Volume 204 — Oklahoma Reports

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed where petition in error not</italic> <italic>filed within three months after judgment or final order.</italic> Where the petition in error with record or case-made is not filed within three months after the judgment or final order made in the case and there has been no order of the trial court extending the time for appeal as provided by 12 O.S. 1941 § 972[<cross_reference>12-972</cross_reference>], as amended by the Session Laws of 1949, page 97, section 1, the appeal will be dismissed for lack of jurisdiction.

(Syllabus.) APPEAL AND ERROR — NEW TRIAL — <italic>Discretion of trial court as to</italic> <italic>granting new trial — Ruling not disturbed unless record shows</italic> <italic>court acted arbitrarily or capriciously.</italic> A motion for new trial is addressed to the trial court's discretion, and on appeal every presumption is in favor of the trial court's ruling sustaining such motion, and ruling will not be disturbed unless record shows clearly that court erred on a pure and unmixed question of law or acted arbitrarily or capriciously.

(Syllabus.) HOMESTEAD — APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment that tract of land was not homestead of a</italic> <italic>deceased spouse at time of his death because abandoned by</italic> <italic>him.</italic> A judgment of a court of equity that a tract of land was not the homestead of a deceased spouse at the time of his death because abandoned by him will not be disturbed on appeal unless clearly against the weight of the evidence.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of evidence to take case to jury.</italic> It was error to direct a verdict against the plaintiff or to take the case from the jury and render judgment where, admitting the truth of all the evidence given in plaintiff's favor, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence reasonably to sustain a verdict, should jury find for plaintiff. 2. NEGLIGENCE — <italic>Sufficiency of evidence on question of</italic> <italic>negligence for determination of jury.</italic> Record examined and held: that there was evidence on the question of negligence on which reasonable men might differ as to the facts established and from the inferences to be drawn therefrom, and therefore jury and not the court must determine the issue.

(Syllabus.) APPEAL AND ERROR — <italic>Order sustaining demurrers to petition to</italic> <italic>vacate judgment affirmed, where matters presented in appeal</italic> <italic>determined in prior appeal.</italic> Where from an examination of the record and the briefs of appellant it conclusively appears that all of the material matters presented in appeal had been determined in a prior appeal between the same parties or their privies, the order of the trial court sustaining demurrers to the petition to vacate the judgment will be affirmed.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence dence in equity case</italic> <italic>to sustain judgment.</italic> In an action of equitable cognizance, the judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.

(Syllabus.) MORTGAGES — <italic>Effect of omitting necessary party defendant in</italic> <italic>foreclosure action — Action de novo to foreclose against</italic> <italic>omitted party.</italic> As a general rule, when a mortgagee forecloses and becomes the purchaser at the foreclosure sale, but fails to join the holder of an interest in the premises as a party defendant, it does not foreclose such interest; but equity will keep the mortgage alive against the omitted party's interest, and the mortgagee will be entitled to an action de novo to foreclose as against said interest.<page_number>Page 89</page_number>

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to support</italic> <italic>finding that claimant was not injured in course of</italic> <italic>employment.</italic> Record examined: Held, finding of the Industrial Commission that claimant sustained an injury but that it did not arise out of and in the course of his employment is sustained by the evidence.

(Syllabus.) 1. JUDGES — <italic>Applicability of law raising salaries of district</italic> <italic>judges to district judge whose term of office began by</italic> <italic>appointment and qualification.</italic><page_number>Page 130</page_number> Senate Bill No. 165 of the 1949 Legislature, which became effective May 26, 1949, providing a raise in salaries of district judges, became fully applicable to a district judge who did not then hold such position, but whose term of office began by appointment and qualification on December 20, 1949. 2. SAME — <italic>Funds on hand available in manner provided by law held</italic> <italic>sufficient to pay salary of district judge from date of</italic> <italic>appointment to present time.</italic> It is apparent as a matter of law that ample funds were legally available on and after December, 1949, and are now legally available to pay the full salary of plaintiff as district judge from his appointment on December 20, 1949, up to the present time. 3. MANDAMUS — <italic>Proper remedy to require approval of claim and</italic> <italic>issuance of warrants to pay lawful salary of district judge.</italic> Mandamus is the proper remedy to require approval of claim and payroll and the issuance of warrants to pay the lawful salary of a district judge.

(Syllabus.) 1. DEEDS — LANDLORD AND TENANT — <italic>Action to cancel option to</italic> <italic>purchase contained in a lease agreement — Option agreement not</italic> <italic>merged into contract of sale.</italic> In an action by the owner to cancel an option to purchase contained in a lease agreement, the execution of a deed by the owner upon an attempted exercise of such option by the lessee, which is not consummated by reason of the failure of the owner to furnish merchantable title as provided in the contract, and which deed is later canceled, will not constitute a merger of the lease in the deed or terminate the option agreement. 2. SAME — <italic>Lease with option agreement not forfeited where vendor</italic> <italic>has failed to furnish merchantable title.</italic> A lease with an option agreement will not be forfeited where the lessee and purchaser has been unable to obtain a loan on the property due to the inequitable conduct of the lessor and vendor in failing to furnish a merchantable title.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence in</italic> <italic>equity case.</italic> In an action of legal cognizance, the verdict of the jury as to questions of fact will not be disturbed upon appeal though the evidence is in conflict, if there is any evidence reasonably tending to support the verdict. 2. TRIAL — <italic>Harmless error in instruction — Sufficiency of</italic> <italic>instructions in entirety.</italic> While an instruction, standing alone may be subject to criticism, if the instructions in their entirety fairly submit the issues to the jury, the giving of such instruction is not reversible error, where the jury is not shown to have been misled thereby.

(Syllabus.) PUBLIC LANDS — <italic>Appeal by preference right lessee to district</italic> <italic>court, from appraisement of land for sale purposes, presented</italic> <italic>same questions as were before Commissioners upon lessee's</italic> <italic>appeal to them.</italic> Where the Commissioners of the Land Office notify a preference right lessee that they have appraised the land covered by his lease for sale purposes, and upon appeal to the Commissioners as provided by law, the Commissioners approve such appraisement, and the preference right lessee appeals to the district court, the only questions properly presented to the district court are the same questions as were before the Commissioners upon the preference right lessee's appeal to them.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of instructions in their entirety.</italic> While an instruction standing alone may be subject to criticism, if the instructions in their entirety fairly submit the issues to the jury, the giving of such instruction is not reversible error where it does not appear probable that the jury was or could have been misled thereby. 2. NEW TRIAL — <italic>Juror not permitted to impeach verdict.</italic> A juror will not be permitted, by affidavit or testimony, to impeach the verdict for misconduct occurring either inside or outside the jury room.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award against the Fund vacated where</italic> <italic>not supported by competent evidence.</italic> An award made by the State Industrial Commission against the Special Indemnity Fund, which is not supported by any competent evidence, but is contrary to the evidence, will be vacated by this court. 2. SAME — <italic>Finding that claimant is "physically impaired person"</italic> <italic>not sustained where evidence does not show loss of use of</italic> <italic>specific member.</italic> A finding by the State Industrial Commission that a claimant is a "physically impaired person", which is based upon the "loss of use or partial loss of use of a specific member, such as is obvious and apparent from observation or examination by an ordinary layman", will not be sustained where there is no competent evidence of loss of use of a specific member.

(Syllabus.) DEEDS — <italic>Deed held valid where evidence showed taxes were paid as</italic> <italic>promised and there was no failure of consideration.</italic> Where it is claimed that the consideration for the execution and delivery of a deed is the promise of the grantee to pay accruing taxes and the evidence shows the taxes were paid, part by grantee and part by another, there is no failure of consideration.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Constructive eviction.</italic> Any disturbance of the tenant's possession by the landlord or someone under his authority whereby the premises are rendered unfit for occupancy for the purpose for which they were demised, or the tenant deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction, if the tenant abandons the premises within a reasonable time. 2. APPEAL AND ERROR — <italic>Instruction not excepted to not considered</italic> <italic>on appeal.</italic> Where an instruction was given and not excepted to, any error in the instruction will not be considered on appeal. 3. TRIAL — <italic>Failure to instruct on measure of damages and</italic> <italic>plaintiffs' duty to minimize damages not error where</italic> <italic>instructions not requested and issues not presented.</italic> Where no instructions on the measure of damages or on the duty of plaintiffs to minimize their damages are requested by defendants, and no issue on either question is presented, the failure to give such instructions is not error. 4. SAME — <italic>Harmless error in giving instructions where</italic> <italic>instructions as a whole make clear the issue in case.</italic> Where an allegation in the petition is not sustained by the evidence, but where the instructions as a whole make clear the issues in the case, the giving of such an instruction is harmless. 5. APPEAL AND ERROR — TRIAL — <italic>Review — Insufficiency of evidence</italic> <italic>— Waiver of demurrer and failure to ask directed verdict.</italic> If defendants, after demurrer to plaintiff's evidence has been overruled, do not stand upon the demurrer but put on evidence, this waives the demurrer, and if they do not move for a directed verdict after the parties have finally rested, they cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiffs.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Order denying compensation not</italic> <italic>disturbed on review, where claimant admitted disability was</italic> <italic>due solely to pre-existing condition, and not caused by</italic> <italic>accidental injury.</italic> On a hearing before the State Industrial Commission to recover compensation under the Workmen's Compensation Act, a finding of the commission that a disability admittedly sustained by claimant was not caused by an accidental injury, but was due solely to a pre-existing condition, and an order based thereon denying compensation will not be disturbed by this court on review where reasonably supported by competent evidence.

(Syllabus.) COUNTIES — SEWERS — <italic>Issuance of sewer bonds approved where</italic> <italic>record shows proceedings were in all respects regular and in</italic> <italic>accordance with law.</italic> Where an application for the approval of sewer improvement district bonds is filed in this court, and the record of the proceedings culminating in the organization of the district, and the issuance of the bonds, filed with the application shows that the proceedings were in all respects regular and in accordance with governing statutes, the bonds will be approved by this court.

(Syllabus.) 1. LANDLORD AND TENANT — WAR AND NATIONAL DEFENSE — <italic>Sixty-day</italic> <italic>period required by Housing and Rent Control Act</italic><page_number>Page 280</page_number> <italic>no bar to action by landlord to recover judgment for</italic> <italic>possession of property.</italic> The sixty-day period required by the Housing and Rent Control Act to elapse before a tenant shall be "obliged" to surrender possession of any housing accommodation constitutes no bar to an action by the landlord in forcible entry and detainer under state statutes to recover judgment for possession of property. 2. SAME — <italic>Sixty-day period effective to prevent tenant being</italic> <italic>evicted from premises during such period.</italic> The sixty-day period required by the Housing and Rent Control Act to elapse before a tenant shall be "obliged" to surrender possession of any housing accommodation is effective to prevent a tenant being evicted from premises during such period, notwithstanding recovery by the landlord of a judgment for possession.

(Syllabus.) 1. EVIDENCE — <italic>Admission of hearsay evidence as reversible</italic> <italic>error.</italic> The admission of hearsay evidence which is calculated to mislead the jury and prejudice the rights of the litigant against whose interest such hearsay evidence is admitted constitutes reversible error. 2. TRIAL — <italic>Duty of trial judge to properly instruct jury on</italic> <italic>burden of proof and all other questions raised in trial.</italic> It is the duty of the trial judge to properly instruct the jury on the burden of proof and all other questions properly raised in the trial of a case.<page_number>Page 297</page_number>

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Question of fact whether disability</italic> <italic>is temporary or permanent — Conclusiveness of finding of</italic> <italic>reviewing court.</italic> Whether a disability resulting from an accidental injury is temporary or permanent is a question of fact to be determined by the State Industrial Commission and if there is any competent evidence reasonably tending to support the finding of the Commission an award based thereon will not be disturbed on review.<page_number>Page 311</page_number> 2. SAME — <italic>Extent of permanent disability question of fact —</italic> <italic>Sufficiency of evidence to support finding and award of</italic> <italic>commission.</italic> The extent of permanent disability resulting from an accidental injury is a question of fact to be determined by the State Industrial Commission and if there is any competent evidence reasonably tending to support the finding of the commission in this respect, an award based thereon will not be disturbed on review.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — JUDGMENT — <italic>Decree of foreclosure of</italic> <italic>special assessment — Judgment becomes dormant when period of</italic> <italic>five years has elapsed after date of judgment, and no order of</italic> <italic>sale issued, nor order reviving judgment entered — Effect.</italic> A decree for foreclosure of a special assessment rendered in an action pursuant to 11 O.S. 1941 § 107[11-107] is a "Final determination of the rights of the parties in an action" and is in statutory definition a judgment, 12 O.S. 1941 § 681[<cross_reference>12-681</cross_reference>], and such decree is a judgment within the meaning and usage of that term in the dormancy statute, 12 O.S. 1941 § 735[<cross_reference>12-735</cross_reference>]. Under said section 735 when a period of five years has elapsed after the date of such judgment and an order of sale has not been issued, as authorized<page_number>Page 322</page_number> under section 107, and as decreed in the judgment, the judgment becomes dormant and with an effect that such special execution may not thereafter issue and with an effect that the remedy for the enforcement of the assessment lien as provided by section 107 becomes spent and lost. 2. MUNICIPAL CORPORATIONS — LIMITATION OF ACTIONS — <italic>Where</italic> <italic>judgment in action to foreclose assessment lien dormant,</italic> <italic>remedy for enforcement of lien lost.</italic> 11 O.S. 1941 § 107[11-107] which grants a bondholder the right to institute an action to foreclose an assessment lien precludes any other or further action to collect such assessments when an action thereunder has been commenced and has proceeded to judgment. When such judgment has become finally dormant the remedy for the enforcement of the lien becomes effectively lost. In such circumstances the commencement of the action under section 107 ceases to operate in toll of the three-year period of limitation provided in 11 O.S. 1941 § 242[11-242] for the commencement of action and the preservation of the lien, and under section 242 the lien ceases to exist and becomes subject to cancellation.

(Syllabus.) TAXATION — <italic>Invalidity of tax deed where amount of delinquent</italic> <italic>taxes for which lands were sold at tax resale includes item</italic> <italic>not legally charged against lands.</italic> Where the amount of delinquent taxes for which lands are advertised and sold at tax resale includes an item which is not legally chargeable against said lands, the tax deed issued thereon is void.<page_number>Page 344</page_number>

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to support judgment</italic> <italic>in law action tried to court.</italic> In a law action tried to the court, where disputed questions of fact are submitted, the judgment of the court on such facts will not be disturbed by this court on appeal where there is any competent evidence reasonably tending to support it.

(Syllabus.) 1. LICENSES — <italic>Held, Tax Commission did not err in denying</italic> <italic>protest of corporation against assessment of additional</italic> <italic>corporation taxes under facts disclosed.</italic> Under sections 636-8 [68-636-8], Title 68, O.S. 1941, the Tax Commission did not err in denying the protest of the Foster Petroleum Corporation where the facts disclose: that it is a Delaware corporation organized in 1924 and qualified to do business in Oklahoma the same year; that from its organization until February 10, 1932, and since September 1, 1939, its only general office was and has been at Bartlesville, Oklahoma, where all its records are kept and its checks were and are written and where eight of its nine officers and all of its directors are<page_number>Page 368</page_number> residents of the State of Oklahoma; that its business and commercial domicile was in said state; that it conducted its investment business and the major portion of its oil business in and from said state, and practically all of the intangibles held and owned by it during the time in controversy represent capital acquired during the time its commercial and business domicile was in said state; that of the intangibles held and owned during said time, approximately Eleven Million Dollars thereof was acquired from and after September, 1939, and that a commercial or business situs for such intangibles has not been established elsewhere. 2. SAME — <italic>Held, property of corporation used in its business in</italic> <italic>Oklahoma was properly included in value of its capital stock</italic> <italic>employed in Oklahoma in measuring corporation fee.</italic> Record examined, and held: The Foster Petroleum Corporation had a business situs in Oklahoma; its property was used in its business in Oklahoma and was properly included in the value of its capital stock employed in Oklahoma in computing its corporation fee.

(Syllabus.) 1. EVIDENCE — <italic>Existence of conditions at given time raises no</italic> <italic>presumption that same existed at prior date.</italic> Proof of the existence of a condition or state of facts at a given time does not raise any presumption that the same condition or state of facts existed at a prior date. 2. PARTNERSHIP — <italic>Statement by person that another was partner</italic> <italic>not binding on other.</italic> A statement by one person that another was a partner in business with him, not having been made in the presence of the other person attempted to be held as partner in the business, is not binding upon the said person attempted to be bound thereby.

(Syllabus.) 1. EMINENT DOMAIN — HIGHWAYS — <italic>State or Department of Highways</italic> <italic>empowered to acquire fee-simple title to real estate by</italic> <italic>condemnation proceeding.</italic> The State, or the Department of Highways of the State, in taking real estate by condemnation for public use may acquire fee-simple title by appropriate proceedings therefor, and upon determination that the proposed improvements and intended use justify the same. 2. EMINENT DOMAIN — <italic>Terms "lands." or "real property," or "real</italic> <italic>estate," include land itself, with all buildings and</italic> <italic>structures thereon, as used in reference to right of eminent</italic> <italic>domain.</italic> Generally, the terms "lands" or "real property" or "real estate," as used in statutory or constitutional provisions as to eminent domain, include the land itself with all buildings and structures thereon. 3. SAME — <italic>Proceedings not vitiated by inclusion of small area in</italic> <italic>appraisal, excluded by court as not needed, where condemnor</italic> <italic>seeks no reduction in appraisement nor reappraisal.</italic><page_number>Page 381</page_number> Where condemnation proceedings, including appraisement, cover a small area excluded by the court as not needed, and such small area is apparently inconsequential and of no effect on the value fixed by appraisement, and the condemnor seeks no reduction in the appraisement nor reappraisal, no right is thereby afforded the land-owner to vacate the proceedings and require new proceedings conforming more strictly to the area taken. 4. SAME — <italic>In condemnation proceeding by State, landowner without</italic> <italic>right to supersede judgment rendered on answer and exceptions</italic> <italic>to Commissioner's report.</italic> In condemnation proceedings by the State, or the Department of Highways of the State, while the right of appeal is fully provided, there exists in the landowner no right to supersede the judgment of the trial court rendered on answer and exceptions to the Commissioner's report.

(Syllabus.) 1. MASTER AND SERVANT — <italic>Employer not required to furnish</italic> <italic>employee safe equipment outside scope of duties.</italic> An employer is not required to furnish an employee safe equipment for use outside the scope of the required duties of the employee. 2. SAME — <italic>Scope of servant's duties.</italic> The scope of a servant's duties is to be defined by what he was employed to perform and what, with the knowledge and approval of the master, he actually did perform.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Liability of Special Indemnity Fund</italic> <italic>for payment of compensation to "physically impaired person" on</italic> <italic>basis of combined disabilities.</italic> Under Title 85 O.S. 1943 Supp. § 172 [<cross_reference>85-172</cross_reference>], the Special Indemnity Fund is liable for the payment of compensation to a "physically impaired person" if 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, and compensation shall be paid on the basis of such combined disabilities. 2. SAME — <italic>Liability of Fund for degree of disability shown to</italic> <italic>exist by reason of combination of such disability with that</italic> <italic>resulting from compensable accident in permanent total cases.</italic> Where the medical testimony, weighed in the light of all related circumstances, shows that an injured employee under the Workmen's Compensation Law was not totally disabled by reason of a pre-existing condition, the Special Indemnity Fund is liable for the degree of disability shown to exist by reason of combination of such disability with that resulting from a compensable accident in permanent total cases if such degree of disability is materially greater than the disability would have been from the subsequent injury standing alone. 3. SAME — <italic>Record examined, and held, claimant was not totally</italic> <italic>disabled by reason of pre-existing condition, and was a</italic> <italic>physically impaired person under Special Indemnity Fund Act.</italic> Record examined, and held: That the claimant was not totally disabled by reason of pre-existing condition and was a physically impaired person under the Special Indemnity Fund Act; and that there is medical testimony reasonably tending to support the finding of the Industrial Commission as to the degree of disability which resulted from the compensable accident and that which existed by reason of the preexisting condition and that resulting from the combination of the compenable disability and the disability of the pre-existing condition.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence, though conflicting,</italic> <italic>to support verdict.</italic> Where there is a conflict in the evidence on material issues in the case, which evidence was competent, and the cause has been submitted to the jury under proper instructions, the verdict and judgment thereon will not be reversed on appeal, where the evidence reasonably tends to support the verdict.

(Syllabus.) WILLS — <italic>Construction — Ascertainment of intent of testator.</italic> The cardinal rule for the construction of wills is to ascertain the intent of the testator, and give effect thereto, if such intent does not attempt to effect that which the law forbids. All rules of construction are designed for this purpose, and all rules and presumptions are subordinate to the intent of the testator where that has been ascertained.

(Syllabus.) APPEAL AND ERROR — <italic>Assignments of error — Consideration of</italic> <italic>evidence.</italic> Assignments of error requiring an examination and consideration of the evidence will not be reviewed by this court, unless all the evidence relating thereto is preserved and brought up by case-made or otherwise.

(Syllabus.) 1. BAIL — <italic>Discharge of forfeiture of bail bond — Discretion of</italic> <italic>court.</italic> An application of surety to discharge forefeiture of bail bond is addressed to the sound judicial discretion of the court under sec. 1108 [<cross_reference>22-1108</cross_reference>], Title 22, O.S.A. 1941. 2. SAME — APPEAL AND ERROR — <italic>Held, court abused discretion in</italic> <italic>refusing to discharge forfeiture.</italic> Held, under record herein: The court abused discretion in refusing to discharge forfeiture.

(Syllabus.) 1. DEATH — RELEASE — <italic>Action to recover damages for wrongful</italic> <italic>death — Language of release executed held broad enough to</italic> <italic>include any cause of action which releasor might have for</italic> <italic>death of wife resulting from said accident.</italic> A release in writing based upon a valuable consideration which remised, released and forever discharged the alleged tortfeasor of and from any and all claims, demands, rights or causes of action of whatsoever kind or nature arising from or by reason of any and all known or unknown, foreseen or unforeseen, bodily or personal injuries resulting or to result from a certain accident of a given date, for which the releasor had claimed the alleged tortfeasor was legally liable, was broad enough to include a release of any cause of action which releasor might have had for the death of his wife to result from said accident, though the death of his wife had not occurred at the time said release was executed. 2. CONSTITUTIONAL LAW — <italic>Settlement and release not</italic> <italic>unconstitutional abrogation of right of action to recover</italic> <italic>damages for injuries resulting in death.</italic> A settlement and release such as is described in paragraph 1 of this syllabus, executed after the injury to the releasor's wife, but before her death, is not in violation of sec. 7, article 23 of the Constitution of the State of Oklahoma, and does not constitute an abrogation of right of action to recover damages for injuries resulting in death, and does not constitute any statutory limitation of the amount recoverable for wrongful death.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Whether disability is attributable to</italic> <italic>injury or to other cause as question of fact for Industrial</italic> <italic>Commission — Findings not disturbed where reasonably supported</italic> <italic>by medical testimony.</italic> Whether a disability is attributable to an injury or other cause is a question of fact to be determined by the State Industrial Commission from the competent evidence adduced. Its determination of this fact will not be disturbed where reasonably supported by medical testimony.

(Syllabus.) 1. STATES — <italic>Action against state, pursuant to special act</italic> <italic>waiving immunity of state, for alleged unlawful appropriation</italic> <italic>and conversion of certain property belonging to plaintiff —</italic> <italic>Joinder of board of county commissioners not fatal to</italic> <italic>jurisdiction of court.</italic> Where plaintiff pursuant to an Act of the Legislature waiving immunity of the state and authorizing him so to do brings an action against the State of Oklahoma for an alleged unlawful appropriation and conversion of certain property belonging to him, and the board of county commissioners of a county which it is alleged claimed some right, title and interest in and to the converted property and a necessary party plaintiff, but refused to join as such, and was made a party defendant, a party as to which the Legislature had not waived the immunity of the state; held, assuming that the board of county commissioners was a necessary party plaintiff, its joinder as a party defendant because of its refusal to join as a party plaintiff was not fatal to the jurisdiction of the trial court, as it will be assumed that when the Legislature waived the immunity of the state as to plaintiff it intended thereby to waive immunity as to all parties necessary to a complete and final determination and settlement of all questions that might arise in the action. 2. TRIAL — <italic>Held, trial court erred in sustaining demurrer to</italic> <italic>petition and dismissing case.</italic> Record examined. Held, trial court erred in sustaining demurrer to plaintiff's petition and dismissing the case.

(Syllabus.) 1. CHATTEL MORTGAGES — <italic>So long as foreclosure decree of chattel</italic> <italic>mortgage is effective and not satisfied, it constitutes first</italic> <italic>lien against property foreclosed against.</italic> Where chattel mortgage constituting a first lien on personal property is foreclosed by court action, the mortgage is merged in the judgment, but the lien evidenced by the mortgage is not extinguished but is thereafter evidenced by the foreclosure decree; and so long as such decree is effective and unsatisfied, it constitutes a first lien against the property foreclosed against. 2. SAME — <italic>Necessary tender, payment, or deposit of mortgage debt</italic> <italic>by holder of inferior lien against personal property.</italic> The holder of an inferior lien against personal property may levy upon and have such property sold for the satisfaction of his lien, provided he first complies with the provisions of sec. 68 [<cross_reference>46-68</cross_reference>], Title 46, O.S. 1941, by tendering, paying or depositing sufficient funds to satisfy claim of superior lienholder. 3. SAME — TRIAL — <italic>Duty of trial court to instruct jury, in</italic> <italic>action for conversion of casing, to return verdict for</italic> <italic>mortgagee and fix amount of recovery.</italic> Where personal property covered by a chattel mortgage which has been foreclosed, but before sale under foreclosure, is converted by a junior lienholder, it is the duty of the trial court, in an action for the conversion, to instruct the jury to return a verdict for the mortgagee and fix the amount of recovery in the amount that it finds the converted property to be worth.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Application for approval of sewer bonds</italic> <italic>— Bonds approved where proceedings found to be in all respects</italic> <italic>regular and in accordance with statutes.</italic> Where an application for the approval of sewer improvement district bonds is filed in this court, and the record of the proceedings culminating in the organization of the district, and the issuance of the bonds, filed with the application, show that the proceedings were in all respects regular and in accordance with governing statutes, the bonds will be approved by this court.

(Syllabus.) 1. EVIDENCE — <italic>Sufficiency of evidence to sustain verdict and</italic> <italic>judgment.</italic> Evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences, is sufficient to sustain a verdict and judgment based thereon. 2. APPEAL AND ERROR — <italic>Findings of fact founded on conflicting</italic> <italic>evidence not disturbed on appeal.</italic> Findings of fact which are determined by a trial court, sitting without a jury, upon conflicting evidence, will not be disturbed on appeal.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed where question presented has</italic> <italic>become moot.</italic> Where the question presented by an appeal has become moot, the appeal will be dismissed.

(Syllabus.) 1. COVENANTS — <italic>Action maintainable on cross-petition for breach</italic> <italic>of covenants of title against holder of equitable title to</italic> <italic>property.</italic> An action on cross-petition may be maintained for breach of covenants of title by cross-petitioner, as grantee, against the holder of the equitable title to the property which has been conveyed to cross-petitioner by the holder of the legal title, as grantor, where such grantor held the legal title merely for the purpose of conveying according to the direction of the equitable title holder, who admittedly received the $2,500 consideration recited in the deed in accordance with the terms of a written contract of sale between cross-petitioner and the equitable owner, covering the property involved, wherein he was the recipient, under said contract, of $800 down payment on the property and payee of $1,700 in notes, secured by a mortgage on said property, representing the balance of the purchase price. 2. MORTGAGES — <italic>Seller entitled to have damages mitigated in sum</italic> <italic>of $400, amount received for oil and gas lease on property</italic> <italic>involved.</italic> Where damage in the sum of $800 results from a partial breach of covenant of warranty of title by incumbrance of conveyed property by seller placing an oil and gas lease thereon, which was later released by the lessee at the request of the purchaser of said property and then leased for oil and gas purposes back to the former lessee for the sum of $400, the seller of said property was entitled to have the damages mitigated to that extent.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence — Failure to demur or</italic> <italic>request directed verdict.</italic> Where the evidence is not challenged by a demurrer or by a request for a directed verdict, in a case of legal cognizance, this court will not consider the sufficiency of the evidence.

(Syllabus.) 1. TAXATION — <italic>Resale invalid where notice of resale included</italic> <italic>taxes not delinquent.</italic> Where a resale of land for nonpayment of taxes includes taxes not delinquent at time of first publication of notice of such resale, the resale deed and title based thereon are void. 2. QUIETING TITLE — <italic>Action not maintainable by one having no</italic> <italic>interest in title.</italic> A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title to such real estate, or to quiet title thereto. 3. JUDGMENT — <italic>Decree for foreclosure of special assessment —</italic> <italic>Judgment becomes dormant when period of five years has elapsed</italic> <italic>after date of judgment, and no order of sale issued — Effect.</italic> A decree for foreclosure of a special assessment rendered in an action pursuant to 11 O.S. 1941 § 107[11-107] is a "final determination of the rights of the parties in an action" and is in statutory definition a judgment, 12 O.S. 1941 § 681[<cross_reference>12-681</cross_reference>], and such decree is a judgment within the meaning and usage of that term in the dormancy statute, 12 O.S. 1941 § 735[<cross_reference>12-735</cross_reference>]. Under said section 735, when a period of five years has elapsed after the date of such judgment and an order of sale has not been issued, as authorized under section 107, and as decreed in the judgment, the judgment becomes dormant and with an effect that such special execution may not thereafter issue and with an effect that the remedy for the enforcement of the assessment lien as provided by section 107 becomes spent and lost. 4. MUNICIPAL CORPORATIONS — <italic>Where judgment in action to</italic> <italic>foreclose assessment lien becomes dormant, remedy for</italic> <italic>enforcement of lien lost — Under three-year statute, lien</italic> <italic>ceases to exist.</italic> 11 O.S. 1941 § 107[11-107], which grants a bondholder the right to institute an action to foreclose an assessment lien, precludes any other or further action to collect such assessments when an action thereunder has been commenced and has proceeded to judgment. When such judgment has become finally dormant the remedy for the enforcement of the lien becomes effectively lost. In such circumstances, the commencement of the action under section 107 ceases to operate in toll of the three-year period of limitation provided in 11 O.S. 1941 § 242[11-242], for the commencement of action and the preservation of the lien, and under section 242 the lien ceases to exist and becomes subject to cancellation.

(Syllabus.) 1. TAXATION — <italic>Under State Income Tax Law of 1942, taxpayer</italic> <italic>without right to file tentative return prior to close of his</italic> <italic>taxable year.</italic> Under State Income Tax Law as it existed in the year 1942 a taxpayer did not have the right to make a tentative return prior to the close of his taxable year and pay to the Oklahoma Tax Commission the tax as disclosed by such return and deduct the amount so paid from gross income received during the taxable year in computing income tax liability for that year. 2. SAME — <italic>Appellant held without right to deduct amount</italic> <italic>deposited with Collector of Internal Revenue from gross income</italic> <italic>received in state during said year 1942, in computing state</italic> <italic>income tax liability for that year.</italic> Appellant, on December 30, 1942, deposited with the Collector of Internal Revenue at Oklahoma City a cashier's check in the sum of $850,000 to apply on its Federal Income Tax for that year. The Collector declined to accept the deposit as a payment made on its tax liability for that year and did not allow such payment as a deduction from gross income received by the appellant during said year, but did allow such payment as a deduction from gross income for the year 1943 in computing its federal income tax liability for that year. Held, appellant did not have the right to deduct the amount so deposited with the Collector of Internal Revenue from gross income received by it in this state during the said year 1942, in computing its state income tax liability for that year. 3. SAME — <italic>Right to deduct from gross income received in 1942</italic> <italic>amount paid for purchase of insurance contract to put in</italic> <italic>effect trust pension plan.</italic> Under facts as stated in the opinion appellant had the right to deduct from gross income received in 1942 an amount paid<page_number>Page 646</page_number> by it in that year for the purchase of an insurance contract to put in effect a trust pension plan adopted for the benefit of its employees, in computing its state income tax liability for said year.

(Syllabus.) PUBLIC LANDS — <italic>Authority of Commissioners of Land Office to</italic> <italic>appraise lands covered by preference right leases in order to</italic> <italic>determine what would constitute a reasonable rental thereof</italic> <italic>without being expressly directed to do so by Legislature.</italic> The Commissioners of the Land Office as a necessary incident to the duties imposed upon them by art. 6, section 32, of the Constitution, giving them charge of the sale, rental, disposal, and managing of school lands, and other public lands of the state, under rules and regulations prescribed by the Legislature, may cause lands covered by preference right leases to be appraised at or shortly prior to the expiration of such leases, without being specifically directed to do so by the Legislature, in order that the rentals in such new leases, which the Legislature has required to be fixed at a percentage of the appraised value of the land, may be based upon the land's present value.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Action to dissolve partnership and for</italic> <italic>accounting — Order establishing existence of partnership and</italic> <italic>interest of plaintiff therein appealable order.</italic> In action to dissolve partnership and for accounting, where existence of partnership is put in issue by defendants, an order establishing existence of partnership and interest of plaintiff therein is an appealable order under subdivision 3 of sec. 952 [<cross_reference>12-952</cross_reference>], 12 O.S. 1941. 2. SAME — TRIAL — <italic>Verdict in equity case advisory only —</italic> <italic>Insufficiency of evidence to sustain judgment.</italic> Where a cause of equitable cognizance is tried to a jury, verdict is advisory only and the court must make its own determination of issues of fact and law, and Supreme Court on appeal will weigh the evidence, will reverse the judgment where it is found to be clearly against the weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Judgment refusing to cancel deed of alleged</italic> <italic>mental incompetent affirmed since same is not clearly against</italic> <italic>weight of evidence.</italic> In an action to cancel a deed executed by an alleged mental incompetent, or one allegedly mentally weakened and acting under undue influence, the presumption is in favor of the correctness of the judgment of the trial court and this court will not disturb the findings of the trial court unless same are against the clear weight of the evidence.