Volume 7 — Oklahoma Reports

<p>1. Equitable Title — 'What Constitutes Such. A. person qualified to acquire title to such land, ’becomes the equitable owner of the tract covered by his ¡homestead entry, upon complying with all of the requirements of the federal laws ¡as to improvement, ’occupancy and cultivation and mahing final proof and receiving final 'Certificate therefor, 'and 'his grantee is invested with such title by accepting a conveyance, by warranty deed, to said tract of land friom said entrym-an.</p> <p>2. Action in the Nature of -Ejectment — Sufftcienctj of Title to Authorize Same. An equitable title to a tract of land is suUicient to authorize the maintaining -of an action 'in the nature of ejectment, by the 'holder thereof, for the possession of said tract, under section 614 of the Civil Code.</p> <p>3. Mandatory Injunction — 'Will Not Lie, When. A party is not entit’ed to a mandatory injunction to aid -him in the recovery of the possession of certain real property, where it is shown by the -al.egutions ¡of his petition that he has a plain and adequate remedy at law.</p> <p>(Siytirhus h*’ the Court.)</p>

<p>1. New Trial — Motiorir—Record. A motion for a new trial and the ruling thereon are no part of the record, and cannot be reviewed unless incorporated into the record by case-made or bill of exceptions.</p> <p>2. Recohh — Sufficiency—Authentication. The requirement that original flies and papers on appeal must be accompanied by the certificate of the clerk of the trial court is not satisfied by a certificate made long after the filing óf the record, and after the time for appeal has expired.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadian County; before Jno L. McAtee, District Judge. STATEMENT OP PACTS. The appellant, Eugene Hays, was indicted, tried, and convicted of the crime of manslaughter in the first degree, and was sentenced to serve a term of twenty years in the territorial penitentiary. From this judgment and sentence Hays appealed to this court, and at a previous term the judgment of the lower court was affirmed.

Error from the District Court of Kay County, before A. C. C. Bierer, District Judge. STATEMENT OP PACTS.

<p> Error from the District Court of Woodward County, before Frank Dale, District Judge. </p> <p>Action by Herman A. Brockliause against John Shy. Judgment for plaintiff. Defendant appeals.</p>

Error from the District Court of Custer County; before John C. Tarsney, District Judge. STATEMENT OP PACTS. An action by Joney Jones against J. B. Scott. Judgment for plaintiff, and defendant brings error. This case was begun on the 24th day of November, 1896, before a justice of the peace of Custer county, by the filing of an affidavit in replevin, the property therein described being a black mare.

Error from the Probate Court of Logan County; before J. C. Foster, Probate Judge. STATEMENT OP PACTS. Action by the Capitol National Bank against School District No. 70 and others. Judgment for plaintiff. Defendants bring error.

Error from the District Court of Pottawatomie County, hefore J. R. Keaton, District Judge. STATEMENT OP PACTS. Thomas Douthitt and William Douthitt were indicted for stealing a cow. The indictment charged that the defendants, on the 10th day of December, 1896, stole a cow, valued at $25, the property of Samuel Workman. The defendants were found guilty.

<p>1. Jurt — Modo of Obtaining — Challenge to Array. In general, the provisions of a statute in regard to the mode -of obtaining juries are directory, <and a substantial compliance with the requirements of the law ¡is sufficient. The supreme court will not reverse a ruling of a district court overruling a Challenge to the array upon objections to the manner in which the list of persons from'which the panel was selected was made up when such ouject-ions are purely technical], and do not affect t'he substantial rights of the parties.</p> <p>2. Swrh — Qualification of. The formation and expression of an opinion are not alone the test of a juror’s competency, but the nature of the opinion may be inquired into, and, if found to be only a transitory inclination of the mind, based upon rumor, newspaper statement, general notoriety, etc., the truth of which the juror does not inquire into nor judge, -it is not a disqualifying opinion. To work a disqualification, there must be an abiding bias of t'he mind, caused by substantial facts in the case, in the existence of which the juror believes — an opinion, upon the merits of me case, upon the guilt or innocence of the accused 'of the charge laid in the indictment, upon the evidence substantially as expected to be presented on trial.</p> <p>3. Same —Challenge for Canse —Error. Upon a challenge of a juror for actual bias, the question presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The issue to be determined by the court is the existence of a state of mind on the part of the juror In reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that the juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. The finding of the trial court upon that 'issue will not be set aside by a reviewing court unless error is manifest. To authorize the appellate court to reverse the ruling of the trial court, it should be made clearly to appear that upon the evidence the court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.</p> <p>4. Witness — Impeachment of. Where the defendant, for the purpose of impeaching a witness by showing contradictory test.mony given by the witness upon a former trial of the case, offers in evidence extracts from the witness' former testimony, reading the same from the official transcript, it is not error for the court to permit the prosecution to read to the jury from said transcript all the te^ti-mony of said witness in relation to the facts -involved in the a'leged contradiction, for the purpose -or rebutt-ng* such attempted impeachment</p> <p>(Syllabus 'by the Court.)</p>

Error from the District Oourt of Pottawatomie County; before J. R. Keaton, District Judge. Action by W. S. Field against the city of Shawnee upon a contract for services as an attorney. From a judgment for defendant, plaintiff brings error.

<p>1. .Contempt — Power of Prodate Judge to Punish for. A judge of probate has power to commit 'a witness for contempt who, hav.ng been duly subpoenaed before him for that purpose, refuses to be sworn or to give 'his deposition.</p> <p>2 Witness — Adterse Pm-ty Competent. A party to a suit is a competent witness for himself, and may be called as a witness by his adversary, and his deposition be taken. He stands precisely as any other witness with relation to the suit in relation to his obligation to testify, and he may be dealt with the same as any other witness who refuses to obey a -subpoena or an order to be -sw-orn and testify.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Woodward Coun'.y; before Frank Dale, District Judge. Suit by G. W. Boyd and O. P. Jones against E. S. Wiggins and Robert Benn, treasurer and sheriff of Woodward county, to enjoin the collection of certain taxes. From a judgment enjoining the collection of a portion thereof, plaintiffs bring error.

Error from the District Gourt of Canadian County; before J. C. Tarsney, District Judge. Action by Murphy, Carroll & Brough and others against Gillette & Libby and others. Judgment.for plaintiffs. Defendants bring error.

<p> Error from the District Gourt of Pawhuslca; before A. G. G. Bierer, District Judge. </p> <p>Jemima Goodson was convicted of an offense, and sbc appeals.</p>

Original Proceeding in Mandamus. Application by school district No-. 5, Oklahoma county, Oklahoma Territory, for mandamus directed to S. N. Hopkins, auditor and superintendent of public instruction for the Territory of Oklahoma. STATEMENT OF FACTS.

Error from the District Court of Noble County, - before 13, T. Mainer, District Judge. STATEMENT OP PACTS. Action by'the board of education of the city of Perry, Territory of Oklahoma, against G. T. Bryan, county treasurer of Noble county. Decree for plaintiff. Defendant brings error. Injunction to restrain the county treasurer from retaining an amount for insurance fund, made under ch. 17, Session Laws, 1897.

<p>Justices of the Peace — Jurisdictioiv—Forcible Entry. A justice of the peace has no jurisdiction in an action of forcible emry and detainer, in which the vendor of real estate brings an action to recover the pos ession of premises -against a purchaser to whom he has made a contract for the sale -of the land, and whom he has put in possession thereof, and who has made defau't in the payment of the purchase price. The remedy is by an action in the district court to rescind the contract, or to foreclose the equitable interest of the purchaser.</p> <p>(Syllabus ‘by the Court.)</p>

<p> Error from the District Court of Logan County, before Frank Dale, District Judge. </p> <p>Action between W. D. Richmond and others and N. F. Frazier. From tbe judgment, Richmond and others bring error.</p>

<p> Error from the District Court of Greer County; before J. R. Keaton, District Judge. </p> <p>Action by Jesse A. Watson against the board of county commissioners of Greer county. Judgment for plaintiff. Defendant brings error.</p>

<p>Constitutional Law — 1'axation of Property on Indicm Reservations. For syllabus hereto, see former 'opinion herein, 5 Okl. i, 46 Pac. 578, except the eighth clause of said syllabus, wh-ich eighth clause is hereby expressly overruled.</p> <p>(Syllabus ‘by the Court.)</p>

<p> Error from the District Court of Logan County, before ■Franh Dale, District Judge. </p> <p>James Asher was convicted of a crime, and brings error.</p>

Error from■ the District Court of Woods County, before Jno. L. McAtee, District Judge. Action by Webb & Jones against J. P. Renfrew and others to enjoin collection of taxes illegally assessed. From the judgment both parties bring error.

<p>Appeal — Dismissal. Cause dismissed for failure to' file brieis in compliance with the rule of the court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Gourt of Payne County, before Frank Dale, District Judge. </p> <p>Action between George W. Gardenhire and F. H. Bur-dick. From the judgment, Gardenhire brings error.</p>

jError from the District Court of Logan County, before Frank Dale, District Judge. STATEMENT OP PACTS. Action by O. H. Duvall against Rachel A. Wright and another to foreclose a mortgage, in which 0. M. Stark and others, partners as Stark Bros., intervened. There was a judgment against them, and interveners bring error.

Error from the District Court of Oklahoma, Gov/ntyj before Henry W. Scott, District Judge. STATEMENT OF FACTS. Action by the Topeka Paper company against tbe Oklahoma Publishing company, and others, as directors, on an account against the company for material furnished. There was a judgment for the defendant directors, and plaintiff brings error.

<p>1. Appeal — Case-Made—Amendment. A case-made for the supreme court cannot be aim-en-d-od or supplemented in the supreme court by inserting anything -therein or attaching anything thereto wh'ich did not belong to the case-made and -constitute -a part thereof when 'it was -originally settled and signed by the judge and -attested by the clerk below. The decision -of the trial judge as t-o the truthfulness of the case-m-aae is conclusive and final, at least umt-.-l the cerb.fied record is shown to be intentionally fal-se, and t-o have been fraudulently prepared, or that there was a want of jurisdiction in the -court.</p> <p>2. Case Made — Defective—Ttcmilment. If -i-t appears upon appeal that the case-m-ade -is -plaimly defective, it -may be remitted, -on motion, by ' the appellate court, w-.t-h .instructions to the trial judge L'o -rcse.tle •it. But -the appellate c-ourt cannot direct how the case s-hall be r.e.se'ttl-dd. It rests -in the discretion of the trial judge.</p> <p>8. New Trial — Motion Must be Filed in Time. The motion for a new trial, if not filed within three days after the verdict or decision rendered,' will'not be considered or reviewed here upon errors occurring upon the tr-ial.</p> <p>4. Appeal — Oase Not Reviewed, When. A case w-h'ich 'has not been fi'ed in this court until more than one year after the rulings complained of in the petition in error will not be reviewed upon any ground.</p> <p>(Syllabus b.y the Court.)</p>

<p> Error from the District Court of Oklahoma County; before Henry W. Scott, District Judge. </p> <p>Action by Otto C. Durland against Samuel Sproat. From an alleged judgment, defendant brings error.</p>

<p> Error from the District Court of Oklahoma County; before Henry W. Scott, District Judge. </p> <p>Herman C. Patzwald was convicted of perjury and brings error.</p>

<p>Error from the District Court of Kingfisher County/ before Jno. L. McAtee, District Judge.</p> <p>Action by Reuben Marshall against Louisa Marshall. Demurrer to plaintiff’s petition was sustained, and plaintiff brings error.</p>

<p>1.Deed — Equitable Mortgage, When. Although a deed may be absolute on « -its face, yet, if given merely as a security for debt; and intended by the parties as a security, it will be held to be a mortgage, with t*ie right of redemption.</p> <p>2.Samé — Agreement for Reconveyance. [Where a deed, absolute on its face, 'is given in security of a debt, and an agreement or bond is executed toy the grantee for reconveyance conditioned upon tne payment by the grantor *of the debt -secured, and both instruments are of the same date, and were executed and cel.vered at the same time, and as parts of one transaction*, they wll'l be held to be a legal mortgage.</p> <p>3. Parol Evidence — Admissible, When — Defeasance. Parole evidence is admissible and competent to show that a deed absolute upon its face was 'intended by the parties as a mortgage, that it was g.ven for the security of a debt, and that a bond given by the grantee for a re-conveyance, if the debt secured was paid, was intended by the parties as a defeasance, and not an ordinary bond for title.</p> <p>4. Mortgage — Assignee of Separate Defeasance. The assignee of a separate defeasance to a mortgage, though -in the form of an ordinary title bonJ, cannot require of the maker of such instrument a conveyance of the property, containing the usual covenants of warranty, and cannot maintain an action thereon for specific performance, and obtain judgment -for a conveyance with usual covenants of warranty. His rights are only the rights of a mortgagor, and are to be enforced by proceedings to redeem from the lien of the mortgage.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal — Review—Refusal of Neto Trial. Although a motion for a new ir al be fl ed in the court below upon grounds for Which ,a new trial may be granted, and the motion be overruled, the supreme court will not consider these ground's, unless, 'in the petition in error. the overruling of the motion for a new 'trial is assigned as error.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Custer County; hefoie' J. C. Tarsney, District Judge. Action by John J. Merrilees against Hillis E. Herren. Judgment for plaintiff. Defendant brings error. Tin's was an injunction, the object of which was to give to Merrilees, the plaintiff below, an order restraining the defendant, Herren, from interfering with his possession of a tract of land pending a contest therefor in the land department.

Error from the District Court of Pottmoatomie County; before J. B. Keaton, District Judge. 'Action by Nix, Halsell & Co. against Fox Stephens. The Coyle Mercantile Company also began an attachment against the same defendant. From a judgment in favor of Nix, Halsell & Co., the Coyle Mercantile Company brings error.

<p>1. Contract — 'World and Labor — Quantum Meruit. In an action for services in plastering a house, there being no contract or ag.eement between the parties that the worm should be paid for by t'he yard, or stipulation regarding the price to be paid, and the action being upon a quantum meruit to recover the reasonab e value of the service, it is. immaterial whether there is or is not a usage of tra'e in the business .of plastering, by which the number of yards of plastering done is computed from outside measurements of the building, including all openings for doors and windows. Such usage, if it existed, would only be material to be shown where the price per yard was stipulated by contract, and the issue alone was the number of yards.</p> <p>2. Contract — Evidence—Oounter-Glaim—Set-Off. In-an action for plastering a house, where defendant pleaded a counter-claim, alleging', damages on account of plaintiff’s unskillful workmanship in constructing a foundation for the house, it was not error for the court to instruct the jury that to entitle defendant to damages for any failure -on the part of plaintiff .to construct such foundation in a workmanlike manner, it oru t be shown by the defendant, by a preponderance of the evidence, that the- contract for building such' foundation was a part of the same contract, agreement, or transaction under which the plastering of the house was done. By section 95, Code Civ. Proc., a counter-claim must be a ground of defense-arising out of the contract or transaction set up in the petition as the (foundation of the plaintiff’s claim, or be connected with the subject of plaintiff's cause -of action.</p> <p>(Syllabus by the Court.)</p>

Error from, the District Gourt of Cleveland County; before J. R. Keaton, District Judge. Action by T. J. Overstreet against E. J. Hawkins. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal — Review—Assignment of Errors. Where the appellant fails to assigns as error the overruling of a motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.</p> <p>(Syllabus 'by the Court.)</p>

<p>1. Assignment — Attachment—Interpleader. "Where an -insolvent debtor has made an assignment for the benefit of creditors generally, and before the expiration of the twenty days limited for filing the inventory the -p-i'Oiperty (is attached on act ons by certain of the creel - tors, and sold by the sheriff, and, after judgment in the attachment proceedings, the proceeds of the sale are in „he han s of the ■court awaiting distribution, the general creditors of the assignor army interplead -in said attachment action, asking the court to decree such proceeds a trust fund to be administered in equity, and d.s-tributed pro rata among all the creditors of the assignor, anl f-or the appointment of a receiver to administer such trust.</p> <p>2. Same — Deed—Preferences. A -deed of assignment -is only invalid on account of preferences where the instrument itself is upon or contains a trust or condition of preference or priority. If the instrument contains no trust or condition of preference or prior.ty, and be ■absolute, if its taking effect be not by its terms conditional, then it is not invalid by reason of preference or priority. An absolute executed payment involves no element of trustor condition; 'hence, if an insolvent debtor, although in contemplation of making a general assignment for the benefit of creditors, makes payment in part or full in cash of 'his indebtedness due one 'or more of hs creditors, such payment dees not make t»he general assignment invalid as a preferential assignment</p> <p>3. Same — Inventory—Title of Assignee. An assignor has twenty days after the execution of an assignment in which to make -and file an inventory. The making and' filing of such inventory, as “required by Statute, are -conditions subsequent, -and not precedent, to the vesting of the 'title to 'the property in the assignee. An inchoate title vests in 'the assignee upon the execution -and recording of the deed of assignment, and -is made absolute by 'compliance with the statute in relation to making and filing 'inventory, bond,, etc., within the time specified. During said time the assignor has not an attachable interest in the property. The assignment cannot be defeated by the levying of attachments during the twenty days given for making such 'inventory.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Woochoard Comity, before Framlo Dale, District Judge. Suit bj C. T. Herring and others against E. S. Wiggins, county treasurer. From an order modifying a temporary injunction, plaintiffs bring error.

<p>Railroad Corporations — Service of Process — Conductor of Train. A ra'l-? road cO'iriipaaiy ran ia short branch oí its Une 'from Liberal, Kan., into Beaver c’oimty, for a dis tantee -oí from four -to s'.x miles, for the 'purpose of taking up cattle from a cattle chute, which it -had located at the end of t'he branch. No station agent was located at the end of t'ne Une or -at the -caittle chute. The s-hort .p.ec-e of -track was managed by the -agent at Liberal. Passengers were not carried for hire over the piece of track -referred to. No freight charges were made for carrying the cattle upon it. The trains ran irregularly, and only when trains of cattle were to be shipped from the Territory; and these trains were billed and charged for from Liberal. No depot building was erected at the point referred to, and no. shelter was provided for passengers or freight, and no other freight was carried upon the line except cattle received at the chute men-tionefl. The point is not referred to in the defendant company’s printed 'lists of stations or time schedules, and there is no evidence to show that the company ever intended to establish a station there. Held, that under a statute whitíh provides that service of process may be had by “leaving- a copy thereof, certified by the officer to whom the same is directed to be -a true copy, at any depot or station of such company or corporation in such county, with some person in c'harg.t theieoif, or 'in the emp.oy of such company o,r corporation,” by serving a copy thereof upon the conductor who has •charge of the catt.e train at the point in question, is not such a service as will be deemed “complete and effectual.”</p> <p>(Syllabus ’by the Court.)</p>

<p> Error from the District Court of Logan County, before-Franlc Dale, District Judge, on Re-hearing. </p>

<p>1. Forcible Entry and Detainer — Question of Title. The action of forcible entry and detainer is purely a .possessory actJon, and the question of tilth < 'or boundaries cannot properly arise or be tried, in such a proceeding.</p> <p>2. Same — Right of Possession. The question of title may be an incident to, or evidence of, the right of possession, and in the trial • of a forcible entry -and detainer cause the title may be inquired into sufficently to determine the right of possession, and for such purpose only.</p> <p>3. Same — ^Jurisdiction—Justice of the Peace. The statute gives exclusive jurisdiction to justices’ courts in forcible entry and detainer proceedings, and the district court can only acquire jurisdiction in suen cases by appeal or writ of error from the judgment of a justice of the peace.</p> <p>4. Same — Cause Certified to District Court. The statute authorizing a justice of the peace to certify a cause to the district court for trial whenever the title or boundaries to real estate are put in issue, has no application to forcible entry or unlawful detainer proceedings, •for the reas'on that tide or boundaries as com empiated by said statute cannot be put in issue in such proceedings.</p> <p>5. Same — District Court — No Jurisdiction. The district court has no jurisdiction to hear and determine a cause of forcible entry and de-tainer, certified from a justice of the peace, before any judgment is rendered in said cause by the justice of the peace.</p> <p>(Syllabus ‘by the Court.)</p>

<p> Error from the District Court of Oklahoma County j before J. R. Keaton, District Judge. </p>

<p>■1. Mandatory Injunction — Proper Proceeding, When. It has now become the settled law 'of this Territory thlat mandatory injunction is a proper proceeding to prevent one whose homesteaa entry on ruu.. . land has been canceled from interfering with or disturbing the possession of the entryman while the title to the land is in the United States.</p> <p>2. Homestead — Entry Canceled — Occupying Claimant. One whose on'y claom to public land was .a homestead entry which has been oaneiled for fraud 'cannot claim t'he rights of an occupying claimant, in order to enforce payment for improvements made on such land during the time his homestead entry was intact.</p> <p>(Syllabus 'by the Court.)</p>

<p> Error from the Probate Court of Pa/wnee County, before Edioard L. Lemert, Probate Judge. </p> <p>Action by Kingman & Co-. against Daniel Pixley. Judgment for defendant, and plaintiff brings error.</p>

Error from the District Court of Cusler County; before John C. Tarsney, District Judge. STATEMENT OF FACTS. This was an action brought by the Territory of Oklahoma, for the use and benefit of Ouster county, in said Territory, against H. E. Van Trees, principal, and others as sureties-, upon an official bond. Judgment for plaintiff. Defendants bring error.

■ Error from the District Court of Logan County; before Frank Dale, District Judge. STATEMENT OP PACTS. Action by Samuel G. Garrett against Marinda O. Cox and Albert L.'Ayers. Judgment for plaintiff. Defendants bring error. This was an action for a mandatory injunction, filed by Samuel G. Garrett, against the plaintiffs in error, in the district court of Logan county, on December 11, 1807.

Error from the District Oourt of Payne County, before Frank Dale, District Judge. STATEMENT OP PACTS. Action bj Theodore J. Enslo-w against Charles C. Dysart and Clara Dysart. Judgment for plaintiff. Defendants bring error. This was an action of forcible detainer commenced by the defendant in error on the 9th day of March, 1897, in a justice court of Payne county against the plaintiffs in error, defendants in the court below.

<p>Appeal from the District Court of Woods County; before Jno. L. McAtee, District Judge.</p> <p>Quo warranto by A. W. Stone against E. P. Reynolds. There was a judgment for defendant, and plaintiff appeals.</p>

<p>Animals — Quarantine Law — Contagious Disease — Knowledge—Damages. One who drives, leads, moves, drifts, ships, transports, or causes to be driven, led, moved, drifted, shipped, or ¡transported cattle from a district known ._> him to be a district infected with contagious or infectious diseases ¡of a malignant character, and liable to be communicated or conveyed, against whiah the officers of the united States and 'Of the Territory have quarantined, into ¡a protected area within the Territory, after he has been notified not to 'do so, and with full knowledge of the law, is "liable for all damages which •may thereafter result from the effect of any contagious disease communicated by ¡such cattle to other cattle within the protected area, regardless of whether he ' rd actual know edge of .h? fact t: at such cattle were affected or -infected ¡with such contagious disease at the time he drove them across the quarantine line; and one who drives, ¡leads, moves, drifts, ships, transports, or causes to be driven, led, moved drifted shipped, or transported such cattle from an infected district into a protected area and places 'them in the pasture •of another, where other cattle are running, and such other cattle take 'such contagious disease and die, such party is liable for all damages occasioned by the loss of such cattle, even though he had no actual knowledge that the cattle which -he placed in the pasture were affected or infected with a contagious disease.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Pottawatomie County, before W. A. Ruggles, Prohate Judge. </p> <p>Replevin by Hannah F. Knight against L. Marrinan & Bro. From a judgment for plaintiff, defendants appeal.</p>

<p> JUrror from the Prolate Court of Garfielcl County, before WilUam M. Anderson, Prolate Judge. </p> <p>Action by Andrew Gillespie against O. J. Fleming. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Public Lands — land Department — Decisions of Conclusive. The 'land department is a tribunal appointed by congress to hear anil determine all questions of fact arising between conflicting claimants to public lands, and, when such questions are finally decided by the 'Officers of that department, the decision is conclusive everywhere else, as regards all questions of fact. Where fraud ,or imposition has been ¡practiced on the party interested, or the officers 'of the law, or where these ¡latter have clearly místale in the law applicable to the facts, courts or equity may grant relief; but tlhey are not authorized to re-examine into a -mere question of fact, dependent an conflicting evidence, and to review the weight which those officers attached to such evidence.</p> <p>2. Land Office — Contest—Eqwty Will Interfere, When. Equity will interfere whenever it is clear that the land officers nave, by mistake of the law, given to one man the land which, on the undisputed facts, belonged to another.</p> <p>3.Same — Fraud. It is only when fraud, impositi:n, or perjury h-as prevented the unsuccessful party from fui-ly prosecuting his case, or the officers from fully considering it, that a court of equity will reexamine and pass upon the questions of fact. It is not enough that fraud and imposition have been practiced on the department. It must -appear that they affected its determination, which otherwise would have been in his favor. There can be no imposit.on where both parties have had a fu.l and -free opportunity to be heard, w.-t-h kn'owhdge of it‘he acts cans Jututng tne ¡aheged iraud, -perjury, or imposition.</p> <p>4.Same — Petition—What Must 1)3 Alleged. An alhigif'on in the -petition that the prevailing party in the land office introduced certain false and perjured testimony will not authorize the court to set aside the findings of the officers of the land department, un.ess suen averment is supplemented 'by the -further allegations that there wa-* ’•>o -other evidence introduced in the contest case tending to support the 'findings of the land department, or on which such findings could have been based.</p> <p>5.Equity Jurisdiction — Land Office Decision. In order to warrant a court of equity -in setting aside the findings 'and conclusions of the officers of the land department on the ground that sucih officers were influenced by false ana perjured testimony, it must be made to cieany -appear that the decison of such officers was controlled by, and based -upon, such false and -prejuxed testimony and -that theie was not other testimony ¡in the causo tending to support such findings and conclusions.</p> <p>6. Same — Misapplication of Law. A court of equity will not inquire into any question of a misapplication of law by the officers of the land department to a controverted question of fact before them, unless the findings of fact and conclusions of such officers are set out fully in the pleading of the complaining party.</p> <p>7. Harmless Error. Errors in rejecting evidence will not be permitted to reverse a judgment where -*t appears that, if all the evidence offered by the appellant had been received, tne ju gm-mt must have been the same.</p> <p>(Syhabus ‘by tne (Juurt.)</p>

<p>X. Damages — Erroneous Instruction. An erroneous instruction as to the amount plaintiff should recover, if he recover any amount, but which does not affect his right to a recovery, is not such error as will secure a reversal of the judgment, when't. e verdict of tne jury and judgment of the* court are for the defendant.</p> <p>2. Measure op damage — Evidence—Error. The court excluded’ corn-pet nt evidence as to the measure of damages, but instructed tne jury that they should return a verdict for nominal damages onl> •if they found for the plaintiffs. Feld {^asnru'ch as the ve~/!r/*L was for the defendant, the exclusion of competent evidence, which went only to the measure of damages, was not reversiole error</p> <p>S. Judgment — Appeal—Beversal. A judgment will not be reverse 1 on account of errors committed upon the trial, which do not affect the substantial rights of the party appealing, tbynauus by tne Court.)</p>

<p> Error from the District Court of Logan County, before Frank Dale, District Judge. </p> <p>Action by Lucy E. Shaffer against the city of Guthrie. From a judgment for plaintiff, defendant appeals.</p>

<p>1.Greer Countt — Be I'aeto Tribunals — Valid Judyments. The authorities of the state of Texas, by legislative enactment, organizes the disputes territory known as "Greer 'County” into a county government, and the inhabitants of such territory exercised 'all t'he governmental functions, legislative, executive, and judicial, for a number of years, and until March 16, 1896; the united States acquiesced in such acts until it was decided by -the supreme court of the United States that such territory belonged to 'the United States, and was not within the boundaries of 'the sítate of Texas. Held, that such county government was a de facto government, and tlhe courts held therein under and by virtue of the laws of Texas were de facto courts, and a judgment duly rendered in tlhe county court of Greer county during such period is a val.d and binding judgment.</p> <p>2.Courts — Greer County — Transfer of Causes. The act of congress of May 4, 1896 (29 Stat. 113), which -contains 't'he provision that “where an appeal or writ of error has been taken from a judgment iin any civi'l or criminal casa rendered' by any of said courts of Greer •county, Texas, to any other court of Texas, the judgment Of such appellate court shall be 'binding upon all parties to such case, and •upon the filing of a certified Copy thereof in the court Of Oklahoma, having jurisdiction of like cases, it shall be the duty of such court t'o enter 't'he same on its minutes and proceed in said alction in all respects as though it had rendered the original judgment therein,” authorizes the appellate Court to determine a case pending therein on appeal from tlhe county court of Greer county, taken prior to March 16, 1896, but not decided until after 'that date, and is clearly within the legislative poiwer of congress relating to 'Counts for the territories.</p> <p>3.Appeal — Mandate—Notice. Where a cause is appealed from an Inferior to an appellate court, aind cause decided by appellate court, and remanded, with directions t'o lower court how to -proceed, on Ithei filing of the -mandate in the lower court it may legally proceed to carry out the directions cf the count of appeals without further ■niotioe to the parties to said cause.</p> <p>i. Judges — Disqualified, Hay Act When. The judge of a court who is disqualified ira a cause by reason of interest may properly enter a formal judgment directed by -the appellate court, as isn such case he is not required to exercise any judgment or discretion.</p> <p>5. Probate Court — Greer County — Jurisdiction. The probate court of Greer county, Oklahoma, has, with few exceptions, jurisdiction of the causes fried or pending in -thei county count of Greer county, Texas.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County, before A. (7. C. Bierer, District Judge. Action between Deborah Winfield and H. C. Masters, sheriff of Kay county. From the judgment rendered, Masters brings error.

<p> Error from the District Court of .Oklahoma County; before J. B. Keaton, District Judge. </p> <p>Nicholas Stutsman was convicted of murder, and appeals.</p>

¡Error from the District Court of Pawnee County, before A. G. C. Bierer, District Judge. STATEMENT OP PACTS. Replevin by tbe Strahorn-Hutton-Evans Commission company against Plorer & Bannerman. Judgment for defendants, and plaintiff brings error.

Error from the Probate Court of Kay County, before Yirgil K. Brotan, Probate Judge. STATEMENT OP PACTS. Action by Theodore Ott against J. D. Winfield. From a judgment for plaintiff, defendant brings error.

Error from the District Goii/i't, of Woodward County, before John H. Burford, District Judge. Action by A. T. Wilson against E. S. Wiggins and another. From judgment for defendants, plaintiff brings error.

<p>1. Criminal Law — Jdvidcnce—Admissibility. Where evidence of an act done by a party is admies ble, his declarations mad-a at the time, 'having a tendency to elucidate, explain, or give character to the •adt, are a-dnr ssible. They are a pant of the transaction, and for 'that reason are admissible; and ft mkeis no difference, so far as the admissibility of the declaration is 'Concerned, whether it be in favor ■of or against the party making i't. If ¡t'he act is one of alleged criminality, -and t'he accompanying declaration tends to show i't to be inin'oeemt, i't is equally admissible as when 'the tendency is to •show the criminality of the act; and it may be given in evidence by the defendant as well .as by 'the ¡prosecution.</p> <p>2. Larceny — Possession of Stolen Property. Where a person -is arrested ■in possession of property charged to have been stolen, the statements and declarations made by him at the time of the arrest, and constituting a ¡part of and relating to 't'he transaction, a,re part of 'the res gestae, and are admissible in evidence in his behalf.</p> <p>3. Same — Criminating Circumstance. When possession of stolen property • is relied on as a crlminatinig circumstance against the accused, any explanation given by him of his possession at the time is 'admissible In his 'Behalf.</p> <p>4. Larceny— Crime Defitied — Trespass. Larceny is the talcing of personal property, accomplished by fraud or stealth, and with intent to deprive the owner thereof. Any taking of personal property with •the intent to temporarily deprive the owner thereof, and then return the same, does -not constitute larceny, but is a trespass. In order to constitute a felonious lintunit, ‘the taking must be to permanently deprive the owner of 'the property, and it meed not be •done hucri causa, or for wrongful 'gain. The purpose of the law is to Secure a man’s property -to him, and its prohibition is directed at 'the wrongful deprivation of it.</p> <p>(Syllabus toy the Court.)</p>

Error from the District Court of Blaine County; before J. C. Tarsney, District Judge. Petition by E. E. Bardrick and others against J. H. Dillon and others. From judgment for defendants, plaintiffs appeal.

<p>Error from the District Court of Oklahoma County; before Henry TE. Scott, District Judge.</p> <p>Eobert J. Lee was convicted of perjury, and he brings error.</p>

<p>1. Taxation — Territorial Board of Equalization^-Powers. The territorial board of equalization has p'ow-ir, «in equalizing the returns of -the several counties of the Territory, to adopt the returns of any county which, in its judgment, the most nearly represents the actual cash value of all of the property therein, and equalize all of the other counties of the Territory by either raising or lowering them, to conform to the returns of the county adopted -as a standard; but such board has -n'o power to raise the returns of any county above the actual value of all of the property therein contained; and if said board, in raising the total returns of any county, raise the assessed valuation of the property of any person or persons above -its actual value, injunction wi'll lie to restrain the collection of all taxes based on the valuation in excess of the true value thereof.</p> <p>2. Petition — Sufficiency of — Allegations—Injunction. A petition which alleges that a tax has been levied! for the purpose of paying a judgment which is void by reason of having been rendered in excess of the 4 per cent, limit, without stating facts necessary to show that such judgment is void, does not state a cause of action; and it is not sufficient to authorize a -court of equity to restrain the collection of such tax.</p> <p>3. Same — Demurrer—Misjoinder of Parties. When the territorial board of equalization, i-n equalizing the returns of t-he several counties of the Territory, raise a certain county 65 per cent., and 450 persons join dn a suit to restrain such raise as to their individual properties, and allege that they each -returned, «their respective property to the township assessors at its true value, and that the territorial board rased the assessed valuation thereof 65 per cent, above its true value, such petition «i-s good as against a demurrer alleging that the same does not state facts sufficient to const*tute & cause of action, but is not good -as against a demurrer on the ground of improper joinder of several different causes of action; the causes of action of said plaintiffs being several, and not joint.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court■ of Oldahoiva County; before J. R. Keaton, District Judge. STATEMENT OP PACTS. Action by Tony Alexander against tbe Cboctow, Oklahoma & Gulf Railway Company. A demurrer to the answer was sustained, and defendant brings error.

<p>1. Prairie Fires — Act Relating to Damages. The .clause of the e'ghth section of the act to regulate .prairie fires (Statutes of 1893, ch. 38,) which provides that “any railroad company operating any line in this Territory, shall be liable for all damages sustained by fire originating from operating their road,” is not invalidated ¡by -the fact that it is a part of .the statute entitled, “An A-ct to Regulate Prairie Fires,” and that the remaining provisions of the 'Chapter relate to the imposition of civil and criminal liability for ¡those who set out iprairie fires with and without negligence, and by reason of the fact that dt Is a portion only of 'the section of 'that chapter, the •remainder of which section relates to other matters. ‘Neithiir is the provision referred to rendered ambiguous by the fact that it is •included in that chapter.</p> <p>2. Statute — Ambiguity. The. provision in question cannot be set aside ¡by the application ¡of principles which might be applicable if there were any ambiguity in the act necessary to be determined.</p> <p>3. Statute — Construction of. The primary principle of int-iirpretation is to observe and be guided by the language of the statute, and, if :f is clear amd free from ambiguity, there is nothing left for interpretation. When the acit Is ¡conceived in olear and precise terms, and when the sense is manifest, .and leads to nothing absurd, ¡there can be no Teason to refuse the sense which it naturally presents. To go elsewhere to obtain something to enlarge! or to limit its .meaning is to endeavor to elude lit. The office of interpretation is not to put a sense Into .the language., hut to ascertain .the sense already existing there.</p> <p>(Syllabus by the Court.)</p>

Error from the Probate Court of Woods County, before James Walicer, Probate Judge. Action by one Eikleberry against Aldace F. Walker and J. J. McCook, receivers of tbe Atchison, Topeka & Santa Fe Railroad company. Judgment for plaintiff, and defendants bring error.

<p> Error from the District Court of Woodward County, before John H. Burford, District Judge. </p>

<p> Error from the District Court of Woodward Coimty, before John E. Burford, District Judge. </p>

<p> Error from the District Court of Woodward County; before John H. Burford, District Judge. </p>

<p>1. Judgments op Probate Courts — When Liens on Real Estate of Judgment Debtors. A judgment of the probate court, rendered prior to March 7, 1893, was a lien upon the real estate of 'the judgment debtor in the county wherein such judgment was rendered and continued to be a lien on such real estate for the period1 of sixty days after -that date, but ceased to operate as a 1 en on r„al estate after the expiration 0/ s-ixty days from March 7, 1893, unless the judgment creditor caused to be filed in the office of the clerk of the district court a transerpt or abstract of his judgment recovered in the ¡probate court. And where one recovered a judgment tin the probate court against a ■party, prior to March 7,1893, but failed bo file a transcr pt or abstract of such judgment am the office of the -clerk of the district court until •after the expiration of sixty days from the date last above named, and thereafter, and prior to March 5, 1895, the judgment debitor sold real 'estate 'located 'in the county where >n such judgment was rendered, to a third party, andJ conveyed the same by warranty deed, such third party acquired a good title as against the judgment -creditor, such -creditor having lost his lien on said real estate, by not filing a -transcr-ipt or abstract of his judgment in conform -ty With section 2 of the- act relating to judgments rendered ám probat? -courts, on page 1191 of the Statutes of Oklahoma of 1893.</p> <p>2. Same — Transcript Mttst be Filed m Office of Cleric of District Court. A judgment rendered -in a probate court of this Territory, -after March 7, 1893, and prior to March 5, 1S95, did not, between said dates, operate as a lien on the real estate of the judgment debtor in the -county where n such judgment was Tendered, unless a -transcript or abstract thereof was filed in the offi-ce of the clerk of the district court. Upon the filing of such transcript or abstract in the office of the clerk of ■the dlstiil-ct court, it operated as a lien upon t'h-e real estate of the judgment debtor in such county, the same as 'if >a judgment for -that amount had been rendered in the district court.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma, County; before J. R. Keaton, District Judge. STATEMENT OF FACTS. Tbis was a proceeding in garnishment brought by the Oklahoma National bank, as plaintiff below, against Williamson, as garnishee, and Dowden.

<p>Error from the District Court of Kay County, before A. (r. C. Bierer, District Judye.</p> <p>STATEMENT OF FACTS.</p> <p>This is an action commenced by John W. Parker, in the district court of Kay county, against James W. Lynch and the town of Ponca City, to declare a resulting trust. Judgment was rendered for defendant, from which plaintiff appeals to this court.</p> <p>The original petition was filed on May 17, 1895. To this, the defendants interposed their respective -demurrers on two grounds: (1) That the court had no jurisdiction of the subject matter of the action; and, (2) that the petition did not state facts sufficient to constitute a cause of action. The record does not show that these demurrers were sustained to plaintiff’s petition, but the sustaining of the demurrer to plaintiff’s original petition is assigned as error. This court will not consider any assignment of error which is not presented by the record. It might be suggested, though, that this very question was decided by this court in the case of Kingman v. Pirn-ley, this volume, p. 351. The court held in that case that when a demurrer is sustained to a petition, and plaintiff, after obtaining leave of court, flies an amended petition, and the issues are joined thereon, and a trial had, the plaintiff, by filing his- amended pleading, waives any error committed by the trial court, in sustaining such demurrer. Citing, Young, et al v. Martin, 8 Wall. 354, and Rosa v. M. K. & T. R. R. Go., 18 Kan. 124.</p> <p>It is shown by the record that plaintiff obtained leave of court on August 10, 1895, to file an amended petition, which was filed in due time. The amended petition, omitting the caption and exhibits, is as follows:</p> <p>“The plaintiff, John W. Parker, leave of court having been first obtained, makes-, presents and files this his amended petition, and for cause of action herein against said defendants and each of them, alleges:</p> <p>“That the said defendant, the town of Ponca City, claims to be a municipal corporation duly organized and existing under and by virtue of the laws of the Territory of Oklahoma, but the true character of which this plaintiff does not know, and as a part of the lands within the boundaries of said defendant, the town of Ponca City, is the southwest quarter of section 27 in township 26 north of range 2 east of the Indian meridian, in Kay county, Oklahoma Territory.</p> <p>“That this plaintiff now is and at all times lie. einafter mentioned was a native born citizen of tbe United States, over the age of twenty-one years, and in all respects duly qualified under the homestead laws of the United States, and under the law and president’s proclamation, (dated August 19,1893, opening to homestead settlement certain lanes in the Cherokee Outlet,) to make homestead entry of not to exceed 160 acres of said lands.</p> <p>“That by said proclamation, under and by virtue of the laws of the Unted States, the piesident opened to homestead settlement, at the hour of 12 o’clock, noon, Central Standard time, September 16, 1893, among other lands, the said southwest one quarter of section 27, in township 26, north of range 2, east of the Indian meridian, in Kay county, Oklahoma Territory, which said lands were so opened to homestead settlement by reason of the act of congress approved March 3,1893, and the said president’s proclamation, dated August 19, 1893,. and plaintiff avers that he at no time violated the law or the president’s proclamation concerning the entry into, or upon the lauds opened to settlement as aforesaid, or the regulations of the president or secretary of the interior, but in all things, stiictly, legally and honestly complied with the law and the proclamation and the rules and regulations of the secretary of the interior concerning the opening, occu-l>ancy and settlement, and entry of and upon said lands, and, plaintiff avers, that on the 16th day of September, 1893, prior to the hour of 12 o’clock, noon, Central Standard time, of that day, the said James W. Lynch, contrary to law and the said president’s proclamation, and the sa.d rules and regulations of the secretary of the interior, wrongfully and without right, and in defiance of the law and said proclamation, entered upon the lands opened at the hour of 12 o’clock noon,CentralSlandard time, as herein aforesaid, and also procured and caused one David Pry- or, as his agent and representative, to likewise enter upon said land, and as a special messenger in his behalf, to convey the homestead application and other papers accompanying it to make homestead entry of said southwest one quarter of section 27, township 26, north of range 2, east of the Indian meridian, Kay county, Oklahoma Te”ri-tory, to the United States local land office at Perry, Oklahoma Territory, to which said land was attached.</p> <p>“That as such agent and employee of said defendant, the said David Pryor as aforesaid, did, about the hour of 4 o’clock A. H., September 16, 1893, enter upon said lands, and as the agent and for the benefit of said defendant, James W. Lynch, did convey the homestead application of said defendant, and other papers accompanying it, as a special messenger, to the local land office at Perry, Oklahoma Territory, and presented and filed, or caused the same to be presented and filed there at about 12:30 o’clock, P. M., September 16, 1893. That in so doing, the said David Pryor, as the agent of the said James Lynch, entered upon said lands so opened to settlement as aforesaid, near the north line thereof, and more than fifty miles from the said Perry land office, and in conveying said defendant Lynch’s said homestead application as aforesaid, said Pryor entered upon and traveled over the lands so opened to settlement as aforesaid, for more than forty miles, prior to the hour of 12 o’clock noon, Central Standard time, September 16, 1893, and reached said land office, and the government townsite of Perry, within said lands so opened to settlement as aforesaid, and filed or caused to be filed his said homestead application, and other, papers of said defendant, Lynch, long prior to the time that any one did, or could have reached said land office, or said government townsite of Perry, had they legally entered said lands from any point at the outer boundary thereof, as fixed by the law and the president’s proclamation at the hour of opening, or at the point were said Pryor entered the same which said application was marked filed in said local land office at Perry, as rejected application No. 1; that afterwards on January 4,1894, the said application was placed of record Ly the register of said land office, as homestead entry No. 5030.</p> <p>“Plaintiff further says that said application was not sworn to as required by law, nor as required by the rules and regulations of the interior department, nor before an officer authorized to administer oaths, nor presented and filed as required by the rules and regulations, or the law's of the interior department of the United States; that afterwards, the said James W. Lynch made application to commute said homestead entry, and purchase said lands for townsite purposes under the second proviso of section 22 under the Organic Act of the Territory of Oklahoma, and made final proof thereunder before B. N. Woodson, probate judge of Kay county, Oklahoma Territory, which said proof was by said Woodson transmitted to said register and receiver of said Perry land office, and by them transmitted to the honorable commissioner of the general land office of the United States.</p> <p>“That afterwards, and about the 19th day of May, 1894, and prior to the approval of said final proof of defendant, by the commissioner of the general land office, and prior to the issuance and delivery of any certificate of purchase to said land to the defendant, Lnych, this plaintiff filed.in the United States land office-at Perry, Oklahoma Territory, his affidavit of contest against the said homestead entry and application of said Lynch, to commute the said southwest one-quarter of section 27, township 26, aforesaid. That afterwards, this plaintiff filed with the commissioner of the general land office, various affidavits of various persons corroborating his contest affidavit herein aforesaid; that afterwards, the honorable commissioner of the general land office in considering the premises, did not entertain this plaintiff’s application to contest the said entry of defendant Lynch, but wholly failed and refused so to do.</p> <p>“That afterwards this plaintiff filed an additional affidavit of contest amendatory and supplemental to his first aforesaid affidavit of contest against the defendant Lynch’s said homestead entry and townsite appl'cation.</p> <p>“That afterwards, one J. W. Whitten, as special agent of the interior department of the United States, investigated the matters herein aforesaid, and made two several reports thereon, in which he filed and presented the affidavits of the defendant, James W. Lynch, and the said David Pryor, in which said affidavits said Lynch and Pryor admitted the allegations of the contest affidavit of this plaintiff.</p> <p>“That afterwards the said homestead application of the said defendant Lynch, and all matters relating thereto, came on for consideration by the honorable commissioner of the general land office, and secretary of the interior. and upon consideration thereof, said honorable commissioner and secretary denied this plaintiff’s right or application to contest the application and homestead entry of the defendant Lynch herein aforesaid.</p> <p>“That afterwards and within the time allowed by the rules of practice of the interior department, this plaintiff filed his motion for a review of said decision; that after-wards, on the 11th day of January, 1895, the said honorable secretary denied this plaintiff’s motion for a review of said matters, and denied this plaintiff’s right to contest the said application and homestead entry of the defendant James Lynch. A copy of the decidons of the commissioner of the general land office and secretary of the interior of tne United States, and all papers filed and proceedings had in the United States land office at Perry, Oklahoma Territory, in the interior department, relative to said matter, showing all the facts herein aforesaid, being a complete record of all said proceedings, are filed herewith, attached hereto, marked ‘exhibit A’ and made a part hereof.</p> <p>“Plaintiff further avers that at the time of filing his affidavit of contest as herein aforesaid, he made a deposit of money with the local United States land office at Perry, Oklahoma Territory, under and in accordance with the rules thereof, to secure the payment of fees, costs and expenses of •said contest, all as required by the rules and regulations of the land and interior department of the United States, which said moneys are still held by said land office and the department of the interior of the United States; that in the contest proceedings herein aforesaid, he has expended a large amount of money in addition to the deposit of said money as aforesaid.</p> <p>“Plaintiff avers that the last decision of the secretary of the interior, as herein aforesaid being final, the said honorable secretary awarded said lands, to-wit: the southwest one quarter of section 27, in township 26, north of range 2, east of the Indian meridian, Kay county, Oklahoma Territory, to said defendant, James' W. Lynch, and on January 12, 1895, caused the said land to be patented by the president to James W. Lynch, and caused said patent to be recorded in the recording department of the general land office of the United States, and caused said patent thereafter to be delivered to said defendant, James W. Lynch, thereby patenting and conveying to said James W. Lynch all the said lands except certain reservations, to said defendant the town of Ponca City; and plaintiff avers that at the time of the commencement of this action, the said defendants were the owners and holders of the legal title to said lands.</p> <p>“Plaintiffs avers that the commissioner of the general land office of the United States, and the secretary of the interior in their proceedings, and in rendering their decision as aforesaid, and in denying this plaintiff his rights under the laws of the United States, to contest said application and homestead entry of the defendant James W. Lynch, under all the facts herein aforesaid, committed gross error and mistake of law and the acts of Congress, and the well known and established rules of practice of the interior department of the United States, in such case made and provided</p> <p>“Plaintiff avers that the said defendant, James W. Lynch, was disqualified by reason of the allegations and facts herein aforesaid to make homestead entry to said tract of land, or to receive a patent therefor, and that his entry thereof was fraudulent and void, and ought to have been cancelled by the land department of the United States.</p> <p>“That all of the statements made and set forth in the plaintiff’s affidavit of contest and the affidavits corroborating the same concerning the fraudulent entry of the land's by the said James W. Lynch, were true; and if this plaintiff had been allowed to contest said entry and application, he could have, and would have proved said facts by competent evidence and testimony, and in fact all the allegations aforesaid were admitted by said Lynch and his agent, David Pryor, as herein aforesaid; and had plaintiff been permitted so to do, as was his right under the law, and to have conducted his contest as prayed' for against said application and homestead entry, he could have and would have established the fact of the disqualification of said Lynch, to make homestead entry as herein aforesaid, and in addition to the moneys, the usual deposit by him as aforesaid, and so paid out by him as aforesaid, he could have, and would have paid the land office fees and procured the cancellation of said homestead entry and application of the -said James W. Lynch, for the lands aforesaid, and thereby, under the law. acquired a preference right to make homestead entry of said tract.</p> <p>“Plaintiff avers that he has in all things exhausted his right in the premises before the land and Interior department of the United States.</p> <p>“That under the law and the facts he has acquired a vested right in the land herein aforesaid; that he is without adequate remedy at law in the premises without the aid of this honorable court in the exercise of its chancery powers; that he is now ready and willing to pay into court the sum of $400 for said tract of land, together with the fees and expenses lawfully incurred in obtaining title to said tract of land, and that he is ready and willing, and will do equity in the premises as required by this honorable court.”</p> <p>The prayer was in the usual form.</p> <p>From this petition and exhibits thereto attached and made a part thereof, it will be seen that Lynch, on September 16, 1893, made application to enter the land in controversy, by mail, at the United States land office at Perry, O. T., which application was rejected, but Lynch was not notified by the lar d office of the action for a considerable time thereafter. When he was notified, he made an additional showing as to why his application was sent by mail, and it was. placed of record, he having bought off all of the adverse claimants for the land.</p> <p>After having secured his homestead entry, Lynch, on March 13, 1894, made application to purchase said tract under section 22 of the act of congress of May 2, 1890, which act is as follows:</p> <p>“That the provisions of title 32, chapter 8, of the Be-vised Statutes of the United States relating to 'Reservation and sale of townsites on the public lands,’ shall apply to the lands open or to be opened to settlement in the Territory of Oklahoma, except those opened to settlement by the proclamation of the president on the twenty-second day of April, eighteen hundred and eighty-nine; provided, that hereafter all surveys for townsites in said Territory shall contain reservations for parks, (of substantially equal area if more than one park,) and for schools and other public purposes, embracing in the aggregate not less than ten nor more than twenty acres; and patents for such reservations, to be maintained for such purposes, shall be issued to the towns respectively when organized as municipalities: Provided further, that in case any lands in said Territory of Oklahoma which may be occupied and filed upon as a homestead under the provisions of law applicable to said Territory, by a person who is entitled to'perfect his title thereto under such law, are required for townsite purposes, it shall be lawful for such person to apply to the secretary of the interior to purchase the lands embraced in said homestead or any part thereof for townsite purposes. He shall file with the application, a plat of such proposed townsite, and if such plat shall be approved by the secretary of the interior, he shall issue a patent to such person for land embraced in said townsite, upon the payment of the sum of ten dollars per acre for all the lands embraced in such townsite, except the lands to be donated and maintained for public purposes as provided in this section. And the sums so received by the secretary of the interior shall be paid over to the proper authorities of the municipalities when organized, to be used by them for school purposes only.”</p> <p>After due notice and publication, Lynch made his final proof, and thereafter, to-wit: on May 19,1894, Parker filed a protest ag'ainst the same, and asked to be permitted to contest Lynch’s entry, which protest and application to contest was in the following language:</p> <p>“Before the General Land Office, Washington, D. C., and before the local Land Office, Perry, O. T.</p> <p>“Personally appeared before the undersigned authority, John W. Parker, who, being duly sworn, deposes and says: That he has been informed, and has good reasons to believe, that James W. Lynch, who made homestead entry for the southwest quarter of section 27, township 26, north of range 2 east, at the United States land office at Perry, O. T., on the 30th day of January, 1894, was not qualified to make said entry or to acquire title to said tract of land for the following reasons, to-wit:</p> <p>“That said Lynch executed the affidavits which accompanied said application and upon which said entry is based, and procured one Pryor to fraudulently and in violation of the act of congress approved March 3, 1893, and the president’s proclamation dated August 19, 1893, to enter the Cherokee Outlet prior to 12 o’clock, noon, Central Standard time, of the 16th day of September, 1893, and subsequent to the date of said proclamation for the purpose of forwarding the homestead application of said Lynch to the United States land office at Perry, O. T.</p> <p>“Affiant is informed, and has good reasons to believe and does believe, that said James W. Lynch executed said affidavits in support of said application before B.N. Woodson, now probate judge of Kay county, Territory of Oklahoma, prior to the existence of said county, and prior to the commencement of the official career of said Woodson, and also prior to the time that said lands applied for, were open to settlement and entry; that affi-ant is further informed and believes that the said B. N. Woodson delivered said homestead affidavits and application to one Pryor, and that said Pryor did enter the Cherokee Outlet prior to 12 o’clock, noon, Central Standard time, on September 16, 1893,and did take with him the homestead application and affidavits of said Lynch for the purpose of having the same delivered at the United States land office, Perry, O. T., through the United States mails, for the purpose of segregating the above described tract of land prior in point of time to any homestead application that would be executed and forwarded from the border of the Cherokee Outlet, in a lawful manner, and before any application could be lawfully presented in regular order of said land office; that said Pryor did deposit said application with a special delivery stamp thereon in the United States mail at a point within the Cherokee Outlet, and cause said application to be delivered at the United States land office at Perry, O. T., where the same was placed on record a rejected application, segregated said land from entry, and subsequently with the use of money, the said entry-man cleared the record of all adverse claimants to said tract, and perfected his said homestead entry, thereafter.</p> <p>“That in pursuance of the agency aforesaid, said Pryor did, prior to the hour of 12 o’clock, noon, Central Standard time, on September 16, 1893, enter said Territory and so file said homestead application.</p> <p>“That affiant is further informed that said entryman made final proof under the second proviso of section 22 of the act of congress approved May 2, 1890, before B. N. Woodson, aforesaid, that said proof is now pending before the honorable commissioner of the general land office, Washington, D. C.</p> <p>“That affiant is further informed and has good reason to believe, and does believe, that all of the allegations above set forth are true; and if true, said entry was fraudulent and void from its inception.</p> <p>“Affiant further says that he has no sufficient personal knowledge as to the facts of the foregoing allegations and charges, so as to warrant him in making a positive oath as to the truth thereof, and is not able to secure a corroborating witness thereto; that affiant believes such facts are only within the personal knowledge of said entryman and his personal friends and persons controlled by them, and difficult to establish by voluntary testimony.</p> <p>“Affiant says that he is acting in good faith in filing this contest, and the same is not initiated for the purpose of harrassing the claimant and extorting money from him under a compromise, but in good faith to prosecute the same to a final determination.</p> <p>“Wherefore, affiant protests against the approval of said entryman’s final proof for said tract, and the allowance of a cash entry thereon and nrays that within the rule decided in the ca,se of Gotthelf v. Swinson, 5 L. D. page 657, he be permitted to prosecute said contest; tnat a hearing be ordered and he be allowed an opportunity to prove the truth of the allegations and charges herein above set forth; and finally, that said homestead entry be cancelled and he be awarded a preference right to enter said tract of lafid.</p> <p>“Affiant further respectfully prays that if in the discretion of the honorable commissioner it be considered that he ought not to be allowed to prosecute this contest, then that the entire matter be referred to a special agent for investigation and report, to the end that the government may not be cheated and defrauded out of said land.</p> <p>[Signed] “Jno. W. Parker.</p> <p>“Subscribed and sworn to before me this 17 .day of May, A. D., 1894.</p> <p>[Signed] “ERNest W. JoNes.</p> <p>(seal) “Notary Public.</p> <p>“Mjr commission expires Sept. 26, 1897.”</p> <p>The affidavit, as will be seen, was not corroborated and did not contain any positive allegations as to Lynch’s disqualifications,' or other proper charge. Several weeks later, other affidavits were filed, but they were of the most general character. The Parker contest affidavit, and all of the affidavits subsequently filed by him, were passed upon by the commissioner of the general land office, and by him held to be insufficient, and the decision of the commissioner was reviewed and approved by the secretary of the interior. These several affidavits go principally to the manner in which Lynch secured his entry, or rather how he secured the filing of his homestead application in the land office, on the day the land was opened up to settlement, viz: September 16, 1893. After Parker’s contest was filed, the commissioner assigned a special agent to investigate the charges made by Parker against Lynch. Lynch and Pryor both filed affidavits showing how Lynch’s application was filed, and these two affidavits are not contradicted. Lynch’s affidavit is as follows:</p> <p>“Territory of Oklahoma, County of Kay, ss:</p> <p>“Before me the undersigned authority, on this 12th day of September, 1894, personally appeared J. W. Lynch, of lawful age, who being first duly sworn, on his oath states that he is the entryman of the southwest quarter of section 27, township 26, of range 2 east; that after 10 o’clock P. M. on the 15th day of September, 1894, he was approached by one J. L. Pennington, live stock agent of the G-. C. & S. F. R. R., who informed him that himself and a number of others intended to make their filings by mail from Arkansas City, in the state of Kansas; that they had counseled good legal authority, and were informed that they could legally make their filings in this way, being more than fifty miles from the land office; that they had a man engaged who would carry their applications to the post office at Arkansas City, and wait there so they would go to the land office on the first mail, and thereupon invited him, the said J., W. Lynch, to join them and send his application with theirs; that he did so, and delivered his application to be mailed, as he then understood it would be, at Arkansas City; that he did not learn until some months after-wards that it had reached the land office by a different route, and that the plan and method was changed without any knowledge, consent or direction on his part; that he has paid off and satisfied every adverse claimant to the land on which he made his filing except one Parker who filed his contest or protest long afterwards, to-wit: about April 19, 1894.</p> <p>[Signed] “J. W. Lynch.</p> <p>“Subscribed and sworn to before me this 12th day of September, 1894.</p> <p>[Signed] “G. B. Baenes.</p> <p>(seal) Notary Public.</p> <p>“My commission expires March 10th, 1898.”</p> <p>Pryor’s affidavit is in the following language :</p> <p>“Territory of Oklahoma, County of K:</p> <p>“Before me, the undersigned authority, on this 12th day of September, 1894, personally appeared David 0. Pryor, of lawful age, who being first duly sworn, on his oath states, that he is personally acquainted with one J. W. Lynch, the entryman of the southwest quarter of section 27, township 26, of range 2 east, in the said county and Territory; that on the afternoon or evening of the 15th day of September, 1893, he agreed with the said J. W. Lynch and certain other parties, to convey to the nearest post office, and mail to the register and receiver of the United States land office at Perry, O. T., their applications for filing; that at the time of making said agreement, he had an arrangement to have said applications mailed at Arkansas City, in the state of Kansas, but later learned that the mail train from Arkansas City would be delayed, without being authorized by the said J. W. Lynch to do so, carried the application of the said Lynch to the Red Rock post office, and there under a special delivery postage stamp, attempted to get the postmaster, one Joseph Schnell, to carry and deliver the same to the postmaster at Perry, but failing in said attempt, proceeded to carry the said application to Perry, where in person he delivered the same to the postmaster.</p> <p>“Affiant further swears that he pursued this course and delivered the application of the said Lynch as aforesaid, without informing the said Lynch that he intended to do so, and without any knowledge on the part of the said Lynch, so far as affiant is aware.</p> <p>[Signed] “David C. Pryor.</p> <p>“Subscribed and sworn to before me this 12th day of September, 1894.</p> <p>[Signed] “G. B. Barnes, '</p> <p>(seal) “Notary Public.</p> <p>“My commission expires March 10, 1898.”</p> <p>. All of the affidavits, departmental letters and arguments of counsel, relative to Parker’s application to contest Lynch’s entry, were made exhibits to plaintiff’s amended petition. The honorable secretary of the interior finally dismissed Parker’s application to contest, and directed the patent to issue for the land to Lynch. Parker then filed a motion for review, before the department, which was, by the honorable secretary, denied, and Lynch then received his patent. To' this amended petition, which shows all of the foregoing facts, each of the original defendants demurred on two grounds: (1) Tha t the court had no jurisdiction over the subject of the action; and (2) that the petition did not state facts sufficient to constitute a cause of action. The Ponca City Land and Investment company asked to made a party defendant to the suit, which order was made, and the said company was given leave to plead.. Thereupon, it filed a demurrer raising the same questions presented by the demurrers of the other defendants. Upon the hearing of the demurrers as stated above, they were all sustained, and plaintiff refusing to plead over, judgment was rendered for defendants, and plaintiff appealed.</p>

<p> Error from the District Court of Woodward County- on Petition for Be-hearmg. </p>

<p>1. Real Estate — Title—Growing Crops — Severance. Growing crops 'Produced by .annual labor and cultivation are, for some' purposed a part of the real estate to which they 'are attached, and until there ¡has been ¡a severance of th-jm from the land, actual or constructive, ¡they follow the title therein. Por other purposes they are regarded as personalty, and do mot pass with the land, 'but go to the planter.</p> <p>2. Crops — Personal Property — Buie. Crops, after maturity, and severance from the soil, are, for all purposes, personal property. Where there has been a recovery of the possession of the land held adversely, the successful pl'aint'ff is entitled to the growing -crops, as against 'the evicted dlelfendiant, who planted -them; but, until such adverse possession has been terminated by ouster, the .party so. adversely holding Is the owner, and entitled to the crops' produced by his annua! labor and cultivation, which were harvested before such ouster.</p> <p>3. Public Land — Possession of Claimant — Crops, Ownership of — Injunction. Where K. settled upon public 'land September 16, 1893, established his residence thereon 'September 21, 1893, made entry thereof at the land office September 29, 1893, and remained continuously in the actual possession of -the land from his settlement thereon in 1893, ■and where P., on October 13, 1893, instituted contest proceeding's against the entry of K., -and the partisis were continuously contesting for the right to acquire title to the land in the land department, until the commencement of the suit, held, that the possession of K. is ‘adverse, -although his entry was finally canceled!, and the l'and department awards -the title to P. Held, further, that P. cannot maintain injunction to restrain K. from disposing of wheat sown and harvested on the land by K. while in such possess -on thereof, P. having no ownership or night of property in the wheat to be protected by injunction.</p> <p>(Syllabus by the Court.)</p>

Error from, the Prolate C-ourt of Pawnee County, l of ore James P. Neal, Prolate Judge. Action by M. H. Johnson against tbe board of county commissioners of Pawnee county. Judgment for defendant, and plaintiff brings error.