Purchaser at tax sale not obligated to</italic> <italic>notify former owners of mineral interests, of excess taxes</italic> <italic>paid, when deed properly recorded and possession</italic> <italic>taken.</italic> A purchaser of land at tax resale, who promptly records his tax deed and takes possession of the land, is not required to notify the former owners of mineral interests that he paid more than the amount of delinquent taxes for the land, so that they may lay claim to the excess in the hands of the county treasurer. 3. APPEAL AND ERROR — <italic>Record examined, and evidence</italic> <italic>found to support judgment.</italic> Record examined, and held, that the judgment of the trial court that the resale tax deed in the instant case did not vest title in one who was under legal or moral obligation to pay the taxes, and was not taken pursuant to a plan to accomplish such result, is not clearly against the weight of the evidence. 4. TAXATION — <italic>Statute providing person offering to</italic> <italic>pay taxes on smallest portion of land considered highest</italic> <italic>bidder not applicable to resales.</italic> 68 O. S. 1941 § 384, providing that the person offering to pay the amount of taxes due on a tract of land for the smallest<page_number>Page 111</page_number> portion thereof is to be considered the highest bidder therefor, has no application to resales. 5. SAME — <italic>Contiguous subdivisions of section of land</italic> <italic>owned by one person properly assessed as one tract,</italic> <italic>regardless of conveyance of mineral interests by owner,</italic> <italic>where no production of minerals.</italic> A compact body of land, consisting of several contiguous subdivisions of the same section, which is owned by one person, may be legally assessed for taxation as one tract, regardless of the conveyance of mineral interests by the owner, where there has been no production of the minerals.

(Syllabus.) APPEAL AND ERROR — <italic>Discretion of trial court in</italic> <italic>denying continuance because of absence of party.</italic> Where continuance is sought because of absence of a party, reviewing court will not disturb trial court's action unless it clearly appears that the court abused its discretion in overruling the motion for continuance.

(Syllabus.) 1. NEGLIGENCE — <italic>Negligence provable by</italic> <italic>circumstantial evidence.</italic> In an action for damages based on negligence, the negligence alleged may be established by circumstantial evidence. 2. OIL AND GAS — <italic>Evidence sustained judgment for</italic> <italic>damages to premises caused by shooting of near-by</italic> <italic>well.</italic> Record examined, and <italic>held,</italic> that the evidence is sufficient to sustain the verdict and judgment as modified.

(Syllabus.) 1. ANIMALS — <italic>Vicious dog — Liability of owner</italic> <italic>for damages for dog's injurious acts, after reasonable</italic> <italic>notice to wife, in his absence, of dog's vicious</italic> <italic>propensities.</italic> The keeping of a vicious dog, with knowledge of the dog's propensities, renders the owner and keeper liable for damages for the dog's injurious acts where, in the absence of the owner, his wife is in charge of the premises, acting as the keeper of the dog, and, after a reasonable notice of the dog's vicious propensities, she fails to restrain the dog and plaintiff, without fault on his part, is injured by the dog's attack upon him. 2. TRIAL — NEGLIGENCE — <italic>Sufficiency of</italic> <italic>plaintiff's evidence as to negligence to withstand</italic> <italic>demurrers.</italic> Where, in such a case, the evidence of plaintiff is such that reasonable men may fairly differ as to defendant's negligence, their demurrers to plaintiff's evidence should be overruled. 12 O. S. 1941 § 577.

(Syllabus.) 1. JUDGMENT — <italic>Power of court to vacate judgment</italic> <italic>during term.</italic> The trial court has a wide discretion in passing upon a motion to vacate a judgment at the same term at which the judgment was rendered. 2. SAME — <italic>Definition and requisites.</italic> A judgment is a final determination of the rights of the parties in an action, and is distinct from the findings of the court.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Weight to be given</italic> <italic>conflicting evidence solely for Industrial Commission —</italic> <italic>Award sustained.</italic> The court in reviewing an award of the State Industrial Commission will not review conflicting evidence as to the nature and extent of the injuries for the purpose of determining its weight and value nor will it disturb an award supported by competent evidence.

(Syllabus.) DIVORCE — <italic>Reasonable division of jointly acquired</italic> <italic>property during coverture sustained although legal title</italic> <italic>vested in wife, granted divorce at fault of husband.</italic> A reasonable division of property jointly acquired during coverture will be sustained, although legal title is vested in the wife who is granted a divorce at the fault of the husband.

(Syllabus.) 1. DEEDS — INSANE PERSONS — <italic>Mental capacity to</italic> <italic>contract.</italic> The test of capacity to make a deed is that the grantor shall have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. 2. APPEAL AND ERROR — <italic>Review — Findings not</italic> <italic>against clear weight of evidence.</italic> Record examined, and held, that the findings of the trial court are not against the clear weight of the evidence.

(Syllabus.) 1. ASSIGNMENTS — <italic>Mental capacity of assignor to</italic> <italic>contract.</italic> The test of capacity to make an assignment of title to an automobile is that the assignor shall have the ability to understand the nature and effect of the act in which engaged and the business being transacted. 2. APPEAL AND ERROR — <italic>Review — Sufficiency of</italic> <italic>evidence in a jury-waived case.</italic> In an action triable to a jury, but upon proper waiver tried to the court without a jury, this court on appeal will not reverse the judgment of the trial court for insufficiency of the evidence reasonably tending to support the judgment.

(Syllabus.) 1. EASEMENTS — <italic>Creation — Separation of title</italic> <italic>necessary.</italic> To create an "easement by implied grant" there must be a separation of the title and, before separation takes place, the use, which gives rise to the easement, must be so long continued and so obvious as to show that it was intended to be permanent, and the easement must be reasonably necessary to the beneficial enjoyment of the land granted. 2. SAME — <italic>Burden on purchaser to prove elements</italic> <italic>necessary to establish easement by implied grant.</italic> A purchaser of real estate asserting the existence of an easement by implied grant has the burden of proving the elements necessary for establishing the same. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> Where, in a case of equitable cognizance, the judgment is not against the clear weight of the evidence, the same will not be reversed on appeal, on the grounds of the insufficiency thereof.

(Syllabus.) 1. GIFTS — EVIDENCE — <italic>Essentials of gifts</italic> <italic>inter vivos.</italic> If the evidence, as to a gift inter vivos, shows: the donor competent to make it; freedom of will on his part; an intention on his part to make it; a capable donee; delivery by donor and acceptance by donee; completion of gift by immediate and absolute effect; that it is gratuitous; and that it is irrevocable; the same is valid and must be upheld. 2. WITNESSES — <italic>Person whose claim against estate has</italic> <italic>been allowed and paid not a party and not disqualified as</italic> <italic>witness in respect to transaction had with deceased.</italic> A person whose claim against the estate of a decedent has been allowed and paid is not a "party" to a hearing on a protest to the final account of administratix and is not disqualified as a witness in respect to a transaction had personally with deceased. (12 O. S. 1941 § 384.) 3. SAME — <italic>Objection to competency of witness not</italic> <italic>made by objection to competency of testimony.</italic> An objection to testimony as incompetent, irrelevant and immaterial does not raise the question of the competency of a witness under the provisions of 12 O. S. 1941 § 385(4).

(Syllabus.) CORPORATIONS — <italic>Service on foreign corporations</italic> <italic>— When ineffective.</italic> Although the various methods provided by the statute for obtaining service on foreign corporations are cumulative, yet, under provisions of 12 O. S. 1941 § 163, a summons against a corporation is ineffective when served on the cashier, treasurer, secretary, clerk or managing agent, or left at its office or usual place of business with the person in charge, unless it is impossible to serve it upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or upon an agent duly and legally appointed to receive service of process.

(Syllabus.) TAXATION — <italic>Resale of land for nonpayment of taxes</italic> <italic>invalidated by including in notice a portion of taxes not yet</italic> <italic>delinquent.</italic> The inclusion in a notice of resale of lands for nonpayment of taxes of the last quarter of the current year's taxes, but which quarter was not delinquent at the date of the first publication of such notice, renders the notice fatally defective, and the resale and deed based thereon are invalid.

(Syllabus.) 1. HUSBAND AND WIFE — <italic>Judgment for monthly payments</italic> <italic>upon order granting separate maintenance need not be</italic> <italic>calculated in definite amount.</italic> A judgment against the husband for monthly payments upon the granting of an order of separate maintenance need not be calculated in a definite total amount. 2. SAME — <italic>Award of</italic> $150 <italic>per month to wife</italic> <italic>as separate maintenance not unreasonable in light of</italic> <italic>circumstances.</italic> In awarding separate maintenance to the wife, it is proper for the court to take into consideration the financial circumstances of the parties, the ability of the husband to contribute to the support of his wife, and her needs thereafter taking into consideration her separate income. Under the circumstances of this case, the award of $150 a month to the wife as separate maintenance is not unreasonable. 3. SAME — <italic>Allowance for attorneys' fees reduced as</italic> <italic>excessive.</italic> Record examined, and held, that the attorneys fee award is excessive and the order therefor is modified.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Review of awards —</italic> <italic>Sufficiency of evidence.</italic> The decision of the State Industrial Commission is final as to all questions of fact within its jurisdiction relating to administering relief under the act, and where there is any competent evidence reasonably tending to support the same, the award of the Industrial Commission will not be disturbed on review by this court. 2. SAME — <italic>Discretion of State Industrial Commission</italic> <italic>as to examination of injured employee by disinterested</italic> <italic>medical expert witness.</italic> It is not an abuse of discretion for the State Industrial Commission to refuse to direct the examination of an injured employee by a disinterested medical expert witness in accordance with 85 O. S. 1941 § 25, where under all the facts and circumstances a complete hearing has been had on the question of the disability involved in the proceeding.

(Syllabus.) 1. TAXATION — <italic>Question of exemption — Purpose</italic> <italic>for which property used controlling.</italic> By the plain provisions of article 10, sec. 6 of the Constitution, the exemption of the classes of property therein specified is determined by the use to which the property is devoted. It is not essential that the property be owned by the person using it for a purpose which brings it within the constitutional exemption. 2. TAXATION — CONSTITUTIONAL LAW — <italic>Provision</italic> <italic>exempting from taxation "property used exclusively for</italic> <italic>schools" self-executing.</italic> The constitutional provision exempting from taxation "property used exclusively for schools" is self-executing. No legislation is necessary to effect its purpose, nor may the exemption therein granted be impaired, limited, or destroyed by legislation. 3. TAXATION — <italic>Appeal from board of equalization not</italic> <italic>exclusive when property not taxable by reason of</italic> <italic>constitutional exemptions.</italic> If, by reason of the constitutional exemption, property is not taxable, county officials have no jurisdiction or power to levy a tax against the same, and any levy so made is void. If the levy is void, the statutory proceeding by appeal from the board of equalization is not exclusive.

(Syllabus.) 1. WILLS — <italic>Conditions precedent —</italic> <italic>Default.</italic> A requirement asserted in a will codicil that a named devisee discharge a debt or the devise to him "is null and void" creates a condition precedent and failure to fulfill such condition forfeits the devisee's right to take under the will. 2. SAME — APPEAL AND ERROR — <italic>Sufficiency of</italic> <italic>evidence to sustain judgment in equity case.</italic> A will contest is governed by rules which obtain in cases of equitable cognizance, and on appeal this court will examine the whole record and weigh the evidence; but the findings and judgment of the district court will not be disturbed unless such findings and judgment are clearly against the weight of the testimony.

(Syllabus.) APPEAL AND ERROR — <italic>Parties — Service of</italic> <italic>case-made.</italic> All parties to an action whose interests will be affected by a reversal of the judgment appealed from must be made parties to the appeal and served with case-made as provided by law.

(Syllabus.) OIL AND GAS — <italic>Authority of Corporation Commission to</italic> <italic>restrict flat allowable for oil wells producing from common</italic> <italic>source, and further restricting allowable by fixing gas-oil</italic> <italic>ratio not arbitrary or unreasonably discriminatory.</italic> Where Corporation Commission in administration of proration law (chapter 131, S. L. 1933, as amended by chapter 3, S. L. 1945) established by order a limited permissible gas-oil ratio, which when applied in connection with the flat daily per well allowable authorized for the particular pool by the commission, resulted in penalizing oil wells producing with a high gas-oil ratio and prevented 35 per cent of the wells producing from the common source of supply from producing the authorized flat oil allowable, and which restricted the oil production of some wells more than others, is not an arbitrary or unreasonable exercise of the police power where evidence established that operation under the orders would result in conservation of oil and gas and greater ultimate recovery from the pool.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence in equity</italic> <italic>case.</italic> In actions of equitable cognizance this court will examine the entire record, but will not disturb the judgment unless clearly against the weight of the evidence.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>When injury to physically</italic> <italic>impaired person results in additional permanent disability so</italic> <italic>that combination is materially greater than would have</italic> <italic>resulted from last injury alone, award proper against Special</italic> <italic>Indemnity Fund.</italic> An award may be entered against the Special Indemnity Fund (85 O. S. 1943 Supp. § 171 et seq.) where there is any competent evidence reasonably tending to support the finding of the State Industrial Commission that a physically impaired person received an accidental personal injury which, when considered in combination with a pre-existing injury, 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 last injury alone.

(Syllabus.) APPEAL AND ERROR — Review — Sufficiency of <italic>evidence in law action tried to court.</italic> In an action at law, tried to the court without a jury, the finding of the court will be given the same weight as the verdict of a jury; and, where there is competent evidence reasonably supporting the judgment, and no error of law is shown, the judgment will not be disturbed on appeal.

(Syllabus.) GARNISHMENT — <italic>Right to amend bond to comply with</italic> <italic>provisions of statute.</italic> Where a proceeding in garnishment is commenced and a bond is furnished in an attempt to comply with 12 O. S. 1941 § 1172, and after a motion to dissolve the garnishment proceeding the plaintiff offers to amend the bond to comply substantially with the provisions thereof it is error for the trial court to deny the motion to amend.

(Syllabus.) 1. PLEADING — <italic>Dual powers of courts of equity and</italic> <italic>law — Facts stated in petition.</italic> Under our code procedure and system of code pleading, the court is endowed with the dual powers of a court of equity and a court of law and redress for every remediable wrong may be had in a civil<page_number>Page 190</page_number> action upon the facts stated in a pleading called a petition. 2. SAME — <italic>Statutes and decisions liberal in</italic> <italic>permitting amendments.</italic> The statutes, and also the decisions of the courts of this state, are liberal in permitting amendments to pleadings so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, provided they do not substantially change the plaintiff's claim. 3. SAME — <italic>Effect of amendment on claim upon which</italic> <italic>action based.</italic> When the relief granted on an amended petition arises out of the same state of facts relied on to support different relief sought in the original petition and the adjudication of the rights of the parties on the amended petition is conclusive of the issue that could have been heard on the original petition, the amendment though changing the nature of the action does not ordinarily work a substantial change in the claim upon which the action is based. 4. ACTION — <italic>When court will permit filing of amended</italic> <italic>petition whereon judgment of foreclosure is rendered.</italic> Where plaintiff sues in ejectment to recover possession of land alleged to be held under deed thereto from defendant to plaintiff, and it appears from the pleadings of the parties that such deed is in legal effect a mortgage to secure an indebtedness the status of which is reflected by the pleadings, it is within the jurisdiction of the court to permit the filing of an amended petition whereon judgment of foreclosure is rendered. 5. JUDGMENT — <italic>Judgment not subject to collateral</italic> <italic>attack unless void on its face.</italic> A judgment of a court of general jurisdiction is not subject to collateral attack, unless void on its face.

(Syllabus.) APPEAL AND ERROR — <italic>Credibility of witnesses and</italic> <italic>weight of evidence for trial court in equity matters.</italic> It is for the trial court in equity matters to determine the credibility of the witnesses<page_number>Page 192</page_number> and the weight and value to be given to their testimony. The conclusion there reached upon these points will not be disturbed on appeal, unless appearing to be against the clear weight of the evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award against Special</italic> <italic>Indemnity Fund for injury to "physically impaired</italic> <italic>person".</italic> An award may be entered against the Special Indemnity Fund where there is any competent evidence reasonably tending to support the finding of the State Industrial Commission that a physically impaired person received an accidental personal injury which, when considered in combination with a pre-existing injury, 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 last injury alone. 2. SAME — <italic>Liability of Special Indemnity Fund</italic> <italic>computed by subtracting from compensation provided for</italic> <italic>combined disability resulting from previous physical injury</italic> <italic>and subsequent injury, total of compensation provided for</italic> <italic>each of individual disabilities.</italic> The liability of the Special Indemnity Fund, under the terms of 85 O. S. Supp. 1945 § 172, is computed by subtracting from the compensation provided by the Workmen's Compensation Act for the combined disability resulting from the previous physical impairment and the subsequent injury, the total of the compensation provided for each of the individual disabilities. 3. SAME — <italic>Compensation for loss of all four</italic> <italic>fingers.</italic> The disability caused by the loss of all four fingers, which constituted claimant a "physically impaired person" within the terms of 85 O. S. Supp. 1945 § 172, may be determined as partial loss of use of hand, when there is competent evidence to that effect, but it must not be less than the amount fixed by the Workmen's Compensation Act for the loss of the fingers.

(Syllabus.) 1. TAXATION — APPEAL AND ERROR — <italic>Question of</italic> <italic>fact for court when change made in description of land</italic> <italic>— Conclusiveness of findings.</italic> Where the ad valorem tax assessment rolls made and delivered to the county treasurer describe a certain subdivision of land as being in the SE 1/4 of a given section, and it appears that a change has been made in said description by striking out the letter "S" in said description and inserting immediately above the letter, the letter "N", so as to show the tract to be in the NE 1/4 of the section instead of the SE 1/4, in an action of equitable cognizance, the question of when the change was made is a question of fact for the court. In such a case, the finding of the court will not be disturbed on appeal unless it is clearly against the weight of the evidence. 2. SAME — <italic>Where change in description of land made</italic> <italic>after assessment rolls delivered</italic><page_number>Page 212</page_number> <italic>to county treasurer, no valid assessment for that year</italic> <italic>against said tract.</italic> Where a change in the tax assessment rolls, as stated in paragraph 1 of this syllabus, is made before the tax rolls were delivered to the county treasurer, the tax rolls constitute a valid assessment against the subdivision of land as described after the change. But if the change is made after the assessment rolls are delivered to the county treasurer, there is no valid assessment for that year against the tract of land as described after the change had been made. 3. SAME — <italic>Resale tax deed void to tract of land</italic> <italic>containing three legal subdivisions of quarter section as</italic> <italic>one unit, where no valid assessment or taxes delinquent as</italic> <italic>against one of subdivisions.</italic> A resale tax deed purporting to convey a tract of land containing three legal subdivisions of a quarter section as one unit is void where there was no valid assessment and no taxes were delinquent as against one of the legal subdivisions for one or more years' taxes for which the land was sold.

(Syllabus.) SALES — <italic>Delivery of goods under uniform express</italic> <italic>receipt to Bills' Station not equivalent to delivery on</italic> <italic>contract to individual whose identity with consignee not</italic> <italic>established.</italic> A consignment of goods to "Bills Station", under uniform express receipt, is not equivalent to delivery of goods on contract to an individual whose identity with consignee is not established.

(Syllabus.) 1. APPEAL AND ERROR — TRIAL — <italic>Harmless error</italic> <italic>in overruling demurrer to plaintiff's evidence where</italic> <italic>defendant supplies evidence necessary to plaintiff's cause</italic> <italic>of action.</italic> Where a demurrer to plaintiff's evidence is overruled, and defendant thereupon proceeds to offer testimony, and in so doing supplies evidence necessary to plaintiff's cause of action, the error in ruling on the demurrer is corrected, and if upon all the testimony in the case the judgment was properly rendered, it will not be disturbed on appeal. 2. INSURANCE — <italic>Action on life policy —</italic> <italic>Necessity for plaintiff to prove that proof of death either</italic> <italic>was furnished or was waived.</italic><page_number>Page 221</page_number> Where insurance policy provides for furnishing proof of death to recover thereon, plaintiff must prove that proof of death either (1) was furnished or (2) was waived. 3. SAME — <italic>Policy provision for furnishing proof of</italic> <italic>death waived by insurer denying liability on other</italic> <italic>grounds.</italic> A provision in an insurance policy making it payable "upon receipt at its Home Office of due proof of death of each person named as Insured" is waived by the company denying liability upon grounds other than failure to furnish such proof of death. 4. SAME — <italic>Falsity of statements in application for</italic> <italic>insurance and applicant's intent are for jury.</italic> The question as to whether certain answers given to questions in an application for insurance are false, and as to the intent of the applicant in making them, is a question of fact for the jury.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Conclusiveness of Industrial</italic> <italic>Commission's finding on issue as to temporary total</italic> <italic>disability.</italic> The finding of the State Industrial Commission on the issue as to temporary total disability will not be disturbed by this court on review where there is any competent evidence reasonably tending to sustain such finding.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review of equity case —</italic> <italic>Conclusiveness of judgment.</italic> The judgment of the trial court in an action of equitable cognizance will not be disturbed on appeal unless clearly against the weight of the evidence. 2. CORPORATIONS — <italic>Ownership of realty —</italic> <italic>Authority to question.</italic> The state alone can question as ultra vires the acquiring of title to and holding of realty by domestic corporation. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment.</italic> Record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.<page_number>Page 225</page_number>

(Syllabus.) 1. INSURANCE — <italic>Sufficiency of evidence to support</italic> <italic>finding car destroyed belonged to plaintiff and covered by</italic> <italic>policy issued by defendant.</italic> Record examined, and held, that the evidence supported the finding that the automobile destroyed in a collision belonged to plaintiff and was covered by the insurance policy issued by the defendant. 2. INSURANCE — <italic>Conduct of insurer constituting</italic> <italic>waiver of formal proof of loss.</italic> Where an insurance company, after notice of loss, investigates the same and acts in a manner which would lead a reasonable person to believe that it does not desire further proof, it may not thereafter rely on the failure of the insured to supply the formal proof required by the policy, but will be deemed to have waived such requirement. 3. INSURANCE — <italic>Proof of loss furnished within time</italic> <italic>stipulated deemed sufficient compliance with terms of</italic> <italic>policy absent objections by insurer.</italic> Where an insured, attempting in good faith to comply with the provisions of the policy, furnishes the insurance company within the time stipulated what is apparently intended as a proof of loss, the company must point out particularly any defects therein if it intends to rely on them, and where it retains the proofs without objection it will be held to have accepted them as a sufficient compliance with the terms of the policy. 4. INSURANCE — <italic>Insurer not in position to complain</italic> <italic>of lack of appraisal of auto and loss of its right to take</italic> <italic>car at its appraised value.</italic> Record examined, and held, that the insurance company is not in position to complain of a lack of appraisal of the insured automobile and of loss of its right to take the automobile at its appraised value. 5. INSURANCE — WAR — <italic>O. P. A. prices do not</italic> <italic>control in settlement of loss covered by insurance.</italic> The O.P.A. ceiling prices do not control in settlements of losses covered by policies of insurance. 6. SAME — <italic>Price paid by insured in May, 1944, prior</italic> <italic>to establishment of ceiling prices, is actual cash value of</italic> <italic>car insured in absence of evidence of actual condition</italic> <italic>showing value unfair and unreasonable.</italic> Where ceiling prices as fixed under O.P.A. do not properly reflect actual cash value<page_number>Page 228</page_number> of automobile in March, 1945, at the time it was destroyed, the actual cash value of such automobile, within a policy insuring it against loss by collision or upset, is the price paid by insured in May, 1944, just prior to the establishment of ceiling prices, in the absence of evidence of the actual condition of the automobile to establish that such a value is unfair or unreasonable. 7. APPEAL AND ERROR — JUDGMENT — <italic>Affirmed on</italic> <italic>condition plaintiff file remittitur; otherwise, reversed</italic> <italic>and remanded.</italic> Where the judgment is in excess of the amount to which the plaintiff is entitled, this court may direct a reversal, or give the plaintiff the option to remit the excess, and allow the judgment to stand as modified.

(Syllabus.) 1. PRINCIPAL AND SURETY — <italic>Liability of cosurety to</italic> <italic>contribution though he limited his liability to obligee in</italic> <italic>indemnity contract.</italic> One of several sureties, jointly and severally liable under the terms of an indemnity contract, may limit his liability to the obligee thereof, without affecting his responsibility to cosureties to contribute pro rata in a common loss. 2. SAME — <italic>Cosurety's limitation of his liability</italic> <italic>held not an agreement between sureties as to amount of</italic> <italic>contributions.</italic><page_number>Page 234</page_number> Where one of five sureties, jointly and severally liable upon an indemnity contract in the amount of $5,000, writes, after his signature, "$1,000.00 liability limit", such fact, standing alone, indicates a limit on liability to the obligee rather than an agreement between the several sureties as to the method of computing their liability to each other in sharing a common loss thereunder. 3. SAME — <italic>Burden of proving agreement between</italic> <italic>sureties as to amount of contribution.</italic> The burden of proving an agreement between cosureties on an indemnity contract to contribute to the payment of a loss, in other than equal shares, is upon the one asserting liability on a different basis.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support judgment.</italic> In a case of equitable cognizance, the judgment of the trial court will not be disturbed on appeal unless it is against the clear weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal — Failure of</italic> <italic>defendant in error to file brief.</italic> Where plaintiff in error's assignments of error are reasonably sustained by authorities, and defendant in error, without excuse, has failed to file a brief, this court will not search the record to find some theory on which to sustain the trial court's judgment, but will reverse it.

(Syllabus.) 1. HOMESTEAD — <italic>Liberal construction of Constitution</italic> <italic>and statutes.</italic> Constitutional and statutory provisions relating to homestead exemptions are liberally construed in the interest of the family home. 2. SAME — <italic>Abandonment — Intent.</italic> A homestead cannot be abandoned without a going away from it with the definite intention never to return. 3. SAME — <italic>Abandonment as question of fact —</italic> <italic>Intent of parties controlling.</italic> Abandonment of a homestead is a question of fact in which the intent of the parties in leaving it is controlling. 4. SAME — <italic>Degree of proof required to establish</italic> <italic>abandonment.</italic> Abandonment of a homestead must be established by the most clear, conclusive, and undeniable evidence.

(Syllabus.) 1. QUIETING TITLE — INJUNCTION — <italic>Rules of</italic> <italic>equity cases apply to action to quiet title and for</italic> <italic>injunctive relief.</italic> An action to quiet title to a building and for a mandatory injunction to require it to be moved to a lot from which it had been removed is one of equitable cognizance. 2. EQUITY — <italic>Denial of relief under "clean hands"</italic> <italic>maxim.</italic> Under the maxim, "he who comes into equity must come with clean hands", a court of equity will not lend its aid in any manner to one who has been guilty of unlawful or inequitable conduct in a transaction from which he seeks relief, nor to one who has been a participant in a transaction the purpose of which was to defraud a third person, to defraud creditors, or to defraud the government, nor to a party to a transaction whose purpose is violative of public policy. 3. APPEAL AND ERROR — <italic>Unrequested specific findings</italic> <italic>of fact disregarded where general finding of fact</italic> <italic>made.</italic> Where the court makes a general finding of fact in favor of the prevailing party, and also makes specific findings of fact without request from either of the parties, the general finding of fact, only, will be regarded and the specific findings of fact will be treated as covered by the general finding of fact, and will not receive further consideration. 4. SAME — <italic>Conclusiveness of general finding.</italic> A general finding in favor of a party is a finding of each issuable fact necessary to sustain the general judgment.

(Syllabus.) VENDOR AND PURCHASER — FRAUDS, STATUTE OF — <italic>Vendee cannot recover money paid on purchase price on ground</italic> <italic>of invalidity of agreement if vendor ready, willing and able</italic> <italic>to perform.</italic> Vendee having paid money on the purchase price under an agreement for the sale and purchase of land which does not satisfy the statute of frauds, said payment either to vendor or to a third party to be paid to him on the execution of a conveyance, cannot recover the same on the ground of the invalidity of the agreement, if vendor is ready, willing and able to perform the agreement.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal — Failure of</italic> <italic>defendant in error to file brief.</italic> Where plaintiff in error has served and filed its brief in compliance with the rules of court, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the judgment appealed from.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — WILLS — <italic>Appointment of administrator by county court on rejection</italic> <italic>of will for probate.</italic> Where the county court has rejected a will offered for probate, and appointed an administrator, such appointment, although not appealed from, is not a conclusive adjudication of intestacy, and does not require the dismissal of an appeal from the action of the county court denying the probate of the will. 2. WITNESSES — <italic>Attorney preparing and signing will</italic> <italic>as witness competent to testify in contested proceeding for</italic> <italic>probate of will, to facts and circumstances surrounding</italic> <italic>preparation of will.</italic> 12 O. S. 1941 § 385 does not prohibit an attorney who prepared a will, and signed it as an attesting witness, from testifying in a contested proceeding for the probate of the will to the facts and circumstances surrounding the preparation of the will, including information given him by the testator, and the mental competency of the testator at the time the will was executed. 3. APPEAL AND ERROR — WILLS — <italic>Testamentary</italic> <italic>capacity question of fact — Sufficiency of evidence to</italic> <italic>sustain finding of trial court.</italic> Testamentary capacity, or lack thereof, is a question of fact, and a finding thereon by the trial court, when supported by the evidence, and not clearly against the weight thereof, will be affirmed. 4. WILLS — <italic>Evidence of undue influence insufficient</italic> <italic>to defeat probate of will.</italic> Suspicion, conjecture, possibility, or guess that undue influence or fraud has induced a will is not alone sufficient to defeat the probate of a will.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal — Failure of</italic> <italic>defendant in error to file brief.</italic> Where plaintiffs in error have served and filed brief but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Finding that claimant</italic> <italic>was "physically impaired person" supported by</italic> <italic>evidence.</italic> Record examined; held, evidence sufficient to show that claimant was a physically impaired person as defined by Title 85, chap. 1, sec. 1, S. L. 1943; such finding will therefore not be disturbed by this court on review. 2. SAME — <italic>Compensation based on disability to hand</italic> <italic>in case of loss of more than one finger.</italic> Whether or not the partial loss of more than one finger constitutes a disability to the hand incapacitating the workman from labor is a question of fact for the Commission, and where there is a partial loss of more than one finger and there is competent evidence showing that such partial loss of more than one finger results in disability to the hand incapacitating the workman from labor, the commission is authorized to award compensation upon the basis of disability to the hand, and such finding will not be disturbed by this court.

(Syllabus.) 1. ADVERSE POSSESSION — <italic>When title by prescription</italic> <italic>paramount.</italic> The title to real property, acquired by prescription, is paramount to that of one holding under a tax deed antedating the period of adverse possession. 2. APPEAL AND ERROR — <italic>Judgment not reversible</italic> <italic>because of exclusion of evidence in trial court.</italic> As a general rule, the exclusion of evidence in the trial court will not be reviewed on appeal unless a proper offer of the excluded evidence is made and included in the record.

(Syllabus.) 1. NEGLIGENCE — <italic>Proximate cause of injury</italic> <italic>established by circumstantial evidence.</italic> The proximate cause of an injury may be established by circumstantial evidence. 2. TRIAL — <italic>Demurrer to evidence — Effect.</italic> In passing upon a demurrer to the evidence or a motion for a directed verdict, the trial court should consider as true all the evidence favorable to the party against whom the demurrer or motion to directed, together with all inferences reasonably to be drawn therefrom, and should disregard all conflicting evidence favorable to the demurrant or movant. 3. TRIAL — <italic>Direction of verdict — Weight of</italic> <italic>evidence.</italic> In trials by jury, it is only where the facts although undisputed, are such that all<page_number>Page 262</page_number> reasonable men must draw the same conclusion from them that the court is authorized to direct a verdict.

(Syllabus.) 1. OIL AND GAS — <italic>Right to cancellation for breach of</italic> <italic>implied covenant to develop dependent on facts and</italic> <italic>circumstances of particular case.</italic> A court of equity will declare a forfeiture of the undeveloped portion of a producing oil and gas lease because of the breach of implied covenant to diligently develop the property when such forfeiture will effectuate justice, but the granting of such relief depends upon the facts and circumstances surrounding the particular case. 2. SAME — <italic>Cancellation of undeveloped portion of</italic> <italic>lease justified for failure to diligently develop.</italic> Where the evidence shows that in 1926 lessees acquired lease on 120 acres upon which were two gas wells, and in 1930 completed two other gas wells upon 10-acre tracts, one of which was producing at the time of trial, the other being capable of some production, and evidence further shows that lessees had neither drilled nor developed the remainder of lease since 1931 (with exception noted in opinion) and the lessees testified they did not contemplate further development unless someone joined in and assisted them, such circumstances justified a court of equity in canceling the undeveloped portion (100 acres) of such lease.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Test of whether agent is</italic> <italic>employee or independent contractor.</italic> In determining whether an agent is an employee or an independent contractor, the controlling or decisive test is whether the principal has the right to control the physical details of the work to be done by the agent, or whether the latter represents the former only as to the result to be accomplished. 2. SAME — <italic>Findings of Industrial Commission</italic> <italic>sufficiently sustained by evidence.</italic> Record examined, and held, that the findings of the State Industrial Commission that the claimant was an employee of his principal; that his injuries were received in the course of his employment, and were not suffered by reason of his being intoxicated, or because he attempted to charge an excessive fare, are sufficiently sustained by the evidence.

(Syllabus.) 1. AUTOMOBILES — <italic>Speed, as contributing cause of</italic> <italic>accident, under some conditions may be proximate</italic> <italic>cause.</italic> Although ordinarily speed alone cannot be said to have caused an accident, it may be a contributing cause, and under some conditions the proximate cause. 2. SAME — <italic>Accident — Measure of duty of driver</italic> <italic>of car to exercise proper care and consideration for safety</italic> <italic>of others as to rate of speed.</italic> A controlling consideration in determining whether excessive speed was a contributing or the proximate cause of an accident is whether the rate of speed was in disregard of a duty under the circumstances to exercise proper care and consideration for the safety as well as the rights of others. 3. APPEAL AND ERROR — <italic>Review — Failure of</italic> <italic>evidence to prove verdict excessive — Judgment affirmed.</italic> Where the verdict is not so excessive as to raise a presumption that the jury was actuated by prejudice and passion in rendering the same, and in the absence of any specific proof of passion and prejudice in rendering the verdict, a judgment thereon will not be reversed because of the amount thereof.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause with directions.

(Syllabus.) 1. DEPOSITIONS — <italic>Statutory requirement as to written</italic> <italic>objections.</italic> Exception to deposition as a whole must be in writing and filed with the papers in the case before trial is commenced. 2. EVIDENCE — <italic>Result of analysis of soil —</italic> <italic>Admissibility of evidence showing injury to land or</italic> <italic>trees.</italic> Evidence as to the result of chemical analysis of leaf and soil samples is admissible where such evidence shows that the samples were taken from the land at or about the time of alleged injury to the land, or trees growing thereon, occurred. 3. APPEAL AND ERROR — <italic>Review — Waiver of</italic> <italic>demurrer to evidence and failure to ask for directed</italic> <italic>verdict.</italic> If a defendant, after his demurrer to the evidence of plaintiff has been overruled,<page_number>Page 285</page_number> does not stand upon the demurrer but puts in his evidence, he waives the demurrer, and if he does not move for a directed verdict after the parties have finally rested, he cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of plaintiff. 4. SAME — <italic>Single assignment of error presenting</italic> <italic>refusal of all requested instructions — No error presented</italic> <italic>where any one of the instructions properly given.</italic> Where four separate instructions are requested and refused, and the refusal of all the requested instructions is presented for review under a single assignment of error, and the record shows that the court gave two of the requested instructions in the same language as that of two of the requested instructions, and covered the substance of the other two requested instructions in its general instructions, no error is presented.

(Syllabus.) 1. DIVORCE — <italic>Right of defendant in divorce action to</italic> <italic>proceed in same manner as though he or she were plaintiff</italic> <italic>in separate case.</italic> By virtue of 12 O.S. 1941 § 1274[12-1274], a defendant in a divorce action may proceed in the same manner and against the same parties as though he or she were the plaintiff in a separate case. 2. SAME — <italic>Joinder of parties defendant.</italic> A third person, claiming an interest in real estate alleged to be community property of the principal parties to an action for divorce and property settlement, may be made a party to, and his interest therein, if any, determined in such action at the instance of either spouse.<page_number>Page 292</page_number> 3. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case to sustain judgment.</italic> In a case of equitable cognizance, the judgment of the trial court will not be disturbed on appeal unless it is against the clear weight of the evidence.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Authority of Board of</italic> <italic>Education under statute to reduce State Aid — Difference</italic> <italic>between cost of minimum program and minimum program income.</italic> The provisions of 70 O. S. Supp. 1943 § 651.2 authorize the State Board of Education to reduce the amount of State Aid, originally anticipated to be needed by a school district, when the factors on which apportionment or allocation thereof was made, have so changed as to reduce the difference between the cost of the minimum program and the amount of minimum program income.

(Syllabus.) 1. MANDAMUS — LIMITATION OF ACTIONS — <italic>Statute</italic> <italic>of limitation as defense to performance of official</italic> <italic>act.</italic> In a mandamus proceeding to require a public officer to perform an official act, the officer may defend on the ground that by reason of the operation of a statute of limitations he is without authority to perform the act. 2. LIMITATION OF ACTIONS — <italic>Running of ten-year</italic> <italic>statute not started anew by payment of subsequent taxes on</italic> <italic>tax sale certificate.</italic> The payment of the subsequent taxes and endorsements thereof on the tax sale certificate does not start anew the running of the ten year statute of limitations provided in 68 O. S. 1941 § 433(e). 3. LIMITATION OF ACTIONS — <italic>Exceptions in statutes of</italic> <italic>limitation strictly construed.</italic> Exceptions in statutes of limitations are strictly construed, and cannot be enlarged from considerations of apparent hardship or inconvenience. 4. MANDAMUS — <italic>Writ of mandamus will not lie to</italic> <italic>compel county treasurer to issue tax deed to holder of tax</italic> <italic>sale certificate whose rights to deed are barred by</italic> <italic>statute.</italic> The holder of a tax sale certificate issued in 1930, who did not demand a tax deed until after the expiration of three years from May 10, 1939, the effective date of 68 O. S. 1941 § 433 (e), and who has not kept the subsequent taxes paid and endorsed on the certificate as provided in the exception or unless clause contained in said statute, is not entitled to a writ of mandamus requiring the county treasurer to issue him a tax deed based on the tax sale certificate. 5. CONSTITUTIONAL LAW — LIMITATION OF ACTIONS — <italic>Statute giving three years to obtain tax deeds affords</italic> <italic>holders reasonable time to enforce rights — Contract</italic> <italic>clause of State and Federal Constitutions not violated.</italic> 68 O.S. 1941 § 433[68-433](e), which gives holders of tax sale certificates issued more than seven years prior to the effective date of said section three years within which to obtain tax deeds, affords holders a reasonable time within which to enforce their rights and does not violate the contract clause of the State and Federal Constitutions.

(Syllabus.) 1. STATUTES — <italic>Rule of construction under "ejusdem</italic> <italic>generis."</italic> The rule of construction under the maxim "ejusdem generis" is but one phase of the application of the broader rule under the maxim "noscitur a sociis" which is defined "The meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it" (Broom's Legal Maxims). 2. SAME — <italic>When rule of "ejusdem generis"</italic> <italic>applicable.</italic> The rule of construction under "ejusdem generis", which is to the effect that general words do not explain or amplify particular terms preceding them but are themselves restricted and explained by the particular terms, is, under the rule of "noscitur a sociis", applicable where the general words precede the specific terms, when it is manifest that such particular terms have reference to subjects embraced within the meaning of the general words. 3. STATUTES — CONSTITUTIONAL LAW — <italic>Classes</italic> <italic>within purview of term "transportation company" as used in</italic> <italic>Constitution.</italic> The classes within the purview of the term "transportation company" as used in section 18 art. IX of the Constitution are limited to those expressly named in section 34, art. IX, immediately following the words "the term transportation company shall include." 4. SAME — <italic>Air transportation not included within</italic> <italic>meaning of words "transportation company," as used in</italic> <italic>Constitution.</italic> The fact that the classes within the purview of the term "transportation company", as used in the Constitution, are expressly named in another provision thereof, excludes the implication that those engaged in air transportation, which is not expressly named, are included within the meaning of the words "transportation company." 5. PUBLIC SERVICE COMMISSIONS — <italic>Limited powers of</italic> <italic>Corporation Commission.</italic> The Corporation Commission, as created by article IX of the Constitution, is a body with, so far as the regulation of public service corporations is concerned, executive, judicial, and legislative powers, but those powers are limited, and it has such jurisdiction and authority only as is expressly or by necessary implication conferred upon it by the Constitution and statutes. 6. SAME — <italic>Corporation Commission held without</italic> <italic>authority or jurisdiction over air transportation.</italic> Neither under the Constitution nor by statute is the Corporation Commission invested with jurisdiction or authority over air transportation or those engaged therein.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendants in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendants in error have neither filed brief nor offered any excuse for their failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause with directions.<page_number>Page 307</page_number>

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. ATTORNEY AND CLIENT — <italic>Burden of proof on attorney</italic> <italic>to establish validity of his purchase of client's</italic> <italic>property.</italic> Although an attorney is not under an absolute disability to purchase his client's property, where he does so during the existence of the relation of attorney and client, with respect to the property so purchased, he assumes the heavy burden of proving his utmost good faith and fairness in the transaction and that he paid an adequate consideration for the property. He must also show that he fully informed his client of all the material facts and gave the same disinterested advice he would have given had the sale been made to a stranger. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> Upon appeal of a case of equitable cognizance this court will weigh and consider the evidence, and will affirm the finding and judgment of the trial court, unless such finding and judgment are against the clear weight of the evidence. 3. SAME — <italic>Evidence sustained judgment canceling</italic> <italic>conveyance of interest in oil royalty by client to</italic> <italic>attorney.</italic> Record and evidence weighed and examined, and it is found that the judgment of the trial court is properly supported, and is not against the clear weight of the evidence.

(Syllabus.) 1. NEGLIGENCE — <italic>Invitees and licensees —</italic> <italic>Landowner owes no duty to either adult or infant on</italic> <italic>premises without invitation.</italic> Ordinarily, a landowner owes no duty of active care toward one, either adult or infant, who is on his premises without an invitation, express or implied, and neither silence, acquiescence or permission is, alone, sufficient to establish an invitation. 2. NUISANCE — <italic>Pond of water not attractive nuisance</italic> <italic>in absence of hidden dangers.</italic> A pond of water, whether natural or artificial, is not an attractive nuisance, in the absence of any hidden inherent dangers.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>In case of specific member</italic> <italic>and "other cases" injuries, award of</italic> 50 <italic>per cent for</italic> <italic>permanent partial disability sustained — Employer may not be</italic> <italic>heard to complain that such award should have been separately</italic> <italic>computed, where such computation would have resulted in</italic> <italic>excess of award made by commission.</italic> Where an employee receives an accidental compensable injury under the Workmen's Compensation Act consisting of an injury to both legs, left arm and "other cases" injuries and the State Industrial Commission finds that by reason of all of such injuries the employee has sustained a 50 per cent permanent partial disability to the body as a whole and awards compensation accordingly and there is ample evidence, admitted without objection, to sustain such finding and award, the employer and its insurance carrier will not be heard to say in a proceeding to review such award that the commission should have separately found and separately computed compensation for the disability sustained by reason of specific member injuries and "other cases" injuries where the undisputed evidence shows that had the commission followed such method of computation it would have resulted in an award in excess of the award made by the commission.

(Syllabus.) 1. CARRIERS — <italic>Burden on defendant to prove existence</italic> <italic>of contract between parties showing limited liability.</italic> When transportation company damages and loses goods, shipped intrastate over its lines, and these facts, coupled with the amount of damages, are proven by plaintiff, the burden shifts to the defendant to prove a contract between the parties showing therein that the defendant's liability is limited. 2. ACCORD AND SATISFACTION — <italic>Insufficiency of proof</italic> <italic>to create accord and satisfaction.</italic> Record examined, and held, that proof necessary to create an accord and satisfaction is lacking in the present case.

(Syllabus.) 1. INSANE PERSONS — <italic>Validity of judgment to</italic> <italic>foreclose lien on real estate against insane person —</italic> <italic>Service of summons and appointment of guardian ad litem.</italic> A civil action to foreclose lien on real estate may be maintained against an insane person and inmate of the State Hospital for the Insane and with proper service of summons and appointment of guardian ad litem and defense by guardian ad litem for such a defendant, a foreclosure judgment within the jurisdiction of the court and within the issues is a valid judgment. 2. SAME — <italic>Commissioner of Charities and Corrections</italic> <italic>as party defendant.</italic> In such a civil action the judgment is not void for failure to join the Commissioner of Charities and Corrections of the State as a party defendant. 3. SAME — <italic>Powers of Commissioner of Charities and</italic> <italic>Corrections no bar to procedure by daughter of insane</italic> <italic>person as next friend.</italic> While the Commissioner of Charities and Corrections may have power and authority in proper actions to appear for incompetent persons who are inmates of public institutions, 74 O.S. 1941 § 181[<cross_reference>74-181</cross_reference>], this is no bar to the commencement and maintenance of a civil action by a daughter of such an incompetent person as next friend. 4. SAME — <italic>Rights of Commissioner of Charities and</italic> <italic>Corrections defined in civil action in name of insane</italic> <italic>person.</italic> In a civil action commenced in the name of an insane person and inmate of the State Hospital for the Insane by the daughter as next friend, the Commissioner of Charities and Corrections may have the right in a proper manner to intervene for the protection or further protection of the interest of such insane person, yet where the plaintiff's petition in such action does not state a cause of action and the petition in intervention by such official is filed without permission of the court and merely adopts the same grounds for recovery and relief as are stated in plaintiff's petition, there is no reversible error in striking such petition in intervention. 5. MUNICIPAL CORPORATIONS — <italic>Charter powers —</italic> <italic>Enforcement of paving assessments.</italic> As applied to city lots in a charter city, the assessment and maturity of paving taxes is governed by the charter provisions relating thereto, if any, and such tax liens in Tulsa were subject to foreclosure by civil action in the district court of Tulsa county in the amount and upon the delinquency occurring in compliance with the provisions of the city charter. 6. SAME — <italic>Validity of mortgage foreclosure.</italic> When by proper action in the district court a lien against real estate has been foreclosed and title passed at foreclosure sale and thereafter the former owner sues to recover the real estate and rental value for the intervening years on the theory that the foreclosure judgment was wholly void and of no effect, such judgment and the judgment roll thereof may be examined and if the foreclosure judgment shows complete validity on the face of the judgment roll, the subsequent action must fail. 7. SAME — <italic>Demurrer properly sustained.</italic> Where, in such an action, the plaintiff's petition discloses the judgment roll of the former foreclosure action and the same discloses validity of the foreclosure judgment, a demurrer to such petition is properly sustained.

(Syllabus.) DIVORCE — <italic>Validity of decree awarding divorce and</italic> <italic>alimony — Sufficiency of evidence.</italic> In a divorce action a decree awarding divorce and alimony will not be disturbed on appeal unless it is against the clear weight of the evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Compensation based on</italic> <italic>disability to hand in case of loss of more than one</italic> <italic>finger.</italic> Whether or not the loss of more than one finger constitutes a disability to the hand incapacitating the workman from labor is a question of fact for the commission and where there is a loss of more than one finger and there is competent evidence showing that such loss of more than one finger results in a disability to the hand incapacitating the workman from labor, the commission is authorized to award compensation upon the basis of disability to the hand and such finding will not be disturbed by this court. 2. SAME — <italic>Compensation based on combined</italic> <italic>disabilities in case of injury to "physically impaired</italic> <italic>person" — Liability of Special Indemnity Fund.</italic> Where an award is entered by the State Industrial Commission against Special Indemnity Fund in favor of a physically impaired person who has sustained a subsequent injury under the provisions of 85 O.S. 1943, Supp. § 172, the Fund is not entitled to a credit or a deduction against the award for the disability sustained by such person by reason of this previous injury. 3. WORKMEN'S COMPENSATION — <italic>Jurisdiction not</italic> <italic>dependent upon place of residence of employee in entering</italic> <italic>award against Special Indemnity Fund, where employee</italic> <italic>sustains injury within state.</italic> The State Industrial Commission has jurisdiction to enter an award against Special Indemnity Fund in favor of a nonresident employee who is a physically impaired person under the provisions of 85 O.S. 1943, Supp. § 172, where such employee sustains a subsequent compensable injury while engaged in performing work within the state.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — STATUTES — <italic>Statute</italic> <italic>accorded meaning as expressed in language therein</italic> <italic>employed.</italic> Where the language of a statute or ordinance is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed. 2. APPEAL AND ERROR — DAMAGES — <italic>Excessiveness</italic> <italic>of damages — Remittitur.</italic> Where there is a recovery in an amount sufficient to convince the court that the same is excessive, this court will require a remittitur and if same is not filed the cause will be reversed and remanded for new trial.<page_number>Page 332</page_number>

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>verdict of jury, although conflicting, where submitted to</italic> <italic>jury upon instructions to which no objection made.</italic> Where there is competent evidence reasonably tending to sustain a verdict, although the evidence is conflicting, and same is submitted to the jury upon instructions to which no objection is made, this court upon appeal will not disturb the judgment based upon such verdict.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Special assessments</italic> <italic>— Action to set aside for jurisdictional defects not</italic> <italic>barred by short statute of limitation.</italic> The provision of 11 O.S. 1941 § 101[11-101], requiring the assessment of property directly benefited by a public improvement in the particular improvement district, is a vital and substantial provision of the statutes; and the omission to make such assessment on all the property affected is a jurisdictional defect, and the aggrieved person is not barred from relief by the short statute of limitations provided in 11 O.S. 1941 § 86[11-86]. 2. PLEADING — <italic>Sufficiency of petition as against</italic> <italic>general demurrer to state cause of action.</italic> A petition is sufficient as against a general demurrer if it states facts in a plain and concise manner which entitle plaintiff to some legal or equitable relief.

(Syllabus.) TAXATION — <italic>Okla. Employment Security Commission</italic> <italic>— Under provisions of Okla. Unemployment Compensation Law,</italic> <italic>purchaser of business succeeds to prior status of seller, and</italic> <italic>both treated as single employing unit — Seller not required</italic> <italic>to file application for termination of coverage, where</italic> <italic>purchaser makes report and pays contributions to Unemployment</italic> <italic>Fund.</italic> Under the provisions of the Oklahoma Unemployment Compensation Law, ch. 52, S.L. 1936-1937 (Special Session), an employing unit which purchases the business<page_number>Page 339</page_number> and assets of an employer succeeds to the prior status of the seller as an employer, and both are treated as a single employing unit. Where the purchaser in such case makes reports and pays contributions to the Unemployment Compensation Fund as employer, the seller is not required, as a condition precedent to release from liability for payments for subsequent years, in connection with said business, to file an application for termination of coverage.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence</italic> <italic>to sustain award of State Industrial Commission.</italic> An award of the State Industrial Commission will not be reversed by this court on review because of insufficiency of the evidence where there is competent evidence reasonably tending to support the award. 2. SAME — <italic>Award for partial impairment of sight of</italic> <italic>both eyes, and not for loss of sight of right eye</italic> <italic>alone.</italic> Under 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], where a claimant who has previously lost 50 per cent sight of each eye, and who in the course of employment receives a subsequent injury resulting in the loss of remaining sight of his right eye thereby leaving him permanently partially disabled, is entitled to compensation for partial impairment of sight of both eyes and not loss of sight of the right eye alone. 3. SAME — <italic>Industrial Commission committed no error</italic> <italic>in dismissing Special Indemnity Fund and proceeding alone</italic> <italic>against employer, even though employer had on file</italic> <italic>application for permission to carry its own risk.</italic> Where a claimant, who is a physically impaired person as that term is defined by Title 85, chap. 1, S.L. 1943, files a claim with the Industrial Commission against his employer for compensation for a subsequent injury and Special Indemnity Fund is made a party to the proceeding and it develops at the hearing that the employer had failed to obtain compensation insurance or permit to carry its own risk as provided by 85 O.S. 1941 § 61[<cross_reference>85-61</cross_reference>], the commission commits no error in dismissing the Special Indemnity Fund from the proceeding and proceeding alone against the employer as provided by 85 O.S. 1941 §§ 12[<cross_reference>85-12</cross_reference>] and 63, although the employer had then on file an application for permission to carry its own risk which was not acted upon until one year thereafter.

(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> Under the provisions of House Bill No. 249, Sess. Laws 1943, 85 O.S.Supp. 1943, sec. 172, if an employee, who is a physically impaired person as defined in said act, receives an accidental personal injury compensable under the Workmen's Compensation Law which 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, such employee shall be entitled to compensation for such permanent disability caused by the combined injuries and the employer shall be liable only for such per centum of disability resulting from the latter injury, and the remainder of such compensation shall be paid out of the Special Indemnity Fund provided for in such act without credit for the compensation paid for the first or prior injury.

(Syllabus.) OIL AND GAS — <italic>Rights of lessee under oil and gas</italic> <italic>mining lease to continue to produce oil and gas until</italic> <italic>exhaustion of oil or gas discovered during initial term.</italic> Under an oil and gas mining lease for a specific term "and as much longer thereafter as oil or gas is produced therefrom", the lessee after having discovered oil or gas during the initial term of the lease may continue to produce oil or gas therefrom until the exhaustion of the oil or gas discovered during the initial term.

(Syllabus.) 1. TAXATION — <italic>Validity of resale tax deed —</italic> <italic>Effective date of part of act not postponed by</italic> <italic>constitutional restrictions relating to "provisions for</italic> <italic>purchase or sale of real estate."</italic> A resale tax deed upon the form prescribed by article 31, ch. 66, S.L. 1939 § 8 (68 O.S. 1941 § 432g[68-432g]), pursuant to resale in the year 1939, is not void upon its face, as the Act, insofar as it prescribed form of resale tax deed, became effective upon approval April 15, 1939, in view of an emergency declared, and the effective date of that part of the act was not postponed by restrictions of article 5, sec. 58, Const., relating to legislative <italic>"provisions for the purchase or sale of real</italic><italic>estate."</italic> 2. SAME — <italic>Sale of land at resale for more than</italic> <italic>amount of taxes, etc., renders resale deed void.</italic> A purported sale of land at resale for more than the amount of taxes, penalties, interest, and costs due and delinquent against the land defeats the power to sell and renders a resale deed void.

(Syllabus.) 1. WATERS AND WATERCOURSES — <italic>Action for damages for</italic> <italic>pollution of water wells allegedly traceable to improper</italic> <italic>plugging of abandoned oil wells — Necessity for showing</italic> <italic>causal connection.</italic> In order to sustain a recovery for damages caused by pollution of water wells by oil, salt water and other deleterious substances based upon claims that abandoned oil wells were improperly plugged, there must be a causal connection between the violation complained of and the injury sustained. 2. APPEAL AND ERROR — <italic>Reversal where verdict and</italic> <italic>judgment not sustained by competent evidence.</italic> Where there is no competent evidence to sustain a judgment entered upon the verdict of the jury, the judgment will be vacated.

(Syllabus.) INTOXICATING LIQUORS — PARTNERSHIP — <italic>"Silent</italic> <italic>partner" in operation of beer tavern — Contract void as</italic> <italic>against public policy.</italic> A partnership agreement between two parties whereby one of them becomes a silent partner in the operation of a tavern for the retail sale of 3.2 beer, the other partner obtaining in his own name a permit from the county judge and a permit from the Tax Commission without disclosing the interest of the silent partner, is against the public policy of the state, and is void, and rights asserted thereunder will not be enforced by the courts.

(Syllabus.) 1. ACTION — <italic>Misjoinder of causes of action cured by</italic> <italic>verdict for plaintiff on counts well joined.</italic> A misjoinder of causes of action is cured by a verdict for the plaintiff on the counts well joined, and for the defendant on the others. 2. TRIAL — <italic>Discretion of court as to admitting</italic> <italic>testimony in rebuttal though properly admissible in support</italic> <italic>of case in chief.</italic> Either party is entitled to introduce evidence to rebut that of his adversary, and where a party offers relevant testimony in rebuttal, even though it might properly have been offered in support of his case in chief, it is not error to admit it, unless an abuse of judicial discretion is shown. 3. SAME — <italic>Refusal of requested instructions where</italic> <italic>issues covered in instructions given.</italic> It is not error to refuse to submit instructions to the jury where the instructions given reasonably and fairly present the issues in said cause. 4. BILLS AND NOTES — <italic>Duty of trial court to make</italic> <italic>computation and add interest and attorney fees to sum found</italic> <italic>in verdict, where verdict was for plaintiff.</italic> Where the verdict of the jury is for plaintiff in the amount of the principal of a promissory note which specifically provides for interest thereon at a definite rate from a definite date, and for 10 per cent of total amount as attorney fees, it is the duty of the trial court to make the computation and to add the interest and attorney fees, so found, to the sum found in the verdict.

(Syllabus.) 1. INSURANCE — <italic>Duty of insurance company to pass</italic> <italic>upon application within reasonable time — Liability for</italic> <italic>damages for unreasonable delay.</italic> It is the duty of an insurance company, having solicited and obtained application for insurance and having received the premium exacted therefor, to pass upon the application within a reasonable time by denying the insurance or by writing and delivering the policy as applied for; an insurance company, under such circumstances, is liable for damages occasioned by its unreasonable delay in passing upon an application or the negligence of its agent in failing to communicate its denial thereof to the applicant for an unreasonable time. 2. APPEAL AND ERROR — <italic>Judgment not reversed where</italic> <italic>evidence sufficient to support same.</italic> A judgment in a law action which conforms to the verdict of the jury based upon conflicting evidence will not be disturbed on review by this court if there is any evidence reasonably tending to support the same.

(Syllabus.) 1. COVENANTS — <italic>Construction — Validity of</italic> <italic>restrictions on use of real estate.</italic> In construing covenants restricting the sale of property to or use thereof by persons of a named race, effect is to be given to the intent of the parties as shown by the language of the instrument, considered in connection with the circumstances surrounding the transaction and the object had in view by the parties. 2. SAME — <italic>Contract providing for restrictions on</italic> <italic>property effective only when executed by the owner of each</italic> <italic>and every building and lot within named addition.</italic> An agreement between owners of property within a given addition to a city, restricting the sale or use of property therein to persons of the Caucasian or Indian race, which is ambiguous as to whether the property to be so restricted is that particularly described after the signature of each owner, or all the property within the area of the addition described, but which contains a further clause that it is the "intent and purpose of this restrictive agreement and covenant that no person or persons of any race or races other than the Caucasian or Indian race shall own, use or occupy any building or lot in said addition . . ." shows that the intent and purpose of the agreement is to make it apply to every building and every lot within the named addition. Such agreement may not become effective until executed by the owner of each and every building and lot within the named addition.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Subsequent appeal — Law</italic> <italic>of case.</italic> All questions open to dispute and either expressly or by necessary implication decided on appeal to this court will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination. 2. MORTGAGES — <italic>Provision of mortgage that mortgagee</italic> <italic>could pay taxes and insurance when due and unpaid, made</italic> <italic>same proper charges under mortgage, and properly asserted</italic> <italic>in supplemental petition in foreclosure.</italic> Where a mortgage securing indebtedness provided the mortgagee could protect security by payment of taxes and insurance when same were due and unpaid by mortgagor and include this in amount due under the mortgage, and during pendency of appeal to this court growing out of foreclosure action mortgagee was forced to redeem property from taxes and pay insurance premiums to protect property, same were proper<page_number>Page 391</page_number> charges under the mortgage and could properly be asserted "in supplemental petition in foreclosure.

(Syllabus.) 1. CONTRACTS — <italic>Action on express contract —</italic> <italic>Recovery on quantum meruit.</italic> Where a petition declares upon an express contract but negatives full performance of it because of defendant's wrongful act, a recovery for debt may be had upon a quantum meruit. 2. AUTOMOBILES — LIENS — <italic>When lien exists on</italic> <italic>labor and materials furnished under oral agreement with</italic> <italic>other than owner.</italic> One who furnishes material and performs labor for the repair of personal property, under oral agreement with a person other than the owner, or his duly authorized agent, acquires no lien against the personal property, but where the owner, with knowledge, has right of option, and approves an artisan's possession together with progress of repair upon such personal property and thereafter wrongfully repossesses the property, he may not profit by his own wrong but is estopped to deny adverse possession of the property whereby a lien, as at common law, exists, reiterated and limited only by statutory provision. 42 O. S. 1941 § 91. 3. BAILMENT — LIENS — <italic>Right of artisan to lien</italic> <italic>on property for payment of debt for labor and materials</italic> <italic>furnished — Lien arising by operation of law based on</italic> <italic>possession continues to exist when possession not</italic> <italic>voluntarily surrendered, or lien fails for lapse of time or</italic> <italic>is defeated by prior liens.</italic> An artisan or mechanic, with right of possession for labor and materials furnished<page_number>Page 394</page_number> and used in repair, has a charge or lien upon the property, arising by law, 42 O.S. 1941 § 6[<cross_reference>42-6</cross_reference>], for the payment or discharge of a debt as a right qualified by provision of statute and existing after performance, 42 O.S. 1941 § 94[<cross_reference>42-94</cross_reference>], subject to enforcement within eight months after performance, § 95 Id., and the lien so arising by operation of law and based on possession continues to exist when possession is not voluntarily surrendered, § 25, Id., or the lien fails by mere lapse of time, § 25, Id., or is defeated by other liens possessed of priority, § 98, Id. 4. SAME — <italic>When unnecessary to file lien statement</italic> <italic>with county clerk.</italic> The filing of a lien statement, 42 O.S. 1941 § 98[<cross_reference>42-98</cross_reference>], with the county clerk or the court clerk, 42 O.S. 1941 § 132[<cross_reference>42-132</cross_reference>], within 60 days after the last labor shall have been performed or materials shall have been furnished, for the repair of personal property, the possession of which is not voluntarily surrendered, is not necessary to the enforcement of a lien arising by operation of law where, within time provided by statute, an action is commenced upon the principal obligation and for foreclosure, as the filing of such statement merely preserves such a lien as against priority of other liens and against the claim of innocent purchaser for value without notice, actual or constructive, where possession is not had by lienor or is voluntarily surrendered.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Review of award —</italic> <italic>Sufficiency of evidence.</italic> In an action to review an award of the State Industrial Commission, this court will not review conflicting evidence and determine the weight and value thereof, and, where an award of the Commission is supported by competent evidence as to the cause and extent of the disability arising from the accidental injury, the same will not be disturbed by this court on review.

(Syllabus.) 1. CONTRACTS — <italic>Quasi or constructive contracts</italic> <italic>— Contracts dictated by reason and justice enforceable by</italic> <italic>action ex contractu.</italic> Contracts implied in law, or more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and may be enforced by an action ex contractu. 2. HOSPITLAS — EVIDENCE — <italic>Value of services</italic> <italic>rendered by hospital to be determined by jury — Directed</italic> <italic>verdict erroneous in absence agreement on question of</italic> <italic>value.</italic> Although in an action by a hospital to recover compensation for professional services, rendered under an implied contract, the evidence as to the value of such services adduced by plaintiff is undisputed, the jury must be permitted to determine the question of value, and the trial court, in the absence of any agreement on the question of value, cannot direct a verdict for the amount claimed.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Sublessee holding under</italic> <italic>first lease beyond term becomes tenant of lessee under</italic> <italic>second lease by implication of law.</italic> Where the owner of premises executes a lease for term of years beginning at the expiration of an existing lease held by another on the premises, a sublessee under the first lease holding beyond the term thereof becomes a tenant of lessee under the second lease by implication of law. 2. SAME — <italic>Landlord's title — Estoppel.</italic> The fact that the tenant is in possession of the premises at the time of the creation of the tenancy does not affect his estoppel to deny the title of his landlord. 3. SAME — STATUTES — <italic>Where statutes conflict</italic> <italic>latest enactment controls.</italic> Section 2[<cross_reference>41-2</cross_reference>] of Title 41, providing that tenant who with landlord's assent continues to occupy premises after expiration of term of one or more years shall be deemed to be a tenant at will, controls over section 35 of the same title providing for presumption as to renewal of lease, where tenant remains in possession after expiration of lease and landlord receives rent from him. 41 O.S. 1941 §§ 2[<cross_reference>41-2</cross_reference>], 35. 4. LANDLORD AND TENANT — <italic>Tenant holding over after</italic> <italic>expiration of lease is subject to removal as tenant at</italic> <italic>will.</italic> Under 41 O.S. 1941 § 2[<cross_reference>41-2</cross_reference>], a tenant who remains in possession of real estate after the expiration of the terms of his lease is a tenant at will and is subject to removal as such.

(Syllabus.) NUISANCE — <italic>Liability of landlord for nuisance created</italic> <italic>by tenant.</italic> To bring liability home to the owner of real estate for an alleged nuisance created by a tenant on his property, the nuisance must be one which is in its essence and nature a nuisance at the time of letting and not something which is capable of being thereafter rendered a nuisance by the tenant.

(Syllabus.) 1. BROKERS — <italic>Customer must be produced who is able</italic> <italic>and willing to purchase.</italic> The production by a broker of a customer able and willing to purchase does not entitle him to a commission even though the parties come to an understanding as to price and terms if, before a binding contract is executed, the customer becomes unwilling to make the purchase. 2. SAME — <italic>Delay in delivering contract to seller</italic> <italic>pending approval by State Insurance Department not</italic> <italic>unreasonable under circumstances.</italic> Where buyer's attorney prepares and forwards contract of sale to the seller, a non-resident insurance company, which retains the contract pending approval of the transaction by the State Insurance Department and after approval by the Department returns it with minor changes to be signed by the buyer, such delay under the circumstances is not unreasonable. 3. SAME — <italic>Held, seller not guilty of bad faith or</italic> <italic>unreasonable delay in consummating contract of sale.</italic> Record examined, and held, that the seller was not guilty of bad faith or unreasonable delay in consummating the contract of sale.

(Syllabus.) 1. OIL AND GAS — NEGLIGENCE — <italic>"Act of God" as</italic> <italic>proximate and sole cause of injury.</italic> The term "Act of God" is used to designate the cause of an injury to person or property where such injury is due directly and exclusively to natural causes without human intervention, and which could not have been prevented by the exercise of reasonable care and foresight, and for an injury so caused no one is liable, provided the Act of God is the proximate and in law the sole cause of the injury. 2. TRIAL — <italic>Harmless error in instructions.</italic> Instructions of the trial court must be viewed in the light of the evidence upon which they operate, and of the instructions as a whole. When thus considered, if it does not appear probable that the rights of the complaining party were prejudiced by alleged errors in the instructions, a verdict against said party will not be set aside on account thereof.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment in equity case.</italic> This court on appeal in a case of equitable cognizance will consider and weigh the evidence, but will not reverse the judgment unless it is clearly against the weight thereof. 2. DEEDS — <italic>Judgment that signature of plaintiff upon</italic> <italic>deed not forgery not clearly against weight of</italic> <italic>evidence.</italic> Record examined, and held, that the judgment of the trial court that the signature of plaintiff upon the deed in question was not a forgery, is not clearly against the weight of the evidence.

(Syllabus.) 1. JUDGMENT — <italic>Power of court to vacate or modify</italic> <italic>during term — Judgment sustained in absence of abuse of</italic> <italic>discretion.</italic> Courts of general common-law jurisdiction have control of all judgments, decrees, or other orders, however conclusive in their character, during the term at which they are rendered, and may set aside, vacate, and modify them during said term, in the exercise of a wide and extended discretion, and in the absence of an abuse of such discretion, an order of the trial court vacating a judgment during the term will not be reversed. 2. SAME — <italic>Held, no abuse of discretion of trial</italic> <italic>court shown.</italic> Record examined, and held, that no abuse of discretion by the trial court is shown.

(Syllabus.) 1. AUTOMOBILES — <italic>Right of way of motorists on</italic> <italic>boulevard protected by stop signs.</italic> Where one of two intersecting highways is a boulevard protected from traffic on the other by stop signs, the rule that first automobile to enter intersection has right of way does not ordinarily apply, and motorist on boulevard has right to assume that driver on intersecting highway will obey stop sign and yield right of way. 2. SAME — TRIAL — <italic>Sufficiency of instruction</italic> <italic>on negligence of decedent in action for wrongful</italic> <italic>death.</italic> In action for wrongful death, an instruction of the trial court which, in effect, tells the jury that decedent was guilty of negligence if he failed to do that which an ordinarily prudent person in the exercise of reasonable care would have done, under like or similar circumstances, is proper. 3. APPEAL AND ERROR — <italic>Discretion of trial court</italic> <italic>— Allowing plaintiff to dismiss case after submission to</italic> <italic>jury.</italic> After a case is finally submitted to a court or jury, the plaintiff has no legal right to dismiss his case without prejudice. It is a matter resting in the sound discretion of the court, and its ruling will not be reversed, unless it appears that such discretion has been abused.

(Syllabus.) TAXATION — <italic>Cancellation of resale tax deed where</italic> <italic>nonpayment of delinquent taxes is due to misinformation or</italic> <italic>other fault of tax collector misleading property owner.</italic> In an action to cancel a resale tax deed where nonpayment of delinquent taxes is chargeable to county treasurer's misinformation or miscalculation, upon inquiry of that official by owner of realty, and owner, under such misinformation, miscalculation or lack of information, in good faith, justifiably relying thereon, has made reasonably diligent effort to discharge his realty from the tax burden, any resale tax deed issued against the property so long as the owner remains in ignorance of another or greater tax burden is subject to cancellation on equitable consideration, upon full money tender.

(Syllabus.) 1. INSURANCE — <italic>Misrepresentations in application for</italic> <italic>policy as defense — Necessary showing that statements were</italic> <italic>made in bad faith.</italic> Where statements made by the insured in an application for insurance are representations<page_number>Page 446</page_number> as distinguished from warranties, in order for misrepresentations made by the insured in such application to avail the insurer as a defense, it must show that the statements were not only not true, but that they were willfully false, fraudulent, misleading and made in bad faith. New York Life Ins. Co. v. Stagg, <cross_reference>95 Okla. 252</cross_reference>, <cross_reference>219 P. 362</cross_reference>. 2. APPEAL AND ERROR — <italic>Review — Sufficiency of</italic> <italic>evidence to support judgment in equity case.</italic> In an action of equitable cognizance the findings of fact by the trial court will not be disturbed on appeal unless the findings and judgment are clearly against the weight of the evidence.

(Syllabus.) 1. EASEMENTS — <italic>Easement by implication passing to</italic> <italic>grantee of adjoining lot.</italic> Where the owner of two or more adjoining lots employs one so that the other derives a benefit of a continuous, permanent and apparent nature from the other, and sells the one in favor of which the quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication. 2. SAME — <italic>Reasonable necessity requisite to creation</italic> <italic>of easement by implication.</italic> The necessity requisite to the creation of an easement by implication is not an absolute necessity, a reasonable necessity being sufficient. 3. SAME — <italic>Evidence sustained finding that driveway</italic> <italic>was reasonably necessary to enjoyment of lot.</italic> Record examined, and <italic>held;</italic> that the findings and judgment of the trial court are not clearly against the weight of the evidence.

(Syllabus.) 1. TENANCY IN COMMON — <italic>Applicability of statutes</italic> <italic>defining rights of tenants in common.</italic> 52 O.S. 1941 § 87[<cross_reference>52-87</cross_reference>], sub. (c), prior to the amendment thereof by 52 O.S.A. 1946 Supp. § 87, sub. (d), applied only in cases where there were two or more separately owned tracts embraced within an established spacing or drilling unit, and not to cases where there were undivided interests separately owned in a single tract comprising an established spacing or drilling unit. In the latter instance, the law then in force defining the rights of tenants in common was applicable. 2. SAME — <italic>Development of premises and production of</italic> <italic>oil by one tenant in common — Liability for accounting to</italic> <italic>cotenant.</italic> A tenant in common of oil underlying a parcel of land, who develops and sells the oil, must account to his cotenant for the market value of his share of the oil, less the reasonable and necessary expenses of developing, extracting, and marketing the same.

(Syllabus.) 1. PARENT AND CHILD — <italic>What determines such family</italic> <italic>relation as an existing fact.</italic> While the word "family" usually imports a household, including parents, children and servants, it is not always necessary, to create or sustain the family relation between parent and child, that they should reside together. It is the assumption of the duties that belong to the relation of parent and child that determines such family relation as an existing fact. 2. BASTARDS — <italic>Sufficiency of evidence to establish</italic> <italic>legitimation.</italic> Decedent, a practicing physician, was unmarried and lived alone in a building where he maintained his office. He publicly acknowledged that he was the father of an illegitimate child born to a girl of high school age, visited the mother and child immediately following the birth, assumed the duty to care and provide for the child and did so through the maternal grandmother who, at his expense, provided the home therefor and who brought the child on visits to the physician's home where he recognized and received the child as his own. Held, the adoption by the decedent of such child as his own is complete. (10 O. S. 1941 § 55).

(Syllabus.) APPEAL AND ERROR — <italic>Insufficiency of evidence —</italic> <italic>Reversal.</italic> Where there is no competent evidence disclosed by the record which would reasonably tend to support a verdict and the judgment entered in accord therewith, it is the duty of this court to reverse the judgment and cause proper judgment to be entered.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Holding possession of real</italic> <italic>estate by consent, express or implied, of owner for</italic> <italic>indefinite period constitutes tenancy at will.</italic> A tenancy at will is the holding of the possession of real estate by the consent, express or implied, of the owner for an indefinite period of time.<page_number>Page 468</page_number> 2. SAME — <italic>Necessary for tenancy to be terminated by</italic> <italic>statutory notice before owners could maintain suit for</italic> <italic>forcible entry and detainer.</italic> Paine, a tenant at will, who had paid his monthly rent up to January 26th, turned possession of the real property to Caldwell on January 11th, without the consent of the owners. Caldwell occupied the property until January 26th, when she paid rent up to February 26th, and the owners accepted such rent. Held, Caldwell became a tenant at will. Held, further, that before the owners could maintain a suit in forcible entry and detainer, it was necessary for them to terminate the tenancy by giving the notice required by 41 O. S. 1941 § 4. 3. SAME — <italic>Insufficient evidence of waste to dispense</italic> <italic>with statutory notice to terminate tenancy.</italic> Record examined, and held that the plaintiffs' evidence did not establish that defendant had committed waste so as to dispense with notice to terminate tenancy as provided in 41 O.S. 1941 § 8[<cross_reference>41-8</cross_reference>].

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — PARTITION — <italic>Owner of interest in minerals may not</italic><page_number>Page 475</page_number> <italic>partition the oil and gas rights in suit against</italic> <italic>Commissioners of the Land Office.</italic> Where the state owns a half interest in the oil and gas in land taken in foreclosure of a mortgage securing funds loaned by the Commissioners of the Land Office, the owner of an interest in such minerals may not partition the oil and gas rights in a suit against the Commissioners of the Land Office.

(Syllabus.) 1. OIL AND GAS — <italic>Physical relinquishment an</italic> <italic>essential of abandonment of lease.</italic> Nondevelopment of a portion of leased premises unaccompaned by physical relinquishment is not sufficient to constitute abandonment of the lease. 2. SAME — <italic>Right to cancel lease for breach of</italic> <italic>covenant waived by lessor's acceptance of royalty payments</italic> <italic>after lessees had breached covenant to drill additional</italic> <italic>wells.</italic> Lessor's unconditional acceptance of royalty payments for a period of several years after lessees had breached a covenant to drill additional wells constituted waiver of right to cancel lease for breach of covenant to drill additional wells in a specified time.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error in admission of</italic> <italic>evidence of written report tending to establish</italic> <italic>negligence.</italic> Where, in the trial of an action to recover damages for negligence, the uncontradicted competent oral testimony establishes negligence, the admission in evidence of a written report tending to establish negligence, if error, is harmless. 2. DAMAGES — <italic>Sufficiency of evidence to sustain</italic> <italic>verdict of jury as to amount of damages.</italic> Record in this case examined, and held, that the evidence reasonably tends to support the verdict of the jury as to the amount of damages.

(Syllabus.) 1. BROKERS — <italic>Right to Commission — Procuring</italic> <italic>cause.</italic> To be the procuring cause of a sale, a broker must first call the purchaser's attention to the property, and start negotiations Which culminate in the sale thereof. 2. APPEAL AND ERROR — BROKERS — <italic>Question of</italic> <italic>fact as to who was procuring cause of sale of real estate</italic> <italic>— Sufficiency of evidence to support verdict.</italic> In an action for a commission for procuring the sale of real estate, the burden is on the broker to show that he was the procuring or efficient cause of the sale, and the question as to who was the procuring cause of sale is a question of fact, and a determination of the question by a jury will not be disturbed if there is any evidence including every reasonable inference to be drawn therefrom, reasonably tending to support the verdict.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Insufficiency of evidence to</italic> <italic>sustain award of State Industrial Commission.</italic> An award made by the State Industrial Commission which is not supported by any competent evidence, but is contrary to all the evidence produced before it, may not be sustained.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Vacation of award on review</italic> <italic>as matter of law where material finding not supported by</italic> <italic>competent evidence.</italic> When there is an entire absence of any competent evidence upon which to base a material finding of the State Industrial Commission necessary to support an award of compensation, this court will declare as a matter of law that an award based upon such unsupported material finding is unauthorized and will vacate the same.

(Syllabus.) NUISANCE — <italic>Action may be maintained both for damages</italic> <italic>and equitable relief to abate nuisance.</italic> An adjoining landowner, whose premises have been injured by intruding roots from his neighbor's trees, may maintain an action against him to recover damages thereby sustained and may also in the same action obtain appropriate equitable relief to abate the nuisance or enjoin its continuance.<page_number>Page 509</page_number>

(Syllabus.) APPEAL AND ERROR — <italic>Nullity of case-made settled and</italic> <italic>signed by other than trial judge.</italic> A case-made must be settled and signed by the judge who tried the case and where the case is tried by one judge and the case-made is settled and signed by another and no showing is made as to the inability of the judge who tried the case to settle the same, such case-made brings nothing to this court for review.

(Syllabus.) 1. COURTS — <italic>Exhibits introduced at trial of cause</italic> <italic>are records in custody of the court.</italic> Although exhibits introduced in evidence upon the trial of a cause are no part of the judgment roll unless made so in pursuance of law, they are records in the custody of the court. 2. RECORDS — <italic>Discretion of trial court as to</italic> <italic>permitting withdrawal of exhibit upon showing what is</italic> <italic>deemed to be good reason therefor.</italic> Ordinarily it is within the sound discretion of the trial court to permit the withdrawal of an exhibit upon such terms and conditions as the court may prescribe upon showing what is deemed to be good reason therefor. 3. SAME — <italic>Abuse of discretion of trial court in</italic> <italic>granting motion to withdraw exhibit for examination and</italic> <italic>experimental tests, when results not material to</italic> <italic>issues.</italic> Where in the trial of an action a party introduces as evidence an exhibit in which such party has the entire property right, another party to the action is not entitled<page_number>Page 514</page_number> to withdraw such exhibit except in furtherance of justice in such action. And where the purpose of such withdrawal is to subject same to examination and experimental tests, the results of which would not be material to the issues in such action or admissible as evidence thereon, the granting by the court of a motion to withdraw the exhibit for such purpose is an abuse of the discretion lodged in such court.

(Syllabus.) 1. APPEAL AND ERROR — JURY — <italic>No prejudicial</italic> <italic>error in overruling motion to declare a mistrial based on</italic> <italic>alleged misconduct of juror, or motion for new trial based</italic> <italic>on alleged error of court.</italic> It is not error to overrule a motion to declare a mistrial interposed during the course of the trial based on alleged misconduct of a juror in answering questions on voir dire examination unless it is made to appear that the movant would probably be prejudiced thereby; likewise, a motion for a new trial based on alleged error of the court in refusing to declare a mistrial under the foregoing circumstances is not error. 2. EVIDENCE — <italic>Admissibility of photographs depicting</italic> <italic>conditions at point of accident.</italic> Photographs purporting to depict the conditions at the point of accident may be admitted in evidence, if it is proven or admitted that the objects surrounding the scene of the accident are in the same condition as they were at the time of the acts complained of, but may not be admitted as a "stage setting" for the purpose of re-enacting the accident.

(Syllabus.) 1. ELECTRICITY — <italic>Priority of claim of unpaid</italic> <italic>furnishers of labor and material over claims of creditors</italic> <italic>and assignees of contractor.</italic> Unpaid furnishers of labor and unpaid furnishers of material on a public contract have equal equities in the percentage of contract price that is retained by contractee and same is superior to the claims of creditors and assignees of the contractor. 2. STATUTES — WORKMEN'S COMPENSATION — <italic>Insurance company's claims given same preference as is</italic> <italic>afforded claims for labor.</italic> By force of 85 O.S. 1941 § 49[<cross_reference>85-49</cross_reference>], claims for unpaid insurance premiums have the same preference or lien in the percentage of contract price retained that is afforded claims for labor. 3. SAME — <italic>Priorities apply only to claims for that</italic> <italic>which is performed, furnished, and provided upon project in</italic> <italic>which fund retained.</italic> The preference accorded by law to claims for labor, material or insurance premium in money retained on public contract, applies only to claims for that which is performed, furnished and provided upon the project in which the fund is retained. 4. SUBROGATION — <italic>Contractor's surety who paid for</italic> <italic>material owing by contractor became subrogated to the</italic> <italic>equity of the furnisher of such material.</italic> A surety on the bond of a public contractor, upon paying claims for material owing by the contractor, becomes subrogated to the equity of the furnisher of such material in the percentage of contract price retained.

(Syllabus.) APPEAL AND ERROR — <italic>Statutory time for service of</italic> <italic>case-made — Dismissal.</italic> Where the case-made is not served within 15 days after the date of the order from which the appeal is taken, or within the time fixed by a timely and valid order of the lower court extending the time for service of case-made, this court is without jurisdiction to review the attempted appeal by case-made.

(Syllabus.) 1. VENDOR AND PURCHASER — CONTRACTS — <italic>Sufficiency of correspondence between parties in sale of</italic> <italic>real estate to evidence existence of enforceable legal</italic> <italic>relations.</italic> Contractual relations may arise from an exchange of letters between parties if the subject matter of the contract is described with sufficient certainty to be identified and if the obligatory terms of the contract are sufficiently definite and the assent thereto is so mutually expressed as to render the same legally enforceable. 2. SPECIFIC PERFORMANCE — <italic>Essential conditions</italic> <italic>controlling right to remedy — Relief not denied where</italic> <italic>denial of right would result in inequity and injustice.</italic> The right to specific performance of a contract is not absolute, but the enforcement of that right depends upon the application of equitable principles to the facts and circumstances of each particular case; where a denial of that right would mani-festly result in inequity and injustice, the relief sought will not be denied. 3. SAME — <italic>Specific performance of contract for sale</italic> <italic>of real estate decreed proper remedy.</italic> Record examined, and held, specific performance is a proper remedy in this case.

(Syllabus.) 1. DIVORCE — <italic>"Extreme cruelty" in absence of any</italic> <italic>great physical violence.</italic> A divorce may be granted on the ground of "extreme cruelty" in the absence of any great physical violence when there is conduct or treatment which destroys the concord, harmony, happiness, and affection of the parties, and the legitimate aims, objects, purposes, and ends of matrimony. 2. APPEAL AND ERROR — <italic>Review — Sufficiency of</italic> <italic>evidence to support judgment in equity case.</italic> An action for divorce is one of equitable cognizance, and the judgment in such an action will not be disturbed on appeal unless it is clearly against the weight of the evidence.

(Syllabus.) CONTEMPT — <italic>Nature of contempt proceedings.</italic> A proceeding for indirect contempt is civil in its nature, and the imprisonment is not imposed as a punishment for any offense, but is remedial in its nature, and is imposed for the purpose of coercing the defendant to do that which commanded to do.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Definition of</italic> <italic>"physically impaired" person under statute.</italic> A "physically impaired" person under the Special Indemnity Fund Act (O. S. 1943 Supp., Title 85, §§ 171-176) is one who as a result of any cause has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of some member of his body classified and scheduled in 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], subd. 3 (the arms, legs, feet, hands, fingers and toes) or the loss of the use, or partial loss of the use, of such specific and classified members which is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any disability which previously has been adjudged and determined by the State Industrial Commission. 2. SAME — <italic>When "physically impaired" person may be</italic> <italic>compensated under the Workmen's Compensation Law.</italic> Such a disabling condition may be compensated when, and only when, it is combinable under any circumstances under the Workmen's Compensation Law with the disability resulting from a compensable accident thereafter occurring and the combined disability of the old condition and the new injury is materially greater than that resulting from the later injury alone.

(Syllabus.). QUIETING TITLE — <italic>Plaintiffs must rely on strength of</italic> <italic>their own title.</italic> In an action to quiet title to real property under a resale tax deed, the plaintiffs' right to recover must be established by reason of the strength of his own title and not the weakness of the title of defendant.

(Syllabus.) 1. MOTION'S — <italic>Power of court to set aside, vacate,</italic> <italic>or modify its own orders during term at which such orders</italic> <italic>rendered.</italic> A court of record has the inherent power on its own motion to set aside, vacate, or modify its orders, however conclusive in their character, during the term at which such orders are rendered or entered of record. 2. APPEAL AND ERROR — <italic>Review — Power of trial</italic> <italic>court to grant new trial — Affirmance.</italic> The Supreme Court will not reverse the ruling of the trial court granting a new trial, unless it can be seen, beyond all reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law, and that, except for such error, the ruling of the trial court would not have been so made. The Supreme Court will very seldom and very reluctantly reverse the decision or order of the trial court which grants a new trial.

(Syllabus.) 1. TRIAL — <italic>Duty of court to instruct jury on law</italic> <italic>applicable to issue of fact raised by evidence.</italic> Where the evidence raises a question of fact for the jury to pass upon, it is the duty<page_number>Page 558</page_number> of the court to instruct the jury as to the law applicable to such issue of fact raised by the evidence. 2. APPEAL AND ERROR — <italic>Prejudicial error —</italic> <italic>Inapplicable instructions.</italic> Ordinarily it is reversible error for trial court over objection to submit an issue to the jury on a theory of law not supported by the evidence.

(Syllabus.) 1. TAXATION — <italic>Coal and asphalt assessable separately</italic> <italic>from the land.</italic> Coal and asphalt underlying land is such an interest in real estate as may be severed from the land and assessed separately for ad valorem taxes in proper cases. 2. SAME — <italic>Tax purchaser acquires interest only in</italic> <italic>surface of real estate, and not coal and asphalt deposits,</italic> <italic>when they are separately assessed.</italic> In assessing real estate for taxation when one separate assessment is made of the surface only and another assessment is made<page_number>Page 559</page_number> of the coal and asphalt underlying the surface and the taxes become delinquent and the treasurer advertises and sells at tax resale only the surface of the real estate for the delinquent taxes against the surface only, the tax purchaser acquires no interest in the coal and asphalt deposits.

(Syllabus.) 1. VENDOR AND PURCHASER — <italic>Purchaser of realty</italic> <italic>charged with notice of rights claimed adversely to his</italic> <italic>vendor.</italic> One who purchases land with knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith if he neglects to make such inquiry, and is chargeable with the actual notice he would have received. 2. SAME — <italic>Possession of real property by tenant</italic> <italic>constructive notice of landlord's rights.</italic> The possession of real property by a tenant is constructive notice of his landlord's rights. The fact that such tenant was also a tenant of the former owner does not change the rule.

(Syllabus.) COUNTIES — <italic>Surety not liable for supplies ordered by</italic> <italic>county clerk in absence of proof supplies were intended for</italic> <italic>county clerk's office.</italic> The surety on the official bond of the county clerk is not liable for supplies ordered by such officer in the absence of proof that the supplies were for the county clerk's office. 62 O.S. 1941 § 315[<cross_reference>62-315</cross_reference>].

(Syllabus.) 1. WILLS — <italic>Testamentary capacity as a question of</italic> <italic>fact.</italic> Testamentary capacity is a question of fact to be determined from all the facts and circumstances in each case. 2. SAME — <italic>Presumption of sanity — Burden on</italic> <italic>contestant of proving testamentary incapacity —</italic> <italic>Sufficiency of evidence to sustain finding of trial court.</italic> The presumption of sanity goes with everyone, the burden of proving testamentary incapacity in a will contest rests upon the contestant, and the finding of the trial court in such a case will not be disturbed on appeal unless it is clearly against the weight of the evidence. 3. SAME — <italic>Testamentary capacity determined as of</italic> <italic>time of execution of will.</italic> Testamentary capacity is to be determined as of the date of the execution of the will. 4. SAME — <italic>Test as to testamentary capacity.</italic> A person has testamentary capacity when his mind and memory are such that he knows, in a general way, the character and extent of his property, understands his relationship to the objects of his bounty and to those who ought to be in his mind on the occasion of making a will, and comprehends<page_number>Page 568</page_number> the nature and effect of the testamentary act.

(Syllabus.) 1. VENUE — <italic>Action for determination of right or</italic> <italic>interest in real property must be brought in county where</italic> <italic>subject of action located.</italic> An action for the determination in any form of any right or interest in real property must be brought in the county in which the subject of the action is situated. 12 O. S. 1941 § 131, sub. (1). 2. PROHIBITION — <italic>Proper remedy.</italic> Prohibition is a proper remedy to prevent the exercise of jurisdiction not granted by law.

(Syllabus.) JUDGMENT — <italic>Evidence failed to establish grounds for</italic> <italic>fraud in procuring judgment</italic><page_number>Page 574</page_number> <italic>— Judgment of trial court denying petition to vacate</italic> <italic>affirmed.</italic> Where a petition is filed under subdivision 4 of 12 O.S. 1941 § 1031[<cross_reference>12-1031</cross_reference>], seeking to vacate and set aside a judgment for fraud practiced by the successful party, and upon a hearing thereof the testimony produced by petitioner wholly fails to show any fraud in the procuring of the judgment, the judgment of the trial court denying the petition to vacate will be affirmed.

(Syllabus.) 1. FRAUDS, STATUTES OF — <italic>Oral promise to pay for</italic> <italic>goods furnished another.</italic> Where a party orally promises to pay for goods furnished another, and the credit is extended to the promisor, the oral contract does not fall within the statute of frauds. If the agreement, however, was that he should only be collaterally liable and pay only in case of default of the party to whom the goods were furnished and to whom credit was extended, then such parol contract falls within the statute of frauds and is void. 2. SAME — <italic>Whether promise direct or collateral as</italic> <italic>question for jury.</italic> The question of whether or not the promise of the person sought to be bound is direct<page_number>Page 580</page_number> or collateral is a question to be submitted to the jury, unless under all the testimony, all reasonable persons must reach the conclusion that the liability was collateral and not direct. 3. TAXATION — <italic>Judgment erroneous for plaintiff,</italic> <italic>unless compliance with requirements of Intangible Tax Law</italic> <italic>alleged and proven.</italic> In a suit on an account which is subject to the Intangible Tax Law, 68 O. S. 1941 §§ 1501-15, it is error for the trial court to render judgment for plaintiff unless plaintiff has alleged and proven compliance with the requirements of the Intangible Tax Law.

(Syllabus.) 1. COURTS — CONSTITUTIONAL LAW — <italic>U.S. Supreme</italic> <italic>Court decision binding upon state on issue of law involving</italic> <italic>rights guaranteed persons by the Constitution of the United</italic> <italic>States — Procedure of Oklahoma Supreme Court to be</italic> <italic>consistent with opinion of the U.S. Court, reversing and</italic> <italic>remanding cause.</italic> The decision of the Supreme Court of the United States upon an issue of law involving a right guaranteed a person by the Constitution of the United States is binding upon the State of Oklahoma. Upon a reversal and remand of a cause or proceeding involving such right, this court, when ordered and directed so to do, will proceed not inconsistent with the opinion of the Supreme Court of the United States. 2. COLLEGES AND UNIVERSITIES — <italic>State's policy to</italic> <italic>segregate white and negro races for purpose of education at</italic> <italic>institutions of higher learning.</italic> It is the state's policy, established by Constitution and statutes, to segregate white and negro races for purpose of education at institutions of higher learning. 3. SCHOOLS AND SCHOOL DISTRICTS — <italic>Court's duty to</italic> <italic>maintain State's policy of segregation in absence of</italic> <italic>conflict with Federal Constitution.</italic> It is the duty of the Supreme Court of the State of Oklahoma to maintain state's policy of segregating white and negro races for purpose of education so long as it does not conflict with Federal Constitution. 4. COLLEGES AND UNIVERSITIES — <italic>Duty of Oklahoma</italic> <italic>State Regents for Higher Education to provide negroes</italic> <italic>opportunity for education in conformity with equal</italic> <italic>protection clause of 14th Amendment to the Federal</italic> <italic>Constitution and with the provisions of Constitution and</italic> <italic>statutes of this</italic><page_number>Page 587</page_number> <italic>state requiring segregation of races in the schools.</italic> It is the duty of the Oklahoma State Regents for Higher Education to afford citizens of the negro race opportunity for education in conformity with the equal protection clause of the Fourteenth Amendment to the Federal Constitution and with the provisions of the Constitution and statutes of this state requiring segregation of the races in the schools of the state. Art 13, sec. 3, Constitution of Oklahoma; 70 O. S. 1941 § 451 et seq.

(Syllabus.) 1. EVIDENCE — <italic>Admissibility of testimony of laymen</italic> <italic>familiar with oil field conditions — No prejudicial error</italic> <italic>because of failure to produce expert testimony as to such</italic> <italic>facts.</italic> Testimony of laymen, shown to be familiar with oil field conditions, tending to prove unreasonable use of the surface of land in connection with the drilling of wells thereon, and also the ill effects of drilling mud and refuse from slush ponds upon cattle whose drinking water is contaminated therewith, is properly submitted to a jury, and a verdict based thereon will not be set aside because of the failure to produce expert testimony as to such facts. 2. APPEAL AND ERROR — <italic>Conclusiveness of verdict on</italic> <italic>conflicting evidence.</italic> In an action at law where a verdict has been returned and a judgment rendered upon such verdict, and the evidence is conflicting, and there is evidence reasonably tending to support the verdict, this court will not weigh the evidence to determine where the preponderance thereof lies, and<page_number>Page 589</page_number> will not substitute its judgment for that of the jury. 3. TRIAL — <italic>No abuse of discretion in refusing to</italic> <italic>permit jury to inspect premises in controversy.</italic> Record examined, and held, that the refusal of the trial court in the instant case to permit the jury to inspect the premises in controversy did not constitute an abuse of discretion.

(Syllabus.) 1. TAXATION — <italic>Oklahoma Employment Security Act</italic> <italic>— Statute applies to assessment of employers for</italic> <italic>contributions and not to collection thereof.</italic> Section 224(e) of Title 40 O. S. 1941, which is a part of the Oklahoma Employment Security Act, applies to assessment of employers for contributions and has no application to the collection thereof. 2. STATES — <italic>State made a party defendant for purpose</italic> <italic>of determining lien claimed by it upon property involved,</italic> <italic>as provided by statute.</italic> A suit to quiet title to realty is an "action involving the title to real estate" wherein "the State of Oklahoma may be made a party defendant for the purpose of determining any lien claimed by it upon the property involved," as provided by 40 O.S. 1941 § 224[40-224] (h). 3. TAXATION — <italic>Oklahoma Employment Security Act</italic> <italic>— Two or more employing units may not be grouped together</italic> <italic>as a single unit unless "owned or controlled by same</italic> <italic>interest."</italic> Two or more employing units cannot be grouped together as a single unit under the provisions of the Oklahoma Employment Security Act (40 O. S. 1941 § 229(e)(4) unless "owned or controlled . . . directly by the same interest."

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Under</italic> 85 <italic>O. S.</italic> 1941 § 29, <italic>proceeding to review award must be commenced</italic> <italic>within</italic> 20 <italic>days after copy of award or decision is sent to</italic> <italic>parties affected.</italic> Under 85 O. S. 1941 § 29, an original proceeding to vacate an award of the State Industrial Commission must be commenced within 20 days after a copy of such award or decision has been sent by the said Commission to the parties affected; held, that a proceeding commenced after said 20 days has expired will be dismissed for lack of jurisdiction.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support verdict.</italic> Where there is competent testimony to establish a conflict, the matter is properly left for the consideration of the jury, and the jury's verdict will not be disturbed by this court. 2. NEW TRIAL — <italic>Newly discovered evidence —</italic> <italic>Necessary showing of diligence.</italic> Before a new trial should be granted for newly discovered evidence, due diligence at the time of trial in respect to such evidence must be shown; the failure to make inquiry of persons likely to know the facts shows a lack of diligence.

(Syllabus.) 1. JUDGMENT — <italic>Matters determined — Res</italic> <italic>judicata.</italic> In order that a judgment in one action be conclusive as to a particular fact in another action between the same parties or their privies, it is essential that the issue be the same in both cases. 2. JUDGMENT — <italic>Different intention of grantor in two</italic> <italic>deeds in the same transaction — Estoppel by judgment.</italic> Although two deeds conveying different parcels of real property were made, executed and delivered as part of the same transaction, the issue of the intent of the grantor to deliver in trust is not necessarily the identical issue in separate actions on the deeds for the purpose of applying the doctrine of estoppel by judgment, since a different intent could be present for the two deeds in the same transaction. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support judgment.</italic> Record examined, and held, that the finding of the court is not clearly against the weight of the evidence.

(Syllabus.) 1. MASTER AND SERVANT — LABOR UNIONS — <italic>Seniority rights of employees under collective bargaining</italic> <italic>contract — Holder entitled to invoke aid of court of</italic> <italic>equity.</italic> Seniority rights of individual employees under collective bargaining contract are valuable personal rights entitling the holder thereof to invoke the aid of a court of equity for protection thereof where other grounds necessary to obtain equitable cognizance exist. 2. SAME — <italic>Modification of seniority rights between</italic> <italic>employer and Union by subsequent contract — Injunction not</italic> <italic>available to employees whose seniority rights were modified</italic> <italic>thereby, without their consent.</italic> Seniority rights of employees arising under collective bargaining contract between employer and Oil Workers International Union as exclusive bargaining agent of the employees, members of such Union, are subject to modification by subsequent contract between such employer and such Union where the modification is deemed by the Union, acting in good faith, to be in the interest of the Union employees as a whole operating under such contract. And where such modification results from an amendment of the contract adopted and ratified by a majority of such employees operating under the contract in accord with the by-laws of the Union, those employees whose seniority rights are modified thereby though not consenting thereto are not entitled to an injunction of the courts against the enforcement of such amendment.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Law applicable where</italic> <italic>employee's work is integral part of industry defined as</italic> <italic>hazardous though work performed in room under conditions not</italic> <italic>inherently hazardous.</italic> When the work of an employee is manual or mechanical and is connected with, incident to, and an integral part of, a business or industry enumerated in and defined as hazardous by the Workmen's Compensation Law, such employee is both protected and bound by the provisions of said act, notwithstanding the fact that such work may be performed in a room or place or under conditions not inherently hazardous.

(Syllabus.) 1. HUSBAND AND WIFF — <italic>Insolvency of husband —</italic> <italic>Property belonging to wife or profits therefrom not subject</italic> <italic>to husband's debts.</italic> Where a husband was hopelessly insolvent and a third party advanced sufficient money to explore oil lands on condition the wife own the leases and equipment to be acquired, and that she secure the services of her husband, which she did, he drawing a salary from advances made by the third party to a nonasset operating company, such leases and equipment belonged to the wife, and neither they nor the profits therefrom were subject to the husband's debts. 2. FRAUDULENT CONVEYANCES — <italic>Burden of proof on party</italic> <italic>alleging fraud — Transactions between husband and wife.</italic> The burden of proving fraud rests on the party alleging it and the fact that the transaction was between husband and wife does not establish any element thereof.

(Syllabus.) 1. PARTNERSHIP — <italic>State of facts constituting</italic> <italic>partnership between parties.</italic> A community interest in the profits or joint ownership of property resulting from the union of money and skill, or money and labor, with the party investing the money to be repaid a fluctuating amount of the profits, may constitute a partnership between the parties. 2. SAME — <italic>Sufficiency of evidence to support jury's</italic> <italic>finding that partnership existed.</italic> Where the question of the existence of a partnership is in issue, and there is evidence reasonably tending to establish a partnership under the law, such evidence is sufficient to support a verdict of the jury sustaining the allegation of partnership.

(Syllabus.) 1. CHATTEL MORTGAGES — <italic>Attestation or acknowledgment</italic> <italic>necessary only for purpose of admitting chattel mortgage to</italic> <italic>record.</italic> Where a chattel mortgage is signed by a mortgagor, the attestation thereof by two disinterested witnesses or acknowledgment before an officer authorized to take acknowledgments is necessary only for the purpose of admitting the chattel mortgage to record. 2. CHATTEL MORTGAGES — <italic>Pleading — Allegations</italic> <italic>of execution of chattel mortgage not put in issue by</italic> <italic>unverified answer.</italic> An unverified answer does not put in issue the allegations of the execution of a chattel mortgage. 3. CHATTEL MORTGAGES — <italic>Statutes of another state</italic> <italic>exclusive and control as to chattel mortgages executed in</italic> <italic>such state covering personal property located therein.</italic> Where the statutes of another state, pleaded and proved, provide a complete and comprehensive method of filing or registering and the preservation of a chattel mortgage lien on motor vehicles, such statutes are exclusive and control as to chattel mortgages executed in such state covering personal property located therein. 4. SAME — <italic>Filing in other state as notice to</italic> <italic>subsequent purchaser of property during 120 days after</italic> <italic>removal to Oklahoma — Liability of purchaser for</italic> <italic>conversion.</italic> Where a chattel mortgage, duly executed and filed as required by the laws of another state on property there located, so as to constitute notice to the public of the existing lien, and the mortgaged property is thereafter removed to this state, such mortgage is constructive notice to subsequent purchasers in this state for a period of 120 days after the removal of the mortgaged property into this state, and one who purchases the property at any time during that period does so with constructive notice of the mortgage lien, and the mortgagee may maintain an action against the purchaser for possession of the mortgaged property after the expiration of the 120-day period, notwithstanding the mortgage is not filed in this state within that time. 5. SAME — <italic>Statutory requirements as to filing and</italic> <italic>recording of chattel mortgage in manner provided by law of</italic> <italic>the state where located.</italic> Whatever the form of the statute with reference to filing or recording in order to validate a chattel mortgage against persons specified in the statute, where the mortgagor retains possession of the property, it is necessary to comply with the statute. Upon the filing or recording of a chattel mortgage in the manner provided by law of the state where located, it becomes a substitute for the mortgagee's possession and obviates its necessity. 6. SAME — <italic>Provisions of statute as to assignment of</italic> <italic>chattel mortgage.</italic> 46 O.S. 1941 § 63[<cross_reference>46-63</cross_reference>] provides what must be set forth in the assignment of a chattel mortgage before such assignment may be admitted to record, but it does not require that such assignment be filed or recorded. 7. SAME — <italic>Purchaser from third party, with no title</italic> <italic>to convey, acquires no interest so that he may assert</italic> <italic>invalidity of chattel mortgage because it is not</italic> <italic>recorded.</italic> The purchaser of personal property from a third party who had no title to convey, acquires no interest under which he can assert the invalidity of a chattel mortgage thereon merely because it is not recorded.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Special assessments</italic> <italic>— Injunction proper remedy to prevent sale of property to</italic> <italic>satisfy special assessment liens.</italic> Injunction will lie to prevent the sale of property to satisfy special assessment liens which have been extinguished. 2. STATUTES — <italic>Rule of ejusdem generis as aid to</italic> <italic>construction.</italic> The rule of ejusdem generis is resorted to merely as an aid in construction. If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent the Legislature intended the general words to go beyond the class specifically designated, the rule does not apply. Moreover, where the particular words exhaust the class, then the general<page_number>Page 648</page_number> words must be given a meaning beyond the class. 3. SAME — <italic>Applicability of statute to foreclosure of</italic> <italic>special assessment liens by tax sale and resale as well as</italic> <italic>by civil action.</italic> The provisions of 11 O.S. 1941 § 242[11-242] are applicable to foreclosure of special assessment liens by tax sale and resale as well as by civil action. 4. LIMITATION OF ACTIONS — <italic>Sufficiency of mandamus</italic> <italic>proceedings to toll running of statute so sale and resale</italic> <italic>of property subject to special assessment liens can be</italic> <italic>completed.</italic> The commencement of proceedings in mandamus to compel the proper officials to commence proceedings for sale and resale of property subject to special assessment liens within the period of limitations provided in 11 O.S. 1941 § 242[11-242], would be sufficient to toll the running of the statute so that the sale and resale could be completed. 5. CONSTITUTIONAL LAW — <italic>Limitation statute as</italic> <italic>applying to obligation of contracts — Power of Legislature</italic> <italic>to change period.</italic> The existing limitation statutes do not ordinarily enter into and become a part of the obligation of contracts, and the Legislature may shorten such period so long as a reasonable period remains. 6. SAME — <italic>When limitation statutes apply to existing</italic> <italic>contract rights.</italic> Statutes of limitation may be made to apply to existing contract rights against which there were no such statutes in existence at the time they were created, provided a reasonable time is allowed for their enforcement, and such statutes do not violate the constitutional provision against impairment of the obligation of contracts. 7. SAME — STATUTES — <italic>Period of time allowed in</italic> <italic>statute for enforcement of existing contract obligations,</italic> <italic>due or to be due, more than three years by Nov.</italic> 1, 1939, <italic>not unreasonable.</italic> The period of time allowed in 11 O.S. 1941 § 242[11-242] (18 months and 19 days) for the enforcement of existing contract obligations which had been due more than three years or which were to be due more than three years by November 1, 1939, was not unreasonable. 8. MUNICIPAL CORPORATIONS — <italic>Owners of special</italic> <italic>assessment bonds not deprived of any remedies they</italic> <italic>previously had by</italic> 11 <italic>O.S.</italic> 1941 § 242. 11 O.S. 1941 § 242[11-242] did not deprive owners of special assessment bonds of any of the remedies they previously had. 9. CONSTITUTIONAL LAW — <italic>Power of Legislature to make</italic> <italic>limitation statute applicable to existing contract</italic> <italic>rights.</italic> The Legislature may, in enacting a statute of limitations, make it effective to take away both the remedy and the right and make it applicable to existing contract rights, so long as the period of limitations is reasonable. 10. SAME — <italic>Statute of limitation does not</italic> <italic>unconstitutionally impair contract of owner of special</italic> <italic>assessment bonds and does not violate Federal or State</italic> <italic>Constitution under</italic> 11 <italic>O.S.</italic> 1941 § 242. The provision of 11 O.S. 1941 § 242[11-242], that the running of the period of limitation therein fixed "shall be an absolute bar to any action or proceeding brought thereafter, whether the same is plead as a defense or not, and the property against which such bonds theretofore represented a lien shall thereafter be, by operation of law, absolved of any lien or liability on account of said bonds", is but a part of, and is intended to make effective, the statute of limitations therein, and the same does not unconstitutionally impair the obligation of the contract, nor does it violate the due process clause or the equal protection clause of either the State or Federal Constitution.

(Syllabus.) 1. EVIDENCE — <italic>Parol evidence admissible to ascertain</italic> <italic>true intention of parties.</italic> Where a deed is uncertain as to the intention of the parties, parol evidence, admission of the parties, and other extraneous circumstances may be proved to ascertain the true meaning. 2. WITNESSES — <italic>Party to action not disqualified from</italic> <italic>testifying as to transaction with deceased person where</italic> <italic>title to cause of action not acquired immediately from</italic> <italic>deceased.</italic> A witness who did not take his cause of action "immediately" from a deceased person, but is a remote grantee, is not disqualified to testify to a transaction with a deceased person under 21 O. S. 1941 § 548. 3. CHAMPERTY AND MAINTENANCE — TENANCY IN COMMON — <italic>Possession of one tenant possession of all — Deed not</italic> <italic>inhibited under champerty statute.</italic> The possession of one tenant in common of land is the possession of all and where<page_number>Page 666</page_number> there has been no actual ouster, a deed by the other tenant in common to a third person is not inhibited by the statute against champerty. 21 O.S. 1941 § 548[<cross_reference>21-548</cross_reference>]. 4. QUIETING TITLE — ADVERSE POSSESSION — <italic>Amendment of pleadings proper.</italic> A party to an action has the right to maintain his cause of action in the name of his grantor where the adverse party claims the conveyance is champertous, and it is not error to permit the amendment of the pleadings for that purpose where such defense is interposed.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Necessity for expert</italic> <italic>testimony as to cause and extent</italic><page_number>Page 668</page_number> <italic>of personal injuries — Insufficiency of evidence to support</italic> <italic>award.</italic> In a proceeding to review an award of the State Industrial Commission where the sole question presented is one of fact as to the cause and extent of the disability resulting from an accidental injury and is such as to require skilled and professional men to determine the cause and extent, the question is one of science and must necessarily be proved by testimony of skilled and professional persons; and where there is no testimony of such skilled and professional persons reasonably tending to support the findings of the State Industrial Commission, the award will be vacated.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence in equity</italic> <italic>case.</italic> In a suit of equitable cognizance, the judgment and findings of the trial court will not be disturbed on appeal unless clearly against the weight of the evidence.

(Syllabus.) 1. CORPORATIONS — <italic>Right of shareholder to, inspect</italic> <italic>books.</italic> 18 O.S. 1941 §§ 141[18-141] and 142, before the adoption of § 17 of the 1947 Corporation Code (18 O.S.A. 1947 Supp. § 1.71) gave a shareholder, in every corporation for profit, the right to inspect the books and records of the corporation, without restriction or limitation, and the purpose or motive of the stockholder, in making the demand, was not material. 2. SAME — <italic>Right to inspect corporate records an</italic> <italic>incident to ownership of stock and remains with holder of</italic> <italic>legal title.</italic> A stockholder, in a corporation for profit, is not precluded from the right to inspect.<page_number>Page 673</page_number> corporate records because there is a controversy between him and the corporation over the ownership of the stock. The right to inspect is an incident to ownership of the stock and remains with the holder of the legal title. 3. SAME — <italic>Right of stockholder to examine books for</italic> <italic>purpose of ascertaining value of stock.</italic> Every stockholder has the right to examine the books of the corporation to ascertain the value of his stock, and that is a proper purpose under the law now in force.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Insufficiency of evidence to</italic> <italic>support award.</italic> An award made against Special Indemnity Fund by the State Industrial Commission which is not supported by the evidence but is contrary thereto will be vacated on petition to review.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Scope of inquiry of</italic> <italic>Industrial Commission — Award to be made based on</italic> <italic>competent evidence reasonably tending to support such</italic> <italic>finding.</italic> An award of the State Industrial Commission, in a proceeding properly before it, based on its finding of extent of permanent partial and total temporary disability resulting from an accidental injury, will be sustained where there is any competent evidence reasonably tending to support such finding. 2. SAME — <italic>Authority of Industrial Commission to</italic> <italic>commute to lump sum a portion of award for permanent</italic> <italic>partial disability.</italic> The State Industrial Commission is authorized to commute to a lump sum to be paid from the latter end of an award for permanent partial disability to a classified and scheduled member of the body, such portion thereof as it deems proper.

(Syllabus.) 1. PLEADING — <italic>Sufficiency — Implied</italic> <italic>allegations.</italic> It is a well established principle of pleading that there need not necessarily be a direct allegation of a fact detail if the same otherwise sufficiently appears, or of a fact detail which is necessarily implied from other averments in the petition. 2. MASTER AND SERVANT — <italic>Injuries to servant —</italic> <italic>Duty of master to warn servants of new and increased</italic> <italic>dangers.</italic> It is the duty of the master to warn his servant of new or increased dangers caused by a change in his machinery, appliances, or place or method of work, and he will be held liable for injuries resulting from his neglect of duty in this respect. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support verdict.</italic> If there is any testimony reasonably tending to support the verdict of the jury, and said verdict has been approved by the trial court, the judgment will not be disturbed on appeal. 4. TRIAL — <italic>Sufficiency of instructions in</italic> <italic>entirety.</italic> All the instructions should be considered together. If when considered as a whole they state the law correctly, and without conflict, this is sufficient, even though one or more of them standing alone might be incomplete. 5. APPEAL AND ERROR — <italic>Harmless error —</italic> <italic>Admission of evidence over objection where similar evidence</italic> <italic>admitted without objection.</italic> A party may not complain of the admission of evidence over his objection, where other evidence of the same tenor was admitted without objection.