Volume 200 — Oklahoma Reports

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Employee must be</italic> <italic>"physically impaired person," as defined by statute, to</italic> <italic>receive benefits of Special Indemnity Fund.</italic> An employee must be a "physically impaired person" as defined by 85 O. S. 1943 Supp. § 171, to receive the benefits of the Special Indemnity Fund Act. 2. SAME — <italic>Evidence that employee was "physically</italic> <italic>impaired person" weighed, and independent determination of</italic> <italic>power of Industrial Commission to enter award made on</italic> <italic>review.</italic> Evidence relied upon in support of the general finding of the commission that an employee is a "physically impaired person" will be weighed by this court and an independent determination of the existence of jurisdiction and power of the commission to enter an award will be made on review. 3. SAME — <italic>Combined disability only basis for award</italic> <italic>against Special Indemnity Fund — Lack of evidence to</italic> <italic>sustain finding of extent of such combined disability.</italic> Since the disability representing the combination of old, pre-existing conditions and a subsequent compensable injury is the only basis for an award against the Special Indemnity Fund under 85 O. S. 1943 Supp. § 172, there must be competent evidence to sustain a finding of extent of such combined disability. Otherwise, jurisdiction of the Industrial Commission over the Fund does not appear and there is no authority vested in the commission to enter an award against it.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>One-year period of</italic> <italic>limitation tolled during time employer furnished medical</italic> <italic>attention.</italic> Under the circumstances shown by the record herein, the one-year period of limitation provided by 85 O. S. 1941 § 43, for filing a claim, was tolled during the time the employer voluntarily furnished claimant with medical attention to which she was entitled under the Workmen's Compensation Law.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Vacation of award where not</italic> <italic>supported by evidence that accident occurred in course of and</italic> <italic>arising out of employment.</italic> An award based upon evidence which does not reasonably tend to support the necessary finding that an accident occurred in the course of and arising out of employment covered by the Workmen's Compensation Law will be vacated.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Power of Industrial</italic> <italic>Commission to enter award for permanent disability at any</italic> <italic>time after claim has been filed, where no former award</italic> <italic>entered or denied.</italic> Under its continuing jurisdiction the State industrial Commission can enter an award for permanent disability at any time after claim has been filed or jurisdiction obtained, where no former award for permanent disability has been entered or denied. 2. SAME — <italic>Held, no former award made by Industrial</italic> <italic>Commission prior to entry of award under review.</italic> Record examined, and held, that no such award was made by the Industrial Commission prior to the entry of the award under review.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Immaterial variance —</italic> <italic>Failure to object below.</italic> In order for variance between the pleading and the proof to be material it must have been such as to mislead the adverse party to his prejudice, and where the alleged variance is not shown to have given rise to such prejudice and it is further shown that such variance was not properly called to the attention of the trial court, such variance affords no ground for reversal. 2. SALES — <italic>Warranty of fitness — Liability of</italic> <italic>seller.</italic> Where an article of personal property is sold for a definite purpose made known to seller, and the seller represents that the article will perform that particular purpose, there is a warranty of fitness which protects the purchaser and for which the seller is liable, in the event the article fails to do what it was sold to do.

(Syllabus.) 1. TRUSTS — <italic>Construction of trust agreement —</italic> <italic>Intention of settlor.</italic> In construing the terms of an instrument creating a trust, the intention of the settlor of the trust should control when such intention,<page_number>Page 30</page_number> is not in conflict with established principles of law. 2. SAME — <italic>Trial court correctly held enactment of</italic> <italic>Oklahoma Community Property Law did not deprive</italic> <italic>beneficiaries under trust agreements of right to receive</italic> <italic>income therefrom.</italic> Record examined, and held, that the trial court correctly held that the enactment of the Oklahoma Community Property Law did not deprive beneficiaries under the trust agreements considered and construed by the court of the right to receive the income therefrom.

(Syllabus.) 1. TAXATION — <italic>Separate parcels of land separately</italic> <italic>owned cannot be assessed together.</italic> Separate parcels of land belonging to different individuals cannot be assessed together. 2. SAME — <italic>Whole assessment of unit void where land</italic> <italic>or part of unit assessed is exempt from ad valorem</italic> <italic>taxation.</italic> If land assessed for ad valorem taxation is exempt from taxation, or if part of a unit assessed by the tax officials is exempt from taxation, the whole assessment of that unit is void. 3. SAME — <italic>Tax sale void where based on void</italic> <italic>assessment.</italic> If an assessment of property for taxation is void, a sale based on such assessment is likewise void. 4. SAME — <italic>Statutory tender of taxes not required</italic> <italic>prior to determining issue whether assessment void as</italic> <italic>alleged in pleading.</italic> Where the pleadings of the party contain prima facie showing that the assessments of his lands were void, no tender of taxes etc., as required by 68 O.S. 1941 §§ 453[68-453] and 455 is necessary prior to determination of that issue.

(Syllabus.) 1. COVENANTS — <italic>Construction — Restrictions on</italic> <italic>use of real property not enlarged by implication.</italic> Restrictions and prohibitions of the use of real property are not favored in the law, and the terms of such covenants will not be enlarged by implication, but confined to their accepted usage and the clear intention of the parties expressed therein. 2. SAME — <italic>Duration of restrictions limited.</italic> Enumerated restrictions in deed as to use of land were limited by preceding provisions fixing duration at 25 years, notwithstanding such words as "ever," "never," and "forever" appearing in restrictions, which must give way to particular specification of their duration.

(Syllabus.) 1. PARTITION — <italic>Necessity for existence of</italic> <italic>cotenancy.</italic> Partition of real property may be had only when it is held in cotenancy, and<page_number>Page 45</page_number> there may be no judgment or decree for partition where the parties to the proceeding are neither coparceners, joint tenants nor tenants in common. 2. SAME — <italic>By reason of separate ownership, parties</italic> <italic>not entitled to partition.</italic> The owner of two adjacent city lots constructed thereon a dwelling house, a portion of said house being located upon each of the lots. Thereafter at tax resale the lots were sold separately, and plaintiff acquired one lot and defendant the other. Held, that each party when he acquired his lot was vested with the ownership of that portion of the house located thereon, and that neither party had any interest in that portion of the house located upon the other party's lot. Held, further, that in such case the remedy of partition is not applicable.

(Syllabus.) MUNICIPAL CORPORATIONS — PROHIBITION — <italic>Supreme</italic> <italic>Court may prohibit district courts from exercising</italic> <italic>unauthorized authority in enjoining city council from</italic> <italic>enacting ordinance annexing territory, within provisions of</italic> <italic>statutes authorizing such annexation.</italic> The district courts are without jurisdiction to enjoin a city council from considering and enacting an ordinance annexing territory within the provisions of the statutes authorizing such annexation, and this court may prohibit a district court from exercising such unauthorized authority.

(Syllabus.) TAXATION — <italic>Lien of purchaser of tax certificate does</italic> <italic>not include fixtures severed from realty prior to tax</italic> <italic>sale.</italic> The lien acquired by an individual purchaser of a tax certificate does not extend to fixtures severed from the realty prior to the tax sale.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Loss of two fingers and</italic> <italic>partial loss of another is disability to hand, constituting</italic> <italic>one a "physically impaired person."</italic> Loss of two fingers and partial loss of another, by amputation, is a disability to the hand which constitutes one so afflicted a "physically impaired person" as defined by 85 O. S.. S. Supp. § 171. 2. SAME — <italic>Compensation based on disability to hand</italic> <italic>in case of multiple injuries to minor members.</italic> Disability resulting from the combined effects of multiple injuries to minor members, fingers and thumb, may be fixed on the basis of the hand. 3. SAME — <italic>Revivor of awards made by State Industrial</italic> <italic>Commission applicable to awards against Fund.</italic> The provisions of 85 O. S.. S. 1941, § 41, relative to revivor of awards made by the State Industrial Commission, are applicable to awards against the Special Indemnity Fund. 4. SAME — <italic>Special Indemnity Fund may not complain</italic> <italic>where award against fund correctly based on combined</italic> <italic>disability as provided by statute.</italic> The Special Indemnity Fund will not be heard to complain of an incorrect determination of the liability of the employer, paid by him, which is favorable to the Fund and not prejudicial to the injured employee where the award against the Fund is correctly based on combined disability as provided by 85 O. S.. S. 1943, Supp. § 172.

(Syllabus.) 1. DIVORCE — <italic>Domicile — Sufficiency of</italic> <italic>evidence to establish one year's residence of plaintiff</italic> <italic>within state.</italic> In a divorce action wherein plaintiff's petition alleged jurisdictional facts as to residence and in the decree entered by the court, it is recited that "after hearing the testimony of the witnesses sworn and examined in open court," the court finds the fact of one year's residence within the state established, the presumption obtains that such proof was satisfactory to the court and legally sufficient where the character and quantum of such proof is not otherwise shown in the record brought here for review. 2. DIVORCE — APPEAL AND ERROR — <italic>No abuse of</italic> <italic>discretion shown by trial court in denying motion of</italic> <italic>defendant to vacate decree of divorce.</italic> In such a case the action of the trial court in denying a motion, filed by defendant at the same term, to vacate the decree of divorce for want of jurisdiction, will be sustained where no abuse of judicial discretion is shown. 3. JUDGMENT — <italic>Concurring negligence and lack of</italic> <italic>diligence of client in protecting interest in</italic> <italic>litigation.</italic> Inadvertence or negligence of an atttorney in protecting his client's interest in litigation<page_number>Page 60</page_number> in order to entitle the client to relief from a default judgment must be without the concurring negligence and lack of diligence of the client in reference to the same matters.

(Syllabus.) 1. EVIDENCE — <italic>Facts and circumstances or reasonable</italic> <italic>inferences outweighing undisputed testimony.</italic> Undisputed credible testimony not inherently improbable is usually binding upon the court or jury, but evidence is not regarded as undisputed if it is at variance with the facts and circumstances in the case or reasonable inferences to be drawn therefrom or from other evidence. 2. REPLEVIN — <italic>Plaintiff in replevin action awarded</italic> <italic>interest for wrongful detention of property.</italic> Ordinarily, unless the property in suit has a usable value, and the damages may be estimated on that basis, the prevailing party in replevin will be awarded interest on the value of the property during the time of the wrongful detention. 3. EXECUTORS AND ADMINISTRATORS — <italic>Administrator with</italic> <italic>interest in estate entitling him to interest on value of</italic> <italic>property for wrongful detention.</italic> An administrator of an estate has such an interest in property belonging to the estate as would entitle him to interest on the value of such property for wrongful detention.

(Syllabus.) 1. EASEMENTS — <italic>Railroad right of way —</italic> <italic>Abandonment — Question of fact.</italic> To constitute abandonment of an easement there must not only be an actual relinquishment, but an intention to abandon, and this is a question of fact to be determined under all of the evidence. 2. RAILROADS — <italic>Easements — Judgment that</italic> <italic>railroad has abandoned easement for water reservoir and</italic> <italic>station purposes not against weight of evidence.</italic> Record examined, and held, that the judgment of the trial court in a quiet title suit that the railroad company has abandoned the easement for water reservoir and water station purposes is not clearly against the weight of the evidence. 3. APPEAL AND ERROR — <italic>Harmless error — Rulings</italic> <italic>on evidence.</italic> A judgment will not be reversed for error in the admission or rejection of evidence, unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to</italic> <italic>sustain finding and award of State Industrial</italic> <italic>Commission.</italic> The cause and extent of a disability arising from an accidental injury are questions of fact to be determined by the State Industrial Commission and where there is any<page_number>Page 116</page_number> competent evidence reasonably tending to sustain the finding an award based thereon will not be disturbed on review.

(Syllabus.) 1. ACCOUNT STATED — <italic>Essentials of "account</italic> <italic>stated."</italic> To constitute an account stated the transaction must be understood by the parties as a final adjustment of the respective demands between them and the amount due. 2. DEPOSITIONS — <italic>Partial admission.</italic> It is not error for the court to permit a party to an action to offer in evidence part of a deposition, without offering all of the deposition, where the adverse party is permitted to use all or any part of said deposition as evidence. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In an action of equitable cognizance where the court has made findings of fact and said findings are not clearly against the weight of the evidence and the judgment of the court is based upon said findings, the judgment of the trial court will not be disturbed on appeal.

(Syllabus.) 1. JUDGMENT — <italic>Repeated litigation between parties of</italic> <italic>question whether judgment voidable.</italic> The parties to a judgment may not repeatedly litigate between them the question whether a judgment is voidable. 2. SAME — <italic>Principles of res judicata applicable to</italic> <italic>judgment rendered on motion filed to vacate judgment</italic> <italic>alleged to be void.</italic> The principles of res judicata may apply to a judgment of the district court rendered on motion filed under authority of statute to vacate a judgment alleged to be void for want of process and service.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Employer may conduct</italic> <italic>different branches of business,</italic><page_number>Page 169</page_number> <italic>some of which fall within Compensation Act.</italic> The Workmen's Compensation Act recognizes that the same employer may conduct different branches or departments of business, some of which fall within the act and some of which do not. 2. SAME — <italic>Claimant entitled to award only when</italic> <italic>engaged at time of injury in hazardous occupation within</italic> <italic>meaning of Compensation Act.</italic> The Industrial Commission has jurisdiction to enter an award for compensation to a claimant only when claimant at the time of his injury was engaged in performing manual or mechanical labor in an employment enumerated in and defined as hazardous by the Workmen's Compensation Act, or was doing some act incident to or an integral part of such an employment.

(Syllabus.) 1. TAXATION — <italic>All property used exclusively for</italic> <italic>religious and charitable purposes is exempt from taxation</italic> <italic>under Constitution.</italic> Under section 6, art. 10, of the Constitution of Oklahoma, all property used exclusively for religious and charitable purposes is exempt from taxation. 2. SAME — <italic>Question of exemption — Purpose for</italic> <italic>which property used controlling.</italic> The purpose for which property is used is the test to be applied in determining whether such property is exempt from taxation and that use is a question of fact to be determined from the evidence. 3. SAME — <italic>Hospital owned and managed by corporation</italic> <italic>for benevolent purposes and used solely for charitable</italic> <italic>purposes, exempt from taxation — Paying patients do not</italic> <italic>detract from charitable nature of services.</italic> A hospital owned and managed by a corporation organized for benevolent purposes, which has no capital stock and under its charter no dividends. salary, wage, or pecuniary profits of whatever kind can ever be declared or paid to any of its members, and which devotes all its income to the care of persons sick or injured, and in improving and extending its facilities in so doing, and which receives and cares for patients without discrimination as to their race, creed, or wealth, is a charitable institution and its property used directly and solely for that purpose is used exclusively for charitable purposes within the meaning of our Constitution; the fact that it charges and receives pay for patients able to pay does not detract from the charitable nature of the service rendered.

(Syllabus.) 1. VENDOR AND PURCHASER — <italic>Right of purchaser to</italic> <italic>recover money paid under contract to buy real property</italic> <italic>where parties mutually rescind contract.</italic> Where the purchaser has made a payment under a contract to buy real property, and before the time is up for completing the transaction the parties mutually rescind said contract, the purchaser may recover the money so paid in part performance. 2. PLEADING — <italic>When proper to sustain plaintiff's</italic> <italic>motion for judgment on pleadings.</italic> Where defendant's answer, in form of general denial, was qualified by other allegations contained in cross-petition which admitted essential facts to authorize judgment in the plaintiff's favor, it was not error to sustain a motion for judgment on the pleadings.

(Syllabus.) 1. JOINT TENANCY — <italic>Survivorship distinguishing</italic> <italic>feature.</italic> Survivorship is the distinguishing characteristic of a joint tenancy. 2. SAME — <italic>Survivor takes entire estate on death of</italic> <italic>joint tenant to exclusion of heirs of deceased.</italic> Upon the death of a joint tenant, the survivor takes the entire estate, to the exclusion of the heirs of the deceased, under the instrument creating the joint tenancy. 3. SAME — <italic>Intention to create joint tenancy —</italic> <italic>Term "their heirs" in habendum clause scrivener's</italic> <italic>mistake.</italic> Where, from the four corners of a deed, it is clear that conveyance was intended to create a joint tenancy, the use of the term, "their heirs", in the habendum clause, under<page_number>Page 199</page_number> the circumstances, can be considered to be no more than a scrivener's mistake. 4. DESCENT AND DISTRIBUTION — <italic>Surviving spouse</italic> <italic>inherits whole estate acquired by husband and wife by joint</italic> <italic>industry during coverture — Heirs of each spouse succeed</italic> <italic>in equal parts to title of last survivor.</italic> Under the proviso to 84 O. S. 1941 § 213(2), the surviving spouse inherits the whole estate in property acquired by the joint industry of husband and wife during coverture, the title to which is vested in the spouse dying first and without issue, and on the death of the survivor without issue and without having disposed of such property by will or otherwise, such property descends from the survivor to the classes named in said proviso, the heirs of each spouse succeeding in equal parts to the title of the last survivor. 5. COURTS — DESCENT AND DISTRIBUTION — <italic>Determination of heirs of surviving spouse within exclusive</italic> <italic>original jurisdiction of county court under statutory</italic> <italic>proviso.</italic> The determination of heirs as to property undisposed of by surviving spouse under the proviso to 84 O. S. 1941 § 213(2) is within the exclusive original jurisdiction of the county court, except as provided in 84 O. S. 1941 § 257. 6. DESCENT AND DISTRIBUTION — <italic>Statutory proviso</italic> <italic>respecting devolution of jointly acquired property</italic> <italic>inapplicable without averment of title in spouse dying</italic> <italic>first.</italic> Averment of joint acquisition of property without averment of title in the spouse dying first is insufficient to make applicable the proviso respecting the devolution of jointly acquired property, under 84 O.S. 1941 § 213[<cross_reference>84-213</cross_reference>] (2).

(Syllabus.) 1. JUDGMENT — <italic>Illness of counsel preventing his</italic> <italic>representing client in pending cause</italic><page_number>Page 204</page_number> <italic>constituting "unavoidable casualty or misfortune."</italic> The Illness of a party's counsel, so severe as to prevent him from appearing and representing his client in a pending cause, constitutes "unavoidable casualty or misfortune", as provided in 12 O. S. 1941 § 1031(7), where such party did not know of the illness in time to retain other counsel. 2. APPEAL AND ERROR — JUDGMENT — <italic>Reversal of</italic> <italic>order denying motion to vacate judgment conditional on</italic> <italic>showing of valid defense or cause of action.</italic> The Supreme Court will not reverse an order of the trial court <italic>denying</italic> a motion or petition to vacate a judgment, not void, where the appellant did not plead and prove in the trial court a valid defense if a defendant, or a valid cause of action if a plaintiff. 3. JUDGMENT — LIMITATION OF ACTIONS — <italic>Valid</italic> <italic>defense and counterclaim pleaded — Statute of limitations</italic> <italic>not applicable — Abuse of discretion by trial court in</italic> <italic>denying petition to vacate default judgment.</italic> Record examined, and held, (1) that the appellants pleaded and proved a valid defense and counterclaim, (2) that they were not barred by the statute of limitations from presenting the same, and (3) that the trial court committed an abuse of discretion in denying the petition to vacate the default judgment.

(Syllabus.) 1. BROKERS — AGENCY — <italic>Procuring cause.</italic> To entitle an agent to a commission, there must be employment, and the agent's services must be the effective cause of the bargain. 2. SAME — <italic>Question for jury as to whether property</italic> <italic>was listed with agent and whether his services were</italic> <italic>procuring cause of sale.</italic> In an action by a real estate broker to recover commission for the sale of real estate, where the evidence is conflicting as to whether the property was listed with the agent and whether his services were the procuring cause of the sale, this question should be submitted to the jury under proper instructions. 3. APPEAL AND ERROR — <italic>Verdict supported by evidence</italic> <italic>not disturbed where no prejudicial errors shown in</italic> <italic>instructions or rulings of court.</italic> In a civil action, where there is competent evidence reasonably tending to support the verdict, and no prejudicial errors of law are shown in the instructions or the rulings on law questions presented during the trial, the verdict will not be disturbed on appeal.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — <italic>Executors may not</italic> <italic>sell without order of county court.</italic> Except as specifically provided by statute, executors have no authority to sell property of the estate of a deceased person without an order of the county court. Title to such property authorized to be sold does not pass until the sale is confirmed by the county court. 2. SAME — <italic>Power of county court to refuse</italic> <italic>confirmation of executors' sale of personal property, and</italic> <italic>to confirm sale to substantially higher bidder.</italic> Where the jurisdiction of the county court is invoked by petition for order of sale of personal property under section 387, 58 O.S. 1941, and pursuant thereto the county court orders and directs a sale of such personal property, and return of sale is made thereon by the executors of the estate, the county court has jurisdiction to refuse confirmation or approval of such sale and confirm sale of such personal property to a substantially higher bidder. 3. SAME — <italic>Right of highest responsible bidder at</italic> <italic>sale of personal property to appeal from order of county</italic> <italic>court rejecting his bid.</italic> The highest responsible bidder at a sale of personal property belonging to the estate of the deceased has the right to take an appeal from an order of the county court rejecting his bid.

(Syllabus.) 1. CARRIERS — NEGLIGENCE — <italic>Care required for</italic> <italic>safety of passengers.</italic> The law of negligence charges a carrier for hire with a high degree of care in the commission or omission of a duty devolved upon such a carrier to avoid injury to a passenger. 2. SAME — <italic>Whether duty of carrier's employee to</italic> <italic>assist passenger held question for jury.</italic> Ordinarily, whether assistance should be rendered by the carrier's employee to a passenger in a given instance is a question for the jury under the circumstances of the case. 3. SAME — <italic>Issue of proximate cause of injury</italic> <italic>properly submitted to jury.</italic> Where the facts which may constitute negligence are in dispute, it is proper to submit the issue of the proximate cause of an injury to a jury. 4. NEGLIGENCE — <italic>Issue of intervening cause as</italic> <italic>defense in action for personal injury due to negligence,</italic> <italic>question of fact for jury.</italic> Where an intervening cause is relied upon as a defense in an action for personal injury due to negligence, the issue whether the alleged cause other than the negligent act or omission of defendant proximately caused the injury is a question of fact for the jury's determination.

(Syllabus.) MORTGAGES — <italic>Harmless error in appointment of receiver</italic> <italic>— Rental money in hands of receiver on tract of land, after</italic> <italic>final judgment in foreclosure, in custodia legis, to be</italic> <italic>applied to deficiency judgment.</italic> A receiver of a tract of land including the homestead of mortgagor, appointed without any character of notice, made a rental contract in November, 1945, for the year 1946, after final judgment in foreclosure was entered, and received the rent provided; sale was had and confirmed without objection in April, 1946, leaving a deficiency judgment in excess of the funds in the hands of the receiver; thereafter, the receiver filed his final report to which the mortgagor objected demanding that the rental money held in the hands of the receiver be distributed to her. Held, the mortgagor acquiesced in and confirmed the rental contract; that said fund is in custodia legis though the receiver was improperly appointed and should be applied on the deficiency judgment.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award against Special</italic> <italic>Indemnity Fund authorized only in favor of physically</italic> <italic>impaired person where degree of disability from last</italic> <italic>injury, standing alone, is made materially greater by</italic> <italic>reason of combination of both injuries.</italic> There is no authority under the Workmen's Compensation Act, 85 O. S. 1945 Supp. § 172, for making an award against Special Indemnity Fund in favor of a physically impaired person except insofar as the degree of disability resulting from the last injury standing alone is made materially greater by reason of the combination of the subsequent and prior injuries. 2. SAME — <italic>Award against Special Indemnity Fund</italic> <italic>vacated where State Industrial Commission failed to allow</italic> <italic>deductions provided by statute for permanent partial</italic> <italic>disability.</italic> In an award made against the Special Indemnity Fund under the provisions of 85 O. S. 1945 Supp. § 172, for permanent partial disability, it is the duty of the State Industrial Commission to calculate and allow the deductions provided for therein, and where there has been a failure substantially to comply with the statutory direction in this respect, the award against the Special Indemnity Fund will be vacated.

(Syllabus.) 1. QUIETING TITLE — APPEAL AND ERROR — <italic>Jurisdiction of court over entire controversy in quiet</italic> <italic>title action.</italic> Where both plaintiff and defendant seek to quiet title to the land, the court has jurisdiction of the entire controversy and may award relief to the one not in possession thereof. 2. TAXATION — <italic>Resale invalid where notice of resale</italic> <italic>included taxes for last quarter of previous year which were</italic> <italic>not yet delinquent.</italic> Where notice of resale of lands for nonpayment of taxes includes taxes for last quarter of previous year, which are not delinquent at time of first publication of such notice, the resale deed and title based thereon are void. 3. SAME — <italic>Void tax deed ineffective to set in</italic> <italic>operation two-year statute of limitation so as to give</italic> <italic>prescriptive title to holder of deed in possession.</italic> One who takes possession of real property and retains possession thereof for more than two years under resale tax deed that is void for jurisdictional defects, does not acquire a title by prescription by virtue of the two-year statute of limitations (Tit. 12 O. S. 1941 § 93, par. 3). 4. QUIETING TITLE — <italic>Issues and proof — Title</italic> <italic>of plaintiff.</italic> The plaintiff in an action to quiet title to land must allege and prove that he is the owner of either the legal title or the complete equitable title. Unless plaintiff has the title, it is immaterial to him what title defendant claims.

(Syllabus.) 1. TRUSTS — <italic>Trustee not personally liable for cost</italic> <italic>of headstone erected by executor of decedent's estate from</italic> <italic>funds derived from estate other than trust fund.</italic> Settlor created an active express trust in a fund of $1,325 which he turned over to a trustee to be expended by said trustee for the maintenance and care of the settlor, one of the specified duties of the trustee being the defense of anticipated litigation directed at destroying the trust and which litigation thereafter arose requiring the employment of counsel by the trustee to defend against it, and which employment of counsel was made during the life of the settlor and was successful, though payment of the counsel fees was not made from the trust fund until after the death of the settlor; the fact that such payment exhausted the trust fund so that only the funeral expenses resulting from settlor's death could be paid, leaving nothing with which to pay for a headstone at his grave, was an authorized expenditure within the contemplation of the parties when the contract was made, and the provision in the contract for the erection of headstone was subordinate to the primary purpose of maintenance and care of the settlor and the defense of the trust fund created by him. The trust having been fully executed by the trustee in accordance with the primary purpose and intention of the settlor, the trustee is not personally liable for the cost of a headstone thereafter erected by the executor of decedent's estate from funds derived from the estate other than the trust fund. 2. TRIAL — <italic>No issue of fact triable to jury</italic> <italic>presented to trial court.</italic> Record in this case examined, and held, that no issue of fact triable to a jury was presented to the trial court.

(Syllabus.) 1. COURTS — SUPREME COURT — <italic>General</italic> <italic>superintending control over inferior courts — Separate and</italic> <italic>distinct grant from its appellate jurisdiction.</italic> By section 2, art. 7 of the Constitution, the Supreme Court is given jurisdiction to exercise a general superintending control over all inferior courts, and this jurisdiction in a separate and distinct grant from its appellate jurisdiction. 2. PROHIBITION — <italic>Proper remedy to prevent inferior</italic> <italic>courts proceeding without or beyond authority.</italic> Prohibition is a proper remedy to prevent inferior courts proceeding without or beyond authority.

(Syllabus.) 1. COURTS — <italic>County court has probate jurisdiction to</italic> <italic>determine source of title to real estate in contest between</italic> <italic>those claiming as heirs of decedent.</italic> When the county court in the administration of a decedent's estate is considering the final report and performing its duty to "name the persons and the properties or parts to which each shall be entitled" as provided in 58 O. S. 1941 § 632, it is within the probate jurisdiction of the court to determine the source of title to real estate, where material in a contest between those claiming as heirs of decedent and those claiming as heirs of a former deceased spouse of decedent under 84 O. S. 1941 § 213(2). 2. DESCENT AND DISTRIBUTION — <italic>Surviving spouse</italic> <italic>inherits whole estate acquired by husband and wife by joint</italic> <italic>industry during coverture, heirs of each spouse succeeding</italic> <italic>in equal parts to title of last survivor.</italic> Under the proviso of 84 O. S. 1941 § 213(2), the surviving spouse inherits the whole estate in property acquired by joint industry of husband and wife during coverture. the title to which was in the name of the spouse dying first and without issue, and on the death of the survivor, without issue and without having disposed of said property by will or otherwise, such property then descends to the classes named in said proviso, the heirs of each spouse succeeding in equal parts to the title of the last survivor. 3. COURTS — DESCENT AND DISTRIBUTION — <italic>County</italic> <italic>court has jurisdiction to decide contest between heirs</italic> <italic>regarding title to certain property, acquired by joint</italic> <italic>industry of two spouses during coverture.</italic> Where, in the settlement of the estate of the spouse dying last, the heirs of the spouse dying first file a contest asserting that title to certain property of the estate was vested in the spouse dying first, and was acquired by the joint industry of the two spouses during coverture, so that such heirs are entitled to inherit half the property under the proviso to 84 O. S. 1941 § 213(2), the county court in the exercise of its probate jurisdiction has jurisdiction to decide such contest. 4. SAME — <italic>District court properly dismissed civil</italic> <italic>action of claimants for lack of jurisdiction, where</italic> <italic>claimants parties to last administration proceedings, and</italic> <italic>may present claims to county court for determination.</italic> In such a case when the persons claiming'as heirs of the former deceased spouse are parties to the administration proceedings on the estate of the spouse dying last, all their claims may be presented to and determined in the county court and such claimants have no authority to proceed by separate civil action in the district court and the action of the district court in dismissing<page_number>Page 252</page_number> such civil action for lack of jurisdiction will be affirmed.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error in rejection of</italic> <italic>evidence.</italic> Alleged error in the rejection of evidence offered in the trial court by an appellant is harmless, where the record shows that the appellant would in no event have been entitled to prevail. 2. GIFTS — EVIDENCE — <italic>Essentials of gifts</italic> <italic>inter vivos.</italic> After the death of an alleged donor, in order to establish a gift inter vivos, the evidence must be clear, explicit, and convincing in support of every element necessary to constitute a valid gift. 3. TRUSTS — <italic>Necessary elements of enforceable</italic> <italic>trust.</italic> In order to create an enforceable trust, it is necessary that the donor or creator should part with his interest in the property to the trustee. 4. SAME — <italic>Delivery of property to another as</italic> <italic>trustee, and not as agent of donor, necessary to create</italic> <italic>enforceable trust.</italic> In order to create an enforceable trust, the property, which is the subject thereof, must be delivered to another as trustee and not as agent of the donor. 5. TRUSTS — <italic>Evidence insufficient to establish gift</italic> <italic>inter vivos, gift causa mortis, or "voluntary trust"</italic> <italic>— Harmless error in excluding testimony.</italic> Testimony to the effect that deceased had rented a lockbox in a bank two years, before his death, in the name of a fictitious company and of his nephew, and that he delivered one of the keys to the box to his attorney, with instructions to deliver the key and the box to the nephew after his death, but he also retained ownership of, control, and dominion over, the box, and its contents, was not sufficient to establish a gift inter vivos, a gift causa mortis or a "voluntary trust", hence alleged error of exclusion of the same was, at most, harmless.

(Syllabus.) 1. PLEADING — <italic>Joint general demurrer to petition</italic> <italic>properly overruled if cause of action stated against any of</italic> <italic>parties defendant joining in demurrer.</italic> A joint general demurrer to plaintiffs' petition should be overruled if the petition states a cause of action against any of the parties defendant joining in the demurrer. 2. ARMY AND NAVY — LIMITATION OF ACTIONS — <italic>Two-year period after date of recording resale tax deed</italic> <italic>tolled by provisions of Soldiers' and Sailors' Civil Relief</italic> <italic>Act, during period of military service of necessary party</italic> <italic>defendant.</italic> The two year period after the date of recording a resale tax deed, within which an action must be brought by the holder of said deed to quiet title to and recover possession of the property, is tolled by the provisions of the Soldiers' and Sailors' Civil Relief Act, during the period of military service of necessary party defendant. 12 O. S. 1941 § 93, subd. 3; Soldiers' and Sailors' Civil Relief Act of 1940, § 205, as amended; 50 U.S.C.A. Appendix, § 525.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Liability of city for</italic> <italic>injuries sustained by failure to properly maintain and</italic> <italic>repair its sewers.</italic> The maintenance and repair of its sewers is a corporate or proprietary function of a city, and the city is liable for injuries sustained because of its failure to properly maintain and repair its sewers. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain verdict — Failure to renew</italic><page_number>Page 275</page_number> <italic>demurrer or motion for directed verdict.</italic> A defendant may not in this court, question the sufficiency of plaintiff's evidence to sustain the verdict of a jury where the record shows that the trial court was not requested to and did not rule upon the defendant's motion for a directed verdict. 3. SAME — <italic>Necessary procedure in saving exceptions</italic> <italic>to instructions.</italic> To have instructions reviewed, it is necessary to except thereto, and to have the exception signed by the trial judge. 4. TRIAL — <italic>Sufficiency of instructions —</italic> <italic>Refusal to give requested instructions.</italic> Record examined, and held, that the trial court did not err in giving certain instructions to the jury, or in refusing instructions requested by defendant.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Conclusiveness of</italic> <italic>Industrial Commission's findings as to questions of</italic> <italic>fact.</italic> The cause and extent of disability arising from an accidental injury are questions of fact to be determined by the State Industrial Commission, and where there is any competent evidence reasonably tending to sustain the findings of the commission on these questions, an award based thereon will not be disturbed on appeal. 2. SAME — <italic>Authority of Industrial Commission to</italic> <italic>require award to be paid in lump sum, either for disability</italic> <italic>from specific or nonspecific injury, under "other cases"</italic> <italic>provision.</italic> The State Industrial Commission in entering an award for permanent disability, either total or partial, may in its discretion require such an award to be paid in a lump sum (85 O. S. 1941 § 41). This rule applies whether the award be for disability resulting from a specific member injury under 85 O. S. 1941 § 22, subd. 1, or for a nonspecific injury coming under the "other cases" provision of the statute. 85 O. S. 1941 § 22, subd. 3.

(Syllabus.) TAXATION — <italic>County treasurer without authority to</italic> <italic>resell property where land properly sold to county at tax</italic> <italic>resale.</italic> Where land is properly sold to the county at a tax resale, the county treasurer is without authority to void the sale and resell the property during progress of said resale.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Dermatitis caused by</italic> <italic>exposure of hands to paint, chemicals, or other related</italic> <italic>substances, not compensable injury arising out of and in</italic> <italic>course of employment.</italic> Dermatitis caused by exposing the hands of an employee to paint, chemicals or other related substances is not a compensable injury arising out of and in the course of the employment within the terms of the Workmen's Compensation Law, 85 O. S. 1941 § 1 et seq., under the facts and circumstances of this case.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Amendatory ordinances</italic> <italic>changing zoning regulations valid only after compliance</italic> <italic>with statute as to formalities including notice and</italic> <italic>hearing.</italic> By virtue of 11 O. S. 1941 §§ 401-410 and the general zoning ordinance of the city of Tulsa enacted pursuant thereto, Title 32, Tulsa Revised Ordinances, an amendatory ordinance changing the zoning regulations and restrictions may be adopted only after the specified formalities including notice and hearing. 2. SAME — <italic>Ordinances adopted by city invalid because</italic> <italic>of lack of power in Board of Commissioners to adopt without</italic> <italic>compliance with requirements as to notice and hearing.</italic> Ordinances Nos. 5022 and 5027 of the City of Tulsa, adopted December 4, and December 11, 1945, respectively, are invalid for lack of power in the board of commissioners to adopt the same without compliance with required formalities including notice and hearing.

(Syllabus.) INSURANCE — <italic>Private corporation holding title to real</italic> <italic>estate not necessary to its business, for longer than</italic> <italic>prescribed period, subject to statutory penalties.</italic> When a life insurance corporation has taken title to rural real estate not necessary in its business and held same for<page_number>Page 296</page_number> seven years, it is thereafter subject to the penalties provided by 18 O. S. 1941 § 86d.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Demurrer to petition is</italic> <italic>"pleading" and part of "record," or judgment roll, under</italic> <italic>statute.</italic> A demurrer to a petition is a "pleading" and a part of the "record" or judgment roll, under 12 O. S. 1941 § 704. 2. SAME — <italic>Review of decree on appeal by petition in</italic> <italic>error and certified transcript of record.</italic> A decree sustaining a demurrer to a petition and rendering judgment for the defendant may be reviewed on appeal by a petition in error and duly certified transcript of the record, under 12 O. S. 1941 § 956. 3. SAME — <italic>Service of transcript on opposing party</italic> <italic>unnecessary.</italic> It is not necessary that a party appealing by petition in error and transcript of the record serve the transcript on the opposite party or file it in the trial court, as is required in case of appeal by case-made. 4. STATES — LIMITATION OF ACTIONS — <italic>Immunity</italic> <italic>of state from operation of limitation statute when suing in</italic> <italic>sovereign capacity.</italic> The State of Oklahoma on the relation of the Commissioners of the Land Office may maintain an independent action to recover a judgment for the deficiency due on a prior final money judgment that has become dormant, and neither the one year statute of limitations (12 O.S. 1941 § 1071[<cross_reference>12-1071</cross_reference>]), nor any other statute of limitations bars such an action.

(Syllabus.) 1. DIVORCE — <italic>Statutory duty of court to make</italic> <italic>equitable division of jointly acquired property.</italic> The statutory duty of the court (Tit. 12 O. S. 1941 § 1278) in making division of property jointly acquired during marriage involves primarily the determination on equitable grounds of the extent of the right of each therein taking into consideration their respective conduct and efforts contributing to such acquisition. 2. SAME — <italic>Modification of decree on appeal from</italic> <italic>division of jointly acquired property to conform to what</italic> <italic>should have been entered.</italic> On appeal from division of jointly acquired property, where all the facts necessary to enable it to do so are contained in the record, this court may modify the decree so as to conform to that which should have been entered.

(Syllabus.) BASTARDS — <italic>Acknowledgment by father — Effect of</italic> <italic>legitimation on right to inherit.</italic> Where a child is born of a relationship prohibited by statute, and inherits property<page_number>Page 318</page_number> from his mother at her death, and his father thereafter publicly acknowledges paternity and maintains the relationship of parent and child, the child is legitimated for all purposes, and upon death of such child, intestate and without issue, the father succeeds to the estate of such child.

(Syllabus.) 1. ESTOPPEL — <italic>Misconstruction of legal effect of</italic> <italic>acts of parties equally charged with knowledge not basis</italic> <italic>for estoppel.</italic> All parties to a transaction stand charged with equal knowledge of the law applicable thereto and with the legal effect of their acts. If the parties stand upon an equal plane, misconstruction of the legal effect of the acts cannot become the basis of an equitable estoppel for one against the other. 2. REFORMATION OF INSTRUMENTS — <italic>Mere mistake of law</italic> <italic>not ground for reformation of contract.</italic> A mere mistake of law not accompanied by other circumstances demanding equitable relief constitutes no ground for reformation of a contract based on such mistake. 3. INSURANCE — <italic>Money paid without consideration may</italic> <italic>be recovered.</italic> Money paid by a partnership to an insurance company as premiums for policies, which policies were so drawn that the partnership was not protected and no risk attached to the insurance company, is money paid without consideration and may be recovered.

(Syllabus.) 1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION — <italic>Similarity of trade-names "Day and Nite Cleaners" and</italic> <italic>"Boston Day and Night Cleaners" not such as to confuse</italic> <italic>patrons exercising care and intelligence in placing their</italic> <italic>orders.</italic> "Day and Nite Cleaners," as a trade name for a cleaning and pressing establishment, is a generic term applicable to all similar establishments giving twenty-four service, and may not be appropriated by one person exclusively so as to make it unfair competition for a competitor to adopt the trade name in the same locality of "Boston Day and Night Cleaners". The similarity in the two business designations is not such as to certainly confuse patrons of such establishments who exercise ordinary care and intelligence in placing their orders for that character of service. In order to make the latter trade name constitute unfair competition against the former, some overt acts or conduct intended to mislead and deceive the public as to the identity of the two places of business must be shown before a court of equity will enjoin the use of the latter designation as an infringement on the right of the first to fair competition. 2. SAME — <italic>Mere allegations of damage for use of</italic> <italic>trade name are conclusions and do not constitute right to</italic> <italic>compensation in damages.</italic> Under the circumstances above outlined, before a right accrues to recover damages for the use of the trade name, more must be shown than the mere adoption of the trade name "Boston Day and Night Cleaners", the publicizing thereof by signs on the building and front window of the building where the business is conducted, and its listing as such in the telephone directory. Mere general allegations of damage are conclusions and do not show a clear right to compensation in damages.

(Syllabus.) 1. LANDLAND AND TENANT — <italic>When lease presumed to have</italic> <italic>been renewed.</italic> Under 41 O. S. 1941 § 35, a lessee of real property, under a written lease for three years, remaining in possession of the property after expiration of the lease, and paying rental in advance for one year, which is acceptd by the lessor, is presumed to have renewed the lease on the same terms for not to exceed one year. 2. CONTRACTS — <italic>Construction and validity —</italic> <italic>What law governs.</italic> The laws which exist at the time and place of making a contract, and at the place where it is to be performed, and which affect its validity and construction, enter into and become a part of such contract. 3. LANDLORD AND TENANT — <italic>No notice to terminate</italic> <italic>tenancy necessary where time for termination fixed by</italic> <italic>renewal.</italic> Where a lease is renewed in accordance with the provisions of 41 O. S. 1941 § 35, the time for the termination of the tenancy is fixed by such renewal, and by virtue of 41 O. S. 1941 § 8, no notice is necessary to terminate the tenancy.

(Syllabus.) COURTS — HABEAS CORPUS — <italic>Because of limited</italic> <italic>power of county courts to issue writs, they may not in habeas</italic> <italic>corpus proceeding discharge guardian of person of minors, or</italic> <italic>divest guardian of custody of minors.</italic> By article 7, sec. 12 of the Constitution, the jurisdiction of county courts to issue writs of habeas corpus is expressly limited to cases involving offenses within the jurisdiction of the county court, or any other court or tribunal inferior to said court. Because of this limitation upon its power in such cases, the county court may not, in a habeas corpus proceeding, discharge the duly appointed guardian of the person of minors, or divest such guardian of the custody of the minors.

(Syllabus.) 1. DIVORCE — <italic>In awarding custody of child, welfare</italic> <italic>of child paramount question for court.</italic> In awarding the custody of a minor child of divorced parents, the welfare of the child<page_number>Page 334</page_number> is the paramount question for the court to consider. 2. SAME — <italic>Modification of decree for care and</italic> <italic>custody of child must be based on changed</italic> <italic>circumstances.</italic> The modification of a decree for the care and custody of a child of divorced parents must be based on some change in circumstances occurring since rendition of the decree or on some fact unknown at the time of the decree.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review — Sufficiency of</italic> <italic>evidence in probate matters.</italic> This court will not, on an appeal from the district court in a trial de novo from the county court in a probate matter, disturb the findings and judgment of the trial court on review, unless such findings and judgment are clearly against the weight of the evidence. 2. BASTARDS — <italic>Insufficient proof of written</italic> <italic>acknowledgment of paternity.</italic> In a proceeding wherein plaintiffs sought to be declared sole heirs of deceased on ground that they were illegitimate children of deceased who had acknowledged paternity in writing, the writing not being produced, it is necessary to show the same was signed in presence of competent witness. 84 Okla. St. Ann. § 215.

(Syllabus.) 1. TRIAL — <italic>Erroneous instruction placing burden on</italic> <italic>defendant of disproving facts alleged in plaintiff's</italic> <italic>petition.</italic> An instruction placing upon the defendant the burden of disproving facts alleged in plaintiff's petition and which are material to his cause of action is erroneous. 2. SAME — APPEAL AND ERROR — <italic>Cause reversed</italic> <italic>where two instructions contain inconsistent</italic> <italic>propositions.</italic> The instructions as a whole must be consistent and harmonious, and, where two instructions contain inconsistent propositions, the cause will ordinarily be reversed, for the reason that the court is unable to tell which the jury followed and which they ignored. 3. APPEAL AND ERROR — <italic>Giving of conflicting</italic> <italic>instructions on burden of proof reversible error.</italic> Record examined, and held, that the giving of conflicting and erroneous instructions on the burden of proof constituted reversible error.

(Syllabus.) HABEAS CORPUS — <italic>Scope of inquiry into jurisdiction of</italic> <italic>trial court.</italic> Under 12 O. S. 1941 § 1342, the scope of our inquiry, on petition for a writ of habeas corpus, is limited to whether the trial court which committed the petitioner for contempt had jurisdiction of the parties and subject matter, and authority of law at the time of acting to make the order complained<page_number>Page 357</page_number> of. If it had such jurisdiction and authority, the petitioner is not entitled to the writ.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award for total and</italic> <italic>permanent disability not disturbed where evidence shows</italic> <italic>injured employee totally and permanently disabled.</italic> 85 O. S. 1941 § 22, subdivision 1, provides that in all compensation cases not involving a loss of two specific members, "permanent total disability shall be determined in accordance with the fact." In such case, where the record shows by competent evidence that an injured employee is totally and permanently disabled, and there is no showing that he is performing, or can perform, manual labor of the kind to which he was accustomed, an award for total and permanent disability will not be disturbed. 2. SAME — <italic>Rule that "specific member" and "other</italic> <italic>cases" injuries may not be combined in making award not</italic> <italic>applicable, where total or partial loss of use of such</italic> <italic>member, combined with loss of other members, results in</italic> <italic>total disability.</italic> The rule that "specific member" and "other cases" injuries may not be combined in making an award does not apply where the other cases injury directly affects a specific member, and causes a total or partial loss of the use of such member, which, when combined with the loss of other members, results in total disability.

(Syllabus.) 1. PLEADING — <italic>Discretion of courts as to allowing</italic> <italic>amendments.</italic> Trial courts are vested with wide discretion in permitting amendment to pleading where the amendment does not change substantially the claim or defense. 2. APPEAL AND ERROR — <italic>Further argument of second</italic> <italic>counsel properly refused where</italic><page_number>Page 371</page_number> <italic>plaintiff not prevented from fully presenting her theory of</italic> <italic>case.</italic> Where there are two attorneys engaged in trial of a cause for the plaintiff, and when the evidence is in, one attorney makes an opening argument for the plaintiff, and defendant's counsel waives argument, the refusal of the trial court to grant permission to a second counsel to further address the jury for the plaintiff will not be held error when it does not appear there was any abuse of discretion or that plaintiff was prevented from fully presenting her theory of the case.

(Syllabus.) DIVORCE — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment.</italic> A judgment of the trial court granting a divorce will not be reversed because of insufficient evidence in the absence of a showing that such judgment is clearly against the weight of the evidence.

(Syllabus.) EXECUTORS AND ADMINISTRATORS — <italic>Mandatory provisions</italic> <italic>of statutes as to filing claims against estates of</italic> <italic>decedents.</italic> 58 O. S. 1941 § 333, limiting the time within which claims against the estates of decedents may be presented, and section 334, Id., prescribing the mode for presenting and proving such claims together with section 343, Id., denying any recovery as a penalty for noncompliance with the procedure prescribed, are mandatory provisions.

(Syllabus.) 1. WAR — CONTRACTS — <italic>Federal Emergency Price</italic> <italic>Control Act applicable only where price demanded under</italic> <italic>lum-psum contract in excess of maximum price of O. P.</italic> <italic>A.</italic> The right to an enforcement of a demand for the price of a construction job performed under a lump-sum contract is not affected by the Federal Emergency Price Control Act except that it be shown that the price demanded is in excess of the maximum price established by regulations promulgated by the Office of Price Administration. 2. TAXATION — <italic>Judgment erroneous for plaintiff</italic> <italic>unless compliance with Intangible Tax Law alleged and</italic> <italic>proven.</italic> In an action 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 Intangible Tax Law.

(Syllabus.) CONSTITUTIONAL LAW — ELECTIONS — <italic>Right of</italic> <italic>candidate to certificate of nomination a political right</italic> <italic>— Court of equity without jurisdiction to enjoin.</italic> The right of a candidate to a certificate of nomination in advance of primary election by reason of the disqualification of the only other candidate for the office to be a candidate therefor is a political right and a court of equity is without jurisdiction to enjoin the county election board from placing the name of such other upon the primary ballot.

(Syllabus.) CORPORATIONS — <italic>Issuance of stock of restricted class</italic> <italic>authorized only when stated in articles of incorporation or</italic> <italic>amendment</italic><page_number>Page 396</page_number><italic>— Issue of stock unauthorized by law void.</italic> 18 O. S. 1941 § 15 authorizes a corporation to issue stock of a restricted or qualified class only when such restriction or qualification shall be stated and expressed in the articles of incorporation or in an amendment thereof. An issue of stock unauthorized by law is void.

(Syllabus.) CONTRACTS — <italic>Provision of contract of agency that</italic> <italic>agent agrees not to sell competing product within two years</italic> <italic>after termination of contract unenforceable as being in</italic> <italic>restraint of trade.</italic> Under Tit. 15 O. S. 1941 § 217, providing that "Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, . . . is to that extent void", a provision of a contract of agency by which the agent covenanted not to engage in the sale of any product competing with that of his principal within two years after termination of the contract is not enforceable.

(Syllabus.) APPEAL AND ERROR — <italic>Review of equity case —</italic> <italic>Sufficiency of evidence.</italic> On appeal, in a case of equitable cognizance, this court will not reverse the judgment and decree of the trial court unless it is against the clear weight of the evidence.

(Syllabus.) 1. JUDGMENT — <italic>Validity of judgment of court of</italic> <italic>another state — Effect of "full faith and credit" clause</italic> <italic>of U.S. Constitution.</italic> The full faith and credit clause of the Constitution of the United States (section 1, art. 4) requires that the judgment of a state court, which had jurisdiction of the subject matter and of the parties in suit, shall be given in every other state the same credit, validity, and effect which it has in the state where it was rendered. 2. SAME — <italic>Foreign judgment — Collateral</italic> <italic>attack.</italic> An order assigning to a widow dower in the lands of her deceased husband, made by a probate court in the State of Arkansas having jurisdiction of the parties and the subject matter, from which no appeal was taken, and which became final and conclusive in that state, may not be attacked collaterally in the courts of this state. 3. WILLS — <italic>Evidence sustained finding that widow</italic> <italic>elected to take under the law and not under the will, and</italic> <italic>that title to jointly acquired lands of herself and husband</italic> <italic>in Oklahoma vested in her.</italic> Record examined, and held, that the finding of the trial court in the instant case that Mollie E. Conatser elected to renounce her right under the will of her deceased husband, and to take under the law and not under the will, and its finding that title to jointly acquired lands of herself and her husband in Oklahoma was vested in her,<page_number>Page 409</page_number> and that she was not estopped to assert title thereto, are not contrary to law, nor clearly against the weight of the evidence. 4. ADVERSE POSSESSION — <italic>Burden of proof to establish</italic> <italic>title.</italic> The party relying on a title by adverse possession has the burden of proving all the facts necessary to establish such a title. Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. Title by adverse possession, therefore, must be established by clear and positive proof. It cannot be made out by inference. All of its constituent elements must be established. Thus it is necessary to prove an actual, open, notorious, exclusive, and hostile possession for the full statutory period.

(Syllabus.) MUNICIPAL CORPORATION — <italic>Leasing of utility of value</italic> <italic>in excess of $10,000 owned by city of first class —</italic> <italic>Necessity of authorization by voters — Purpose to lease must</italic> <italic>be expressly declared in question submitted.</italic> Under Tit. 11 O. S. 1941 § 441, no utility of a value in excess of $10,000, owned by a city of the first class, may be leased by the governing body thereof unless such leasing shall be authorized by a majority vote of the qualified voters of such municipality at an election called for the purpose. And at such election the purpose to lease must be expressly declared in the question submitted.

(Syllabus.) COMPROMISE AND SETTLEMENT — <italic>Doubtful or disputed</italic> <italic>claim, honestly and in good faith asserted, sufficient to</italic> <italic>constitute good consideration for contract of compromise and</italic> <italic>settlement.</italic> A doubtful or disputed claim, honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated and concerning which an honest controversy may arise, is sufficient to constitute a good consideration for a contract of compromise and settlement, although it may subsequently develop that such claim was unfounded.

(Syllabus.) APPEAL AND ERROR — REVIEW — <italic>Sufficiency of</italic> <italic>evidence to support judgment in equity case.</italic> In an equitable action wherein the trial judge makes findings of fact which are not clearly against the weight of the evidence, a judgment based upon such findings will not be disturbed by this court.

(Syllabus.) 1. FALSE IMPRISONMENT — <italic>When arrest for misdemeanor</italic> <italic>without warrant authorized.</italic> An officer has authority to arrest without a warrant for a misdemeanor only when it is committed or attempted in his presence. 2. SAME — <italic>Liability of all parties participating in</italic> <italic>false imprisonment.</italic> All who by direct act or indirect procurement, personally participate in, or proximately cause, the false imprisonment or unlawful detention of another are liable therefor. 3. NEW TRIAL — <italic>Duty of court on request to state</italic> <italic>reasons for sustaining motion — Scope of review on appeal</italic> <italic>from order.</italic> It is the duty of the trial court upon request of a litigant to state its reasons for sustaining a motion for new trial, and on appeal from an order granting a new trial this court will confine its review to the reasons so assigned by the court. 4. APPEAL AND ERROR — <italic>Order granting new trial</italic> <italic>reversed where based solely on error respecting question of</italic> <italic>law.</italic> An order and judgment of the trial court, sustaining a motion for a new trial, will be reversed where the record shows that the action taken was based solely upon an error in respect to a pure, simple, and unmixed question of law.

(Syllabus.) 1. STATES — <italic>Employee entitled to notice and hearing</italic> <italic>before removal.</italic> Ordinarily where an employee does not bold his position at pleasure, but holds during good behavior or subject to removal for cause, after notice in writing specifying the charges is furnished him, then, before he can be removed, there must be notice and a hearing given to him. 2. OFFICERS — <italic>Oklahoma Employment Security</italic> <italic>Commission — Jurisdiction of commission to rate employee</italic> <italic>in any classification justified by evidence.</italic> Where the rules of Oklahoma Employment Security Commission provide for rating of an employee's services, which ratings include five grades from "excellent" to "unsatisfactory", and an employee's rating by his superior officer is changed from "very good" to "fair", from which change an employee appeals to the commission, the commission has jurisdiction to rate the employee in any classification the evidence justifies. 3. SAME — <italic>Authority of commission to order</italic> <italic>employee's discharge without notifying him in writing</italic> <italic>specifying charges.</italic> Upon an appeal to the Oklahoma Employment Security Commission by an employee concerning his rating and the commission finds after a full hearing that said employee's rating should be "unsatisfactory", the commission has authority to order said employee's discharge without notifying him in writing specifying the charges against him. 4. CERTIORARI — <italic>Review confined to question of</italic> <italic>jurisdiction of inferior court or board.</italic> The common law writ of certiorari as used in this jurisdiction brings up for review only two questions: (1) did the inferior court or board have jurisdiction, nd (2) did it keep within that jurisdiction in the order made or action taken. It cannot be used to correct errors of law or fact committed by the inferior court or board within the limits of its jurisdiction.

(Syllabus.) 1. TAXATION — <italic>Application to board of county</italic> <italic>commissioners for correction of assessment — Necessary to</italic> <italic>show good cause for not having appeared before board of</italic> <italic>equalization.</italic> Before one may apply to the board of county commissioners for correction of an assessment of property for purposes of ad valorem taxation under section 12642, O. S. 1931, he must show good cause for not having appeared before the board of equalization to procure the relief sought. 2. SAME — <italic>Powers of county commissioners.</italic> A board of county commissioners can exercise only such powers as are conferred upon it by the organic or statutory laws of the state, or such as may arise by necessary implication from an express grant of power. 3. SAME — <italic>Board of county commissioners without</italic> <italic>authority to reduce assessments except in cases authorized</italic> <italic>by statutes.</italic> Sections 3 and 4 of chap. 38, art. 5, S. L. 1909 (§§ 9647-48, C.O.S. 1921; §§ 12638-39, O. S. 1931) did not confer upon board of county commissioners the power to reduce the assessed value of property for the taxes of a year to which the same was subject, on account of said property being assessed as improved realty, when in fact the improvements had, previously, been destroyed by fire. 4. SAME — <italic>Relief against excessive, erroneous, or</italic> <italic>improper assessment — Statutory remedy to be pursued</italic> <italic>before resort to courts.</italic> When statutes provide remedy against excessive, erroneous, or improper assessment of property by proceedings before board of equalization or review, taxpayer must at his peril avail himself of such remedy, and cannot resort to courts in first instance.

(Syllabus.) APPEAL AND ERROR — <italic>Action for recovery of money tried</italic> <italic>to court on waiver of jury — Sufficiency of evidence to</italic> <italic>sustain judgment.</italic> In an action for recovery of money, tried to the court upon waiver of jury, the finding for plaintiff on issues of fact is similar in effect to a jury verdict. And when the sufficiency of the evidence is questioned<page_number>Page 439</page_number> on appeal, the same test is applied as in case of a jury verdict, and the judgment will be sustained when there is evidence reasonably tending to support the same.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Action for damages for</italic> <italic>personal injuries — Challenge to jurisdiction of court</italic> <italic>properly overruled where plaintiff not shown to be employee</italic> <italic>of company and covered by Compensation Law.</italic> Challenge to jurisdiction of district court over cause of action for personal injuries on ground that plaintiff at the time of the accident and injury was acting in the course of his employment by defendant, and that defendant was a company engaged in a business named in the Workmen's Compensation Act, and in one of the hazardous employments covered by the Compensation Act, held properly overruled when there was no clear showing that plaintiff was an employee of said company at the time of injury.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal and remand upon</italic> <italic>confession of error.</italic> Where an appeal is filed in this court, and the defendant in error upon due consideration files a confession of error which is reasonably sustained by the record, this court may reverse and remand the cause upon such confession of error.

(Syllabus.) 1. RAILROADS — <italic>Train moving slowly on crossing</italic> <italic>making immaterial lack of other warnings.</italic> That train slowly moving on and over crossing hid warning sign from automobilist's view held immaterial in action for crossing collision, since train itself was notice of its presence. 2. SAME — <italic>Necessary showing by injured motorist to</italic> <italic>charge railroad with negligence in blocking highway</italic> <italic>crossing at night by moving train without lights or</italic> <italic>signals.</italic> To charge railroad with negligence in moving train slowly, at night, across highway without lights or other signals to disclose its presence, motorist injured must show that trainmen, exercising reasonable care, should know that, because of darkness, cars were such obstruction that people traveling in automobiles properly equipped with lights and carefully operated at reasonable rate of speed would be likely to come into collision with them. 3. SAME — <italic>Trainmen not required to anticipate</italic> <italic>motorist will drive without due care.</italic> Trainmen in the employ of a railroad company are not required to anticipate that a motorist driving along a highway and knowingly approaching a railroad crossing will drive his automobile in such a manner as will not permit him to avoid collision<page_number>Page 449</page_number> with a freight car standing upon the crossing. 47 O. S. 1941 § 92.

(Syllabus.) 1. MORTGAGES — <italic>Test of whether deed can be declared</italic> <italic>equitable mortgage — Burden of proving instrument was</italic> <italic>intended to operate as a mortgage upon party asserting it</italic> <italic>to be such.</italic> In determining whether or not a deed can be declared to be an equitable mortgage, the test is the existence or nonexistence of a debt. If there remains a debt for which the conveyance is only a security, and the collection of which may be enforced independent of the security, equity<page_number>Page 466</page_number> will hold it to be a mortgage no matter whether the transaction is evidenced by one or more instruments. The burden of proving that the instrument was intended to operate as a mortgage is upon the party asserting it to be such, and to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. 2. SAME — <italic>Intent of parties to be gathered from</italic> <italic>circumstances attending transaction.</italic> Whether a transaction, evidenced by an absolute conveyance, will be held to be a mortgage, must be determined by a consideration of the peculiar circumstances of each case. The form of the conveyance is not conclusive. The intention is to be gathered from the circumstances attending the transaction and the conduct of the parties, as well as from the face of the written instrument. 3. SAME — <italic>Insufficiency of evidence to sustain</italic> <italic>judgment for plaintiffs.</italic> Record examined, and held, that the judgment of the trial court is clearly against the weight of the evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Back injury and previous</italic> <italic>leg and arm injury not combined for purpose of awarding</italic> <italic>compensation on basis of permanent partial disability to</italic> <italic>body as a whole.</italic> A back injury may not be combined with a previous leg and arm injury under the Special Indemnity Fund Act, 85 O. S. 1943 Supp. § 172, for the purpose of awarding compensation to an injured employee on the basis of permanent partial disability to the body as a whole. 2. SAME — <italic>Insufficiency of evidence to sustain award</italic> <italic>against Special Indemnity Fund.</italic> Record examined; held, evidence insufficient to sustain the award as against Special Indemnity Fund

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Question of fact for</italic> <italic>Industrial Commission whether there was a recurrence of</italic> <italic>previous disability or accidental injury while in the</italic> <italic>employ of respondent.</italic> Whether the disability of claimant is the result of an accidental injury while in the employ of respondent or is a recurrence of a pre-existing disability resulting from a prior injury before employment, is a question of fact to be determined by the Industrial Commission. Its determination is a prerequisite to a final judgment making or denying an award of compensation. 2. SAME — <italic>Employer not liable for compensation for</italic> <italic>disability resulting from recurrence of hernia, and not</italic> <italic>from an independent and intervening cause.</italic> The employer, at the time of a recurrence of an original hernia, received and supposedly successfully repaired prior to such employment, is not liable for compensation for the disability resulting therefrom and not from an independent and intervening cause.

(Syllabus.) APPEAL AND ERROR — <italic>Reversible error — Refusal</italic> <italic>of request for special findings.</italic> Where a cause is tried upon questions of fact to the court, and timely request is made for special findings of fact and conclusions of law, the refusal of the court to comply with such request constitutes reversible error, where there is a conflict in the testimony upon a material issue.

(Syllabus.) 1. CONTRACTS — <italic>Action on express contract —</italic> <italic>Recovery cannot be had upon a quantum meruit.</italic> In an action where the petition declares alone upon an express contract and full performance thereof is pleaded, no recovery can be had upon a quantum meruit. 2. BROKERS — <italic>Express contract — Essentials to</italic> <italic>right to recover commission.</italic> In an action by a broker to recover a commission on the sale of property, where the basis of the action is an express oral contract, definite and certain in its terms and conditions, performance by the broker of the express terms and conditions of the contract is necessary to be shown as a pre-requisite to a right of recovery.

(Syllabus.) 1. TAXATION — <italic>Valid annual tax sale necessary</italic> <italic>precedent to valid resale.</italic> A valid annual tax sale is a necessary precedent to a valid resale. 2. SAME — <italic>Resale tax deed issued by county treasurer</italic> <italic>invalid where shown property described wrongfully on resale</italic> <italic>list.</italic> A resale tax deed issued by a county treasurer in compliance with an order of court in a mandamus proceeding brought for that purpose against the county treasurer only is invalid where it is shown that the property therein described in said resale tax deed was wrongfully on the resale list for the reason that same had not been sold to the county at annual sale for delinquent taxes. 3. JUDGMENT — <italic>Adjudication of validity of resale</italic> <italic>deed in mandamus proceeding not binding on those not a</italic> <italic>party thereto.</italic> Any adjudication of the validity of a resale deed in such mandamus proceeding is in no event binding upon those not a party thereto.

(Syllabus.) 1. TRIAL — <italic>Statutory requirement as to assignment</italic> <italic>for trial of cases set upon trial docket.</italic> Neither 12 O.S. 1941 § 663[<cross_reference>12-663</cross_reference>] nor 12 O. S. 1941 § 666 require the trial court to specifically, by order, assign for trial cases set upon the trial docket. 2. APPEAL AND ERROR — <italic>Ground for reversal —</italic> <italic>Trial docket.</italic> A judgment will not be reversed merely upon the contention that such trial docket was not made out as required by law, when it does not appear from the record that such contention is true, or that the complaining party was substantially prejudiced thereby if such contention were true. 3. SAME — <italic>Discretion of trial court as to vacation</italic> <italic>of judgment.</italic> A petition to vacate a judgment, under section 1031, 12 O. S. 1941, is addressed to the sound legal discretion of the trial court, and an order vacating said judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused that discretion. Such discretion should always be exercised so as to promote the ends of justice, and a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused.

(Syllabus.) 1. EMINENT DOMAIN — <italic>Owner must prove title.</italic> When the owner takes the initiative and institutes proceedings under the statute for assessment of damages for the taking of his property for public use, he must prove his title, unless it is admitted, as that lies at the foundation of the suit or proceedings. 2. SAME — <italic>Judgment taken in reverse condemnation</italic> <italic>proceeding does not preclude defendant from attacking</italic> <italic>plaintiff's title.</italic> In a proceeding in reverse condemnation a judgment taken by the plaintiff against persons alleged to be former owners of the property, in an action to which the defendant was not a party, does not preclude the defendant from attacking plaintiff's title, or from showing that the defendants in such former action were not the owners of the property. 3. SAME — PLEADING — <italic>Discretion of trial court</italic> <italic>as to whether further pleadings may be filed.</italic> The only pleadings required by our statutes providing the procedure in condemnation proceedings, 66 O.S. 1941 §§ 51[<cross_reference>66-51</cross_reference>] to 63, inclusive, are the petition or application of the owner and exceptions to the report of the appraisers by either party. Whether or not other or further pleadings may be filed rests in the discretion of the trial court. 4. ELECTION OF REMEDIES — <italic>Where only one remedy and</italic> <italic>not a choice between two or more, doctrine of election not</italic> <italic>applicable.</italic> Election of remedies is predicated on the existence of a state of facts giving the party an option to do either one thing or another. If there is only one remedy and not a choice between two or more, the doctrine of election does not apply. 5. EMINENT DOMAIN — <italic>Power of cities and towns, in</italic> <italic>condemnation proceedings, to acquire title to lands for</italic> <italic>construction of waterworks.</italic> By 11 O.S. 1941 § 292[11-292] cities and towns may, by condemnation proceedings, acquire the fee-simple title to lands necessary for the construction or operation of waterworks.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Cause and extent of</italic> <italic>disability arising from accidental injury questions of fact</italic> <italic>for State Industrial Commission — Award based thereon not</italic> <italic>disturbed where evidence reasonably sustains finding.</italic> The cause and extent of a disability arising from an accidental injury are questions of fact to be determined by the State Industrial Commission and where there is any competent evidence reasonably tending to sustain the finding an award based thereon will not be disturbed on review. 2. SAME — <italic>Lack of showing that combination of</italic> <italic>injuries resulted in permanent total disability.</italic> A hip and back injury cannot be combined with a prior arm and hand injury for the purpose of fixing liability against the Special Indemnity Fund in the absence of a showing that the combination of injuries resulted in permanent total disability. 3. SAME — <italic>Insufficient evidence to sustain</italic> <italic>conclusion that claimant is permanently disabled as a</italic> <italic>result of combined injuries.</italic> Record examined. Held, evidence insufficent to sustain the conclusion of the commission that claimant as a result of combined injuries is permanently totally disabled.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Reversal or affirmance on</italic> <italic>condition of remittitur where verdict excessive.</italic> Where an action for damages to an automobile is tried to a jury and submitted under instructions fairly stating the law, but the verdict of the jury is in excess of the amount to which plaintiff is entitled under the evidence, this court may direct<page_number>Page 513</page_number> a reversal, or give the plaintiff the option to remit the excess, and allow the judgment to stand as modified. 2. SAME — DAMAGES — <italic>Judgment not reversed</italic> <italic>because of inaccurate instruction on measure of damages</italic> <italic>where proper instruction not requested.</italic> Where there is sufficient competent evidence to prove the damages alleged for loss of use of the automobile, and the amount allowed is not excessive, and, in the absence of a request for an instruction on such measure of damages, the cause will not be reversed because the elements of damage are not more accurately stated.

(Syllabus.) <center> <italic>Syllabus in Companion Case Followed.</italic></center> The syllabus in Cities Service Gas Company v. Huebner, this day decided, <cross_reference>200 Okla. 521</cross_reference>, <cross_reference>197 P.2d 985</cross_reference>, is hereby adopted as the syllabus in this case.

(Syllabus.) 1. STATES — <italic>Compensation on per diem basis to</italic> <italic>officer not compensation provided by law, until valid</italic> <italic>fiscal year appropriation made.</italic> Compensation on a per diem basis to an officer fixed in the legislative act creating his office, where the number of days to be devoted to the duties of the office is left to the discretion of such officer, is not compensation "provided by law" as that term is used in section 17 of the Schedule to the Constitution until a valid fiscal year appropriation has been made from which his compensation can be paid. Section 55, art. 5, Const. 2. SAME — <italic>Appropriations — Fiscal year</italic> <italic>defined.</italic> Fiscal year, as defined by section 1, art. 10, Const., is the accounting unit in state finances and the monies subject to appropriation consist of current revenue and accumulated surpluses and no appropriation of monies of one fiscal year may be devoted to the payment of obligations of any other fiscal year except such as are designated "non-fiscal year obligations." 3. SAME — <italic>Emergency Appropriation Fund may be used</italic> <italic>to pay claims of State Board of Health, accruing during</italic> <italic>fiscal year within six months after expiration of that year</italic> <italic>by virtue of grace period.</italic> Allocations made to the Emergency Appropriation Fund from the General Revenue Fund for the fiscal year beginning July 1, 1946, and ending June 30, 1947, may be appropriated by the Legislature and used to pay claims of the State Board of Health accruing during that fiscal year, and warrants in payment of such claims may be issued at any time within six months after<page_number>Page 529</page_number> the expiration of that fiscal year by virtue of the grace period contained in section 5, of House Bill No. 461, S.L. 1941 (62 O.S. 1941 § 8.5[<cross_reference>62-8.5</cross_reference>]).

(Syllabus.) 1. JOINT ADVENTURES — <italic>Characteristics.</italic> The right of mutual control over the subject matter of the enterprise is essential to create a joint adventure, but the rights of the joint adventurers with respect to management and control of the joint venture may be fixed by agreement, and by subsequent agreement or practice be changed so as to shift the control over the management of the enterprise in any manner. 2. SAME — MASTER AND SERVANT — <italic>Test as to</italic> <italic>relationship between parties, whether that of joint</italic> <italic>adventurers, or Master and Servant.</italic> The test to determine whether a relationship between parties is that of joint adventurers or master and servant is not necessarily in the right to control or the exercising of control by one party over the other, since control in a joint adventure may be a matter of agreement. 3. JOINT ADVENTURE — INSURANCE — <italic>Relationship</italic> <italic>of parties question of law for court.</italic> Where a written contract has been modified by the practice under it, the relationship of the parties becomes a question of law for the court where only one inference can be drawn from the evidence. 4. JOINT ADVENTURES — <italic>Relationship of parties that</italic> <italic>of joint adventurers where by practice contract so modified</italic> <italic>as to put management in hands of corporation.</italic> Where a written contract is entered into between a corporation and individuals to grow and market vegetables for a term of one year, subject to cancellation by the parties, which contract provides for a division of production in stipulated percentages and sets out the percentages of labor, seed and supplies to be paid by each party, and that the individuals are to have charge of both growing and selling and are to devote<page_number>Page 541</page_number> their entire time so doing, but by practice the contract is modified so as to put management and control of the enterprise almost completely in the hands of the corporation, the relationship between the parties is that of joint adventurers. 5. ESTOPPEL — <italic>Essential to create estoppel by</italic> <italic>acceptance of benefits.</italic> In order to create an estoppel by the acceptance of benefits, it is essential that the party against whom the estoppel is claimed should have acted with knowledge of his rights, and that the party claiming the estoppel was without knowledge of the facts upon which he bases his claim that he was influenced by and relied on the conduct of the person sought to be estopped, and that he changed his position to his injury in reliance thereon. 6. APPEAL AND ERROR — <italic>Judgment of trial court held</italic> <italic>contrary to evidence.</italic> Record examined, and held, that the judgment of the trial court is contrary to the evidence.

(Syllabus.) 1. LIMITATION OF ACTIONS — <italic>Stolen property —</italic> <italic>Statute a bar to recovery in absence of fraud or</italic> <italic>concealment.</italic> The statute of limitations on an action to recover stolen personal property in the hands of one who in good faith purchased same, begins to run from the time the latter acquired the possession and not from the time the owner first had knowledge thereof, provided there was no fraud or attempt at concealment. 2. SAME — <italic>MUST be affirmative act or conduct to</italic> <italic>constitute concealment preventing running of statute.</italic> The concealment which prevents the running of the statute of limitations must be some affirmative act or conduct which places the property in a situation which tends to prevent its discovery.

(Syllabus.) EXECUTORS AND ADMINISTRATORS — <italic>Right of grantor's</italic> <italic>administrator to maintain action for damages because of</italic> <italic>appropriation of property for public purposes.</italic> The right of re-entry belonging to the grantor of a determinable fee upon condition subsequent is, after the happening of the condition, such an asset of his estate, after death, that his administrator may maintain an action for damages because of its appropriation for public purposes.

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

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award for injury</italic> <italic>resulting in hernia — Liability for compensation during</italic> <italic>long delay in tendering operation.</italic> The provisions of 85 O. S. 1941 § 22, subd. 3, providing that 14 weeks' compensation and cost of operation should be allowed for an injury resulting in hernia, presupposes that prompt medical attention in the nature of the necessary operation as provided by section 14 will be given, and where such necessary operation, or the tender thereof, is long and unnecessarily delayed, the employer will be held liable for compensation during such delay, where continued disability results from such hernia. 2. SAME — <italic>Obligation of employer to furnish</italic> <italic>necessary operation for hernia relieved only by tender of</italic> <italic>operation and refusal of same by claimant.</italic> The responsibility resting upon the employer to cause to be performed the necessary operation to cure hernia resulting from an injury received in the course of employment by the employee can only be relieved by the tender of such operation to<page_number>Page 557</page_number> the employee and his refusal to accept the same. 3. SAME — <italic>Question of fact whether employer</italic> <italic>prejudiced by lack of statutory notice of injury —</italic> <italic>Sufficiency of evidence to support finding.</italic> Whether the failure of an employee to give the statutory written notice of injury results in prejudice to the employer is a question of fact for the determination of the State Industrial Commission in administering relief under the Workmen's Compensation Law and where its finding on such issue is supported by competent evidence, it will not be disturbed by this court on review.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Accidental injury as</italic> <italic>defined by statute.</italic> Under 85 Okla. St. Ann. § 1 et seq., an accidental injury is one where the injury results through some accidental means, was unexpected and undesigned, or may be the result of mere mischance or of miscalculation as to the effect of voluntary action. 2. SAME — <italic>Sufficiency of evidence to support award</italic> <italic>for strained back suffered while lifting heavy sacks.</italic> Award affirmed as being supported by the evidence.

(Syllabus.) 1. EVIDENCE — <italic>Admissibility of statements and</italic> <italic>admissions in evidence, when not made as a compromise, or</italic> <italic>in confidence of settlement resulting therefrom.</italic> Where it fails to appear that the statements or admissions admitted in evidence were made as part of the negotiations then being carried on for a compromise of a controversy, and in confidence of a settlement resulting therefrom, the admission thereof in evidence is not error. 2. ACCOUNT STATED — <italic>"Liquidated account"</italic> <italic>defined.</italic> A liquidated account is one, the amount of which is agreed upon by the parties, or fixed by operation of law. 3. APPEAL AND ERROR — <italic>Sufficiency of conflicting</italic> <italic>evidence in case tried to jury to support verdict.</italic> In a cause tried to a jury where the evidence is in conflict, the judgment based on the verdict will not be disturbed where there is competent evidence reasonably tending to support the same.

(Syllabus.) 1. TAXATION — <italic>Purchase at tax sale directly or</italic> <italic>indirectly by one under obligation to pay taxes deemed</italic> <italic>merely mode of paying same.</italic> One who is under a moral or legal obligation to pay the taxes is not in a position to become a purchaser for taxes, and if such person permits the property to be sold and buys it in, either in person or indirectly, through the agency of another, or lends his name to another in buying it in, he does not thereby acquire any right or title to the property, but his purchase will be deemed a mode of paying the taxes. 2. SAME — <italic>Right of action by original owner</italic> <italic>remaining in possession not barred by statute.</italic> So long as the original owner of land which has been sold for taxes remains in undisturbed possession of it, the statute of limitations does not run against him or prevent the maintenance of a suit to set aside the tax sale or remove the cloud on his title. Lind v. Stubblefield, <cross_reference>138 Okla. 280</cross_reference>, <cross_reference>282 P. 365</cross_reference>.

(Syllabus.) 1. OIL AND GAS — <italic>Lease provision giving lessee right</italic> <italic>to complete well, commenced within time, with reasonable</italic> <italic>diligence, not rendered inoperative because lease did not</italic> <italic>provide for delay rentals.</italic> A provision in an oil and gas lease that if the lessee shall commence the drilling of a well within the term of the lease, he shall have the right to drill such well to completion with reasonable diligence, and if oil or gas be found that the lease shall continue and be in force with like effect as if the well had been completed within the term, is not rendered inoperative or ineffective by the fact that other portions of the paragraph in which said provision is contained are inoperative because the lease does not provide for delay rentals. 2. SAME — TRIAL — <italic>Finding that defendant used</italic> <italic>reasonable diligence in completing well not clearly against</italic> <italic>weight of evidence — Held, further, admission of certain</italic> <italic>evidence harmless error.</italic> Record examined, and held, that the finding of the trial court that the defendant had exercised reasonable diligence in completing a well upon the leased premises is not clearly against the weight of the evidence. Held, further, that the admission in evidence of instructions given by the officers of defendant to its employees in connection with the handling of said well, if erroneous, was harmless error.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Hip injury cannot be</italic> <italic>combined with leg injury for purpose of awarding</italic> <italic>compensation to injured employee on basis of permanent</italic> <italic>partial disability to body as a whole.</italic> A hip injury may not be combined with a leg injury under Workmen's Compensation Act for the purpose of awarding compensation to an injured employee on the basis of permanent partial disability to the body as a whole. 2. SAME — <italic>Award should be made for injury to leg as</italic> <italic>provided by schedule; and also for disability as result of</italic> <italic>injury to hip under "other cases" provision.</italic> Where an employee entitled to the benefits of the Workmen's Compensation Act<page_number>Page 580</page_number> sustains an accidental compensable injury to his leg resulting in permanent partial disability thereto and also sustains an injury to the hip resulting in permanent partial disability to the body as a whole, compensation should be awarded for the disability sustained as a result of the injury to the leg as provided by schedule, 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], subd. 3, and also for the disability sustained as a result of the injury to the hip as provided by the "other cases" provision of said section.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>verdict in jury-waived case.</italic> Where a jury is waived in an action of legal cognizance, the findings of the court are entitled to the same weight and consideration that would be given to a verdict by a jury, and if there is any evidence, including any reasonable inferences, tending to support the findings, this court will not reverse for insufficient evidence.

(Syllabus.) 1. EQUITY — <italic>Jurisdiction — Complete relief</italic> <italic>administered regardless of pleadings.</italic> It is a fundamental rule that equity, having once attached in a proper proceeding, will administer complete relief on all questions properly raised by the evidence, regardless of whether or not such question or issues are specifically raised by the pleadings, as equity will not permit a mere form to conceal the real position and substantial rights of the parties. It always attempts to get at the substance of things and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will not suffer the mere appearance and external form to conceal the true purposes, objects, and consequences of a transaction. Lewis v. Schafer, <cross_reference>163 Okla. 94</cross_reference>, <cross_reference>20 P.2d 1048</cross_reference>. 2. REFORMATION OF INSTRUMENTS — <italic>Court of equity has</italic> <italic>power to reform instrument to reflect true agreement.</italic> Where the proof is clear, unequivocal and convincing that a description of property conveyed by warranty deed failed to conform to the intention and agreement of the parties, a court of equity has the power to reform the instrument to reflect the true agreement.

(Syllabus.) 1. DESCENT AND DISTRIBUTION — <italic>Statutory provision</italic> <italic>for equal division of jointly acquired property between</italic> <italic>heirs of both spouses upon death of surviving spouse</italic> <italic>without issue held not applicable where title was in</italic> <italic>latter.</italic> Where a husband and wife accumulate property by their joint industry during coverture, the title to said property being vested in the husband, and the wife predeceases the husband and the husband thereafter dies without issue and without disposing of the jointly acquired property, the proviso in the second subdivision of 84 O. S. 1941 § 213 is inapplicable and does not affect or govern its devolution. 2. COURTS — <italic>Judgment appealed from not void for want</italic> <italic>of jurisdiction of court rendering same.</italic> Record examined; held, contention of appellants that the judgment appealed from is void for want of jurisdiction of the court rendering the same, is untenable.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendants in error to</italic> <italic>file brief — Cause reversed.</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.

(Syllabus.) 1. CONTRACTS — MONEY RECEIIVED — <italic>Issue of</italic> <italic>fraud in procurement of contracts for the jury under proper</italic> <italic>instructions.</italic> Where, in an action for unjust enrichment because of fraud by defendant in procurement of written contracts, said contracts setting forth certain duties to be performed by defendant and certain sums to be paid as consideration, the alleged fraud being contained in an estimated cost prepared by defendant, and defendant admits preparation of estimate of cost but denies the same was made in furtherance of oral agreement as alleged by plaintiff, and defendant gives testimony to show that an identical amount had been expended by plaintiff when work was performed under plaintiff's supervision, the issue is for the jury under proper instructions. 2. APPEAL AND ERRORS — <italic>Sufficiency of evidence to</italic> <italic>sustain verdict of jury.</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.

(Syllabus.) 1. BROKERS — <italic>Obligation of owner of real estate to</italic> <italic>pay broker's commission where broker has performed his</italic> <italic>contract prima facie by procuring purchaser ready, able,</italic> <italic>and willing to buy upon terms and conditions of</italic> <italic>contract.</italic> Where a broker, who is authorized by the owner to sell real estate on specified terms, procures a buyer obligated in writing to buy on such terms, together with cash deposit of a substantial portion of the consideration with unequivocal promise to pay the balance, and the owner makes no objection to the provisions of the contract or the amount of deposit, the broker, in contemplation of law, has performed his contract prima facie and the owner is obligated to pay the broker's commission except for cause to be shown by such owner. 2. TRIAL — <italic>Error of court in sustaining demurrer to</italic> <italic>plaintiff's evidence, where evidence proved, prima facie,</italic> <italic>plaintiff's right to recover.</italic> Where the evidence of plaintiff proves, prima facie, a right to recover, it is error for the court to sustain a demurrer to plaintiff's evidence.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Requirement of annual</italic> <italic>levy sufficient to pay</italic><page_number>Page 607</page_number> <italic>all bonded indebtedness due in following years, such levies</italic> <italic>to be as nearly equal as possible.</italic> An annual levy must be made for a sinking fund sufficient to pay all bonded indebtedness coming due in the following years, and such levies for such purposes shall be as nearly equal as possible.

(Syllabus.) 1. STATES — <italic>Grant carried title only to land lying</italic> <italic>north of center line of South Canadian river, in Oklahoma</italic> <italic>Territory, but no title to the bed of stream lying south of</italic> <italic>center thereof.</italic> The grant to the State of Oklahoma under section 7 of Enabling Act of June 16, 1906, of section 36, township 10 north, range 4 west, carried title to only so much thereof as lay in Oklahoma Territory, that is, north of the center line of the South Canadian river which was the boundary line between Oklahoma Territory and Indian Territory, and hence carried to the state no title to the bed of the stream that lay south of the center thereof. 2. NAVIGABLE WATERS — <italic>Statute ineffective to disturb</italic> <italic>title of riparian owners to</italic><page_number>Page 614</page_number> <italic>bed of South Canadian river passed to them under Federal</italic> <italic>grants executed prior to statehood.</italic> The Act of the Oklahoma Legislature (Laws 1919, ch. 206, p. 293, sec. 1, Tit. 64 O. S. 1941 § 290) was and is ineffective to disturb the title of the riparian owners to the bed of the South Canadian river which passed to them under Federal grants executed prior to statehood. 3. WATERS AND WATER COURSES — BOUNDARIES — <italic>Application of doctrine of erosion and accretion.</italic> The doctrine that a river continues to be a boundary, notwithstanding erosion and accretion, applies notwithstanding that, during periods of high water, the changes in the banks are rapid and material. 4. WATERS AND WATER COURSES — BOUNDARIES — <italic>Medial line between cut banks boundary line, and held</italic> <italic>applicable to South Canadian river, where involved herein.</italic> The medial line of the channel extending from one cut bank to the other, which carries the water in times of substantial flow, is what is meant by the terms "middle of the main channel" and "mid channel" of a nonnavigable river, and same is held to be applicable to the South Canadian river where it is involved herein. 5. NAVIGABLE WATERS — BOUNDARIES — <italic>Ownership</italic> <italic>of island.</italic> An island, not otherwise appropriated, lying north of the medial line of a nonnavigable stream, belongs to the owner of the north bank whose title extends to the middle of the stream, and its existence does not alter the rule where, as here, the boundary is midway between the cut banks.

(Syllabus.) 1. TAXATION — <italic>Resale tax deed void where land was</italic> <italic>sold for more taxes than were due and delinquent.</italic> Where the county treasurer sells land to the county at tax resale for delinquent taxes<page_number>Page 620</page_number> for a sum which includes an assessment against the land for a year in which the same was not taxable, the resale tax deed, based upon such sale, is wholly void. 2. SAME — <italic>Statutes of limitation applicable only</italic> <italic>where deed issued is valid.</italic> Neither 68 O. S. 1941 § 432f, nor 12 O. S. 1941 § 93, subd. 3, fixing the limitation within which actions may be commenced to recover land sold for taxes, applies to an action to cancel a void resale tax deed.

(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 a 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.

(Syllabus.) 1. INFANTS — <italic>Disaffirmance of contract —</italic> <italic>Return of consideration.</italic> Under the provisions of section 19, Title 15, O. S. 1941, a minor under the age of 18 may disaffirm a contract made by him and recover the property with which he parted, and need not restore or offer to restore the consideration received, as a condition precedent.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error in admission of</italic> <italic>incompetent evidence.</italic> Before a judgment will be reversed on account of the admission of incompetent<page_number>Page 626</page_number> evidence, it must affirmatively appear that the admission of such evidence probably resulted prejudicially to the interests of the one making objection thereto. 2. TRIAL — <italic>Refusal of requested instructions covered</italic> <italic>in general charge.</italic> It is not error to refuse a requested instruction where the matters therein sought to be submitted are properly, by general instructions, given by the court. 3. SAME — <italic>Instruction on legal theories of parties</italic> <italic>supported by evidence sufficient.</italic> An instruction upon tenable legal theories of the parties supported by evidence is sufficient. 4. PRINCIPAL AND AGENT — <italic>Burden of proving agency on</italic> <italic>party alleging it.</italic> The burden of proving agency ordinarily rests upon the party who alleges agency. 5. AUTOMOBILES — <italic>Liability of owner for damages from</italic> <italic>accident where car driven by another — Fundamental facts</italic> <italic>to be proved by plaintiff.</italic> In an action to recover damages against the owner of a car upon the theory of agency when the driver thereof, at the time of the accident, is not its owner, it is incumbent upon the plaintiff to prove, before he can predicate a tort liability on the ground of negligence against said owner, the following: (1) Occurrence of the injury; (2) ownership of the automobile; (3) that the driver was servant or agent of owner; and (4) that such servant or agent was acting within the scope of his authority concerning the master's business at the time of the injury.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Proceeding for bond</italic> <italic>issue to extend sewer system — Election not rendered</italic> <italic>illegal by fact city has on hand sum of money available for</italic> <italic>use in sewer extension.</italic> When the proclamation for a city bond election, and the ballot form, exactly set out the bond amount, and the expenditure purpose of extending the sewerage system, the election is not rendered illegal and void by reason of the fact that the city then has on hand a sum of money available for use in sewer extension, and which sum the city commissioners also intend to use in such general purpose, along with or in addition to the proposed bond issue. 2. SAME — <italic>Legal voter paying ad valorem taxes in</italic> <italic>past twelve months is qualified taxpaying voter at bond</italic> <italic>election.</italic> A legal voter in a city owning real estate therein on which he has paid ad valorem taxes in the past twelve months for which he holds a legal tax receipt is a qualified taxpaying voter at a bond election, as defined by statute, 11 O. S. 1941 § 65, though said real estate has been annexed to the city since the last taxpaying period and since the last tax payment thereon. 3. SAME — <italic>Bonds authorized by legal election</italic> <italic>presumed to be expended for specified purpose only.</italic> In passing upon the right of a city to issue bonds authorized by legal election, it will be presumed the city authorities will expend the bond proceeds only for the specified purpose.

(Syllabus.) 1. EVIDENCE — <italic>Facts may be proved by circumstantial</italic> <italic>as well as by positive or direct evidence.</italic> Facts may be proved by circumstantial as well as by positive or direct evidence, and it is not necessary that the proof rise to that degree of certainty which will exclude every other reasonable conclusion than the one arrived at by the jury. 2. TRIAL — <italic>Sufficiency of instructions considered as</italic> <italic>a whole.</italic> In a law action instructions given by the trial court must be considered as a whole. An instruction which, when standing alone, would seem to assume the existence of a controverted fact in issue, is not erroneous when considered with other instructions which tell the jury that before a verdict<page_number>Page 634</page_number> can be found for plaintiff they must find from a preponderance of the evidence the existence of such controverted fact.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment in jury-waived case.</italic> Where a jury is waived in a law action and the cause is tried to the court, the judgment will be given the same effect as the verdict of a properly instructed jury, and if reasonably supported by any competent<page_number>Page 641</page_number> evidence will not be disturbed on appeal. 2. SAME — <italic>Credibility of witnesses and weight of</italic> <italic>testimony to be determined by trier of facts.</italic> Credibility of witnesses and effect and weight to be given to conflicting or inconsistent testimony are questions of fact to be determined by trier of facts, whether court or jury and are not questions of law for the Supreme Court on appeal.

(Syllabus.) 1. VENDOR AND PURCHASER — <italic>Undertakings of parties in</italic> <italic>contracts for sale of realty dependent and concurrent.</italic> In contracts for the sale of realty, the undertakings of the respective parties are always considered dependent, unless the contrary intention clearly appears. The payment of the whole purchase price, and the giving of the deed are regarded as concurrent acts, and the ability and readiness of either party must exist before the other can be enforced. 2. SAME — <italic>Good and merchantable title to be conveyed</italic> <italic>before action can be maintained for balance of purchase</italic> <italic>price in accordance with provisions of contract.</italic> Plaintiff, by written contract, sold a tract of land to defendant, agreeing to convey to defendant good and merchantable title to said property, free from mortgages, judgment liens, and taxes for prior years. A warranty deed was deposited in a bank with a copy of the contract, with instructions to deliver the deed to defendant when the last installment of the purchase price was paid. The contract further provided that if, upon examination of plaintiff's abstract, objections were made to the title, he should have a reasonable time to correct the defects pointed out. At the time specified for the payment of the last installment of the purchase price, some 21 months after the execution of the contract, plaintiff was unable to deliver merchantable title as provided in his contract. Held, that plaintiff could not maintain an action to recover the balance due on the purchase price until he could and did tender to defendant good and merchantable title in accordance with the provisions of the contract.

(Syllabus.) 1. MORTGAGES — DEEDS — <italic>Inadequacy of</italic> <italic>consideration of itself not sufficient ground for setting</italic> <italic>aside deed from mortgagor to his mortagagee.</italic> Inadequacy of consideration will not avoid a deed from a mortgagor to his mortgagee unless so gross and glaring as to shock the conscience and stamp the transaction with fraud. Otherwise the consideration for the deed is an element to be examined with the other circumstances of the transaction in the determination of whether or not the transaction was voluntarily entered into on the part of the mortgagor and whether it<page_number>Page 647</page_number> is free from undue influence, oppression, or unconscionable advantage. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case to sustain judgment.</italic> In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are against the clear weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal and remand of cause in</italic> <italic>accordance with confession of error.</italic> Where the defendants in error file a confession of error which is reasonably sustained by the record, this court may reverse and remand the cause in accordance with the confession of error.

(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 (Title 85, O. S. Supp. 1943, § 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 <italic>without credit for the compensation</italic><italic>paid for the first or prior injury.</italic> Special Indemnity Fund v. Farmer et al., <cross_reference>195 Okla. 262</cross_reference>, <cross_reference>156 P.2d 815</cross_reference>.

(Syllabus.) APPEAL AND ERROR — <italic>Lack of authenticity of transcript</italic> <italic>or case-made — Appeal dismissed where time for perfecting</italic> <italic>appeal has expired.</italic> Whether an appeal is by transcript of the record or by stipulated case-made, as provided by 12 O.S. 1941 § 966[<cross_reference>12-966</cross_reference>], it must be authenticated by the certificate and seal of the court clerk of the court from which the appeal is taken. If this essential prerequisite to the authenticity of the transcript or case-made is omitted, such appeal presents nothing to this court for review, and where the time for perfecting the appeal has expired, the transcript or case-made cannot be corrected in this respect and the appeal must be dismissed.

(Syllabus.) 1. CHATTEL MORTGAGES — <italic>Mortgagee impliedly waived</italic> <italic>priority of mortgage in favor of mechanic's lien by</italic> <italic>consenting for mechanic to make repairs to vehicle.</italic> Where the holder of a recorded chattel mortgage agrees that mortgagor may transfer title to a buyer, and also advises garage man (mechanic) that such party holds title and that it is all right for mechanic to undertake major repairs to the vehicle, the mortgagee impliedly waives priority of his mortgage in favor of mechanic's lien arising<page_number>Page 656</page_number> from labor performed and materials furnished upon mortgage security. 2. AUTOMOBILES — <italic>Lien for labor performed based on</italic> <italic>legal and continued possession of property alone.</italic> The lien granted under our general lien statute (42 O.S. 1941 § 91[<cross_reference>42-91</cross_reference>]) is based entirely upon legal and continued possession of the property upon which the labor is performed. A mechanic in legal possession of the property is not required to comply with the provisions of 42 O. S. 1941 § 131 et seq., to protect himself against subsequent purchasers or encumbrancers, unless he desires to avail himself of the benefits of the specific lien statutes.

(Syllabus.) 1. COURTS — <italic>Nunc pro tunc orders —</italic> <italic>Jurisdiction.</italic> Jurisdiction is inherent in every court of record to cause its records to speak the truth and by nunc pro tunc order, on proper application and notice, to cause to be entered orders and judgments made by the court which, by inadvertence or mistake, the clerk or the court has omitted to record. 2. SAME — <italic>Jurisdiction to order entered nunc pro</italic> <italic>tunc orders and judgments, not lost by lapse of time.</italic> Jurisdiction to order entered nunc pro tunc orders and judgments by the court, but omitted from the record by the clerk, or the court, is not lost by lapse of time, where no intervening rights are affected. 3. SAME — <italic>Making of nunc pro tunc order depends on</italic> <italic>circumstances of each case.</italic> Whether a nunc pro tunc order should be made, depends on the circumstances of the particular case, and is to be granted or refused as justice requires. 4. SAME — <italic>Power of district courts to correct and</italic> <italic>amend the record or any order by nunc pro tunc order.</italic> District courts in this jurisdiction have the power, while a case is pending and before final judgment, to correct and amend the record or any order or proceeding had in such case to conform to the facts by a nunc pro tunc order, and is not confined to any one class of evidence, but may proceed upon satisfactory evidence. 5. APPEAL AND ERROR — <italic>Review — Conclusiveness</italic> <italic>of report of referee.</italic> Under our statute, in a law action, where a referee is appointed and required to report the facts, the report has the same force and effect as a special verdict of a jury, and should not be disturbed if there is any evidence reasonably tending to support it.

(Syllabus.) 1. TAXATION — <italic>Statute providing for reimbursement of</italic> <italic>purchaser at tax resale not conflicting with tender</italic> <italic>statute, nor does it amend, modify or repeal same.</italic> 68 O.S. 1941 § 4321[68-4321], sub. 3, providing for the reimbursement of a purchaser at tax resale under certain conditions, is not in conflict with 68 O. S. 1941 § 453, and does not amend, modify or repeal said section. 2. SAME — <italic>One attacking tax deed required to tender</italic> <italic>amount required by statute, whether deed valid, voidable,</italic> <italic>or void.</italic> Under the provisions of Title 68 O.S. 1941 §§ 453[68-453] and 455, one who attacks a resale tax deed, whether plaintiff or defendant, must tender the amount required by said sections, whether the tax deed is valid, voidable, or void, where the land is liable for taxation and has been assessed and extended upon the tax rolls in substantial<page_number>Page 663</page_number> compliance with the statute and taxes have not been paid. 3. SAME — <italic>Resale tax deed complying with statutory</italic> <italic>form not void on its face.</italic> A resale tax deed which complies with the form prescribed by 68 O. S. 1941 § 432g is not void on its face.

(Syllabus.) 1. PARTNERSHIP — <italic>Definition of partnership.</italic> 54 O.S.A. § 1 defines a partnership as: "Partnership is the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them." 2. SAME — <italic>Each general partner jointly liable with</italic> <italic>copartner for obligation of partnership.</italic> Under 54 O.S.A. § 40, the liability of each general partner for an obligation of the partnership is a joint liability with his copartner. 3. SAME — <italic>Existence of partnership as question for</italic> <italic>jury where evidence conflicting.</italic> Where the evidence is in conflict on a disputed question of fact as to the existence or nonexistence of a partnership, the matter is one for determination by a jury. 4. SAME — <italic>Action for recovery of obligation of</italic> <italic>partnership incurred before its dissolution should proceed</italic> <italic>against individual partners.</italic> Where a partnership has been dissolved before an action is commenced for recovery of an obligation of the partnership incurred before its dissolution, such action may be maintained and judgment rendered against the individuals formerly comprising the partnership and no judgment can be rendered against the partnership as such.

(Syllabus.) 1. HUSBAND AND WIFE — <italic>In absence of valid agreement,</italic> <italic>no obligation is implied by husband to pay wife for</italic> <italic>services, even though rendered outside of ordinary</italic> <italic>household duties.</italic> In the absence of a valid agreement to the contrary, there is no implied obligation on the part of the husband to pay his wife for services even though they are rendered outside of the ordinary household duties. 2. DEEDS — <italic>Delivery essential to validity of</italic> <italic>deed.</italic> Delivery is essential to the validity of a deed. 3. WORKMEN'S COMPENSATION — <italic>Legal liability of</italic> <italic>employer to employee.</italic> The legal liability of an employer to his employee under the Workmen's Compensation Law is included in the legal liability contemplated in 24 O.S. 1941 § 10[<cross_reference>24-10</cross_reference>]. 4. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In an action of equitable cognizance, the presumption is in favor of the findings of the trial court, and it will not be set aside unless clearly against the weight of the evidence. Where the finding of the trial court is general, such finding is a finding of each special thing necessary to sustain the general finding.

(Syllabus.) 1. DISMISSAL AND NONSUIT — <italic>Plaintiff may dismiss</italic> <italic>case without prejudice where cause not finally submitted to</italic> <italic>court.</italic> Final submission of a case within the purview of 12 O. S. 1941 § 683, contemplates its final submission upon the law and the facts and in a case tried to the court where the evidence has been concluded and time given to counsel for future argument or future filing of briefs, the cause is not finally submitted and plaintiff may dismiss without prejudice. 2. SAME — <italic>Issues of law arising on plea of</italic> <italic>limitations properly determined by court, and not to be</italic> <italic>submitted to jury.</italic> In a civil action tried to a jury, issues of law arising on a plea of limitations, are to be determined by the court, and refusal to submit such matter to the jury is correct. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain verdict and judgment for plaintiff.</italic> Record examined, and evidence found to sustain verdict and judgment for plaintiff. 4. CASE OVERRULED — <italic>The case of Baize v. Connecticut</italic> <italic>Life Ins. Co., <cross_reference>187 Okla. 109</cross_reference>, <cross_reference>102 P.2d 171</cross_reference> is hereby</italic> <italic>overruled.</italic>

(Syllabus.) 1. DIVORCE — <italic>Default divorce decree, obtained by</italic> <italic>false allegations as to jurisdictional fact of residence of</italic> <italic>plaintiff, vacated where defendant unaware of pendency of</italic> <italic>cause until decree rendered.</italic> The false allegation of the jurisdictional fact of the residence of the plaintiff for one year next preceding the filing of a petition for divorce and the false statement of such fact in an affidavit for service by publication constitute such fraud upon the court as will authorize the vacation of a default divorce decree rendered pursuant to such false allegations, under 12 O.S. 1941 § 1031[<cross_reference>12-1031</cross_reference>] (4), where the defendant did not know of the pendency of the cause until after the decree was rendered. 2. DIVORCE — JUDGMENT — <italic>Right to prosecute</italic> <italic>petition to vacate divorce decree under statute relating to</italic> <italic>vacation of judgments.</italic> The provisions of 12 O.S. 1941 §§ 1031[<cross_reference>12-1031</cross_reference>] and 1038, having to do with the vacation of judgments, apply to divorce decrees, and the mere fact that more than six months intervened between the rendition of the decree and the filing of a petition to vacate, and that plaintiff was thus free to remarry, will not estop the defendant from prosecuting the petition to vacate.

(Syllabus.) INTOXICATING LIQUORS — NUISANCE — <italic>Evidence of</italic> <italic>general reputation of place where intoxicating liquor was</italic> <italic>sold and consumed,</italic><page_number>Page 687</page_number> <italic>sufficient to sustain permanent injunction.</italic> In a civil action to abate or perpetually enjoin a nuisance based on 37 Okla. St. Ann., § 73, proof that public place (dance hall) has a general reputation of being a place where intoxicating liquors are sold and consumed, together with proof that people congregate or resort in said place for the purpose of drinking such intoxicating liquors, constitutes sufficient evidence to sustain a permanent injunction.

(Syllabus.) INTOXICATING LIQUORS — NUISANCE — <italic>Evidence of</italic> <italic>general reputation of place where intoxicating liquor was</italic> <italic>sold and consumed, sufficient to sustain permanent</italic> <italic>injunction.</italic> In a civil action to abate or perpetually enjoin a nuisance based on 37 Okla. St. Ann., § 73, proof that public place (dance hall) has a general reputation of being a place where intoxicating liquors are sold and consumed, together with proof that people congregate or resort in said place for the purpose of drinking such intoxicating liquors, constitutes sufficient evidence to sustain a permanent injunction.

(Syllabus.) 1. EMINENT DOMAIN — <italic>Government contractor not liable</italic> <italic>for acts done under authority validly conferred on him by</italic> <italic>Congress.</italic> A government contractor is not liable for acts done by him in executing the will of Congress under authority validly conferred by it on him. 2. UNITED STATES — <italic>When agent or officer of the</italic> <italic>United States liable for injury to another.</italic> An agent or officer of the United States purporting to act on its behalf is liable for his conduct causing injury to another only if he exceeds his authority or if such authority was not validly conferred on him. 3. FALSE IMPRISONMENT — <italic>Insufficient evidence to</italic> <italic>support charge of false arrest caused by defendant —</italic> <italic>Demurrer to evidence properly sustained.</italic> Record examined; no evidence found to support charge defendant procured or participated<page_number>Page 697</page_number> in alleged false arrest; held, demurrer to evidence properly sustained.