Volume 22 — Oklahoma Reports

<p>1. APPEAL AND EIRlROR — Master’s Report-Conflicting Evidence. Exceptions to a master’s report are properly overruled, where the evidence, upon the facts found by the master, is conflicting.</p> <p>2. SAME— Errors Against Appellee — Review. In the absence of a cross-appeal, or an entry upon the records of the Supreme Court praying therefor, the appellee cannot have alleged errors considered and corrected.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Southern District of the Indian Territory; J. T. Dicherson, Judge. Action by Tip Couch against R. P. Lindsey. Judgment for plaintiff, and defendant brings error. Tip Couch, defendent in error, plaintiff below, sued F. R. Lindsej1', plaintiff in error, defendent below, in the United States Court for the Indian Territory, Southern District, at Chickasha, for malicious prosecution in three counts, in substance: First.

<p>APPEAL AND ERROR — Instructions—Sufficiency of Exception. A general exception to a charge of the court containing a great many distinct instructions, some of which are unobjectionable, is not available as error.</p> <p>(Syllabus by the Court.)</p>

<p>INTEREST — Ind. T. Rate. The eight per cent, rate of interest prescribed by the proviso to section 8 of the act of Congress entitled “An act to put in force in the Indian Territory certain provisions of laws of Arkansas relating to corporations, and to make said provisions applicable to said territory” (Act Peb. 18, 1901, c. 379, 21 Stat. 795), is restricted to banks or trust companies organized under the laws of Arkansas, or any other state authorized by section 8 to transact business in the Indian Territory; and said proviso did not provide a general interest law for the Indian Territory, or. repeal or modify chapter 109, Mansf. Dig. (Ind. T. Ann. St. 1899, c. 50).</p> <p>(Syllabus by the Court.)</p>

Error from the. United States Court for the Western District of the Indian Territory, at Muskogee; Wm. B. Lawrence, Judge. Action by Marcum & Toomer against H. G. Baker. From a judgment for plaintiffs, defendant brings error.

Error from, District Court, Kingfisher County; C. F. Irwin, Judge. Action by the First National Bank of Hennessey against W. L. Farquharson and Augusta C. Richardson, Judgment for defendant, and plaintiff brings error. In this case, W. L. Farquharson, on the 27th day of February, 1901,' made, executed, and delivered to the First National Bank of Hennessey, Okla,, his promissory note in the sum of $2,500.

Error from the United States Court for the Central District of the Indian Territory, at Antlers; T. C. Humphreys, Judge. Action in replevin by the Frisco Lumber Company against Lockwood Bros. Judgment for plaintiff, and defendants bring error.

Error from United States Court of Indian Territory for Western District, at WewoTca. Action of unlawful detainer by Indian Land & Trust Company against G. L. Clement. Judgment for defendant, and'plaintiff appealed. This cause comes to this court from the United States Court of Appeals of the Indian Territory under the provisions of the Enabling Act, and was originally brought in the United States Court for the Western district of the Indian Territory, at Wewoka.

<p>Error from, District Court, Logan County; A. II. Ilusión, Judge-</p> <p>Action by the Noble State Bank against O. N. Haskell and others. Judgment for defendants and plaintiff brings error.</p> <p>This is a proceeding by plaintiff in error, as plaintiff, seeking to reverse the judgment of the district court sustaining the demurrers of the defendants in error, as defendants, in the lower court to plaintiff’s petition. The constitutionality of an act of the Legislature of this state creating a depositor’s guaranty fund is involved. The petition, omitting the caption and exhibits, is as follows:</p> <p>“Comes the plaintiff in said cause, and for its cause of action against the defendants states the following facts:</p> <p>“(1) The said plaintiff is a corporation organized under the laws of the territory of Oklahoma.</p> <p>“(2) The defendant C. N. Haskell is the Governor of the state of Oklahoma, the defendant G. W. Bellamy is the Lieutenant Governor, the defendant J. P. Connors is the President of the State Board of Agriculture, the defendant J. A. Menefee is the State Treasurer, the defendant M. E. Trapp is the S.tate Auditor, and the defendant II. II. Smock is the Bank Commissioner, of the state of Oklahoma.</p> <p>“(3) The said plaintiff is a banking corporation organized under the laws of the territory of Oklahoma, with an authorized and paid-up capital stock of $10,000, and its articles of incorporation were filed in the office of the Secretary of the territory of Oklahoma on the 23d day of May, 1902, a-copy of said articles of incorporation being hereto attached, marked ‘Exhibit A’ and referred to as a part of this petition. On said 23d day of May, 1902, the territory of Oklahoma issued to said plaintiff a patent, a copy of which is hereto attached, marked ‘Exhibit B,’ and referred to as a part of this petition, and on the 7th day of July, 1902, the Bank Commissioner of the territory of Oklahoma issued to said plaintiff a certificate of authority, as required by the laws .of said territory, a copy of which is hereto attached, marked ‘Exhibit O,’ and referred to as a part of this petition.</p> <p>“(4) The said plaintiff has continuously since the 23d day of May, 1902, in the town of Noble, county of Cleveland, Okla., been engaged in the business of banking, as authorized by law, and its authority by virtue of its articles of incorporation, patent, and certificate of authority; a,nd since the 16th day of November, 1907, said plaintiff, in the same place, has been engaged in the banking business under and by virtue of the Constitution and laws of the state of Oklahoma.</p> <p>“(5) On the 17th day of December, 1907, the Governor o£ the state of Oklahoma approved an act which had previously been passed by the Legislature of the state of Oklahoma, entitled ‘An act creating a state Banking Board establishing a depositors’ guaranty fund to insure depositors against loss when the bank becomes insolvent, prescribing the qualifications' of officers and directors, fixing the salary of Bank Commissioner and his assistants and providing for more frequent examinations, fixing the penalty for embezzlement, limiting the amount of the. banking funds that can be loaned to any one person, corporation or firm, declaring an emergency/ Laws 1907-08, p. 145, c. 6, art. 2. Section 1 of said act provides that, ‘A state banking board is hereby created, to be composed of the Governor, the Lieutenant Governor, President of the State Board of Agriculture, State Treasurer and the State Auditor/ and the defendants C. N. Haskell, G. W. Bellamy, J. P. Connors, J. A. Menefee, and M. E. Trapp are, respectively the Governor, Lieutenant Governor, the President of the State Board of Agriculture, the State Treasurer, and the State Auditor, and the said named defendants by virtue of said act, constitute the State Banking Board of the state of Oklahoma, and the said defendant H. H. Smock is the Bank Commissioner of the state of Oklahoma.</p> <p>“(6) By section 2 of said act it is provided that: ‘Within sixty days after the passage and approval of this act, the State Banking Board shall levy against the capital stock an assessment of one per cent, of the banl/s daiiy average deposits, less the deposits of the state funds, properly secured for the preceding year, upon each and every bank organized and existing under the laws of the state, for the purpose of creating a depositors’ guaranty fund. Said assessment shall be collected upon call of the State Banking Board. In one year from the time the first assessment is levied, and annually thereafter, each bank subject to the provisions of this act shall report to the Bank Commissioner the amount of its average daily deposits for the preceding year, and if said deposits are in excess of the amount upon which the one per cent, was previously paid, said report shall be accompanied by additional funds to equal one per cent, of the said daily average excess of deposits, less the deposits of the national government for the year over the preceding year, and each amount shall he added to the depositors’ guaranty fund. If the depositors’ guaranty fund is depleted from any cause, it shall be the duty of the State Banking Board in order to keep said fund to one per cent, of the total deposits in all of the said banks subject to the provisions of this act, to levy a special assessment to cover such deficiency, which special assessment shall be levied upon the capital stock of the banks subject to this act, according to the amount of their deposits as reported in the office of the Bank Commissioner. And said special assessment shall become immediately due and payable.’ And the plaintiff states that said State Banking- Board, acting under and pursuant to the pretended authority of said law, has levied an assessment against the capital stock of this plaintiff bank of one per cent, of its daily average deposits during the preceding year, which said average deposit amounts to $33,147. and that the said State Banking Board and the said Bank Commmissioner, under and pursuant to said pretended law. proposes to compel this plaintiff to pay said one per cent, of its daily average deposits for the preceding year for the purpose of creating said depositors’ guaranty fund for the benefit of the depositors of all the banks in said state upon which said law operates, and that the said defendants, unless restrained by this court, will force this plaintiff to pay said assessment, as provided by said pretended law, a copy of the said notice of assessment served on plaintiff is hereto attached, marked ‘Exhibit D,’ and referred to as a part of this petition.</p> <p>“(7) Plaintiff further states that the said law under which the defendants are pretending to act is in conflict with and a violation of section 2 of article 2 of the Constitution of Oklahoma, which provides that ‘all persons have the inherent right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry,’ in that said law deprives this plaintiff of the enjoyment of the gains of its own industry, for the benefit of the depositors of other banks in which plaintiff has no interest.</p> <p>“(8) Plaintiff further states that said pretended act is in conflict with and a violation of section 7 of article 2 of the Constitution of,Oklahoma, which provides that ‘no person shall be deprived of life, liberty, or property, without due process of law,’ in that the said plaintiff is deprived of its property, by .virtue of said assessment, without due process of law.</p> <p>“(9) Plaintiff further states that said pretended law is in conflict with and a violation of section 15 of article 2 of the Constitution of Oklahoma, which provides that ‘no bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed,’ in that said law violates the contract between this plaintiff and the state of Oklahoma evidenced by its charter, patent and certificate of authority, copies of which are hereunto attached as Exhibits A, B, and C to this petition.</p> <p>“(10) Plaintiff further states that said pretended law is in conflict with and a violation of section 23 of article 2' of the Constitution of Oklahoma, which provides that 'no private property shall be taken or damaged for private use, with or without compensation, unless by tire consent of the owner, except for private ways of necessity, or for drains and ditches across' lands of others for agricultural, mining or sanitary purposes, in such manner as may be prescribed by law/ in that the private property of this plaintiff is sought to be taken for private use, without compensation and against the consent of the plaintiff.</p> <p>“(11) Said pretended law is in conflict with and a violation of section 24 of article 2 of the Constitution of Oklahoma, which provides that 'private property shall not be taken or damaged for public use without just compensation/ in that said law proposes to take the property of this plaintiff; and, if it be held that said taking is a taking for public use, then said taking is without compensation, and not in accordance with the form prescribed for the taking of private property for public use, as set out more fully in said section 24.</p> <p>“(12) Said plaintiff states 'that said pretended law is in conflict with and' in violation of section 57 of article 5 of the Constitution of Oklahoma, which provides that 'every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of the statutes, and no law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only, but s'o much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length, provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof/ in that said law (1) creates a state banking board; (2) establishes a depositors'1 guaranty fund; (3) prescribes the qualifications of officers and directors: (4) fixes the salary of the Bank Commissioner; (5) fixes the penalty for embezzlement; (6) and limits the amount of the bank’s funds that can be loaned to any one person; and expresses all of said six different purposes in the title, thus avoiding the entire act.</p> <p>“(13) Plaintiff further states that if said pretended law should be construed as levying a tax upon the property of plaintiff, it is in conflict with and a violation of section 8 of article 10 of the Constitution of Oklahoma, which provides that ‘all property which may be taxed ad valorem shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale/ in that said law, if it levies a tax, does not assess it upon the basis of the fair cash value of the property affected, but upon an arbitrary basis, having no regard to the fair cash value of the property assessed.</p> <p>“(14) If said pretended law is construed as levying a tax, then it is in conflict with and a violation of section 9 of article 10 of the Constitution of Oklahoma, which provides that, ‘except as herein otherwise provided the total taxes, on an ad valorem basis, for all purposes, state, county, township, city or town, and school district taxes, shall not exceed in any one year thirty-one and one-half mills on the dollar/ in that said law, for said special and private purpose, if it be construed as levying a tax, levies a tax on this plaintiff of about 3.31 per cent, of the fair cash value of the property of the plaintiff.</p> <p>“(15) If said pretended law shall be construed as levying a tax. then it is in conflict with and a violation-of section 14 of article 10 of the Constitution of Oklahoma, which provides that, ‘taxes shall be levied and collected by general laws, and for public purposes only, except that taxes may be levied when necessary to carry into effect section thirty-one of the Bill of Rights/ in that said law, if it be construed as levying a taxj does not levy said tax for public use, but for private purposes. <</p> <p>“(16) Plaintiff further states that said pretended law is in conflict with and a violation of section 1 of article 14 of thte Constitution of Oklahoma, which provides that ‘general laws shall be enacted by the Legislature providing for the creation of a banking department, to be under the control of a bank commissioner, who shall be appointed by the Governor for a term of four years, by and with the consent of the Senate, with sufficient power and authority to regulate and control all state banks, loan, trust and guaranty companies, under laws which shall provide for the protection of depositors and individual stockholders/ in that said pretended law does not provide for the protection of the individual stockholders of this plaintiff.</p> <p>“(17) Plaintiff further states that said pretended law is in conflict with and a violation of section 10 of article 1 of the Constitution of the United States, which provides that ‘no state shall pass any bill of attainer, ex post facto, or law impairing the obligation of contracts, * * *’ in that said law impairs the obligation of the contract between the plaintiff and the state of Oklahoma, as evidenced by its articles of incorporation, patent, and certificate of authority, copies of which are hereto attached as Exhibits A, B, and C.</p> <p>“(18) Plaintiff further states that said pretended law is in conflict with and a violation of that portion of the fourteenth amendment to the Constitution of the United States which provides that ‘no state shall make any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws/ in that said pretended act deprives this plaintiff of its property without due process of law, and denies to it the equal protection of the laws.</p> <p>“(19) Wherefore plaintiff states that the said pretended act is null and void, because of its conflict with the Constitution of the state of Oklahoma and the Constitution of the United States, and that the said defendants, in acting under and enforcing the provisions of said pretended law, are wholly without right, and have no jurisdiction to make, levy, or enforce the aforesaid assessment of one per cent, upon the average-deposits of the plaintiff.</p> <p>“(20) Plaintiff further states that it is a solvent, growing concern, with its capital unimpaired, and perfectly able and willing to pay all its obligations to its depositors, and that it does not need and does not desire, the assistance of any other bank or of the state of Oklahoma.</p> <p>“(21) Plaintiff further states that it ha° no adequate remedy at law to prevent the wrongs herein complained of, and that, unless the defendants are enjoined from enforcing the provisions of said law as against this plaintiff, it will be remediless. Wherefore plaintiff prays for a temporary injunction, restraining the said defendants, and each of them, from taking any further or other proceedings to levy against or collect the said assessment of one per cent or any other assessment, under said law against this plaintiff, and that on final hearing said temporary injunction may be made permanent, and plaintiff prays for such other, further, and general relief as to the wisdom of the court may seem proper.”</p> <p>In the court below, C. N. Haskell, as Governor of the state, demurred to plaintiff's petition on the following grounds: (1) That the court had no jurisdiction of the person of the said defendant; (2) that the court had no jurisdiction of the subject of the action; (3) that the petition did not state facts sufficient to constitute a cause of action against said defendants. The other defendants, George W. Bellamy, as Lieutenant Governor, J, P. Connors, as chairman of the Board of Agriculture, J. A. Menefee. as State Treasurer, M. E. Trapp, as State Auditor, and H. TT. Smock, as Bank Commissioner, interposed similar demurrers.</p> <p>On the 19th day of February, A. D. 1908, each of the separate demurrers of the defendants to plaintiffs petition were sustained in the lower court as to the third ground therein set out. The plaintiff, duly saving its exceptions, elected to stand upon its petition, and refused to plead further, and judgment was rendered in favor of said defendants. Thereupon plaintiff was allowed ten days to prepare and serve a ease-made, and defendants five days thereafter within which to suggest amendments thereto. Thereafter, on the 26th day of February, A. D. 1908, said case-made and the amendments thereto having' been served in due time, and duly submitted for settlement and signing by the parties thereto, the same were duly certified to by the trial judge, and this cause is now property before this court for review. Plaintiff is a banking corporation, chartered under the laws of the territory of Oklahoma on the 23d day of May, A. D. 1902, with a capital stock of $5,000, and afterwards, on the 6th day of September, A. D. 1902, its capital stock was increased to the sum of $10,000,</p>

<p>Appeal from the United States Court for the Western District of the Indian Territory, at Muslcogee; William B. Lawrence, Judge..</p> <p>Action by Ollie- Bodle against J. Blair Shoenfelt and others. Judgment for defendants. Plaintiff appeals.</p>

<p>T.RIAL — Demurrer to Evidence. When it is alleged in the petition in an action for the recovery of money that the defendant appropriated said money to his own use, and the evidence introduced to sustain said allegation does not reasonably tend to show such appropriation, it is not error to sustain a demurrer ■ thereto.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL AND ER'RiOR — Review—Necessity of Exceptions. The trial court denied defendants’ request to withdraw answer and file an amended answer which set up a defense in the nature of a plea in abatement, to which ruling no exception was saved. Held, nothing was reserved for review by this court.</p> <p>(Syllabus by the court.)</p>

Error from Prolate Court, Comanche Countyj W. II. Hussey, Judge. Action by tlie C. T. Herring Lumber Company against Hazel township, Comanche county. Judgment for defendant, and plaintiff! brings error.

<p>PROHIBITION — When Writ Granted — State Corporation Commission. In an application for a peremptory writ of prohibition to prohibit the State Corporation Commission from taking jurisdiction in a cause pending before it, where the complaint states, facts sufficient to confer jurisdiction on the commission, it will be presumed that the commission will act within the jurisdiction conferred by law, even where the principal relief prayed for may be beyond its control.</p> <p>(Syllabus by the court.)</p>

<p>Application by William Clendenning for writ of habeas corpus.</p>

Error from District Court, Pottawatomie County; B. P. Burwell, Judge. Action by J. C. Fisher, as receiver of the Shawnee Light & Power Company, and others, against Charles T. Derr and others, partners doing business as tbe Oklahoma Paving & Construction Company. Judgment for plaintiffs, and defendants brought error to the Supreme Court of the territory of Oklahoma, whence the cause was transferred to the Supreme Court of the state of Oklahoma.

T. Dicleerson, Judge. Action by B. F. Cline against J. W. Sanders and others. Judgment for plaintiff, and defendants appealed to the United States Court of Appeals for the Indian Territory, whence the cansé was transferred to the Supreme Court of the State of Oklahoma.

<p>1. CHATTEL MORTGAGE'S — Recordation—Change of Recording Office — Effects. Where a chattel mortgage was filed or recorded, at Muskogee, in the Northern district of the Indian Territory, which was the proper place of recordation at the time tnereof, and by a subsequent act of Congress the Northern district was sub-divided and Vinita made the recording office for the part of the Northern district in which the property mortgaged was situated, such change did not affect the validity of such recordation.</p> <p>2. SAME. The record of a chattel mortgage, in a district where the property covered thereby lies, though upon sub-division of the district subsequent to the record of the mortgage the property may fall within the new district, is notice to purchasers or incumbrancers.</p> <p>3. SAME — Negligence of Recording Officer. That part of the act of Congress providing for the record of deeds and other conveyances and instruments of writing in the Indian Territory, which provides that, “such1 instruments heretofore recorded with the clerk of the United States Court of the Indian Territory shall not be required to be again recorded under this provision, but shall be transferred to the indexes -without further cost, and such record heretofore made shall be of full force and effect, the same as if made under this statute,” casts no additional duties upon mortgagees who, prior to its passage, had filed or recorded their instruments in conformity with the recordation laws then in force.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the state;, on relation of the Manhattan Construction Company and H. M. Fielding, for a writ of .mandamus to C. M. Barnes and others.</p> <p>This is an original action brought by the state, on the relation of the Manhattan Construction Company, a corporation, and H. M. Fielding against C. M. Barnes, as mayor, and E. W. Kin-nan, as city clerk, of the city of Guthrie. Plaintiffs seek by their petition to have issued a writ of mandamus directed to the defendants, commanding them to execute and deliver to the city treasurer of said city certain utility bonds, in accordance with an ordinance of said city. An alternative writ was issued at the time plaintiffs filed their petition, to which defendants have filed their return, together with an agreed statements of facts, and the case is submitted upon plaintiffs’ petition, defendants’ return to the alternative writ, and the agreed statement of facts. . The facts will be stated in the .opinion.</p>

<p>1. PLEADING — Answers—Inconsistent Defenses. Even if defenses are inconsistent, unless expressly prohibited by statute, they may still be united in one answer, and the pleader cannot be compelled to elect between such defenses.</p> <p>2. MORTGAGES — “Filed”—Errors of Officer. A mortgage is filed, within the meaning of the statute, when it is delivered to the proper officer and by him received for the purpose of being recorded. The neglect or mistake of the register of deeds in recording the instrument does not affect the mortgagee.</p> <p>3. USURY — Intent. There must be an intent to take unlawful interest to constitute usury.</p> <p>4. SAME — Deduction of Interest in Advance. The interest which would become due at the end of the term for which a loan is made, not exceeding one year’s interest in all, may be deducted from the loan in advance, if the parties thus agree.</p> <p>5. SAME — Semi-annual and Compound Interest. A clause in a promissory note which reads: “With interest at 12 per cent, per annum after maturity, interest payable semiannually, defaulting interest to draw same rate as principal” — does not make such note usurious on its face.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Creeks—Descent and Distribution — Wills—Laws Governing. Chapters 49, 155, Mansf. Dig. (Ind. T. Ann. St. 1899, cc. 21, 58), entitled “Descents and Distribution,” and “Wills and Testaments,” respectively, as modified by acts of Congress (Act May 2, 1890, c. 182, 26 Stat. 81; Act June 30, 1902, c. 1323, 32 Stat. 500) were in force in the Creek Nation on the 13th day of November, 1905.</p> <p>2. SAME — Rights of Pretermitted Child. There being no children born to a noncitizen Creek allottee after the 25th day of May, 1901, she was entitled to dispose of her homestead by will, and such devise was subject to the limitations contained in section 6500 Mansf. Dig. (Ind. T. Ann. St: 1899, sec: 3572), which reads: “When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, everjr such person so far as regards such child shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.”</p> <p>3. SAME. Where such allottee executes a will for such homestead, naming therein her husband as sole devisee, and dies leaving surviving her an only child by a former husband, born prior to the 25th day of May, 1901, such child is the sole heir of such allottee, and is entitled to the whole of her estate as if she had died intestate.</p> <p>(Syllabus by the Court'.)</p>

<p>INDIANS — Creeks—Allotments—Alienation of Surplus — Liability For Debts. The removal of restrictions by the Secretary of the Interior, permitting the surplus allotment of a duly enrolled Creek Indian by blood to be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of the Creek Supplemental Agreement, which became effective on the 8th day of August, 1902 (Act June 30, 1902, c. 1323, 32 Stat. 500), did not subject such allotment to involuntary incum-brances, taking, or sale to secure or satisfy any debt or obligation of the allottee incurred prior to the removal of such restrictions.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Kingfisher County; C. K. Irwin, Judge. Action by the Kingfisher National Bank of Kingfisher against C. B. Johnson and George M. King. Judgment for defendants, and plaintiff brings error. This is an action upon a promissory note brought by Kingfisher National Bank, who is plaintiff both in this court and the court below, against C. B. Johnson and Geo. M. King, defendants in the court below.

<p> Error from the United States Qourt for the Western District of the Indian Territory. </p> <p>Action by the Muskogee Development Company and others against Dora Green and others. Judgment for defendants, and plaintiffs bring error.</p> <p>This suit was instituted on the 1st day of January, A. D. 1905, by the plaintiffs in error, as plaintiffs, against the defendants in error, as defendants, and it grew out of the following condition of facts:</p> <p>On August 16, A. D. 1902, or eight days after the promulgation of the Supplemental Creek Agreement, R. B. Hutchinson entered into a five-year agricultural lease with the defendant David Green, who was the father of the other two defendants, Dora Green and Esther Green, which agricultural lease covered the allotments of the two children named, and together made up the W. % of section 27, township 12 N., range 16 E., of the Greek Nation of Indian Territory. It clearly appears from the evidence that at the time Hutchinson made this contract with the father of these children he believed that the Supplemental Agreement authorized the father to make such a contract. In fact, such was the universal belief in the Creek Nation at that time, and a very large part of the legal fraternity entertained the same opinion. Subsequently the court decided that such a contract was invalid. Indian Lands & Trust Co-, v. Shoenfelt, 5 Ind. T. 41, 79 S. W. 134. Under the contract' in question Hutchinson proceeded to place valuable improvements upon the premises, amounting to the sum of $654.11 on the Dora Green allotment and $696.61 on the Esther Green allotment, paying annually, in addition to these improvements, a cash rental of 25 cents per acre for the land, which was a fair rental for unimproved lands in the Creek Nation at that time. In April, 1903, Hutchinson transferred a three-fourths interest in these leases to his coplaintiff, the Muskogee Development Company, retaining an undivided one-fourth interest in them. The Muskogee Development Company repaid him for the improvements he had put upon said land, and proceeded to put the same in cultivation.</p> <p>No protest of any kind was made from any source until the fall of the year 1903, when David Green, who had entered into the original contract as father and natural guardian of his two children, procured himself to be appointed by the United States Court for the Western District of Indian Territory as legal guardian of said children, and made application to the United States Indian agent to have the plaintiffs and their tenants put off the land. Mr. Hutchinson thereupon took a new contract from him, which he signed as legal guardian, and which contract is set out in the printed record, and ran for a term of one year, but was not approved by the court and no authority was obtained to make the same, although plaintiffs paid $200. It is attempted to be shown on the part of the defendants that the entering into of this contract was a complete settlement of all matters between the parties in interest; but, in the light of the testimony of Mr. Hutchinson and of Mr. Plummer, who had no interest whatever in the matter, it is clear that this contract was entered into so far as plaintiffs were concerned simply to prevent being summarily thrown off the premises in controversy and that they regarded the $200 which they paid as ‘fiffood money.” The testimony of Green himself shows that he never had any other agricultural contract upon the land in question until he entered into this contract in August, 1902', with Hutchinson, and that prior to the institution of this suit he had ousted the plaintiffs, taken possession of Dora Green’s allotment and put a tenant of his own thereon, and had also taken possession of Esther Green’s allotment and put a tenant upon it, all of which occurred about the beginning of the year 1905.</p> <p>It was because of being thus ousted, and in an endeavor to get some compensation for the valuable improvements they had in good faith placed upon the premises in controversy, that the plaintiffs instituted this suit and applied for the appointment of a receiver, to the end that the rents and profits arising from the land might be collected, and that out of such rents and. profits they might be paid for the actual betterments they had put upon the property, and which gave the property a rental value in excess of 25 cents per acre per annum, and in this way work out through the medium of a court of equity a result which, under the rulings of the court, could not be obtained in any other way. The court iu October, 1905, appointed a receiver, who never qualified, and thereafter, on the 11th day of November, another receiver, having been appointed on the 7th day of that month, did qualify, and was authorized to rent the premises.</p> <p>The cause was referred to the master in chancery, and on the 28th day of March, 1906, after having taken testimony, much of which is not particularly intelligible, the master filed bis report, in which he made the following findings of fact and recommendations :</p> <p>“Finding of Facts.</p> <p>“(1) That the Muskogee Development Company is a corporation duly organized and existing under and by virtue of the laws in force in the Indian Territory.</p> <p>“(S') That the defendant David Green is the father of Dora and Esther Green, minors, and is their legal guardian.</p> <p>“(3) That on the 16th day of August, 1902, the said David Green was the natural guardian of said minors, and as such natural guardian demised and let unto the plaintiff E. B. Hutchinson the'allotments of his children, Dora and Esther Green; the allotment of Dora Green being the N. W. of section 27, township 12 N, range 16 E., and that of Esther Green being the S. W. % of section 27, township 12 N., range 16 E., for agricultural purposes, for a term of five years from the 1st day of April, 1903.</p> <p>“(4) That the plaintiff E. B. Hutchinson took possession of said premises in the year 1902, and placed thereon valuable improvements, which improvements have benefited the allotments aforesaid and are of the description and value as follows:</p> <p>“On the allotment of Dora Green:</p> <p>Breaking 150 acres of land . $150 00</p> <p>Drilling well .». 34 87</p> <p>Building and fencing in . 469 24</p> <p>$654 11</p> <p>“On the allotment of Esther Green:</p> <p>Breaking 11 or 12 acres of land . $111 50</p> <p>Drilling well . 35 40</p> <p>Buildings and fences . 549 71</p> <p>$696 61</p> <p>“(5) I find that at the time of the making of said rental contract the said Hutchinson executed said contract believing that said David Green had full power as natural guardian of said minors to lease said land.</p> <p>“(6) That the improvements as aforesaid were placed upon said allotments of said minors by the said Hutchinson unde” said belief.</p> <p>“(7) That prior to the 1st day of April, 1903, said E. B. Hutchinson assigned all his interest in said lease of August 16, 1902, to the Muskogee Development Company, and guaranteed the validity of the same.</p> <p>“(8) That the Muskogee Development Company took possession of said allotments upon the 1st day of April, 1903, and paid R. B. Hutchinson for said improvements placed thereon by him.</p> <p>“(9) That the said Muskogee Development Company took possession of said premises believing that David Green had full power as natural guardian of said minors to lease said lands on said 16th day of August, 1902.</p> <p>“(10) That R. B. Hutchinson, plaintiff, had no interest in said lease after said assignment, excepting that he was to be paid a sum equal to one-fourth of the profits arising therefrom.</p> <p>“(11) That on October 23, 1903, David Green, as legal guardian, demised and let unto said R. B. Hutchinson the aforesaid allotments of his wards for the sum of $200 for the term of one year.</p> <p>“(12) That the plaintiffs have been in the possession of said premises during the years of 1903 and 1904.</p> <p>>f(13) That a reasonable rental value for that part of said allotments in cultivation was and is $2 per acre.</p> <p>“Conclusions.</p> <p>“From the foregoing facts I am of the opinion and conclude r</p> <p>“(1) That the plaintiff R. B. Hutchinson entered into said contract with David Green as natural guardian of said minors-under the belief that said David Green had full power to lease said premises, and that he placed valuable improvements thereon as hereinbefore set forth under such belief, and that the assignee of said lease, the Muskogee Development Company, took possession of said premises under the same belief.</p> <p>“(2) That the rental contract entered into between David Green, legal guardian, and R. B. Hutchinson, on October 23, 1903, in no way affected the rights of the Muskogee Development’Company.</p> <p>“(3) That the defendant David Green, as legal guardian of Dora and Esther Green, should be charged with the reasonable value of said, improvements made thereon under the rental contra-1 of August 16, 1902, and should be credited with the reasonable rental value of said allotments during the term of occupancy by the plaintiffs.</p> <p>“Recommendations.</p> <p>“I therefore recommend that the court enter a decree herein directing the defendant David Green, as guardian of Dora Green, to pay unto the Muskogee Development Company the sum of $54.11, the said sum of money being the excess of the reasonable value of the said allotment of Dora Green during plaintiffs’ term of occupancy, and in default thereof that the said Muskogee Development Company have possession of said allotment for a sufficient period of time to fully compensate it for said excess amount of the improvements over and above said rental. That the defendant David Green, as the guardian of Esther Green, be directed to pay to the plaintiff the Muskogee Development 'Company the sum of $250.61, said amount being in excess of the reasonable value of the improvements placed on the allotment as aforesaid, over and above the reasonable rental value thereof during the plaintiffs’ term of occupancy, and that the plaintiff the Muskogee Development Company have the possession of said allotment of Esther Green for a sufficient length of time to fully compensate it for the said excess amount of improvements over and above said rental value. Although this report is of date March 16, 1906, it must be considered as of the date of the introduction of the evidence as appears in the transcript thereof, which was on February 10, 1905, as the master has nothing before him on which to base a" report on matters subsequent to that date.”</p> <p>The decree of the court was rendered on the 5th day of May, 1906. Tt does not undertake to make any special findings, but simply sets aside the master’s report and orders the case dismissed for want of equity</p>

Action by the state, on the relation of Charles J. West, Attorney General, to oust from office J. F. Ledbetter. This is an original action by the state ex rel. Charles J. West, Attorney General, to oust from the office of marshal of the city of Muskogee one J. F. Ledbetter, and to have declared by judgment of the court that one Charles Kimsey is entitled to said office. There is no controversy about the facts in the case, and it is submitted upon an agreed statement.

<p> Error from the United States Court for the Southern District of the Indian Territory at ChicJcasha; J. T. Diclcerson, Judge. </p> <p>Action by the Rock Island Plow Company against G. W. Ut-terback. Judgment for plaintiff, and .defendant brings error.</p> <p>The action was brought b}"- defendant in error in the United States Court for the Southern District of the Indian Territory at Chickasha against plaintiff in error on a foreign judgment. Judgment was rendered and entered in that court in favor of defendant in error on the 28th dajr of November, 1906. A motion for new trial was overruled on December 5, 1906. Petition in error was filed in this court on November 27, 1907.</p>

Error from District Court, Oklahoma County; J. C. Lowe, Judge. Action by John W. Shields against the city of Oklahoma City. Judgment for plaintiff, and defendant brings error.

<p>Application by Sam Evans for writ of prohibition to W. T. Willis, County Judge.</p> <p>On the 24th day of July, A. D. 1908, a petition ivas filed in this court by the relator, Sam Evans, against the respondent, W. T. Willis, wherein it was alleged that, on the 22nd day .of July, A. D. 1908, there was filed in the county court of Lincoln county a pretended criminal information, charging relator with the crime of assault and battery; that on said date he was placed on trial in said courtj by said respondent as judge of said court, before a jury, on said charge under said information, the body of which is in words and figures as follows:</p> <p>“State of Oklahoma, Lincoln County1 — ss: State of Oklahoma, Plaintiff, v. Sam Evans, Defendant. Information. In the county court of Lincoln County, state of Oklahoma, on the 24th day of June, 1908, in the name and by the authority of the state of Oklahoma comes Lee Matheyer of the said county of Lincoln and gives the court to know and be informed that Sam Evans late of the aforesaid county, on the 24-th day of June, 1908, in the county of Lincoln and state of Oklahoma then and there being did then and there wilfully, unlawfully, and with force and violence commit an assault and battery upon one Duncan Chishom by kicking the said Duncan Chishom forcibly and violently on the body of him, the said Duncan Chishom, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma. [Signed] Lee Matheyer.”</p> <p>Said information was duty, sworn to before the respondent, as acting county judge of said county, by said Lee Matheyer. Upon the back was endorsed the style of the cause and file mark, under date of the 22nd da}' of July, 1908, and a list of witnesses for the state. That on the same date, prior to the trial, relator filed a motion to quash, the information and the warrant issued thereon, for the reason that the same had been filed by one Lee Matheyer, who is neither the county attorney of said county, nor the deputy, nor assistant county attorney, nor the Attorney General of the state] nor any one authorized by the Attorney General, nor any one in authority, and for the further reason that said information was not drawn, presented, or filed by! any one acting in behalf of, or on the part of the state of Oklahoma or the county of Lincoln, but was in fact carried on by a private prosecutor. It is further alleged that, notwithstanding the illegality of said proceedings, and the want of legal information or charge, relator was compelled to go to trial, and on the 22nd day of ’July, 1908, was found guilty of the alleged offense by/ a jury in said county court; that said trial and all proceedings had under and by virtue of said pretended information were and are null and void, .for the reason that the court never acquired jurisdiction over the person of the relator or the ’ subject-matter of the controversy. Relator further alleges that the presiding judge of said court would, unless restrained, pronounce a sentence on said relator; that relator’s remedy by appeal, or by any other procedure except by writ of prohibition, was inadequate.</p> <p>On the 24th day of July, A. D. 1908, a preliminary writ of prohibition was issued out of this court. On the 28th day of August A. D. 1908, respondent filed his return to said writ, wherein he alleged that relator was not illegally restrained of his liberty, as on the 1st day of July, A. D. 1908, a complaint was made to John J. Davis, county attorney of Lincoln county, Okla., .and he was informed by some five different persons that Sam Evans had committed a brutal assault and battery upon one Duncan Chishom, on the 24th day of June, A. D. 1908, in the city of Chandler, Lincoln county, Okla., who stated to the county attorney that they had some 15 or 2'0 witnesses who saw the relator’s brutal conduct in kicking and maltreating the said Chishom, and the county attorney refused, to prosecute, or to O. K. a complaint against the relator, rendering as his excuse that the said relator, was a friend of his, and a good man to keep him posted on whiskey cases, and absolutely refused to start the matter and have an information or complaint filed. Thereupon several of the citizens, knowing of the brutal action of the relator, made a bond, as required by the statutes of the state of Oklahoma, and verified it, to pay the costs of the prosecution, and one Lee Matheyer went before the county judge of Lincoln county, Okla., and swore positively to a complaint and information, after said bond had been given. Thereupon a warrant was issued in due form, and delivered to the sheriff of said county on the 1st day of July, 1908, who executed same by arresting said relator, who was brought before the county court, and, the county judge being disqualified, and the counsel representing the prosecution and the defendant not being able to agree upon a judge pro tem., the said W. T. Willis was elected, in accordance with section 3306, Wilson’s Eev. & Ann. St. 1903, as judge pro tem., to .try said cause. Thereupon the cause proceeded to trial before a jury of six men, selected as provided by law. The evidence having been introduced both by the state and the defendant, and the jury instructed as to the law, and having heard the argument of counsel for both sides, the cause was submitted to the jury for their consideration. The jury returned a verdict of guilty against the defendant, and, a motion for a new trial having been filed by defendant, the matter was set down later to hear said motion. Thereupon the preliminary writ herein was served upon the respondent.</p>

<p>Original petition for mandamus by Josiah G. Davis, as judge of the county court, etc., against John Caruthers, as judge of the district court, etc.</p> <p>This action was begun on the 19th day of May, A. D. 1908, in this court, by the relator filing his petition herein, alleging that at the general election held in this state, on the 17th day of September, A. D. 1907, he was duly elected to the office of county judge of Creek county, receiving a majority of the votes cast in said county at said election for said office, and .that he duly qualified as such judge, and has since the admission of the state into the Dnion held said office and discharged the duties thereof, and is now the duly qualified and acting county judge of said county; that at the same election the respondent, John Caruthers, was duly elected to the office of district judge for the district court of the Ninth judicial district of said state, and duly qualified as such, and since the 16th day of November, A. D. 1907, has held said office and discharged the duties thereof, and is now the duly elected, qualified, and acting district judge for said district and county. Relator further alleges that the district court of said county is in possession of the proceedings, records, books, papers, and documents pertaining to all causes and proceedings relating to estates which were pending in 'the United States Court for the Western District of the Indian.Territory when Oklahoma was admitted as a state; that said court became possessed of said proceedings, records, books, papers, and documents as successor to the United States Court, and it became and is the duty of the respondent, as judge of said court, under the terms of the Enabling Act and the Constitution of the state of Oklahoma, to cause to be transferred to the county court in which the city of Sapulpa is located all of said matters, proceedings, records, books, papers, and documents. Relator further alleges that on the 11th day of December, A. D. 1907, the district court for said county of Creek being in session, relator, as judge of the county court, presented to said district court his petition, praying for all of said matters, proceedings, records, books, papers, and documents pertaining to all causes or proceedings relating to estates which were pending in the United States Court for the Western District of the Indian Territory at Sapulpa when Oklahoma became a state to be transferred to the county court of said Creek county, which said petition was by the respondent, as judge of the district court, denied, and the said district court still retains possession thereof, and- refuses to transfer the same to relator, as judge of the county court of said county of Creek. Relator then prays for the issuance against said respondent of a writ of mandamus, requiring him to transfer to the said county court all matters, proceedings, records, books, papers, and documents pertaining to all causes or proceedings relating to estates which were pending in the United States Court for the Western District of the Indian Territory at Sapulpa, when the state was admitted into the Union, and for such other processes, orders, and remedies which may be proper in the premises.</p> <p>At the same time it was stipulated between the parties hereto that the issuance of an alternative writ of mandamus should be waived, and that defendant should file his answer to said petition within 30 days from said date, that said answer might be taken as and for a return to the alternative writ, and that this court may determine said cause upon the facts set out in the petition of relator and the answer of respondent. On the 13th day of June, A. D. 1908, respondent filed a demurrer to relator’s petition on the ground that it did “not state facts sufficient to constitute a cause of action against this respondent.”</p>

<p>1. LANDLORD AND TENANT — Forcible Entry . and Detainer— Tenants Holding Over. Under the laws of Arkansas, in force in the Indian Territory, unlawful detainer was a remedy provided by statute for the benefit of landlords against tenants who held over.</p> <p>2. SAME — Action by Vendee of Leased Premises. The purchaser of leased premises succeeded to the vendor’s right, and could maintain the action of unlawful detainer against the tenant holding over after the expiration of his term.</p> <p>(Syllabus by the Court.)</p>

<p> Error from. District Court, Woods County; John L. Pancoast, Judge. </p> <p>Action by George Theis, Jr., against the board of county commissioners of Beaver county. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — Ordinances—Enactment—“Ordinance of General and Permanent Nature.” An ordinance amending' an ordinance passed by an incorporated town in what was Indian Territory, granting to a corporation a franchise to furnish said town with light and heat by means of natural gas, and extending the time set in the ordinance amended for furnishing the same, is an ordinance of a “general and permanent nature” within the meaning of Mansf. Dig. Ark. sec. 924 (Ind. T. Ann. St. 1899, sec.’ 694.)</p> <p>2. ESTOPPEL — Pleading. The town council of an incorporated town is not estopped' to rely upon the invalidity of an ordinance amending an ordinance and extending the time set in the' ordinance amended for furnishing gas to the inhabitants of said town, where said estoppel is not pleaded, and the evidence fails to disclose that the grantee of said franchise or its assignee was misled to its 'injury.</p> <p>3. APPEAL AND ERROR — Review—Findings of Master. Where a suit in equity is, after issue joined, referred to the master in chancery “to take evidence and report with conclusion of law and fact herein,” .such finding of facts should be given the same conclusiveness as the special verdict of a jury, and should not 'be disturbed if there is any evidence reasonably tending to support it.</p> <p>4. GAS — Franchise—Construction, An ordinance passed by a town council of an incorporated town in what was Indian Territory, granting to a corporation therein named, its successors and assigns, a franchise to furnish said town with light and heat by means of natural gas, and the right to use the streets, alleys, and public places of said town in which to lay pipes, mains, and other appliances and appurtenances tbroug'h which to convey said gas for that purpose, is a contract, and, as such, is governed by the same rules of construction as any other contract between individuals or private corporations, except that it should be construed strictly against the grantee and liberally in favor of the people or the grantor.</p> <p>5. MUNICIPAL CORPORATIONS — Franchise—Exclusiveness. A city granting such a franchise may grant a similar franchise to some other person, firm, or corporation, unless the former franchise was made exclusivo in express and unequivocal terms.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Logan County; A. Ii. Huston, Judge. In tbe matter of J. A. Menefee, State Treasurer, and others. Submission to agreed ease. Held: that there being no constitutional inhibition against said act, the act of the Legislature was sufficient authority for the issuance of said bonds.

Error from District Court, Logan County; A. H. Iluston, Judge. Agreed ease between M. E Trapp, State Auditor, and others and the Wells Fargo Express Compaq. From the judgment, the State Auditpr brings error.

Error from, District Court, MusTeoge'e County; John H. King, Judge.. Action by J. L. Eore for writ of mandamus against W. II. Wainwright and others, county election board of Muskogee county. Judgment for plaintiff, and defendants bring error.

<p>1. REFERENCE — Findings of Fact — Setting Aside. Where a particular finding of fact of a referee is not predicated upon the issues joined by .the pleadings, it should be set aside.</p> <p>2. APPEAL AND ERROR — Findings of Referee — Modification of Judgment. Under our statute, the findings of fact of a referee have the same force and effect as a special verdict of a jury; and where a judgment is entered thereon for an amount greater than t'he sum due, and where the excess can readily be determined from such findings, the Supreme Court will not reverse such judgment, but modify the same, and direct the court below to enter judgment for the amount due as shown by the findings.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, McClain County; R. McMillan, Judge.</p> <p>Action by Lee Harris against Isom Williams, in which action plaintiff caused a writ of attachment to issue. Thereafter C. B. Pox, as administrator of the estate of Isom Williams, deceased, moved to quash the attachment, which motion was granted, and Harris brings error.</p>

Latvrence, Judge. Action by H. E. Richaxdson and others, Trustees of the Cumberland Presbyterian Church of Muskogee, against Laura E. Har-sha. Judgment for defendant, and plaintiffs appeal. The plaintiffs in this suit are the trustees of the Cumberland Presbyterian Church, a religious organization, and as such trustees empowered-with the right and duty of acquiring and holding the title to such real estate as may be acquired for the use of the church.

Error from the United States Court for the Western District of the Indian Territory at Muslcog.ee; Wm. B. Lawrence, Judge. Application of Susie Ford for the removal of Jackson McIntosh, guardian of Samuel M. McIntosh, and another. From an order returning the children to the custody of the plaintiff and retaining defendant as guardian, plaintiff brings error.

H. II. Clayton, Judge. Action by J. E. Janeway against the Sans Bois Coal Company. Judgment for plaintiff, and defendant brought error to the Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma under the enabling act and Schedule of the Constitution.

<p>Petition to- the Supreme Court by the county commissioners of a majority of the counties comprising the Seventh judicial district that it recommend to the Governor the appointment of an additional judge, pursuant to Act May 29, 1908 (Sess. Laws 1907-OS, p. 453, c. 46).</p>

<p>Original action by the State, on the relation of Charles J. West, Attorney General, to oust from office H. M. Chestnutt and others.'</p> <p>:' This is an original action brought by the state ex rel. Charles J. West to oust from the office of alderman of the city' of Muskogee the defendants, and to have declared by judgment of the court that Edward O. Alley, L. E. Prall, Wm. F. Shewey, Henry Yogel. J H. Klick, Grant Foreman, H. P. Showalter, and Harry Levy are entitled to said offices. The facts in this case, about which there is no controversy, are the same as in the case of State of OMahoma ex rel. Charles J. West, Attorney General, v. J. F. Led-better, ante, p. 251, 97 Pac. 834, except that the defendants in the respective cases occupy different offices.</p>

Original action by the State, on relation oi Charles J. West, Attorney General, to oust from office Z. T. Walrond. This is an original action by the state, on the relation of Charles J. West, Attorney General, to oust from office of police judge of the city of Muskogee one Z. T. Walrond, and to have declared by judgment of the court that one J. B. Campbell is entitled to said office.

Parker, Judge. Action by W. A. Graham against Winnie Landrum. Judgment for plaintiff. Defendant brings error.

<p>1. JUiRY — 'Right to Jury Trial — Vacation of Judgment. The issues arising upon the pleadings as to the sufficiency of the grounds upon which a judgment is sought to be vacated or modified, together with the validity of the defense sought to be interposed to the action, are triable to the court without the intervention of a jury, within the meaning of Mansf. Dig. Ark. sec. 3913 (Ind. T. Ann. St. 1899, sec. 2593.)</p> <p>2. APPEAL AND ERIROR — Discretion of Court — Vacating Judgment. An application to vacate or modify a judgment is addressed to the sound legal discretion of the court, and will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion.</p> <p>(■Syllabus by the Court.)</p>

<p>1. TROVER AND CONVERSION — What Constitutes Conversion. Conversion is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.</p> <p>2. SAME — Title to Property — Qualified Right in Defendant. In a case where a retail merchant becoming indebted to a wholesaler executed a note therefor securing its payment by a chattel mortgage on his stock, and a contemporaneous written agreement under which he and his creditor entered jointly into possession of the stock for the purpose of selling the same at retail to liauidate the debt, the sale of a portion of such stock at prices less than its value, or the negligent use of the unsold portion, by such creditor while so in possession, or the unauthorized exclusion of such debtor from the store except during business hours, when he returned and assisted in conducting the business under the contract, would not constitute a cause of action for conversion of such stock, but one for a breach of contract.</p> <p>3. SAME — Evidence of Conversion by Mortgagee. Where, in such a case, the creditor subsequently takes exclusive possession of and appropriates the stock of goods without action, or by replevin under the clause of the chattel mortgage, granting such privilege in certain contingencies, the same being taken over the protest and against the will of the debtor, such taking would constitute a conversion of the stock for which the creditor would be liable, where at the time either the debt had been extinguished or the contingency provided for had not lawfully arisen.</p> <p>4. SAME — Damages—Mitigation—Return of Property. Where, in such a case, the property is returned to and accepted by che debtor prior to the beginning of the action, this fact is to be considered in mitigation of any damages recoverable.</p> <p>5. SAME — Measure of Damages. If the property be wrongfully taken and is on the order of the court placed in the hanás of a receiver, the measure of the owner’s damages for loss of goods or depreciation in value is the difference between the market value thereof at the time of taking and their value "at the time the receiver comes into possession.</p> <p>6. ACTION — Joinder of Causes — Tort and Gontraot. Causes of action in tort may be joined in separate counts in the same petition with causes of action in contract, when they all arise out of the same transaction or transactions connected with the same subject of action, and affect all the parties to the action.</p> <p>Turner, J., dissenting.</p> <p>(Syllabus bv the Court.)</p>

Error from Probate Court, Oklahoma County. Action by Lamm & Oo. against E. C. Colcord. Judgment for defendant, and plaintiff brings. error. The plaintiff in error, Lamm & Co., as plaintiff, brought this action in the probate court of Oklahoma County, Oída. T., against the defendant in error, C. E. -Colcord, as defendant, to recover the sum of $400 alleged to be due it under the following written guaranty, to-wit: “Eeb. 27, 1901. Lamm & Co., Chicago, 111.

<p> Error from District Court, Pawnee County. </p> <p>Action by H. C. Hanna against George L. Mosher and others. Judgment - for defendants, and plaintiff brings error.</p> <p>This action was originally brought in the probate court of Pawnee county to recover on a certain bonus note given to the Arkansas Yalley & Western Railway ■ Company by the defendant George L. Mosher, which note had been indorsed and assigned by the payee and had become the property of plaintiff, FI. C. Planna. The case was tried to a jury in the probate court, and resulted in a verdict for the plaintiff. Defendant appealed. Upon trial of the ease in the district court of Pawnee county, the court, after evidence had been introduced by both parties, upon motion of the defendant, directed the jury to return a verdict for the defendant, on which verdict judgment was rendered, and the case was appealed by plaintiff to the Supreme Court of the territory of Oklahoma, where it was pending at the time of the admission of the state.</p>

Original proceedings in a county seat controversy by the Town of Eufaula against Charles Gibson and others, constituting the Board, of Commisioners of McIntosh County, and others, to restrain the carrying into effect of a proclamation by the Governor, declaring the Town of Checotah to have received a .majority of all the votes cast for county seat of McIntosh County. Petition sustained.

<p>CHATTEL MORTGAGES — Apparent Title to Personalty — Estoppel. , Where, in an action of replevin brought by K. for certain cattle taken by defendant in foreclosure of a chattel mortgage as the property of B.. the evidence disclosed that K, the owner of said cattle, while living in another state, branded them in B.’s brand and sent them into what is now this state to be by him. pastured for hire, and that while so in his possession were mortgaged to defendant by B. a-s hrs property to .secure a loan to B. Held, that K. is estopped to set up title to the property as against the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>1. COU'RTS — Territorial District — Adjourned Sessions. The district courts of Oklahoma Territory had authority and power to hold adjourned sessions of court, after the commencement of the regular term, at a time or times not designated in the order of the Supreme Court fixing the times when terms of said court should begin.</p> <p>2. SAME. The proceedings of such adjourned sessions are not coram non judice and void, notwithstanding the regular term in another county, in the same district had intervened between the time of the adjournment and the convening of the adjourned session.</p> <p>(Syllabus bv the Court.)</p>

Error from District Court, Oklahoma County; B. F. Burwell, Judge. Action by Ethel E. Offield against Fred Holmes. Judgment for plaintiff. Defendant brings error. On the 15th day of December, A. D. 1905, the defendant in error, Ethel E. Offield, as plaintiff, commenced her action in re-plevin against the plaintiff in error, Fred Holmes, as defendant, before W. H. Zwick, a justice of the peace of Oklahoma City township, Oklahoma county, Oída.

Error from District Court, Grant Countyj James K. Beauchamp, . Judge. Action by the J. Rosenbaum Grain Company against the Pond Creek Mill & Elevator Company. Judgment for defendant, and plaintiff brings error. This action was brought in the district court of Grant county by plaintiff in error, plaintiff below, to recover from defendant in error, defendant below, the sum of $326.26, with interest.

Application of Robert John and others for the removal of U. D. Wortham, curator. From an order granting the application, defendant brings error.

<p> Error from the United Stales Court for the Northern District of the Indian Territory; Joseph A, Gill, Judge. </p> <p>Action by Winifred T. Stanfield against Wade S. Stanfield. Judgment for defendant, and plaintiff appeals.</p> <p>From the record in this case it develops that the plaintiff, Winifred T. Stanfield, appellant, brought her suit in the United" States Court for the Northern District of Indian Territory at vinita, against the appellee, Wade S. Stanfield, for divorce and alimony, and that an agreement was entered into between the said parties providing for the support, care, and custody of the two children of the said marriage, which were boys, and of the ages at chis time, if living, about 13 and 16 years, and in addition, for alimony to be paid to the plaintiff by the defendant in the sum of $150 per month, with additional allowances in case of sickness, and a proviso for its increase in event of the accumulation of greater wealth by defendant, provided plaintiff remained single and unmarried. The decree, based upon the issues in the cause and this stipulation, is as follows:</p> <p>“Upon the complaint of Winifred T. Stanfield this cause came on for hearing, the defendant being .personally present, and the plaintiff by her attorney, and the court being sufficiently advised, from the deposition of plaintiff and the examination of witnesses, that plaintiff and defendant were married in the state of Missouri on the 26th day of June, 1889; that theyi each now reside, and have continuously resided, in -the Indian Territory for more than one year next before the commencement of this action; that the cause of divorce, set out in plaintiff’s complaint, occurred and has existed in the Indian Territory within five years next before the commencement of this action.' The court being further advised from the evidence that such incompatibility of temper exists between plaintiff and defendant as to render them wholly unsuited for each other; that the defendant has offered such indignities to the person of the plaintiff as to render her condition as wife intolerable; that said indignities began about the year 1896, and have continued up to the present time; that since said date plaintiff and defendant have occupied separate rooms and beds, and have not cohabited as husband and wife — it is therefore decreed, ordered, and adjudged that the bond of matrimony heretofore existing between plaintiff and the defendant be, and the same is forever dissolved, and the plaintiff is granted an absolute divorce from the defendant.</p> <p>“It is further decreed that the stipulation between plaintiff and the defendant on file relative to the disposition of the property, alimony, and custody of the two minor children; Rowland S. and Cecil A. Stanfield, is reasonable and just, and same is approved and made a part of this decree, to wit, that the plaintiff herein shall have the custody, care, and control of the said, minor children, and that the defendant herein may have the privilege of visiting with the above children at such reasonable times as may be agreeable with the plaintiff herein, and may have the said children .visit him during vacation between terms of school at his own expense, and that the defendant herein shall pay the plaintiff $15 per month for each of said children during such times as she may be keeping house and boarding'the said children with her, and in addition thereto shall bear all exnenses incident, co their care and maintenance, such as clothing, books, medical attention, and other incidents, and all expenses incident to their education, and at such times as it becomes necessary for said children to attend college the defendant herein shall hear all of the expense incident to giving them a collegiate education ; that the defendant herein shall pay. to the plaintiff, as alimony, $150 per month until such time as she shall remarry, said payment to be made at the first of each month, in advance, and that in addition thereto the defendant will bear the expense incident to any sickness of the plaintiff, such as medical attention, medicines, hospital expenses, and nurse hire, and other expenses incident to such sickness, if any should arise; that in the event of accumulation of greater wealth or property interest upon the part of the defendant herein, the said sum of alimony herein provided may, be increased by the court in keeping with the financial condition of the defendant, provided the plaintiff remain single and unmarried. It is further ordered that the plaintiff herein release and relinquish all claims to any property which may be held by the defendant herein.”</p> <p>About seven months thereafter, the defendant, desiring to be relieved of the payment of the alimony provided for under his stipulation and the decree, filed in the same court the Mowing sworn application:</p> <p>“Comes now the defendant herein, and alleges that on the 21st day of October, 1905, plaintiff was divorced from this defendant, and that a decree of court was entered, giving to the plaintiff herein as alimony $150 per month until such time as she should remarry, and in addition thereto defendant was to bear expenses incident to any sickness of plaintiff, such as medical attention, medicine, hospital expenses, nurse hire, and other expenses, if any should arise. Defendant states that, in accordance with such decree of the court, he has regularly and consecutively thereafter complied with the decree of the court. Defendant further alleges the fact to be that plaintiff has been guilty of such conduct on her part since the decree of court herein as to forfeit any right to any further claim to alimony or expenses on the part of the defendant. Wherefore the defendant prays that the court set this matter down for hearing as soon as possible, and upon hearing that this defendant be relieved from any further payment of alimony or expenses of the plaintiff herein.”</p> <p>At the time of filing the foregoing application, the defendant ceased paying the alimony provided for. No action having been taken upon this application, the defendant filed the following amendment to the same on January 22, 1907:</p> <p>“Comes now Wade S. Stanfield in his own proper person, and for an amendment to motion filed on May 29, 1906, by this petitioner, shows to the court that on October 11, 1905, the plaintiff herein- filed her suit for divorce from your petitioner, and that a decree of divorce was granted on October 21, 1905, by the Honorable Joseph A. Gill, judge, presiding, divorcing the plaintiff in said case from your petitioner, and awarding to the plaintiff herein $150 per month alimony and the custody of two minor children, Rowland Stanfield and Cecil Stanfield, and decreeing that your petitioner should pay $30 per month board for the said min- or children and their expenses.</p> <p>“(2') Tour petitioner states the fact to be that, in accordance with said decree of this court, he regularly and consecutively thereafter complied with the decree of said court in all matters, and made all payments thereunder until June 1, 1906, the last payment of alimonj'- having been made on about May 1, 1906. for the month of May, being payment up to June 1, 1906, at which time your petitioner refused to pay further alimony, but since said date ypur petitioner has regularly paid the board of said children and all their expenses, as provided in said decree.</p> <p>“(3) That on May 29, 1906, your petitioner filed his motion in this case to vacate and set aside said order for the payment of alimony, for the reason that the plaintiff, by her misconduct, 'had forfeited her right to claim alimony in any amount from this petitioner, and rendered it absolutely impossible for him to comply with said order.</p> <p>“(4) The plaintiff, contrary to the order of the court herein, has, for one year last past, refused to allow your petitioner to see his said children, and stated to said petitioner that she would never again allow him to see them. That since said statement by .plaintiff herein she has not allowed the said children to even speak to their father, although during all of said time your petitioner has borne all of their expenses and paid board for them, as provided, by the decree herein.</p> <p>“(5) That plaintiff has recently communicated with the father of petitioner, and told him that petitioner would not furnish clothing for said children, and that they had nothing to wear, all of which was absolutely false. That acting upon her statements, your petitioner’s father proceeded at once to buy! suits of clothing and send them to said children.</p> <p>“(6) That in incurring expenses for said children for which petitioner was responsible plaintiff has willfully and needlessly been extravagant, and has incurred exorbitant and unnecessary expenses to such an extent as to show that she was'prompted by malice, and in uttef disregard of any attempt to be reasonable or fair in incurring expenses.</p> <p>"(7) That the said Rowland Stanfield is now 14 years old, and .Cecil Stanfield is 11 years old, and both are boys.</p> <p>“(8) That the said Rowland and Cecil Stanfield, since the decree of divorce herein, have been staying with their grandmother, Mrs. M. A. Hughes, and Emmet Hughes, their uncle, in the town of Yinita, Ind. T., at which place the plaintiff resides when she is in Yinita, and at which place she keeps said minor children, and to whom the board of said minor children is to be paid.</p> <p>“(9) That on the 6th day of June, 1905, your pettioner, at the instance and request of the said M. A. Hughes and the said Emmet Hughes, signed a note with the said Emmet Hughes, as his surety thereon, to the International Bank & Trust Company of Yinita, Ind. T., in the sum of $300, with 8 per cent, interest, the said M. A. Hughes guaranteeing to your petitioner the pajfment of said note, and the said Emmet Hughes that he would pay out of his salary as clerk in-the postoffice each month of said note until the same was satisfied, all of which the said M. A. Hughes and the said Emmet Hughes have absolutely failed to do, and that your petitioner has been compelled 'to pay the said note and interest because of his suretyship thereon. That notwithstanding this fact, each month j'our petitioner has regularly and consecutively paid the board of said minor children to the said M. A. Hughes; the same being the arrangement made for the care and attention of said minor children by their mother.</p> <p>“(10) Your petitioner alleges the facts to be that, during all the time since the separation of plaintiff and your petitioner herein, his said minor children have had the privilege of going to the Golden Rule and the Jumbo Mercantile Company, in Vinita, and purchasing any and all goods necessary for their welfare and comfort, and have the same charged to your petitioner, up until a very recent date, to wit, the-day of January, 1901, at which date your petitioner mailed to the said Rowland Stanfield a letter with reference to the same, a copy of which is herewith attached, and marked ‘Exhibit A.’ That since the date of said letter your petitioner has not had any communication with the said two children, and does not know whether other goods have been purchased for them or not.</p> <p>“(11) That at all times prior to the date plaintiff made her threat that she would never allow said children to speak to your petitioner, their father, again they were loving and obedient to your petitioner, displaying affection for their father to a very marked extent. -That during the time plaintiff and petitioner were occupying the same house prior to the decree herein, your petitioner had to look after the clothes and wants of his two children, but that the plaintiff promised that conditions should be changed, and that they should receive better treatment at her hands after the decree of divorce, in all of which she has wholly failed. That said children have not and are not cared for as she agreed to do, but on the contrary, she has wholly failed to care for them and look after them as she agreed to do, in a stipulation between plaintiff and petitioner at the time of the decree in this case. That if said children remain in her custody, it will be impossible for your petitioner to properly care for them or provide for them as should be *done, and that plaintiff, being angered and embittered as she is, will incur needless and unnecessary expenses which this petitioner is unable to bear. That the said plaintiff is not a fit or proper person to have the care and custody of the said two children. Your petitioner can better look after and care for them, and. that it is for the best interests of said children that the custody be taken from the plaintiff and given to petitioner.</p> <p>“(12) That on March 22, 1906, your petitioner was married in the city of Memphis, Tenn., to ÍMiss Mary Louise Smith, and soon returned to Yinita to live there. That the plaintiff herein, although your petitioner was regularly paying her $150 per month in advance as alimony, and in all other things directly complying with the order of the court herein as to all things and matters therein contained, began at once a system of conduct intend-ded to cause trouble between your petitioner and his wife, relentlessly and persistently continuing, by all means possible, to harass petitioner’s wife, until finally her nervous system gave way and she became a mental and nervous wreck, due solely to the conduct of the plaintiff, resulting in a-prolonged and serious spell of sickness, by which she was confined to her bed for nearly 60 days, endangering the life of petitioner’s wife, from which she has not recovered, if, indeed, she ever will recover, resulting in the separation of petitioner and his wife, and the expenditure of a great amount of money necessar}^ to properly care for her, all of which was the direct result of misconduct of plaintiff, and which rendered it absolutely impossible for this petitioner to longer continue to pay any amount of alimony whatsoever, at which time your petitioner filed his motion to vacate said order.</p> <p>“(13) That until plaintiff had succeeded by her conduct in dethroning the reasoning of petitioner’s wife, she was kind, gentle, and attentive to petitioner in every way, giving to petitioner more attention, love, and fidelity in one week than petitioner received from plaintiff in nearly If years of married life.</p> <p>“(14) That as a direct result of the misconduct of plaintiff, your petitioner has been humiliated, and suffered untold mental anxiety, misery, and agony, resulting at one time in the loss of 25 pounds of weight in 12 days.</p> <p>“(15) That the plaintiff has, since the decree of divorce herein granted, intentionally interfered with the business of petitioner, thereby causing petitioner loss of property.</p> <p>“(16) That during all the time, from the marriage of plaintiff and petitioner, until the decree of divorce was granted herein, plaintiff was extravagant and wasteful to an unwarranted degree, and did not, in any particular, assist or contribute to the maintenance of the household, but on the contrary, expended all, and more than, 31011 r petitioner was able to make, and necessitated your petitioner’s continually borrowing money and keeping in debt, during all ol which time plaintiff never contributed one dollar to the household expenses; that she had property of her own in the state of Missouri during all of this time, but permitted her mother to use and occupy 'game without charge; that plaintiff has never at any time contributed or assisted your petitioner to acquire or accumulate any property of any kind or character whatsoever.</p> <p>“Wherefore, the premises considered, your petitioner prays that the custody of said minor children, Rowland and Cecil Stan-field, be taken from the plaintiff and given to the petitioner, and that this petitioner be discharged from paying to the plaintiff herein alimony in any amount whatever, and for such other proper and further orders as to the court may seem meet and equitable in the premises, and your petitioner will ever pray.”</p> <p>To this plaintiff filed her response, in which she challenged the sufficiency of the showing made by the defendant to put her upon defense, denied generally and specifically the averments upon which he relied for relief, and set out specifically the following averments:</p> <p>“She denies that petitioner is the proper person to have the custody of said children, and she says it would be to their detriment to turn them over to him. She alleges that she is reliably informed, and she believes, that if petitioner obtains custody of said children, he will turn them over to his father, who now resides in Missouri. She says that said petitioner’s father is an excellent man, and well able to provide for said children, but that he is a man advanced in years, and has married, in the last year, a young woman, and it is doubtful whether or not these children could get-along at the home of the said grandfather. She believes that the only object in petitioner wanting his father to have said children is so that he will look after their wants and necessities, and will buy them what they need, and thus take this much burden off of petitioner. She alleges the facts to be that no grounds have arisen, since the granting of the decree herein awarding her the said children, which would justify the court in changing the custody of the said children. She alleges that the petitioner is an immoral man, and not fit to have the raising of children, that the woman whom he alleges he married is not a woman of good habits, and that she and petitioner quarreled frequently while they resided in Vinita, and their acts became highly disreputable, and it would be unwise and unjust to allow petitioner to .try to raise said children and have their care and custody. She alleges that said children reside with her, at her mother’s home-in Vinita. They are well housed and fed, and sent to school regularly, and are surrounded by wholesome, moral influences, and are clothed as well as the clothing which petitioner furnishes them will permit; that their affections and ties, both for their mother and their grandmother, are very strong, and it would be injurious , to them, at their age, to sever them from these ties; that they are fully satisfied with their present condition, and as Rowland is at the age to choose whom he desires'to have for his guardian, it would be only just to him to consult his wishes before any change of his custody is made. This respondent states, further, that she has very little property, and no income worth speaking of, except the alimony from petitioner; that she is almost wholly dependent upon it, and she believes it not more than fair and just to her that the court order petitioner to pay his alimony in arrears before he be allowed to ask for a release, or even reduction of the same. She states that at the time she was divorced from petitioner he was United States attorney for the Northern District of the Indian Territory,with a salary of $4,000 per year; that he still holds that office, and, besides, he owns the greater part of the oil interests in 400 acres of valuable oil lands in the Cherokee Nation. Ind. T., which is set out in respondent’s petition, filed in October. 1906, asking for a segregation of the same to pay alimony in arrears. And she alleges that it is within the capacity and ability of petitioner to perform the orders of the court in regard to alimony and the maintenance of his said children.”</p> <p>The showing of both parties is verified by their affidavits. At the time the same was set for trial the hearing was continued over a daji, at the instance of the plaintiff, and in the meantime it is shown that she took the children and departed from the jurisdiction of the court with them, being represented at the hearing by her attorneys. The court on the hearing entered a judgment setting aside and rescinding its former judgment, and awarding to the defendant the custody of the children without the reservation of any right to see or visit them in plaintiff, and relieving him of the payment of any alimony whatever, either that which had accrued, or which would accrue, under its former judgment, but providing that, if plaintiff appeared in court with the children on a .proper showing, it would make a further order respecting alimony, and, upon her failure to so appear with the children within five days thereafter, that she should be subject to be attached as for contempt of court. From this judgment appeal was taken to the United States Court of Appeals of the Indian Territory, and the same is now before us for our ■ consideration, by virtue of the succession of this court under the terms of the Enabling Act (Act June 16, 1906,. c. 3335, 34 Stat. 267.)</p>

<p>1. MORTGAGES — Foreclosure by Action — Rights of Junior Mort-. gagee. A junior .mortgagee, not being made a party to a suit to foreclose a first mortgage, is not affected by a judgment and decree foreclosing it. The foreclosure is effectual against those persons who were made parties, and a sale would vest the estate in the purchaser, subject to the rights therein of the subsequent lienholder.</p> <p>2. SAME — Rights of Inferior Lienholder. One who has a lien, inferior to another upon the same property, has a right: First, to redeem the property, in 'the same manner as its owner might, from the superior lien; and, second, to be' subrogated to all the 'benefits of the superior lien when necessary for the protection of his interests, upon satisfying the claim secured thereby.</p> <p>3. SAME — Redemption—Waiver of Right. If the holder of a junior incumbrance on land, not being made a party to a suit to foreclose a senior mortgage, becomes the purchaser of said premises at the foreclosure sale, he thereby waives his right to redeem.</p> <p>4. SAME — Foreclosure by Action — Effect of Decree. The necessarj-consequence of a decree of foreclosure of mortgaged premises is to merge the interests of the parties to the suit in the decree, and to transfer and vest them in the purchaser at the sale.</p> <p>5. SAME — Surplus—Rights of Junior Mortgagee. A junior mortgagee has no claim, by virtue of his mortgage, upon the surplus money arising from a sale under a suit to foreclose a' senior mortgage to which he was not made a party.</p> <p>6. SAME — ¡Redemption—Junior Mortgage. If a junior mortgage has .been duly recorded, a purchaser of the mortgaged premises on a foreclosure rendered on a senior mortgage will be presumed to have bid and purchased with reference to the junior mortgage and with knowledge of the right of the holder of that mortgage to redeem.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by Eranz E. Marth against the City of Kingfisher and others. Judgment for defendants, and plaintiff brings error.

<p>Application for mandamus by Heinz Braun, relator, against the Stillwater Advance Printing & Publishing Company, to compel respondent and its officers to publish a notice of application for a liquor license.</p>

<p> Erroi- from. District Court, Greer County; C. F. Irwin, Judge. </p> <p>Application of W. A. Thompson for a liquor license.' J. W. E. Bachman and others filed a remonstrance. From a judgment of the district court affirming a judgment granting a license, Bach-man and others bring error.</p> <p>On the 7th day of March, 1907, W. A.’Thompson filed with the county clerk of Greer county, territory of Oklahoma, his application, accompanied by a petition, for the purpose of having issued to him a license to sell intoxicating liquors in the incorporated town of Erick in said county. On the 28th day of March. 1907, the plaintiffs in error filed with the county clerk their remonstrance against the issuance of such license. The matter was duly set for hearing before the board of county commissioners, and on the 4th day of April, 1907, after said hearing, ordered the license to issue to the applicant. Plaintiffs in error then appealed to the district court, which affirmed the judgment of the board. Thereupon the case was brought by petition in error to the Supreme Court of the territory of Oklahoma, and is now properly before this court for consideration.</p>

<p> Error from District Court, Oklahoma County; B. F. Burwell, Judge </p> <p>Action by Edgar L. Conly for a writ of mandamus against Ed. Overholser and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Case-Made—Service. A case-made that has not been served, as provided by statute (Wilson’s Rev. & Ann. St. 1903, sec. 4741), within three days after the judgment or order appealed from is entered or within the extension of time allowed by the court or judge, will not be considered.</p> <p>2. APPEAL AND ERROR — Record—Motion to Vacate Judgment. A motion to vacate and set aside a judgment and the order of the court thereon are not parts of the record, unless they are brought into the same by a bill of exceptions or case-made.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Leases by Allottees — Multiple Leases. The validity oí a lease for a term of five years for agricultural purposes made of his allotment by a citizen of the Creek Nation dated September 11, 1902, is not affected by one or more void leases made by such allottee either before or after its execution.</p> <p>2. VENDOR AND PURCHASER — Notice—Tenant In Possession. When a tenant is in the actual, open, and exclusive possession of real estate at the time it is sold by his landlord, the purchaser is chargeable with notice of all the legal or equitable rights of the tenant therein.</p> <p>3. EQUITY — Adequate Remedy at Law — Possession of Land. The purchaser of a tract of land with an outstanding lease thereon in the possession of a tenant of the grantor has an adequate remedy at law to test the right of possession and the validity of such lease.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Joinder of Counts — Suit for Services Rendered. In a suit on account for services rendered, where there is more or less uncertainty as to the grounds of recovery, there may be Xiroperly .ioined in the petition a count upon express contract and a count upon quantum meruit, and the question of granting or overruling a motion to require plaintiff to elect upon which count he will stand Is addressed to the sound legal discretion of the court.</p> <p>2. APPEAL AND ERROR — Conflicting Evidence — Finding of Referee. Where the question of whether a professional employment was general or special was by the referee decided upon conflicting evidence, this court will not interfere with the finding.</p> <p>3. ATTORNEY AND CLIENT — Action for Services — Evidence. Where an attorney under the terms of his general employment debars himself from employment by others whose interests are antagonistic to those of his client so employing him, such service is a proper item of charge in a suit for services rendered under such general employment.</p> <p>(Syllabus by the Court.)</p>

Error from District Court. Cleveland County; C. F. Irwin, Judge. Action by D. B. Fleming against Jobn Franing and others. Judgment for defendants, and plaintiff brings error.

<p>JUDGES — Judge Pro Tempore — Powers. After he has ceased to sit as a court, a judge pro tempore'has no power to extend the time for making and serving a case-made in an action tried before him; such an extension can only be granted by the regular district judge, who is in fact in possession of the office.</p> <p>(.Syllabus by the Court.)</p>

Error to the United States Court for the Western District of the Indian Territory; William B. Lawrence, Judge. Action by William A Scott and others against John Vickery. Judgment for plaintiffs, and defendant brings error.

Original petition for certiorari by Charles Baker against K. R. Newton and D. W. Talbot, County Judge. This is an original action in this court. Held: in Chicago Building & Manufacturing Co. v. Pewthers, 10 Okla. 724, 63 Pac. 964, that the probate judge, while trying such a case, did not act as an ex officio justice of the peace, but was at all times a probate judge, and that the probate court had the ordinary powers and jurisdiction of a justice of the peace.

Judge,. Application of M. Kahn & Bro. for an allowance of a certain sum by J. F. Bledsoe, trustee in bankruptcy of J. N. Barral. From an order refusing the allowance, M. Kahn & Bro. appeal. This matter grows out of the application of M. Kahn & Bro., appellants, plaintiffs below, for the allowance by J. F. Bledsoe, trustee in bankruptcy, in the matter of J. N. Barral, bankrupt, of the sum paid by appellants on acjcount of security debts of the said J. N. Barral.

<p>1. INDIANS — Lands—Leases. Under the provisions of section 17, of the Creek Supplemental Treaty (Act June 30, 1902, c. 1323, 32 Stat. 504), a Creek citizen has the right to lease his allotment' for agricultural purposes for a period of five years.</p> <p>2, SAME — Five Year Limitation. Such a lease contract for a period of five years is not rendered void by a lease contract executed one year subsequent to the execution of the first contract upon an independent consideration by the same citizen to the assignee of the first contract, leasing his allotment for a period of one year beginning upon the expiration of the first contract, where the first contract contains no stipulation or obligation to renew, and it is not shown that the second contract was executed by reason of any stipulation or obligation contained in the first contract or any agreement made by -the parties thereto at the time of the execution thereof, and it is not shown that the second contract was part of the transaction resulting in the first ' contract, or that said contracts were made with, the intention and design of avoiding the provisions of said section 17 of the Creek Supplemental Treaiy (Act June 30, 1902, c. 1323, 32 Stat. 504.)</p> <p>(Syllabus by the Court.)</p>

<p> Error from Probate Court, Garfield County; M. C. Garber, Judge. </p> <p>Action by Una B. Willey against James S. Kershaw1. Judgment for plaintiff, and defendant brings error.</p>

Error to the United States Court for the Western District of the Indian Territory; William, R. Lawrence, Judge. Action by the Indian Land & Trust Company against W. S. Fears and others. Judgment for defendants, and plaintiff brings error.

Error to the United States Court for the Northern District of the Indian Territory, at Vinita; Joseph A. Gill, Judge. Action by Andy Tynon against W. H. Hall and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Johnson County; A. T. West, Judge. </p> <p>Action by Jake Wilson against II. O. Homines; the Ravia Granite Ballast Company, garnishee. Judgment for plaintiff, and the garnishee brings error.</p>

<p>1. EQUITY — Clean Hands. Equity will refuse to lend its aid in any manner to one seeking its active interposition who has been guilty of any unlawful or inequitable conduct in the matter with relation to which he seeks relief.</p> <p>2. INFANTS — Conveyances—Avoidance—Return of Consideration. ■Where a party fraudulently represents that he is over 21 years of age, when in fact he is only 19 years of age, and such false and fraudulent representations, in connection with his appearance and size, being believed, bj' means of a deed then and there executed and delivered by him he on account of such fraudulent representations obtains the sum of $125 as a part of the consideration therefor, such party grantor whilst in possession of the land described in such deed will not be permitted to invoke the aid of equity to have such deed cancelled, although it may be absolutely void, without offering to refund the amount of money so fraudulently obtained.</p> <p>3 SAME. Although the injured party may have had prior notice that such party was under age, yet if he believed such false representations, which were fraudulently and intentionally made by such party grantor, and, relying thereon, parted with a consideration as result thereof, such party grantor, although the other party may not have exercised reasonable care,, will be refused the aid of equity to cancel such deed, though it may be absolutely void, unless he offers to refund the amount of money thus wrongfully obtained.</p> <p>Kane, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Original petition for mandamus by the State, on relation • of Fred S. Caldwell, Counsel to the Governor, against Sam Hooker, Oountj' Judge of Oklahoma 'County.

<p>1. MUNICIPAL CORPORATIONS — Paving—Ordinance Unnecessary Whenever in a city of the first class the property owners on any street or part of a street of not less than 2,000 feet in length by petition signed by a majority of such property owners request the city council to pave such street, or part thereof, with any material used for standard paving, to be designated in such petition, it then and there becoming the duty of the city council to proceed to pave such street, or part thereof, in accordance with the prayer of such petition, it being provided by statute that no resolution or notice of such intention to pave, or publication thereof, shall be necessary, it is not required that such improvement shiall be directed and made under an ordinance.</p> <p>2. SAME — Harmless Irregulariies. When a majority of the property owners on any street or part of a street of not less than 2,000 feet in length have duly petitioned the city council of a city of the first class to pave such street, or part thereof, with material used for standard paving, designating the same, and said council having proceeded to pave such street in accordance with the prayer of such petition, no resolution or notice of intention to pave, or publication thereof, being required, such improvement will not Do restrained, or the power of equity permitted to be invoked, to stop such improvement, on account of irregularities in the procedure subsequent to the presentation of the petition as provided by law, when there is neither any allegation nor proof as to fraud, or that the party complaining sustains any specific injury on account thereof, or that there was reason to believe that «here would have been a less bid for such paving, especially when the complainant never protested against said contract or sought to have such irregularities or defects remedied, corrected or amended before said council, and afterwards stood by and permitted the contractor, without warning or protest, to proceed under said contract or undertaking, prejudicing himself by an outlay, and partially completing same by making a part of such improvement.</p> <p>(Syllabus by the Court.)</p>

<p>INDIANS — “Alienation of Lands” — «Validity of Lease. A lease is an “alienation of lands,” within the intent and meaning of Act April 21, 1904, c. 1402, 33 Stat. 204.</p> <p>(Syllabus by the Court.)</p>

Application by the City of Blackwell for writ of mandamus to Bill Cross, Secretary of State.

<p>1. MUNICIPAL CORPORATIONS — Grant of Taxing Power — Strict Construction. A grant by the Legislature of taxing power to a municipal corporation is to be strictly construed, and any fairly reasonable doubt concerning the existence of such power is resolved by the courts against the corporation and the power is denied. All acts beyond the scope of the power granted are void.</p> <p>' 2. SAME — License Tax on “Contriactors.” The power being granted by the Legislature to a city of the first class to levy by ordinance an occupation tax on “contractors,” held, that the term is not sufficiently generic to cover “persons doing contract work,” and that that part of an ordinance seeking to levy such tax on ‘‘persons doing contract work,” is illegal and void.</p> <p>3. HABEAS CORPUS — Conviction Based on Void Ordinance. Habeas Corpus will lie to discharge a petitioner restrained of his liberty by virtue of a conviction based upon a void ordinance.</p> <p>(Syllabus by the Court.)</p>

<p>Original petition by George Anderson for a writ of prohibition to be directed to Fred W. Ritterbusch, Treasurer of Logan County.</p>

Error from District Court, Kay County. Action by George Ziegler against Samuel O. Sbeiby and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Logan County; A. H¡ Huston, Judge. Mandamus by tbe Farmers’ Union State Bank against H. H. Smock, Bank Commissioner. Judgment for plaintiff, and defendant brings error. This is an application for a writ of mandamus filed by defendant in error, who was plaintiff in the lower court. The trial court, upon plaintiff’s application, granted an alternative writ of mandamus.

Error■ from District Court, OMahoma County; B. F. Burwell, Judge. Action by John S. Alexander and others against the city of Oklahoma City. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Pawnee Countyj B. T. Hainer, Judge. Action b}r John Crismon against Edward Strange and others. Judgment for plaintiff, and defendants bring error. On .the 5th day of February, A. D. 1904, the defendant in error, John Crismon, as-plaintiff, commenced this action in the district court of Pawnee county, Okla.

T. Dickerson, Judge. In the matter of the estate of Morgan Bolin and others. From, an order disallowing certain claims of S. R. Tolbert, guardian, he brings error. On October 30, 1905, S. R. Tolbert, as guardian of Morgan Bolin, James E. Bolin, and Joseph Bolin, minors, plaintiff in error, filed in the United States Court for the Indian Territory, Southern District, sitting in probate at Ada, his annual settlement.

<p>MUNICIPAL CORPORATIONS — Cities of the First Class — Statehood Chjanges in Indian Territory. The facts and issues in these cases examined, and the law applied thereto as laid down in the case of State ex rel. v. Ledbetter, ante, p. 251, 97 Pac. 834.</p> <p>(Syllabus by the Court.)</p>

Original application for mandamus by the State, on relation of Fred S. Caldwell, as counsel to the Governor, against Edward D. Oldfield, a Justice of the Peace.

T. Dickerson, Judge. Id the matter of the bankruptcy of G. C. GibsoD. From aD order requiring John P. Crawford to make certaiu payments to R. C. FlemiDg, trustee iu baukruptcy, Crawford briugs error.

Error from the United States Court for the Northern District of Indian Territory; Jos. A. Gill, Judge. Divorce by Charles L. Eclcer against Della Eeker.

Error from ¿he Disirici Court, Pawnee Qouniyj Bayard T. Hain&r, Judge. . Action by Minnie Walworth against the First National Bank of Ralston. Judgment for plaintiff, and defendant brings error.

Eiror from the United States Court for the Western District of the Indian Territory; William R. Lawrence, Judge. Action by Abram Ceasar and others against Mittie Ceasar and others. Judgment for defendants, and plaintiffs bring error to the United States Court of Appeals of the Indian Territory, whence the cause was' transferred to the Supreme Court of the State of Oklahoma.

<p> Appeal from the United States Court for the Western District of the Indian Territory; William JR. Lawrence, Judge. </p> <p>Action by the McWilliams Investment Company against A. H. Livingston and others. Judgment for defendants. Plaintiff appeals.</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Actions by the Territory of Oklahoma against th.e Long Bell Lumber Company and others, and against the Oklahoma Mill &• Elevator Company and others, and against A. T. Haines and others. Judgments for defendants, and the territory brings error.

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action by Hannah G. Gamble, administratrix of the estate of David Gamble, deceased, against James S. Patrick, as Treasurer of Kingfisher County. Judgment for the defendant, and plaintiff brings error.