Volume 208 — Oklahoma Reports

(Syllabus.) 1. VENDOR AND PURCHASER — MORTGAGES — <italic>Right of bona fide</italic> <italic>purchaser to rely on record title.</italic> Where owner of land gave another an absolute deed to land subject to an unrecorded agreement between themselves qualifying title ostensibly conveyed, and thereafter lands so conveyed are sold for<page_number>Page 35</page_number> delinquent taxes to the county, which in turn conveys same to another by resale tax deed, valid on its face, such subsequent purchaser who purchased in reliance on the record title without actual notice of original owner's heirs' claim of unrecorded oral incumbrance, was protected under statute requiring that instrument of defeasance must be recorded. 2. JUDGMENT — <italic>Judgment recovered by holder of resale tax deed</italic> <italic>against record owner effectual to divest interest not legally</italic> <italic>recorded, and is res adjudicata and operates as estoppel</italic> <italic>against subsequent assertion of any unrecorded oral</italic> <italic>incumbrance.</italic> Where the holder of a resale tax deed recovers judgment against the record owner, establishing the validity of such tax deed and quieting her title thereto in certain land, and all persons known to claim any interest in or incumbrance on the property are parties thereto, such judgment is effectual to divest the interest not legally recorded of persons who are not parties but who claim under a defendant in the suit, and of which the plaintiff had no actual or constructive notice and such judgment is res adjudicata and operates as an estoppel against the subsequent assertion of any unrecorded oral incumbrance.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Change of theory of pleading on appeal not</italic> <italic>permissible.</italic> Counsel will not be permitted to present one theory of a pleading to the trial court and when an adverse ruling is made present the same matter on an allegation that it was intended to be under another and different theory and under a separate statute from the one on which his theory was based in the trial court. 2. NEW TRIAL — <italic>Movant required to prove facts evidencing due</italic> <italic>diligence.</italic> To obtain a new trial on the ground of newly discovered evidence which could not with reasonable diligence have been discovered before trial, it is not sufficient for the movant to merely allege due diligence; he must allege and prove facts evidencing such diligence.

(Syllabus.) TAXATION — <italic>Profit arising from sale of corporate stock owned by</italic> <italic>husband on effective date of Community Property Act of 1945</italic> <italic>constitutes separate income of husband for income tax</italic> <italic>purposes.</italic> Sec. 1 of the Community Property Act of 1945 (Title 32, c. 1, S.L. 1945) provides that "All property of the husband, both real and personal, owned or claimed by him before marriage or before the effective date of this Act, whichever is later, and that acquired afterwards by gift, devise, or descent, or received as compensation for personal injuries, shall be his separate property." Profit arising from sale of corporate stock owned or claimed by husband on effective date of this Act, while Act was in force, constitutes separate income of the husband for income tax purposes.

(Syllabus.) 1. SCHOOLS AND SCHOOL DISTRICTS — <italic>Annexation of school districts</italic> <italic>— Jurisdiction of district court on appeal from order of</italic> <italic>county superintendent.</italic> By the provisions of 70 O.S. 1943 Supp. § 891.5 [70-891.5] an appeal to the district court lies for review of an order of a county superintendent announcing the result of an election, for such purpose, and ordering the union or consolidation of one consolidated school district with another consolidated district to form a third or new consolidated district. 2. CERTIORARI — <italic>Right to issuance of writ.</italic> Certiorari is not a writ of right, but is to be granted or not in the discretion of the court, and the writ will issue only where no appeal or proceeding in error lies, and ordinarily where the error cannot otherwise be corrected.

(Syllabus.) 1. HOSPITALS — PRINCIPAL AND AGENT — <italic>Action for damages for</italic> <italic>personal injuries — Where facts as to existence of agency of</italic> <italic>hospital nurse conflicting, question one of fact for jury</italic> <italic>under proper instructions.</italic> Where M., a patient in S. hospital, sued S. hospital and W., a nurse, and general employee of S. hospital for damages for personal injuries, sustained by M. through W.'s alleged negligence who was at the time of the accident allegedly the agent and general employee of S. hospital and performing her duties as the hospital's employee and agent, but which fact of employment and agency was denied by S. hospital, codefendant, and in contravention it alleged that at the time of the accident, its general employee nurse, W. was loaned to Dr. P., M.'s personal physician, and that the nurse was under the supervision, direction and control of Dr. P. as his agent and servant at the time of the alleged accident which was allegedly caused by the negligence of nurse W.; that by reason thereof S. hospital was not responsible for nurse W.'s negligence, if any, but that Dr. P., M.'s personal physician, who was not a party defendant, was responsible under the doctrine of respondeat superior. Held: that this constituted an issue of fact; that after a jury was selected to try the cause and conflicting evidence had been adduced by the parties as to whether nurse W. was the agent of S. hospital, or the agent of Dr. P., and under his direction and control at the time of the injuries sustained through nurse W.'s alleged negligence, it was error to sustain a motion for a directed verdict in favor of S. hospital because a fundamental principle of our system of jurisprudence in trial by jury is that all questions of law must be decided by the court, and all questions of fact and those depending upon disputed testimony, by the jury, and where, as in the case at bar, the evidence pertaining to the existence or nonexistence of agency is in conflict, or conflicting inferences may be drawn therefrom, the question is one of fact to be presented to the jury under proper instructions. 2. HOSPITALS — NEW TRIAL — <italic>Prejudicial error in personal injury</italic> <italic>action in irrelevant remark of counsel conveying to jury</italic> <italic>knowledge that nurse was protected against loss, warranting</italic> <italic>sustaining motion for new trial.</italic> Where counsel for plaintiff in his argument to the jury, after defendant hospital's motion for a directed verdict had been sustained leaving only Sister Walburga, an employee of the hospital, as a defendant, said: "Although the hospital was out of it, that if they awarded plaintiff a judgment they should award her a substantial one, that they could collect it without taking money off of anybody," it was not an abuse of court's discretion or error to sustain a motion for a new trial as the jury may have been prejudicially influenced against the defendant Nurse Walburga, by this irrelevant remark of counsel which clearly was calculated to convey to the jury the knowledge that the nurse was protected against loss.<page_number>Page 131</page_number>

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review of equity case — Sufficiency of</italic> <italic>evidence.</italic> In an action of equitable cognizance the findings of the trial court should be sustained unless it appears that its findings are clearly against the weight of the evidence. 2. DESCENT AND DISTRIBUTION — <italic>Validity of purchase by</italic> <italic>administrator of heir's interest in estate.</italic> A person acting as administrator may purchase the interest of an heir in such estate when the heir is sui juris and laboring<page_number>Page 135</page_number> under no disability and where no undue influence is exerted and all circumstances of the transaction are fair and open and no advantage is taken of such heir by concealment, misrepresentation, or omission to state any important fact. In such cases, however, the court looks upon such transactions with a jealous eye, and will not uphold them unless it appears that such transactions are fair and there is no fraud or concealment.

(Syllabus.) 1. DAMAGES — <italic>Permanent damages for injury to personal property</italic> <italic>may be established by evidence damaged property cannot be</italic> <italic>restored to original condition.</italic> Permanent damages for injury to personal property may be established where the evidence discloses that said personal property had no fair market value and a repair of the property cannot restore it to its condition prior to its damage. 2. SAME — <italic>Reasonable market value of personalty when destroyed</italic> <italic>is measure of damages.</italic> The measure of damages in an action for damages for loss or destruction of used articles of personal property, having no fixed market value, is the value of the goods to the owner; not any fanciful value which the owner might place upon them, but such reasonable value as they had to the owner considering the nature and condition of the goods and purposes for which they were adapted. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence in jury-tried case</italic> <italic>to sustain judgment entered upon verdict.</italic> In a cause tried to a jury where the evidence reasonably supports the finding on a question of fact, a judgment entered upon the verdict will not be disturbed on appeal. 4. CARRIERS — <italic>Action against carrier for delay resulting in</italic> <italic>damage to personal property — Notice of intended use of</italic> <italic>property question of fact — Circumstances disclosing notice</italic> <italic>was given to carrier.</italic> In an action against a carrier for delay caused by negligence resulting in damage<page_number>Page 148</page_number> to personal property, notice of the intended use of the property is a question of fact, and where from the facts and circumstances it is reasonably disclosed that such notice is given to the carrier, a judgment based upon the verdict of the jury will not be disturbed.

(Syllabus.) 1. TAXATION — <italic>Claim for money due in action grounded in tort not</italic> <italic>subject to Intangible Tax Law before being reduced to</italic> <italic>judgment.</italic> Before being reduced to judgment, a claim for money due in an action grounded in tort is not subject to tax under the Intangible Tax Law of Oklahoma. Tit. 68 O.S. 1941 §§ 1501-1515[68-1501-1515]. 2. SAME — <italic>Unliquidated claim arising under business system of</italic> <italic>mutual account held not account receivable subject to</italic> <italic>Intangible Personal Property Tax.</italic> An undetermined and unliquidated claim for money or for credit, arising out of the mutual dealings and reciprocal demands of the parties to a business arrangement conducted under a system of mutual account, does not constitute an account receivable within the meaning of the Intangible Personal Property Tax Law. 68 O.S. 1941 §§ 1501-1520[68-1501-1520].

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Implied covenant in lease to place</italic> <italic>lessee in peaceable and undisturbed possession of entire</italic> <italic>building on date of commencement of lease — Failure to deliver</italic> <italic>complete possession as agreed not compliance with implied</italic> <italic>covenant.</italic> Where a lessor leases to lessee for a term of years a building consisting of several apartments or units and there is no express covenant in the lease as to the placing of plaintiff in possession of the property, there is implied in the lease a covenant to place the lessee in the peaceable and undisturbed possession of the entire building on the date of the commencement of the lease, and a failure to so place the lessee in possession is a material and entire breach of the covenant. And the fact that lessee moves into and occupies a portion of the building on the date of the commencement of the lease upon the representation and agreement by the lessor that he will deliver the complete possession of the building to her within a few days thereafter is not a compliance with the implied covenant where the lessor thereafter fails and refuses to perform such agreement. 2. DAMAGES — <italic>Loss of profits proper element of damage only when</italic> <italic>business is an established one.</italic> The loss of anticipated profits from an interruption of a business is a proper element of damage only when the business is an established one. 3. TRIAL — <italic>Refusal to give requested instructions where correct</italic> <italic>instructions were given to jury by court.</italic> Instructions given by the court and instructions requested by defendant examined and, held: That the instructions given to the jury by the trial court were correct and that the trial court did not err in refusing to give the instructions requested by defendant.

(Syllabus.) 1. TRUSTS — <italic>Transfer of real property — When trust presumed.</italic> Where a transfer of real property is made to one person and the consideration therefor is paid by or for another a trust is presumed to result in favor of the person by or for whom such payment is made. 2. HOMESTEAD — <italic>Probate homestead right is creature of law and</italic> <italic>not of judicial action.</italic> The probate homestead right is a creature of law and not of judicial action. No decree of court is necessary to give validity to the homestead claim of a surviving spouse and minor children to continue in the possession and occupancy of the family home.

(Syllabus.) 1. ELECTIONS — <italic>City charter provides candidates for office of</italic> <italic>city commissioner are nominated by wards and elected at</italic> <italic>large.</italic> Under the provisions of the Charter of the city of Duncan, Oklahoma, article III, secs. 1, 2 and 3, members of the board of commissioners are nominated from each ward, and the members so nominated are elected at large in the general election. 2. SAME — <italic>Right of resident of city to file as independent</italic> <italic>candidate for city office, notwithstanding he is member of</italic> <italic>established political party.</italic> Under the provisions of article III, sec. 4, of the Charter of the city of Duncan, an elector and resident of the city may file as an independent candidate for the office of commissioner, notwithstanding the fact that he is a registered member of an established political party. 3. SAME — <italic>Statutory provision governing primary and general</italic> <italic>elections inapplicable when in conflict with city charter</italic> <italic>provisions.</italic> The provisions of 11 O.S. 1951 § 23b[11-23b] governing primary and general elections has no application insofar as it conflicts with article III of the Charter of the city of Duncan. 4. SAME — <italic>Right of independent candidate to have his name</italic> <italic>printed upon ballots as candidate for city office —</italic> <italic>Procedure.</italic> An independent candidate may, under 11 O.S. 1951 § 49[11-49], have his name printed upon the ballots as a candidate for a city office by filing with the county election board a written notice as is required of candidates for a political party nomination.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Injury to heart caused by</italic> <italic>overexertion in cranking motor, held accidental injury within</italic> <italic>meaning of Compensation Act.</italic> An injury sustained by an employee consisting of an injury to his heart while engaged in cranking a motor which was hard to crank and required great exertion and heavy lifting in order to turn the motor over constitutes an accidental injury within the meaning of the Workmen's Compensation Act. 85 O.S. 1951 § 3[<cross_reference>85-3</cross_reference>], subd. 7. 2. SAME — <italic>Sufficiency of evidence to sustain findings and award</italic> <italic>of commission.</italic> Record examined. Held, evidence sufficient to sustain the findings and award of the State Industrial Commission.<page_number>Page 193</page_number>

(Syllabus.) 1. APPEAL AND ERROR — <italic>Conclusiveness of general finding on</italic> <italic>conflicting evidence.</italic> Where the testimony is oral and conflicting and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact. 2. SAME — <italic>Review of equitable action — Conclusiveness of</italic> <italic>findings.</italic> In an equitable action, the presumption is in favor of the correctness of the finding of the trial court, and it will not be set aside unless against the clear weight of the evidence.<page_number>Page 202</page_number>

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Injury received "in course of</italic> <italic>employment" — When injury "arises out of employment."</italic> An injury is received "in the course of the employment" when it comes while the workman is doing the duty which he is employed to perform. It "arises out of the employment" when there is apparent to the rational mind upon consideration of all the circumstances a causal relation between the conditions under which the work is required to be performed and the resulting injury. 2. SAME — <italic>Award vacated where evidence fails to sustain finding</italic> <italic>of Commission workman injured in "course of employment."</italic> Where there is a total lack of evidence to sustain the finding of the State Industrial Commission that the injury sustained by the workman arose out of and in the course of his employment, such finding will be set aside on review and an award based thereon will be vacated.

(Syllabus.) 1. AUTOMOBILES — TAXATION — <italic>"Dealer" must pay excise tax when</italic> <italic>registering and obtaining certificate of title to new motor</italic> <italic>vehicle, as provided by statute.</italic> A "dealer" must pay the excise tax at the time he registers and obtains a certificate of title to a new motor vehicle as provided by 47 O.S. 1951 § 23.6[<cross_reference>47-23.6</cross_reference>]. 2. SAME — <italic>Duty of Tax Commission to collect excise tax upon</italic> <italic>first registration of motor vehicle in state of Oklahoma,</italic> <italic>whether new or used.</italic> Under 47 O.S. 1951 § 52b[<cross_reference>47-52b</cross_reference>], the Tax Commission must collect the excise tax upon first registration of any motor vehicle in the State of Oklahoma, whether it is a new or a used motor vehicle. 3. SAME — <italic>Not intention that used car dealer be permitted to</italic> <italic>register and obtain certificate of title to new car without</italic> <italic>payment of excise tax, by filing affidavit new car to be sold</italic> <italic>on used car lot as used car.</italic> After an examination of the entire Act, we hold it was not the intent of the Legislature in enacting sec. 52d (e) to permit the holder of a license to sell new cars, who is also the holder of a license to sell used cars, to register and obtain a certificate of title to a new car without payment of the excise tax, by filing an affidavit with said Tax Commission that the new car was going to be sold on the used car lot, as a used car.

(Syllabus.) APPEAL AND ERROR — <italic>Review of equity case — Sufficiency of</italic> <italic>evidence.</italic> In a case of equitable cognizance the appellate court will examine and weigh the evidence, but the judgment of the trial court will not be disturbed on appeal unless it appears that such judgment is clearly against the weight of the evidence.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Disturbance of possession by landlord</italic> <italic>rendering premises unfit for occupancy amounts, on abandonment</italic> <italic>within reasonable time, to constructive eviction.</italic> Any disturbance of the tenant's possession by the landlord or by some one under his authority whereby the premises are rendered unfit for occupancy for the purpose for which they were demised, or the tenant is deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction, if the tenant abandons the premises within a reasonable time. 2. SAME — <italic>Constructive eviction requires surrender of possession</italic> <italic>by tenant — Waiver of eviction by tenant remaining in</italic> <italic>possession.</italic> There can be no constructive eviction without a surrender of possession by the tenant; a tenant who continues to occupy the premises for an unreasonable length of time after the acts or omissions that constitute a constructive eviction waives the eviction and cannot thereafter abandon the premises and assert it. 3. SET-OFF AND COUNTERCLAIM — <italic>Pleading and proof.</italic> A defendant may plead and prove, as a counterclaim, any cause of action he may have against the plaintiff, whatever its nature, arising out of the cause of action alleged in the petition or connected therewith. 4. LANDLORD AND TENANT — <italic>Increased cost of remodeling building</italic> <italic>proper element of damage to landlord where tenant wrongfully</italic> <italic>held possession.</italic> Increased cost of remodeling a building is a proper element of damage to a landlord where delay in remodeling was a result of tenant wrongfully holding possession of the building after termination of the tenancy.

(Syllabus.) 1. NEGLIGENCE — <italic>Proof by circumstantial evidence — Questions of</italic> <italic>negligence and proximate cause for jury.</italic> Negligence may be established by circumstantial evidence; and where reasonable men might draw different conclusions from the evidence, the question of negligence and<page_number>Page 245</page_number> the question of proximate cause of the injury must be left to the jury. 2. MASTER AND SERVANT — <italic>Proof of relationship of employer and</italic> <italic>employer by circumstantial evidence.</italic> It is not essential that direct evidence be offered in order to establish the relation of employer and employee. Proof of the existence of such relation may be made as fairly and fully by circumstantial evidence as by evidence which is direct. 3. APPEAL AND ERROR — TRIAL — <italic>Failure of court to include in</italic> <italic>instructions that liability of insurer was limited to amount</italic> <italic>of insurance not reversible error.</italic> Trial court's alleged error in failing to include in its instruction on the joint liability of a motor carrier and its insurer the further instruction that the liability of the insurer is limited to the amount of the insurance, does not constitute ground for reversal on appeal, where the judgment against said insurer is for no more than said amount and it does not clearly appear that the alleged error has caused a miscarriage of justice.

(Syllabus.) WATERS AND WATER COURSES — <italic>Action to recover damages for loss of</italic> <italic>livestock caused by pollution of waters of creek — Facts</italic> <italic>sustaining allegation of negligence impervious to charge</italic> <italic>finding not based upon causal connection with negligence</italic> <italic>averred and injuries.</italic> Record examined, and held, that where refineries of crude oil in disposing of effluent water impregnated with crude oil and other deleterious substances permitted such substances to drain into a creek, and that quickly following the disposal of a large quantity of refinery waste into the creek all aquatic life died, and livestock drinking the polluted waters suffered damages, sustains an allegation of negligence impervious to a charge that the finding is not based upon a causal connection with the negligence averred and the injuries inflicted.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Rules applying to interpretation of</italic> <italic>municipal charters same as apply to statutory enactments.</italic> The same rules apply to the interpretation of municipal charters that apply to statutory enactments generally, and their purpose is to arrive at the intention of such charters' framers. 2. SAME — <italic>Unnecessary to go outside of provisions of city</italic> <italic>charter to determine its true meaning.</italic> Where the wording of sections of a city charter is plain and unambiguous, and its meaning reasonable and practical in application, it must be accorded such meaning, and the courts, in determining its application, are not justified in reading additional words into it or in looking beyond it for a new or different meaning. 3. SAME — <italic>Charter provisions for removal of policemen not</italic> <italic>applicable to demotions, promotions, and/or transfers from one</italic> <italic>rank to another.</italic> Section 2, article XIV of the city charter of Tulsa, Oklahoma, containing provisions that policemen shall not be removed except for cause and after written notice and an opportunity to be heard, etc., does not apply to demotions, promotions, and/or transfers from one rank of policeman to another. 4. APPEAL AND ERROR — <italic>Errors not included in motion for new</italic> <italic>trial not reviewed on appeal.</italic> In a case where the filing of a motion for a new trial is one of the prerequisites to an appeal, the Supreme Court will not review alleged errors not included in such a motion, especially where their consideration is unnecessary to a review of the judgment on the controlling issues of the case.

(Syllabus.) 1. JUDGMENT — <italic>Judgment of another state to be accorded full</italic> <italic>faith and credit.</italic> A judgment of a court of general jurisdiction of one state is entitled to full faith and credit in every other state unless void for want of jurisdiction. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to support</italic> <italic>verdict.</italic> If there is any testimony reasonably tending to support the verdict of the jury, and said verdict has been approved by the trial court, the judgment will not be disturbed on appeal.

(Syllabus.) 1. ADMINISTRATIVE LAW AND PROCEDURE — <italic>Jurisdiction of</italic> <italic>administrative board must affirmatively appear.</italic> Orders of an administrative board in the performance of quasi-judicial functions will be declared invalid unless its jurisdiction affirmatively appears. 2. TAXATION — <italic>Invalidity of correction order of board, where</italic> <italic>good cause not shown for nonappearance before board of</italic> <italic>equalization.</italic> Where it is not shown that the party procuring certificate of error under section 12642, St. 1931, had good cause for not having appeared before the board of equalization, the order of the board of county commissioners correcting the assessment will be declared invalid.

(Syllabus.) 1. ARBITRATION AND AWARD — <italic>Stipulations to arbitrate all</italic> <italic>questions as to future controversies unenforceable.</italic> Stipulations to arbitrate all questions as to future controversies are not enforceable for the reason that such stipulations deprive the courts of jurisdiction and are contrary to public policy. 2. SAME — <italic>Oklahoma statute on "powers" does not affect common</italic> <italic>law authority for agreements authorizing arbitration of future</italic> <italic>controversies.</italic> The common law of arbitration prevails in the State of Oklahoma and Title 60 Okla. Stat. 1951 on the subject of powers does not affect the common law authority for agreements authorizing arbitration of future controversies. 3. CONTRACTS — <italic>Reason for refusing to arbitrate immaterial as</italic> <italic>long as other party knows he will not arbitrate or participate</italic> <italic>therein.</italic> A contract to submit all future controversies to arbitration being unenforceable, it is immaterial what reason is given by a party thereto for refusing to participate in an arbitration as long as he makes known to the other party that he will not arbitrate and does not participate therein. 4. ARBITRATION AND AWARD — <italic>Party to unenforceable arbitration</italic> <italic>agreement declining to participate not estopped to deny</italic> <italic>validity of award.</italic> A party to an unenforceable arbitration agreement who deelines to participate in an arbitration is not estopped to deny the validity of the award even though the other party has obligated himself for expenses to an attorney and an arbitrator of his own selection.

(Syllabus.) 1. CONTRACTS — <italic>Offer terminated by rejection and cannot</italic> <italic>thereafter be accepted so as to create a contract.</italic> An offer is terminated by rejection and cannot thereafter be accepted so as to create a contract. A request for a change or modification of a proposed contract, made before an acceptance thereof, amounts to a rejection of it. 2. PLEADING — <italic>Exhibits control and prevail over allegations of</italic> <italic>petition.</italic> Where there is a variance between the allegations of the petition and exhibits attached thereto as a basis of suit, the contents<page_number>Page 297</page_number> of the exhibits control and prevail over the allegations of the petition. 3. SAME — <italic>Letters attached to petition as exhibits control when</italic> <italic>in conflict with averments of petition.</italic> When letters are attached to a petition as exhibits, showing an alleged contract sought to be enforced, said letters must control when in conflict with the averments of the petition, in determining whether or not an enforceable contract has been entered into.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Briefs — Points deemed waived unless</italic> <italic>argued.</italic> On appeal specifications of error not asserted or urged in the brief will be considered as waived. 2. SAME — <italic>Obligee in bonds given upon successive appeals may</italic> <italic>proceed upon either the first or second or both until his</italic> <italic>judgment is satisfied.</italic> Bonds given upon successive appeals are cumulative in effect, and the giving of the second does not discharge the first. The obligee may proceed upon either or both until he has obtained satisfaction of his judgment. They are separate contracts given to secure the fulfillment of the same obligation. 3. FORCIBLE ENTRY AND DETAINER — <italic>Action on appeal bond against</italic> <italic>surety separately.</italic> Surety on appeal bond in unlawful detainer action may be sued separately in an action on the bond where the liability on the bond is joint and several.

(Syllabus.) CONTRACTS — <italic>Language taken in its ordinary sense.</italic> The language used in a contract is to govern its interpretation and, if such language is clearly explicit and does not involve uncertainty, the words used are to be understood in their ordinary and proper sense.

(Syllabus.) 1. DEEDS — <italic>Cardinal rule in construing a deed is to ascertain</italic> <italic>true intent of makers.</italic> A cardinal rule in construing a deed is ascertaining the true intent of the makers, as that intent may be discerned from the instrument itself, taking it all together, considering every part of it and viewing it in the light of the circumstances surrounding the makers at the time of its execution; and their later acts in connection therewith may be considered in arriving at their intention. 2. SAME — <italic>Terms "reserving" and "excepting" used interchangeably</italic> <italic>in deeds — Technical meaning gives way to manifest intent.</italic> The terms "reserving" and "excepting" are used interchangeably in deeds, and their technical meaning will give way to the manifest intent, even though the technical term to the contrary is used. 3. SAME — <italic>Circumstances considered under which deed prepared —</italic> <italic>Admission of prior deeds not error.</italic> The circumstances under which the deed was prepared and executed are properly considered. Hence the admission of the prior deeds was not error. 4. APPEAL AND ERROR — QUIETING TITLE — <italic>Sufficiency of evidence</italic> <italic>in equity action.</italic> In a case of equitable cognizance the appellate court will examine and weigh the evidence, but the judgment of the trial court will not be disturbed on appeal unless it appears that such judgment is clearly against the weight of the evidence.

(Syllabus.) MASTER AND SERVANT — <italic>Contractors who furnished materials and</italic> <italic>labor, but performed no labor, held not "laborers," as defined</italic> <italic>by statute, and not entitled to priority of a laborer's lien.</italic> Record examined, and held, that claimants who furnished both labor and materials under contracts for development of an oil and gas leasehold, but who did not actually labor, were not laborers within the provisions of 42 O.S.A. § 92 [<cross_reference>42-92</cross_reference>], entitling them to priority of a laborer's lien under 42 O.S.A. § 96 [<cross_reference>42-96</cross_reference>], and the trial court erred in separating their claims and establishing the priority of a portion thereof as labor.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Questions not raised in trial court not</italic> <italic>considered on appeal.</italic> A theory as to why default judgment should be vacated which was not presented to trial court cannot be raised for first time on appeal from order overruling motion to vacate judgment. 2. JUDGMENT — <italic>Presumption favoring validity of judgments.</italic> All presumptions are in favor of the validity of judgments of courts of general jurisdiction.

(Syllabus.) 1. HOMESTEAD — <italic>Right of minor children to homestead of deceased</italic> <italic>parents not dependent upon actual possession and occupancy.</italic> The right of minor children to the homestead of their deceased parents is not dependent upon actual possession and occupancy of the land by them and they can neither waive not abandon their right to it. 2. SAME — <italic>Homestead not subject to partition until children have</italic> <italic>reached their majority.</italic> An action for partition of the homestead brought by adult heirs, will not lie until all the children have reached their majority.

(Syllabus.) 1. NEGLIGENCE — <italic>Submission of negligence case to jury on theory</italic> <italic>of "last clear chance" not error.</italic> It is not error to submit a negligence case to the jury on the theory of "last clear chance" where properly pleaded where the evidence reasonably tends to show that<page_number>Page 333</page_number> the defendant knew of the position of peril of plaintiff in time to have avoided the collision and resulting damage therefrom by the exercise of ordinary care. 2. SAME — <italic>Failure to exercise ordinary care and proximate</italic> <italic>relationship to ensuing damages to be proved by</italic> <italic>circumstances.</italic> The failure to exercise ordinary care and the proximate relationship thereof to ensuing damages may be proven by circumstances. 3. APPEAL AND ERROR — <italic>Defendant may not complain of four</italic> <italic>instructions on "last clear chance" requested by him.</italic> A defendant will not be heard to complain of four instructions on the theory of "last clear chance" prepared, submitted, and requested by him and restricting the plaintiff to recovery on that theory alone.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal where appeal without merit.</italic> Where, from a cursory examination of the record, the allegations made in the motion to dismiss and the response thereto it appears that the appeal is without merit, a motion to dismiss will be sustained.<page_number>Page 359</page_number>

(Syllabus.) 1. EMINENT DOMAIN — <italic>Statutes strictly construed.</italic> Statutes providing for the exercise of the power of eminent domain will be strictly construed. 2. SAME — <italic>Determination of what estate or interest is reasonably</italic> <italic>necessary to serve public purpose in view.</italic> In determining the extent or quantum of estate taken by virtue of condemnation proceedings, the court will examine the statute authorizing the condemnation and the proceedings instituted pursuant thereto, and will determine what estate or interest is reasonably necessary to serve the public purpose in view. 3. SAME — <italic>Condemnor may voluntarily restrict itself to so much</italic> <italic>of landowner's interest as public need actually requires.</italic> A condemnor is not required to go to the full extent permitted by law, but may voluntarily restrict itself to so much of the landowner's interest as the public need actually requires. 4. SAME — <italic>Condemnation proceedings — Held, title to minerals</italic> <italic>under land involved does not pass to condemnor.</italic> Where, in condemnation proceedings instituted pursuant to Title 11 O.S. 1951 § 293[11-293], the record does not clearly show the extent or quantum of the estate taken; and where it is not shown that the public purpose in view requires the taking of title to the minerals; held, that title to the minerals under the land involved does not pass to the condemnor.

(Syllabus.) 1. DEEDS — <italic>Intention of parties to conveyance of realty</italic> <italic>ascertained from its language — Effect viewed in its</italic> <italic>entirety.</italic> The intention of the parties to a conveyance of realty must be ascertained, if possible, from its language, not as presented in particular sentences, clauses, or paragraphs, but to its effect when viewed as an entirety. 2. CONTRACTS — <italic>Written portions of contract govern over printed</italic> <italic>portions.</italic> Under the provisions of 15 O.S. 1941 § 167[<cross_reference>15-167</cross_reference>], the written portions of a contract govern over the printed portions, in case of conflict. 3. OIL AND GAS — <italic>Rights to royalty interest expires with</italic> <italic>expiration of term for which mineral estate was granted.</italic> Unless otherwise provided, the rights of a grantee of a mineral interest for years, to royalty payments under an existing and unexpired oil and gas lease executed during said term, expires with the expiration of the term for which the mineral estate was granted.

(Syllabus.) APPEAL AND ERROR — <italic>Review — Sufficiency of evidence in probate</italic> <italic>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.

(Syllabus.) EVIDENCE — CONTRACTS — <italic>Parol evidence inadmissible to show</italic> <italic>different consideration from that expressed in contract.</italic> Where the contract states the amount, and the manner and means by which, and the time when the consideration is to be paid, parol evidence is inadmissible to show a different consideration from that expressed in the contract.

(Syllabus.) 1. EVIDENCE — <italic>Necessary to prove wrong has been committed and</italic> <italic>that defendant committed the wrong.</italic> In all actions the plaintiff, to recover against the defendant, must prove not only that a wrong has been committed against him, but that the defendant committed the wrong or is responsible for it. 2. TRIAL — <italic>Evidence showing wrong defendant sued for alleged</italic> <italic>wrongful acts.</italic> Where the uncontradicted evidence shows that the defendant sued did not commit the alleged wrongful acts but that such acts, if any, were committed by another, then there is no issue to be submitted to the jury. 3. CORPORATIONS — <italic>Necessary to prove which of two corporations</italic> <italic>having similar names committed alleged wrong.</italic> Although two corporations may have very similar names, and the president of one is the manager of the other, nevertheless, each is a separate entity and for the plaintiff to recover against one of the corporations he must prove that it was that corporation which committed the alleged wrong.<page_number>Page 465</page_number>

(Syllabus.) 1. SHERIFFS AND CONSTABLES — <italic>Liability to amercement — Penal</italic> <italic>statutes strictly construed.</italic> Statutes providing for the amercement of sheriffs or constables are penal in their<page_number>Page 468</page_number> nature, and like all other penal statutes, are strictly construed and help to apply only to default clearly within their terms. The party who seeks to amerce a sheriff must bring himself within both the letter and the spirit of the law. 2. SAME — <italic>Sheriff held not liable in amercement for failure to</italic> <italic>levy execution and make return of writ.</italic> Where evidence in amercement proceedings showed sheriff's failure to levy execution on goods of judgment debtor, and failure to make return of writ as directed resulted from sheriff following instructions of creditor's attorney to wait until specific property could be found, the trial court properly denied plaintiff's motion to amerce.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Liability of school board members</italic> <italic>who hire and pay from school funds unqualified teachers is</italic> <italic>joint, and all participating parties are necessary parties.</italic> The liability of school board members who knowingly hire and pay from school district funds teachers whose qualifications are not certified according to law is joint, and all those who participate in the unlawful expenditure of such funds are necessary parties.

(Syllabus.) JUDGMENT — <italic>Judgment held not void as to interest item thereon,</italic> <italic>and trial court properly overruled motion to vacate judgment</italic> <italic>or correct same.</italic> In plaintiff's suit for a money judgment with interest from a specific date, when judgment is rendered for a stated principal sum with interest thereon from a stated date, and appeal therefrom to this court is dismissed, and thereafter and more than two years after the rendition of the judgment, defendant presents motion to vacate the judgment or correct the same as to the aggregate amount of interest thereon, such judgment is not void as to the interest item and the trial court properly overruled defendant's such motion.

(Syllabus.) THEATRES AND SHOWS — <italic>Action to recover damages for personal</italic> <italic>injuries — Sufficiency of instruction on duty of owner of</italic> <italic>place of amusement to use high degree of care to keep premises</italic> <italic>in reasonably safe condition, and if such failure was</italic> <italic>proximate cause of injury, jury should find for plaintiff.</italic> An instruction which advises the jury that the owner or operator of a place of amusement, such as a county fair, to which the plaintiff and the general public are admitted upon the payment of an admission fee, owes to the plaintiff and general public, the duty to use a high degree of care to place, keep and maintain the premises in a reasonably safe condition, and if the jury is further told that if they find from the evidence that plaintiff, exercising due care for his own safety, was injured by reason of defendant's failure to exercise such degree of care, and such failure was the proximate cause of the injury, that the jury should find for the plaintiff under the record here presented, adequately presented the law of the case.

(Syllabus.) 1. EXECUTION — JUDGMENT — <italic>General execution may issue on general</italic> <italic>judgment creating indebtedness, and such general execution</italic> <italic>timely made will prevent judgment from becoming dormant.</italic> As a general rule, a general writ of execution cannot be issued until the plaintiff has exhausted his remedy by causing a special execution and order of sale to issue and selling the land upon which the lien was impressed in accordance with the judgment of foreclosure; but where it is undisputed that the record owner of the property was not a party to the action wherein judgment was rendered allowing such lien and foreclosure, a general execution may issue on the general judgment creating the indebtedness and such general execution, if made within the statutory period, will prevent the judgment from becoming dormant. 2. SAME — <italic>Writ of execution properly issued and served except</italic> <italic>for failure of clerk to sign and seal is amendable — Execution</italic> <italic>accorded same effect as if amended, in absence of fraud.</italic> A writ of execution properly issued and served except for the failure of the clerk to sign and seal it as provided for under Title 12 § 51 [<cross_reference>12-51</cross_reference>] O.S. 1951, is amendable, and where the proceedings were not fraudulent or void, the court had jurisdiction of the subject matter and parties, and the recordation of facts on the public docket of the court showed a bona fide public effort to collect the judgment, such execution will be accorded the same effect with reference to acts done in execution of it as if it had been amended, and when so considered it was sufficient to prevent the judgment from becoming dormant. 3. ACCORD AND SATISFACTION — <italic>Elements constituting "accord and</italic> <italic>satisfaction" — Burden of proof.</italic> Elements constituting "accord and satisfaction" are: liability of defendant, agreement of the amount to be paid, and acceptance of such agreement in settlement of the original claim or dispute; and defendant setting up accord and satisfaction must plead and prove such elements. 4. APPEAL AND ERROR — <italic>Review — Insufficiency of evidence —</italic> <italic>Waiver of demurrer to evidence and failure to ask directed</italic> <italic>verdict.</italic> Where plaintiff interposed the defense of "fraud" against defendant's plea of "accord and satisfaction", the cause was tried to a jury and, when defendant's demurrer to plaintiff's evidence was overruled, he did not elect to stand on his demurrer, but then put in his evidence, he waived his demurrer; and since he did not move for a directed verdict after the parties had finally rested, he cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff, as this precludes any inquiry on our part into the weight of the evidence or its sufficiency to sustain the verdict of the jury.

(Syllabus.) 1. STATUTES — <italic>When special statute and not general statute</italic> <italic>applies to subject matter.</italic> Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject matter, and that the general statute does not apply. 2. EMINENT DOMAIN — <italic>Service of notice of appointment of</italic> <italic>commissioners in condemnation proceedings on minor by leaving</italic> <italic>copy with member of family over 15 years of age, held to</italic> <italic>constitute valid service.</italic> The statute, 66 O.S. 1951 § 53[<cross_reference>66-53</cross_reference>], which provides that notice of the appointment of commissioners in a condemnation proceeding shall be served on the opposite party either by personal service or by leaving a copy thereof at his usual place of residence with a member of his family over fifteen years of age, makes no distinction between the service of notice upon a minor and upon an adult; therefore service of notice on a minor six years of age by leaving a copy thereof at her usual place of residence with a member of her family, her mother, a person over fifteen years of age, constitutes valid service on the minor. 12 O.S. 1951 § 169[<cross_reference>12-169</cross_reference>] providing the manner in which service shall be had in a civil action on a minor under fourteen years of age has no application to the service of notice under 66 O.S. 1951 § 53[<cross_reference>66-53</cross_reference>]. 3. EMINENT DOMAIN — OKLAHOMA TURNPIKE AUTHORITY — <italic>Unnecessary</italic> <italic>for Authority to prove it made bona fide offer to purchase</italic> <italic>interest of adult owner, where minor also owns interest in</italic> <italic>land.</italic> Where an adult owns an interest in land sought to be condemned by the Oklahoma Turnpike Authority and it seeks to condemn the fee-simple title to the surface rights of land, and a minor also owns an interest therein and no legal guardian has been appointed for her and she is unable to convey her interest by reason of minority, it is not necessary for the Authority to prove that it made a bona fide effort to purchase the interest of the adult owner in order to maintain the proceeding. 4. SAME — <italic>Held, evidence sufficient to sustain finding</italic> <italic>commissioners took oath as required by statute prior to time</italic> <italic>of making appraisement.</italic> Record examined. Held that the evidence is sufficient to sustain the finding of the trial court that the commissioners appointed to appraise and assess damages in a condemnation proceeding took the oath as required by statute prior to the time they made the appraisement. 5. SAME — <italic>Right of Oklahoma Turnpike Authority to condemn</italic> <italic>temporary easement across lands in connection with</italic> <italic>construction of its turnpike.</italic> Under 69 O.S. 1951 § 658[<cross_reference>69-658</cross_reference>], the Oklahoma Turnpike Authority had the right to condemn a temporary easement across the lands of defendants for use in connection with the construction of its turnpike.

(Syllabus.) 1. TAXATION — <italic>Resale of land for non-payment of taxes</italic> <italic>invalidated by including in notice a portion of taxes not yet</italic> <italic>delinquent.</italic> Where notice of resale of lands for non-payment 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. 2. SAME — <italic>Oil and gas lying in strata of earth to be taxed as</italic> <italic>real property to owner of land.</italic> A conveyance of oil, gas and other minerals in and under land is a conveyance of an interest in the land itself but oil and gas while lying in the strata of the earth, with no production therefrom, must be taxed as realty to the owner of the land if such land is taxable. 3. SAME — <italic>Adverse interests held in realty not separable for</italic> <italic>taxation purposes.</italic> In Oklahoma the statutory method of assessment of land for ad valorem taxes is in rem and adverse interests which may be held in realty are not separable for taxation purposes. 4. SAME — <italic>Rights under resale tax deed to entire interest in</italic> <italic>land, including oil and gas rights therein.</italic> A resale tax deed conveys to the purchaser the entire interest and estate in land, including oil and gas rights therein, where oil and gas was not being produced therefrom and gross production tax paid thereon during the years of delinquency in failing to pay ad valorem taxes.<page_number>Page 584</page_number> 5. SAME — LIMITATION OF ACTIONS — <italic>Action against void resale tax</italic> <italic>deed barred if lapse of time after recordation, accompanied by</italic> <italic>possession by holder of resale tax deed, for period sufficient</italic> <italic>to bar action for recovery of real property.</italic> An action or defense against a resale tax deed, which is void on the face of the tax sale proceedings, is barred from prosecution, if there has been a lapse of time, following its recordation, accompanied with possession of the real property by the holder of the resale tax deed, for the period prescribed by statute as sufficient to bar an action for the recovery of the real property. 6. CONSTITUTIONAL LAW — TAXATION — <italic>Right of any person owning</italic> <italic>land or interest therein to redeem from taxes any time before</italic> <italic>tax deed issued — Owner of nonproducing minerals given equal</italic> <italic>protection of law and not deprived of property without due</italic> <italic>process.</italic> Where a statute authorizes a lien for ad valorem taxes to be foreclosed by advertisement and sale by the county treasurer, the proceedings thereunder relate to the land itself, rather than the owner thereof, and where the statute provides for notice and gives the right to any person owning the land, or any interest therein, to redeem the land from such taxes at any time before a tax deed is issued by the county treasurer, the statute affords due process of law, and the owner of the nonproducing oil, gas, and other mineral rights, whose interest in the land, in the name of the owner of the surface, is assessed, advertised, and sold for delinquent ad valorem taxes, is given equal protection of the law and is not deprived of property without due process of law.

(Syllabus.) 1. OIL AND GAS — <italic>Right to cancellation for breach of implied</italic> <italic>covenant to develop dependent on facts and circumstances of</italic> <italic>particular case.</italic> A court of equity may declare a forfeiture of the undeveloped portion of a producing oil and gas lease because of the breach of implied covenant to diligently develop the property when such forfeiture will effectuate justice, but the granting of such relief depends upon the facts and circumstances surrounding the particular case. 2. SAME — <italic>Judgment of trial court held erroneous on basis of</italic> <italic>evidence.</italic> Record examined, and held: That, on the basis of the evidence, the judgment of the trial court was erroneous.

(Syllabus.) 1. AUTOMOBILES — <italic>Findings of Commissioner of Public Safety that</italic> <italic>appellant operated an automobile upon public state highway in</italic> <italic>a reckless manner, approved as supported by evidence.</italic> Findings of the Commissioner of Public Safety that appellant operated an automobile upon a public highway within the state, in a reckless manner, which finding upon appeal is reversed by the county court upon a trial de novo, and upon appeal to the district court, judgment of the county court is vacated, and the order of the Commissioner of Public Safety is reinstated, is approved as supported by substantial evidence. 2. ADMINISTRATIVE LAW AND PROCEDURE — AUTOMOBILES — <italic>Discretionary powers of Commissioner of Public Safety to</italic> <italic>suspend driver's license are in nature of executive duties,</italic> <italic>and not judicial.</italic> The discretionary powers vested by statute in Commissioner of Public Safety to revoke or suspend driver's license are in the nature of executive or administrative duties, and not judicial. 47 O.S. 1951 §§ 296[<cross_reference>47-296</cross_reference>] and 297. 3. SAME — <italic>Appeal from order suspending driver's license civil</italic> <italic>proceedings as distinguished from criminal.</italic> An appeal provided by statute from order of the Commissioner of Public Safety suspending driver's license is a special proceeding as distinguished from criminal, and the court has only such jurisdiction therein as is expressly conferred by statute. 47 O.S. 1951 § 300[<cross_reference>47-300</cross_reference>]. 4. SAME — <italic>Court's action must be on justifiable factual basis.</italic> County court on appeal from order of the Commissioner of Public Safety may not act arbitrarily with respect to reinstatement of a suspended driver's license, but there must be a justifiable factual basis for the county court's action in the premises. 47 O.S. 1951 § 300[<cross_reference>47-300</cross_reference>]. 5. SAME — <italic>Appeal from order suspending driver's license — Where</italic> <italic>undue hardship will result, Supreme Court will modify order to</italic> <italic>conform to right and justice.</italic> Where the order suspending a driver's license, under the peculiar facts of the case, will result in an undue hardship to the appellant, this court, in the exercise of its appellate jurisdiction, will modify the order to conform to right and justice and, as so modified, will affirm.

(Syllabus.) 1. ATTORNEY AND CLIENT — <italic>Action to recover balance of attorney</italic> <italic>fees — Attorneys having no interest in amount received by</italic> <italic>settlement, held not entitled to recover one-half of accrued</italic> <italic>interest on such item.</italic> Under a written contract for the employment of attorneys to file and prosecute a suit for alleged wrongful death which provides that the attorneys shall receive 50% of all funds in excess of $22,500 obtained either by settlement or trial, such additional percentage payment to be made at the time the funds derived from such settlement are paid to plaintiffs in said cause, does not support attorney's claim to one-half of the accrued interest upon said $22,500 between date of trial and affirmance of judgment upon appeal. 2. SAME — <italic>Administrator entitled to have set over to him sum of</italic> <italic>$22,500 and interest from date of judgment until paid —</italic> <italic>Plaintiffs entitled to 50% of balance.</italic> Where the judgment with accrued interest equalling the sum of $49,792.43 was paid under the contract here involved, the administrator of the estate was entitled to have set over to him the sum of $22,500 and interest thereon from date of judgment until paid. Any balance in excess of said sum plaintiffs were entitled to 50% thereof.<page_number>Page 614</page_number> 3. SAME — <italic>Contract construed as written where court finds</italic> <italic>language clearly explicit and true intent of parties entered</italic> <italic>into.</italic> Where both plaintiffs and defendant assumed that the contract here involved is not ambiguous and the court finds the language is clearly explicit and expressed the true intent of the parties when entered into, this court will construe the contract as written. 4. SAME — <italic>Judgment for plaintiffs in sum less than prayed for</italic> <italic>found supported by terms of contract.</italic> The judgment for plaintiffs in the sum of $492.82 instead of the sum of $2,271.21, as prayed for in plaintiffs' petition, is supported by the terms of the contract and the judgment so rendered is not erroneous as a matter of law.

(Syllabus.) MANDAMUS — <italic>Ministerial duty of inferior tribunal or board — Writ</italic> <italic>to compel Board of County Commissioners to allow and pay claim</italic> <italic>of assistant county attorney for salary.</italic> Where an inferior tribunal or board has exercised and exhausted its discretion and has thereby decided all questions which come properly and legally within its discretion, leaving nothing to be done except a mere ministerial duty, and has refused to perform such ministerial duty for a reason neither legally nor properly within the scope of its discretion, it may be compelled by mandamus to perform such ministerial duty.

(Syllabus.) 1. DIVORCE — <italic>Allowance of alimony out of husband's property.</italic> Where a divorce is granted the wife because of the fault of the husband, the court in its discretion should make an equitable distribution of jointly acquired property, and may also, in its discretion, allow the wife alimony out of the property of the husband. 2. SAME — <italic>Earning capacity of husband proper element in</italic> <italic>determining amount of alimony.</italic> The earning capacity of the husband is a proper element to be taken into consideration in determining the amount of alimony. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment awarding permanent alimony.</italic> On appeal from a judgment awarding permanent alimony, the trial court's conclusion in that respect will not be disturbed unless it is clearly against the weight of the evidence, or unless there has been some abuse of discretion.

(Syllabus.) 1. JUDGMENT — <italic>May be attacked in equity for fraud preventing</italic> <italic>fair trial, but not for fraud which was in issue in former</italic> <italic>action.</italic> The frauds for which a court of equity will set aside a judgment between the same parties, rendered by a court of competent jurisdiction, are frauds extrinsic or collateral to the matter tried by the first court, such as where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise or the like, and not fraud which was an issue in the former action. 2. TRIAL — <italic>Effect of demurrer to evidence as admissions.</italic> A demurrer to the evidence admits all the facts which the evidence reasonably tends to prove, and all the inferences and conclusions which reasonably and logically may be drawn from the evidence, and, upon demurrer to the evidence, the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove. 3. TRUSTS — <italic>Transactions between trustee and cestui que trust</italic> <italic>looked upon by equity with suspicion — Burden on trustee to</italic> <italic>show he acted in good faith.</italic> While contracts and dealings between the trustee and the cestui que trust are not absolutely prohibited, generally a trustee cannot take beneficially from the cestui que trust. Equity looks on transactions between a trustee and the cestui que trust with suspicion, and will subject them to the severest scrutiny, and will permit them to stand only when the trustee affirmatively shows that the agreement was entirely fair and advantageous to the beneficiary and that there was no fraud, concealment, undue influence, or unconscionable advantage. Contracts between a trustee and the cestui que trust may be set aside on slight grounds, and the burden of proof is on the trustee to show that he acted in good faith, that all was fair, open, and voluntary, and that the contract was well understood. 4. SAME — <italic>Where it is shown trustee acquired title to over half</italic> <italic>of real estate by outright conveyance from cestui que trust</italic> <italic>and by virtue of fraudulent judgment, held evidence shows</italic> <italic>cause of action against such trustee, and demurrer should be</italic> <italic>overruled.</italic> Where it is shown that a deed of trust was executed covering all the real estate owned by the cestui que trust, and that thereafter, and while the trust relationship existed, the trustee acquired beneficial title to over half the real estate in his own name by outright conveyance from the cestui que trust and by virtue of a judgment allegedly fraudulently procured; held, that the evidence shows a cause of action against such trustee, and a demurrer to the evidence should be overruled.

(Syllabus.) 1. EVIDENCE — <italic>When a fact is relevant.</italic> A fact is relevant if it legally tends to prove some matter in issue or to make a proposition in issue more or less probable. 2. INSURANCE — <italic>Soliciting agent is insurer's agent and his acts</italic> <italic>in connection with application are binding on insurer.</italic> A soliciting agent of insurer is insurer's agent in taking applications, with power and authority as to such applications, and acts performed or knowledge received and acted upon by him in connection with applications are binding on insurer, in absence of fraud or collusion between agent and applicant. 3. APPEAL AND ERROR — <italic>Verdict and judgment not disturbed on</italic> <italic>appeal where questions of fact submitted to jury under proper</italic> <italic>instructions.</italic> Where the questions of fact are submitted to the jury under instructions fairly stating the law applicable to the facts, verdict and trial court's judgment thereon will not be disturbed on appeal.

(Syllabus.) TRIAL — <italic>Evidence entitling plaintiff to directed verdict.</italic> Where the evidence offered by plaintiff to sustain his case is undisputed, and is not unreasonable or improbable, or contrary to facts and circumstances shown in the record, it is the duty of the trial court to direct a verdict in his favor.

(Syllabus.) OIL AND GAS — <italic>Application for order nullifying gas allowables by</italic> <italic>Corporation Commission's Director of Conservation — Held,</italic> <italic>order setting aside such action of Conservation Director not</italic> <italic>error, where no authority was shown for such action, and</italic> <italic>productive acreage covered by lease in question had never been</italic> <italic>determined by order of Commission.</italic> Where productive acreages in a gas field were determined on the basis of a regular hearing and order of the Corporation Commission in the exercise of its power to conserve such natural resource, and maximum allowables for the field were promulgated in accord with such determination, but subsequently said Commission's Director of Conservation, upon the representation, by<page_number>Page 696</page_number> affidavit, of a company holding a nonproducing lease in the field, that a certain amount of said lease's acreage lay over the field's gas producing sands or reservoirs, "attributes" such represented "productive acreage" as being within the sphere of drainage of a well on an adjoining communitized property and accordingly gives said well an increased allowable; and the Commission at a subsequent hearing entered an order setting aside such action of its Conservation Director; Held: The latter order was not error, where no authority was shown for said Conservation Director's action, and the productive acreage, if any, covered by the lease in question had never been determined by any regular hearing and order of the Commission.