Volume 75 — Oklahoma Reports

<p>(Syllabus by the Court.)</p> <p>1. — Evidence—Parol Evidence — Written Contract.</p> <p>As a general rule, parol evidence is not admissible to contradict or vary the terms of a written instrument, either by attempting to show prior negotiations, or by a contemporaneous oral agreement, such written instrument having been executed, delivered, and acted rpon by the parties interested therein, subsequent to all oral agreements and negotiations in reference to what it should contain.</p> <p>2. Assignments for Benefit of Creditors— Acceptance of Benefits — Fraud—Estoppel.</p> <p>Where a creditor elects to accept, and does accept, the benefits of provisions favorable to him in a deed of assignment, and avails himself of the provisions favorable to him, he cannot thereafter attack the instrument on the ground of fraud, because of other provisions favoring all creditors alike.</p> <p>3. Same — Construction of Assignment — Evidence — Parol Evidence — Question for Jury.</p> <p>Where the creditors and assignors have orally discussed and negotiated in reference to the conditions which a deed of assignment should contain, and subsequent to all oral agreements and negotiations a written instrument or deed of assignment is executed, delivered, acquiesced in, and acted upon, and the creditors receive and avail themselves of the benefits provided for in such instrument, and where such instrument is plain and unambiguous in its terms, it is not error for the court, in the absence of fraud or mistake, to reject oral testimony as to conditions orally agreed upon prior to the execution and delivery of such instrument, nor error for the court in such case to take the case from the jury and construe the legal effect of the plain, unambiguous terms of the instrument.</p>

Error from. District Court, Canadian County ; John W. Hayson, Judge. Action by Ed. Wosika and another against Chas. McCoy and another. Verdict and judgment for plaintiffs, motion for new trial denied, and defendants bring error.

Error from District Court, Pottawatomie County; Chas B. Wilson, Jr., Judge. Action to quiet title by J. B. Bodkin and another against the Maud Oil & Gas Company. Demurrer to answer and cross-petition sustained, and judgment for plaintiffs, and defendant brings error.

Error from District Court, Cotton County; Cham Jones, Judge. Action between Mary A. Davis, administrator of the estate of Lucy J. Hall, deceased, and I. K. Revelle. Judgment for the latter, and the former brings error.

Error from District Court, Payne County; William Bowles, Judge. Action between the Oil Fields & Santa Fe Railway Company and F. M. Wheeler. Judgment for the latter, and the former brings error.

<p>(Syllabus by the Court.)</p> <p>Indians — Taxation of Exempt Allotments— Refund.</p> <p>Reversed on authority of Board of Commissioners v. War^, 68 Oklahoma, 173 Pac. 1050, and Broadwell v. Board of Commissioners, 71 Oklahoma, 175 Pac. 828.</p>

<p>Error from District Court, Texas County; W. M. Clark, Special Judge.</p> <p>Action between H. L. Huber and W. W. Akers and others. Judgment for the latter, and the former brings error.</p>

<p>1. Negligence — Burden of Proof — Circumstantial Evidence.</p> <p>In a civil case, all that the plaintiff is required to do in order -to establish his case is to make it appear to be more probable that the injury came in whole or in part from the defendant’s negligence than from any other cause, and this fact may be established toy circumstantial evidence and the reasonable inferences to toe drawn therefrom.</p> <p>2. Railroads — Fences—Liability.</p> <p>Under sections 1435 to 1438 of the Revised Laws 1910, a railroad company is liable for injuries to stock, resulting by its failure to construct and maintain a lawful fence as provided for therein.</p> <p>(Syllabus by Hooker, O.)</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Failure to File Brief — Reversal.</p> <p>Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the.assignments of error, the court may reverse the case in •accordance with the prayer of the petition of plaintiff in error.</p>

Error from District Court, Blaine County; Thomas A. Edwards, Judge. . Action by the Chicago, Rock Island & Pacific Railway Company against Bert R. Willis, as County Treasurer of Blaine County, Okla., and -personally. Demurrer to petition sustained, and judgment for defendant, and plaintiff bring error.

Original proceedings by the state of Oklahoma, on relation of Frank Dale and others, as the State Bar Commissioners of the state of Oklahoma, for the disbarment of Edward Curd.

Error from District Court, Pittsburg County; R. W. Higgins, Judge. Action by M. T. Tancred and W. L. Cox, copartners, doing business under the firm name and style of Tancred & Cox, against R. P. Brewer, as administrator of ihe estate of J. C. Wilson, deceased. Demurrer to amended petition sustained, and judgment against plaintiffs for costs, and they bring error.

Error from District Court, Greer County; W. C. Crow, Assigned Judge. Action by S. P. Reeburgh and another against William E. Castle. Verdict and judgment for plaintiffs, and defendant brings error.

Error from District Court, Pontotoc County; George C. Crump, Assigned Judge. Ejectment by H. R. Snyder against Elizabeth Perry and others. Demurrer to amended answer sustained, and default judgment for plaintiff, and defendant Elizabeth Perry brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.- Action by Daniel J. Perry against J. M. Dickinson, receiver for the Chicago, Rock Island & Pacific Railway Company. Demurrer to plaintiff’s evidence overruled, judgment for plaintiff, motion for new Mai denied, and defendant brings error.

Error from District Court, Osage County; R. H. Hudson, Judge. Action by J. H. Williamson against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus by the .Court..)</p> <p>1. Telegraphs and Telephones — Rates—Injunction — Agents of Postmaster General.</p> <p>An injunction against the collection of telephone rates prescribed by the Postmaster General and payable to him for services rendered by a telephone system, in his possession and under his control, and used for the public benefit and welfare as an instrumentality of war under congressional resolution (July 16, 1918, c. 154, 40 'Stat. 904 [U. S. Comp. -St. 1918, sec. 3115 3-4x, appendix]), and proclamation of the President of the United States (July 22, 1918), cannot be granted in an action against the agents of the Postmaster General, carrying out his orders in the operation of such system, as they have no individual interest in 'the controversy, but - the relief is in fact asked against the Postmaster General.</p> <p>2. Same — Postmaster General as Necessary Party.</p> <p>In an action for injunction, where the effect of the decree would be to control the action of the Postmaster General in the operation of a telephone system, in his possession and operated as a governmental agency for the public benefit and welfare in time of war, the Postmaster General is an indispensable party, his agents through whom he directs the operation having no individual interest and being without authority to grant the relief asked for.</p> <p>Hardy, C- J-, and Harrison, J., dissenting.</p>

Error from District Court, Bryan County; Cham Jones, Assigned Judge. John A. Phillips was convicted of betting upon an election, and there, was a judgment removing him from his office as sheriff of Bryan county. His motions for a new trial and in arrest of judgment were overruled, ■and he brings error.

<p>(Syllabqs by the Court.)</p> <p>1. Limitation of Actions — Disbarment — Statutes.</p> <p>On September 15, 1918, an information was filed to disbar an attorney for fraud alleged to have been committed in May, June, July, and September, 1912, to which statutes of limitation were pleaded. Held that, under section 267 of the Compiled Laws of Oklahoma of 1909, fixing a limitation of one year. for the commencement of the action, the plea was a bar to the prosecution; and further held, the omission of section 267, supra, from the Revised Laws of Oklahoma of 1910, did not toll the statutes of limitation, for the reason that the act approved March 3, 1911 (Laws 1911, e. 39), adopting the Revised Laws of 1910, provides that the running of the statutes of limitation shall not be affected thereby.</p> <p>2. Attorney and Client — Disbarment—Sufficiency of Evidence.</p> <p>Evidence in support of count No. 2 examined, and held not sufficient to disbar an attorney.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by J. R. Phelan against Barnhart Bros. &'Spindler. Verdict and judgment for defendant, motion for new trial overruled, and plaintiff brings error.

Error from District' Court, Rogers County; W. J. Campbell, Judge. Proceedings by Rogers county, Okl-a., on relation of William M. Hall, county attorney, and the board of county commissioners of Rogers county, to vacate orders and agreements made and entered into by and between the -board of county commissioners granting to Kelly F. Gibson a franchise to operate and maintain a toll road.

Error from District Court, Oklahoma County; John W. Hayson, Judge. Suit by E. J. Meriill and others against J. R. Eiard and H. O. Chalfant, doing business as the J. R. Biard Realty Company, and E. T. Peery. Judgment for plaintiffs, and defendant Peery brings error.

Error from District Court, Oklahoma County; W. C. Crow, Assigned Judge. Action between the General Bonding & Casualty Insurance Company and the Oklahoma Fire Insurance Company, the Union Trust Company, the Occidental Fire Insurance Company, and others. From the judgment the General Bonding & Casualty Insurance Company brings error.

<p>Error from County Court, Washington County; Robert D. Waddill, Judge.</p> <p>Action by G. T. Bandy against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus-by the Court.)</p> <p>. 1. Sales — Warranty—Buyer’s Right to Rescind — Conditions Precedent.</p> <p>Where a traction engine is purchased under contract warranting the engine to do certain work, and the contract contains the further provision that, if inside of six days from the date of its first use it shall fail to fill the warranty, * * * notice shall be given the seller of the defects and a reasonable time given the seller to remedy the defects, and the further provision that “the use of such engine after the expiration of six days shall be conclusive evidence of the acceptance of same by tbe purchaser,” held, that such a provision does not constitute a condition precedent to the purchaser’s right to a rescission where the holding and use of such engine after the six days has been at the instance and request of the seller and for the benefit of the seller.</p> <p>%. Saíne — Tender—Necessity.</p> <p>(a) Requested instructions examined, and held to not state the law applicable to the issues involved.</p> <p>(b) Where a failure by a purchaser to make tender within the time provided for in a contract is the result of the request of the seller, and where such delay is due to the fault of the seller and due to no fault of the purchaser, it is not error for the court to refuse to submit to the jury the question whether tender has been made within a reasonable time.</p> <p>8. Same — Warranty—Issues.</p> <p>(a) Instructions of the court examined, and held to substantially state the law applicable to the facts and issues in the case.</p> <p>(to) Where a contract of purchase of an oil traction engine contains warranty that “the engine will develop certain horse power,” and also a warranty that “the oil-cooling device will keep the cylinders sufficiently cooled for the successful operation of the engine,” and it appears from the evidence that the failure of the engine to do satisfactory work is due wholly to the defects in the cooling device, it is immaterial in such ease whether the engine develops the horse power it is warranted to develop, and in such case it is not error for the court to refuse to submit the question of fact to the jury whether the engine will develop the horse power it was warranted to develop.</p> <p>4. Same — Breach of Warranty — Damages.</p> <p>Where an engine is purchased under warranty that it will do certain work, and, relying upon such warranty, the purchaser executes his promissory notes in payment thereof, and such warranty is breached by the seller, and the purchaser seeks a rescission of the contract because of the breach, he will not be denied the right also to recover the actual damages he has sustained by reason of the breach.</p> <p>5. Sales — Contract—Divisibility.</p> <p>Where in a single contract an oil tractor engine and gang plows, each represented to be perfectly suited to the other, are purchased together from the same company at the same time and for the specific purpose of plowing, in such case the fact that the engine is supplied by the selling company from its house in one state and the plows from its house in another state, and the fact that they are ordered on separate order blanks and separate notes given for each, do not render the contract divisible, in the absence of other evidence that it was the intention of the parties that it should be divisible.</p>

Error from District Court, Custer County; W. C. Crow, Judge. Action by Mrs. Harry Dunlap, in bebalf of herself and her minor children, against the Clinton & Oklahoma Western Railway Company. Judgment for plaintiff, and defendant brings error.

Error from County Court, Woodward County; Clyde H. Wyand, Judge. Action for forcible entry and detainer by Frank L. Fenton, administrator of the estate of B. F. Fenton, deceased, against George Faust. Judgment for plaintiff in justice’s court, and, on defendant’s appeal, there was a judgment against him, and he brings error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by R. A. Beaty against Colman Robinson, Judgment for plaintiff for part of the amount sought to be recovered, denying his claim to a lien, motions for new trial filed by each party overruled, and defendant brings error, and plaintiff files a cross-petition in error.

Where, on appeal from an order of the county superintendent of public instruction transferring territory to an independent school district, under section 2, art. 6, c. 219, Session Laws 1913, the county commissioners exceed their jurisdiction in affirming the order, in that the territory transferred exceeds 5 per cent, of the assessed valuation of the district from which the territory is transferred, writ of certiorari will lie from this court, and the order of the board of…

Error from District Court, Jefferson -County ; Cham. Jones, Judge. Action by Rhoda Jacobs and others against Lester Duncan and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Johnston County ; John H. Dinebaugh, Judge. Action by the Western Silo Qbmpany against F. B. Stobaugh. There was judgment for the plaintiff for part of the amount claimed, and it appeals.

<p>Error from County Court, Woodward County; Clyde H. Wyand, Judge.</p> <p>Action by J. H. Murphy against E. J. Estle and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Latimer County ; W. H. Brown, Judge.</p> <p>Action by W. P. Taylor against the Rock Island Coal Mining Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; Owen Owen, Judge. In the matter of the guardianship of Lou-ina Hickory and others.

<p>(Syllabus by the Court.)</p> <p>1. Libel and Slander — Classification of * Libelous Words.</p> <p>Words charged to be libelous may be divided into three classes: First, those that cannot possibly bear a defamatory meaning; second, those that are reasonably susceptible of a defamatory meaning, as well as an innocent one; third, those that are cleai’ly defamatory on their face.</p> <p>2. Same — Construction of Words.</p> <p>Words used in an alleged slanderous communication or article are to be construed by their most natural and obvious meaning, and in the sense that would be understood by those to whom it was addressed.</p> <p>3. Same — Words Libelous Per Se.</p> <p>In order that words shall be libelous per se as -disparaging a person in his trade or business, they must have been spoken of plaintiff in relation thereto, and be of such a character as would prejudice him by impeaching either his skill or knowledge, or attacking his conduet in such business.</p> <p>4. Same.</p> <p>Words charging one with being engaged in a perfectly lawful transaction, or merely doing that which he has a legal right to do, are not actionable per se.</p> <p>5. Same — Words Not Actionable Per Se— Allegations — Innuendo.</p> <p>If the alleged defamatory words are not actionable on their face, but derive their de~ famatory import from extrinsic facts and circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged hy a proper averment. Words not actionable per se may be made to appear actionable by averring such extrinsic facts as will show that they were intended to be slanderous and were so understood. These averments must be distinctly stated in the inducement, and applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set.out in the innuendoes.</p> <p>6. Same — Pleading—“Inducement.”</p> <p>An “inducement” is a statement of facts out of which the charge arises, or which is necessary or useful to make the charge intelligible, or, in other words, it is intended to state facts whereby the libel or slander is rendered intelligible, and is shown to contain an injurious imputation.</p> <p>7. Same — “Colloquium.”</p> <p>A “colloquium” only serves to show that the words were spoken in reference to the matter of the averment.</p> <p>8. Same — “Innuendo.”</p> <p>An “innuendo” is only explanatory of the subject-matter sufficiently expressed before, and is and can be only explanatory thereof, and cannot extend the sense of the words beyond their own meaning unless something is put upon the record for it to explain, nor can it make a thing certain which is in fact uncertain, nor enlarge or restrict the meaning of words, nor introduce new matter.</p> <p>9-. Same — Innuendo—Question for Court.</p> <p>It is the duty of the court to determine whether the language used in the publication can fairly or reasonably be construed to have the meaning imputed to it in the petition.</p> <p>10. Pleading — Demurrer to Petition — Effect —Libel.</p> <p>The demurrer to the petition for libel only admits the truth of the facts pleaded, and does not determine the truth of the inference of the pleader based on facts pleaded unless the facts are sufficient to authorize such inference.</p> <p>11. Libel and Slander — Publication—Construction in Pleading.</p> <p>The publication in the instant case is not susceptible of the construction placed upon it by the plaintiff in its petition, and, in determining whether the petition states a cause of acton, the improper construction placed upon the same by the plaintiff must be disregarded.</p> <p>12. Libel and Slander — Words Actionable Per Se.</p> <p>The publication is not libelous per sc.</p> <p>13. Same — Sufficiency of Petition.</p> <p>The petition fails to connect the publication with any extrinsic facts and circumstances which would make the same libelous ; therefore it does not state a cause of action.</p> <p>KANE, J., dissenting.</p>

Error from District Court, Garvin County; P. B. Swank, Judge. Action' for injunction by Julia Christian Burrows, nee James, against the Mortgage & Debenture Company, Limited, and others. Demurrer to petition overruled and judgment for plaintiff, and defendant the Mortgage & Debenture Company, Limited, brings error.

<p>(Syllabus by the Court.)</p> <p>1. Replevin — Gist of Action — Possession.</p> <p>The gist of the action of replevin is plaintiff’s right to the immediate possession of the personal property in controversy at the commencement of the action, by reason of his being the owner or having a special interest therein. ,</p> <p>2. Chattel Mortgages — Replevin — Sale of Property — Issue.</p> <p>In*a replevin action between the mortgagee and the mortgagor, when the mortgagee has obtained possession of the mortgaged property under the writ of replevin, the question of whether the mortgagee had sold the mortgaged property prior to the determination of the replevin action cannot be made an issue in the replevin action.</p> <p>3. Same — Loss of Mortgage Lien — Instructions.</p> <p>It is reversible error, in a replevin action brought by the mortgagee against the mortgagor for the possession of mortgaged property, for the court to instruct the jury that, by reason of the mortgagee having received possession of the property under and by virtue of the writ of replevin in the above action and having disposed of the property prior to the termination of the suit, mortgagee thereby destroyed his lien on said property, and defeated his right to prosecute his replevin action to final determination.</p>

Error from District Court, Grady County; Will Linn, Judge. Action by C. W. Duncan and Ida M. Duncan against O. W. Goolsbee, the Keechi Oil & Gas Company, and the Oklahoma Star Oil Company. Judgment for defendants on demurrers to plaintiffs’ evidence, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>1. Oil and Gas — Lease—Construction of Departmental Lease — Effect of Sale of Subdivisions — Extension by Drilling Well.</p> <p>Where a departmental oil and gas lease upon 160 acres of land has been approved by the Department of Interior, and thereafter the lessor has divided said land into subdivisions and sold separate subdivisions to different parties, after the restrictions are removed, and the lessee enters into a written contract with the owners of the premises that the depository for the payment of the oil and gas rentals and royalties is changed* from the place provided in said lease to places designated by the different landowners, this fact does not make the lease a separate lease upon each tract of land, but the same remains a lease upon the entire tract of land, and the drilling of a gas well upon any portion thereof and the payment of the royalty on the gas well as provided in the lease to the owner of the portion of the land where said gas well is found extends the life of the lease upon the entire tract of land.</p> <p>2. Same — Transfer of Land Subject to Lease — Royalties.</p> <p>Where a tract of land subject to an oil and gas lease is transferred to different parties, the purchaser of each portion takes the same subject to such lease; and, should the lessee thereafter discover and produce oil or gas from the leased premises, the purchaser is entitled to the royalties accruing from the oil and gas produced on the portion of the premises owned by him.</p> <p>3. Oil and Gas — Lease—Forfeiture—Notice.</p> <p>Where a departmental oil and gas lease provides, if the lessee fails to comply with any of the terms thereof, that the lessor may declare the lease forfeited upon giving ten days’ notice, the notice is not complied with by the lessor notifying the lessee that he has declared the lease forfeited, but in order to comply with said provision in said lease, it is necessary to notify the lessee of the terms of the lease that have been violated, and that, if the same is not complied with within ten days, then the lease will be considered forfeited.</p> <p>4. Same — Cancellation—Laches.</p> <p>A lessor, invoking the jurisdiction of a court of equity to cancel and rescind an oil and gas lease for breach of one of the covenants, must act with reasonable 'dispatch after the discovery of his rights to forfeiture on account of such breach, and if he claims delay rental and advance royalty due June 19, 1910, in the sum of $52, but he permits the lessee to take charge of the premises in September, 1910, and drill a gas well upon a portion of the premises covered by said lease, and permits the lessee to pay the royalty due under said lease to the owner of the portion of the land where the gas well is found, for a period of three years, and permits the premises to be sold, and the record title shows that said lease -is in full force and effect, and thereafter the lessee takes possession of said portion of the premises belonging to the lessor, although over his protest, but without any proceedings, and drills three producing oil wells thereon at a cost of $19,000, and tenders to the lessor the royalty due under said leases said plaintiff would be guilty of laches, and a court of equity would not enforce a forfeiture for the nonpayment of $52 rental due June 19, 1910, especially where there is a controversy over the question of said rental being due.</p>

Error from District Court, Muskogee County; R. P. De Graffenried, Judge. Action by G. K. Harris against tbe Mid-Continent Life Insurance Company and H. C. King and R. W. Reece, its president and secretary. Judgment for defendants, and plaintiff brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by A. R. Meacham and another against W. Bourke and M. C. Binion, Sheriff of Oklahoma County, in which the O. K. Transfer & Storage Company became a party. Judgment for the O. K. (Transfer & Storage Company and M. C. Binion, Sheriff, and defendant Bourke brings error.

Erx-or from District Court, Payne County: R. W. Higgins, Assigned Judge. Action by Lorena Mathews and James L. Mathews, a minor, by his guardian, M. F. Edwards, against Anna M. Sniggs and others, Judgment for defendants, and plaintiffs bring error.

Error from City Clerk of McAlester; J. M. Gannaway, Clerk. Protest filed by C. Springer against a petition to change the present form of the city government of the city of McAlester, Okla., to a managerial form. Judgment for defendant, and plaintiff brings error.

Error from District Court, Grady County: Will Linn, Judge. Action for injunction by J. M. Bentley and others against the Town of Rush Springs, Okla., and its officers, and the N. S. Sherman Machine & Iron Works. Judgment for plaintiffs granting a permanent injunction, and defendants appeal.

Error from District Court, Tulsa County, Conn Linn, Judge. Action by the St. Louis & San Francisco Railroad Company against the Union Construction Company and Union Trust Company. Verdict instructed for plaintiff, motions for new trial sustained as to defendant Union Trust Company, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Attorney and Client — Purchase of Client’s Property — Validity—Burden of Proof.</p> <p>Although an attorney is not under an absolute disability to purchase his client’s property, where he does so during the existence of the relation of attorney and client with respect to -the property so purchased, he assumes the heavy burden of proving his utmost good faith and fairness in the transaction and that he paid an adequate consideration for the property. He ihust also show that he fully informed his client of all the material facts and gave the same disinterested advice he would have given had the sale- been made to a stranger.</p> <p>2. Same — Sufficiency of Evidence.</p> <p>Evidence in the case examined, and held, to show that the attorney discharged the heavy burden resting upon him, and that his purchase was valid.</p>

<p>(Syllabus by the Court.)</p> <p>1. Indians — Deed to Land Inherited by Full Bloods — Approval by County Court — Requisites of Order.</p> <p>Chapter 198, Session Laws 1915, does not specifically require that an order of the county court approving a deed to lands inherited by full-blood Indian heirs shall contain specific findings as to all jurisdictional facts required by section 2 of said act to be alleged in the petition for such approval, and, though it might be the better practice that such order of approval contain such findings, yet, in the absence of such special findings, the order will be presumed to be based upon all the facts necessary to give it validity.</p> <p>2. Appeal and Error — Ground for Judgment —Sufficiency.</p> <p>Where a judgment does not disclose which of several grounds it is- based upon, but is general in its tenns, it will not be reversed if any one of sueli grounds is a valid basis for the judgment, and there is sufficient evidence to sustain it -upon such ground.</p>

<p>(Syllabus by the Court.)</p> <p>1. Acknowledgment — Power of Attorney for Conveyances.</p> <p>By the provision of section 1163, Rev. Laws 1910, a power of attorney in fact for the conveyance of real estate or any interest therein must be acknowledged and recorded in the manner required by chapter 13 on Conveyances for the execution, acknowledgment, and recording of deeds or mortgages.</p> <p>2. Same.</p> <p>An acknowledgment in the technical legal sense in which it is used in section 1163, Rev. Laws 1910, means a formal declaration or admission before the officer authorized to take acknowledgments by the person who has executed the instrument that such instrument is his act and deed, and section 1179, Rev. Laws 1910, requires that such an acknowledgment by individuals must be substantially in the form prescribed in said section, and fully set out in the opinion.</p> <p>3. Same — Sufficiency of Certificate — Statute.</p> <p>In determining the sufficiency of a certificate of acknowledgment, technical rules of construction will not be applied. .A substantial and not a literal compliance with the statute in the certificate of acknowledgment to a deed, mortgage, or contract relating to real estate is all that the law requires, and, although words not in the statute are used in the place of others, or words in the statute are omitted, yet, if the meaning of the words used is the same, or they represent the same fact, or if the omission of a word or words is immaterial, or can be supplied by a reasonable and fair construction of the whole instrument, the acknowledgment will be held sufficient. Tested by this rule, the acknowledgment to the power of attorney set forth in the opinion is wanting in several of the material averments prescribed in the statutory form, and therefore is fatally defective.</p> <p>4. Principal and Agent — Power of Attorney —Defective Acknowledgment — Effect.</p> <p>Where the acknowledgment to a power of attorney is fatally defective, the' instrument is invalid as against a third person.</p> <p>5. Covenants — General Covenants of Title— Breach — Effect.</p> <p>Where a grantor, under general covenants of title, sells'and conveys land to a grantee of which he has no title, breach of the covenant occurs when made, and notes given for the purchase price are without consideration, and where defended against on this ground, are unenforceable. Nor is this rule affected by the fact that both parties knew of the lack of title.</p> <p>6. Vendor and Purchaser — Acquisition of Adverse Title by Purchaser — Reimbursement for Outlay.</p> <p>Where a purchaser acquires an adverse title which inures to |he benefit of his vendor, the most that the purchaser can demand is to be reimbursed for his outlay; but he is entitled to be reimbursed for what he has paid out in acquiring the outstanding adverse or superior title and in perfecting the title of the vendor, together with interest, and the expenses necessarily incurred, such amount not to exceed, however, the value of the land.</p>

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by J. G. Mays against William Reinheimer. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Logan County; John P. Hicham, Judge. . Petition by the County Attorney of Logan County, in the name of the state of Oklahoma, against one Cadillac automobile, 1918 model, tax No. 6870 Mo. 18, engine No. 55P89, for forfeiture as having been used in the unlawful transportation of intoxicating liquors, with intervention by R. M. Hargrove, owner, and plea to the jurisdiction.

Error from District Court, Kay County; W. M. Bowles, Judge. Action in ejectment by Charles F. Calkins against the' Ponca City Land & Improvement Company, in which a motion of J. W. Lynch to be substituted in place of the named defendant was sustained. ' Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Garvin County; F. B. Swank, Judge.</p> <p>Action by Mary J. Taylor against T. H. Eskridge. Verdict and judgment for plaintiff, motion for a new trial overruled, and defendant brings error.</p>

Error from Superior Court, Tulsa County ; M. A. Breckinridge, Judge. Action to quiet title by It. A. Dunn and others against the New State Oil & Gas Company. Judgment for plaintiffs, and defendant brings error.

Error from County Court, Beaver County. Action by T. J. Ray against Thomas Graves and another. Judgment in justice court for plaintiff, and defendant Graves appealed to the county court, and from a verdict therein for plaintiff, Graves brings error.

Error from District Court, LeFlore County; W. H. Brown, Judge. Action by Incorporated Town of- Spiro against J. D. Carnall, as Town Treasurer, and others. Verdict and judgment for defendants, and plaintiff brings error.

’ Error from District Court, Oklahoma County; Geo. W. Clark, Judge. ’ Action by the St. Louis &. San -Francisco Railway Company against A. E. - Bockoven, County Treasurer of Oklahoma ■ County. Demurrer to answer overruled and- judgment for defendant, and plaintiff brings error.

Error from District Court, Woods County ; W. C. Crow, Judge. Action by the Second National Bank of New Hampton, Iowa, against J. E. Patterson, in which the court at defendant’s instance made the Alva Security Bank and the Central State Bank of Alva parties 'defendant, and in which defendant filed an amended answer; and cross-petition against such parties.

Error from District Court, Pittsburg County; R. W. Higgins, Judge. Mandamus by Gus A. Gill, for himself and for others similarly situated, against P. D. Watson, as Mayor of the City of McAlester, Pittsburg county, state of Oklahoma.' Judgment for plaintiff, and defendant brings error.

Error from Superior Court, Creek County; Gaylord R. Wilcox, Judge. Action for injunction by G. C. Hughes and others against the City of Sapulpa. Judgment for defendant, and plaintiffs bring error.

<p>Error from District Court, Muskogee County; Chas. G. Watts, Judge.</p> <p>Action by Dora B. Hughes against G. E. Burford. Judgment for plaintif, and defendant brings error.</p>

<p>Error from District Court, Choctaw County; C. E. Dudley, Judge.</p> <p>Action by the St. Louis & San Francisco Railroad Company against F. H. Caldwell, County Treasurer, and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Mandamus by W. R. Smith, Charley Barnes, and L. H. Meyers, clerk, member, and director, respectively, of Joint School District No. 102, Payne and Creek Counties, Okla., against Enos R. Pickett, County Treasurer of Creek County. From the order granting a peremptory writ, defendant brings error.</p>

<p>Error from County Court, Tulsa County; J. W. Woodford, Judge.</p> <p>Action by the Edward C. Plume Company against J. H. Bankston. There was a judgment for defendant, and plaintiff brings error.</p>

Original application for a writ of prohibition by the State, on the relation of H. U. Bartlett and others, against Gaylord R. Wilcox, as Judge of the Superior Court of Creek County, to restrain him from hearing a pending cause.

Error from County Court, Craig County; E. M. Proboseo, Judge. Action by L. P. Smartt, Sheriff, against the board of commissioners of Craig county on certain claims for the board of prisoners» Judgment for plaintiff, and defendant bring error.

<p>(Syllabus by the Court.)</p> <p>1. Chattel Mortgages — Acknowledgment— Necessity.</p> <p>A chattel mortgage is valid between the parties without being acknowledged or witnessed.</p> <p>2. Same.</p> <p>A compliance with the conditions prescribed in section 4030. Rev. Laws 1910, whei-ein it provides. “Such signature ruay either be attested by acknowledgment before any person authorized to take acknowledgments of deeds, or it may be signed and validated by the signature of two persons not interested therein,” is only required in order that said mortgage may be entitled to be filed in the office of the register of deeds of the proper county, and operate as constructive notice to creditors and subsequent purchasers and incumbrancers who have no actual notice of said mortgage.</p> <p>3. Same — Attestation—“Signed and Validated.”</p> <p>The words “signed and validated,” as used in section 4036, Rev. Laws 1910. refer to the attestation of a chattel mortgage, and being essential only ps a requisite required in order that a chattel mortgage máy be entitled to be filed for record.</p> <p>4. Same — Attestation—Validity.</p> <p>A chattel mortgage is valid as between the parties without being attested in any manner. For the purposes of record, it must be attested either by acknowledgment or witnessed by two disinterested witnesses; but where it does not appear from the face of the instrument that the officer taking the acknowledgment, or the subscribing witnesses, are legally disqualified by reason of their interest in the estate or property mortgaged, the instrument may properly be received for record, and such recording will be constructive notice to subsequent creditors and mortgagees.</p> <p>6. Same — Disqualification of Witness — Validity of Record.</p> <p>Where a chattel mortgage has been filed for record in the office of register of deeds of the proper county, and the acknowledgment is regular upon the face of the instrument, or the same is attested before two witnesses, and the attestation of the same is regular upon the face of the instrument, but there is a latent defect in the instrument by reason of the subscribing witnesses being disqualified or the person taking the acknowledgment being disqualified, by reason of their being interested in the estate or property mortgaged, but said fact does not appear upon the face of the instrument, the filing of said instrument of record is voidable, and not void. 4</p> <p>Sharp, ,T., dissenting.</p>

Error from District Court. Creek County; R. W. Higgins. Assigned Judge. Action by Cornelia Watkins, nee Nero, and others, against Gordon O. Hughes and others. Judgment for the plaintiffs, and the defendants bring error. Affirmed. (Note — This opinion has been edited in accordance with a later, supplementary opinion ny the court •making certain modifications.

M. Godfrey, Judge. Petition by John H. Breeding and another to vacate a nunc pro tunc order. Petition was denied, and they appeal.

<p>(Syllabus by the Court.)</p> <p>1.Oil and Gas — Assignment of Oil Lease— Parol Variation.</p> <p>Where an assignment in writing' of certain oil and gas leases appears to contain the final agreement of the parties all previous representations and negotiations are merged therein, and thereafter in the absence of fraud, the rights and liabilities of the parties must be determined by the writing.</p> <p>2. Same — Warranty of Title.</p> <p>An assignment in writing of “all our ■ right, title and interest in and to a certain leasehold for oil and gas mining purposes” does not amount to a warranty of title.</p> <p>3. Same — Interest Passed by Assignment.</p> <p>Under such an assignment the assignees merely take whatever interest the assignors have in the leasehold and. in the absence of fraud, assume the hazards arising out of failure of title.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — New Trial — Motion—Sufficiency.</p> <p>Where the trial court erroneously denies the defendant the right of trial by jury, the subsequent decision in favor of the plaintiff is contrary to law, and the error complained of is sufficiently presented for correction below by a motion for a new trial upon the ground that “the decision of the court is contrary to the law.”</p>

Error from District Court, Harper County; W. C. Crow, Judge. Action by Overstreet & Dockter, a partnership, composed of H. Overstreet and J. S. Dockter, against the Wichita Falls & Northwestern R. Co., a corporation. Judgment for plaintiff, and defendant brings error.

Error from District Court, Harper County; W. C. Crow, Judge. Action by Overstreet & Dockster, a partnership composed of H. Overstreet and J. S. Dockster, against the Wichita Falls & N. W. R. Co. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Safety Appliances— Exemptions from Liability.</p> <p>In a personal injury action for damages brought by a coal miner, where the allegations in the plaintiff’s petition and the proof offered in support thereof show that the plaintiff’s cause of action is one arising from the defendant’s failure to comply with the provisions of Rev. Laws 1910, secs. 3983 and 3984, in furnishing sufficient props of proper length which were required and requested by the plaintiff, such provisions were to protect the employees of the defendant from a well-known danger pertaining to the services of such employees, being a risk which, from the nature of their employment, they were compelled to assume, and although an employee impliedly waives a compliance with the statute, and agrees to assume the risk by continuing in the service, a court will not recognize or enforce such agreement. To permit owners or managers of mines to avail themselves of such an assumption of risk by its employees would be in effect to enable them to nullify the statute, and that is against public policy.</p> <p>2. Damages — Personal Injuries — Excessiveness.</p> <p>The plaintiff was 46 years of age and was serving as a miner engaged in digging coal, and was earning $5.00 per day. The lower portion of his spine was injured, his hips and right leg were crushed and the latter partially paralyzed, and for about 2 1-2 years he had been unable to work at his avocation and continued to suffer physical pain and was unable to walk without the aid of a crutch or cane: his injuries were permanent; there is nothing in the record to indicate that the jury were influenced by passion or prejudice. Held: That a verdict for $8,423.33 was not excessive.</p> <p>3. Trial — Requested Instructions.</p> <p>It is not error to refuse special instructions requested by a party, when the questions covered by the special instructions are included in the general instructions.</p> <p>4. Master and Servant — Personal Injuries— Instructions.</p> <p>Instructions given by the court and excepted to by the defendant, examined and held: That when considered together with all the instructions they state the law applicable to the case with substantial accuracy.</p> <p>5. Appeal and Error — Harmless Error.</p> <p>Under section 6005, Rev. Laws of 1910, the Supreme Court is not authorized to set aside any judgment or grant a new trial in any case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the co.' rt, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.</p> <p>6. Same — Waiver of Error.</p> <p>A party cannot complain of the admission of evidence over his objection to a single question, where he permits like evidence of other witnesses to be admitted without objection.</p>

<p>(Syllabus by tbe Court.)</p> <p>1. Mandamus — Issue—Dissolution of School District.</p> <p>Where, in a proceeding for tbe dissolution of a consolidated school district authorized and provided for by chap. 202, Laws 1915, a petition is filed purporting to contain the signatures of one-half or more of tbe legal voters of tbe consolidated schqol district, asking that tbe county superintendent of public instruction call an election “for tbe purpose of voting on tbe question of whether such consolidated school district shall be dissolved,” and wbicb petition is accepted as sufficient by such school superintendent, and an election is duly called and held at wbicb sixty per cent, of tbe voters of tbe consolidated district, voting thereat, vote in favor of dissolution, and tbe proper officer of such special election makes report of tbe election and tbe result thereof to tbe county superintendent, who refuses to discharge tbe duties imposed in sec. 2 of tbe act, such superintendent will not be permitted, in a mandamus action to compel tbe performance of bis statutory duties, to attack tbe sufficiency of tbe petition or tbe qualifications of tbe voters at tbe election, tbe proceedings bad being regular on tbeir face and constituting a prima facie compliance with the statute.</p> <p>2. Same — Ministerial Duties — County Superintendents.</p> <p>Tbe duties imposed upon a county superintendent by sec. 2, chap. 202, Laws 1915, in respect to declaring a consolidated school district dissolved, and tbe filling of vacancies in tbe Vrevived” school districts, involve tbe exercise of no discretion on tbe part of such superintendent, but are purely ministerial in tbeir character, and tbeir performance may be compelled by mandamus.</p> <p>3. Schools and School Districts- — Consolidated District — Dissolution—Election.</p> <p>Section 2, chap. 202, Laws 1915, providing that “if sixty (60) per cent, of tbe voters of such district at tbe election held * * * shall vote to dissolve tbe consolidated district,” requires only that sixty per cent, of tbe votes cast at tbe election shall be in favor of dissolution, and not that sixty per cent, of all tbe voters of tbe district shall vote therefor.</p> <p>4. Attorney General — Opinions—School Officers.</p> <p>It being tbe duty of tbe Attorney General, under section 8059, Rev. Laws, to give bis opinion in writing, when requested, “upon all questions of law submitted to him by * * * any state official, commission or department,” such advice, when obtained by tbe State Superintendent of Public Instruction for and at the instance of a county superintendent, respecting the dicharge of the latter’s official duties, should be followed.</p>

<p>(Syllabus by the Court.)</p> <p>1. Deeds — Laws Governing.</p> <p>Where a conveyance of real estate was executed prior to statehood, and while the statutes of Arkansas were yet in force in the Indian Territory, the rights of the parties to such instrument were fixed by the statutes then in force, and are not determined by chapter 13 of the Statutes f Oklahoma.</p> <p>2. Mortgages — Equitable Mortgage.</p> <p>Under the statutes of Arkansas, as construed by the Supreme Court of that state, a deed absolute on its face, if intended as a security for the payment of money, was treated in the courts of equity as a mortgage, and the rights of the parties determined as if the instrument were in fact a mortgage.</p> <p>3. Mortgages — Effect of Arkansas Mortgage.</p> <p>Under the statutes of Arkansas, as construed by the Supreme Court of that state, a mortgage of real estate, as under the common law, conveyed the legal title to the mortgagee.</p> <p>4. Deeds — Laws Governing.</p> <p>Although title to real estate may have been conveyed to a grantee under the Statutes of Arkansas prior to statehood, if, since statehood and since the Statutes of Oklahoma were put in force, he, the grantee, reconveys the title to the original grantor, such title is determined by the Statutes of Oklahoma and the right of parties to such instrument are determined thereby.</p> <p>5. Husband and Wife — Conveyance to Wife —Presumption.</p> <p>A husband has the right to convey land to his wife or to have it conveyed to her| either as a gift outright or in payment of a debt owed to her, and in the absence of fraud or interests of creditors, the presumption of law is hi favor of such conveyance.</p> <p>6. Same — Title of Wife’s Grantee.</p> <p>Where a husband is entitled to a re-conveyance of the title to land, and expresses a desire to the reconveyancor that the deed of reconveyance be made to his wife, and in compliance with his desire and at his special request, such deed is made to his wife, she .thereby acquires title to the land, and a deed from her vests title in her grantees.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action between M. J. Chestnut and others and Ed Overholser. From the judgment the-parties first named bring error.

<p>(Syllabus by the Court.)</p> <p>Indians —?Descent and Distribution — Creek Descent.</p> <p>Affirmed on the authority of Thompson v. Cornelius, 53 Okla. 85, 155 Pac. 602; Hughes v. Bell, 55 Okla. 555, 155 Pac. 604; Jefferson v. (look. 53 Okla. 272, 155 Pac. 852; McDonald y. Ralston, 65 Oklahoma, 166 Pae. 405: Moffer v. Jones, 67 Oklahoma, 169 Pac. 652.</p>

<p>(Syllabus by the Oourt.)</p> <p>1. Attorney and Client — Disbarment — Report of Referee — Conclusiveness.</p> <p>A referee in a disbarment proceeding is ¡in officer of the court, and the court has 'full authority to supervise and control his report by setting it aside, or confirming or modifying it as the facts and the law require</p> <p>2. Same — Presumptions.</p> <p>The report of a referee appointed to take evidence and report1 his findings of fact and conclusions of law in a disbarment proceeding is not conclusive as to either the findings of fact or the conclusions of law. but is accorded every reasonable presumption of being correct. The burden is on the party attacking it, but it is to be. freely set aside by the court if found to bn incorrect.</p> <p>3. Same — Burden of Proof.</p> <p>In a proceeding to disbar an attorney at law, such attorney is presumed to be innocent of the charges preferred and to have performed his duty as an officer of the court in accordance with his oath, and the evident-in support of the charges must satisfy the court to a reasonable certainty that the charges are true and warrant a judgment of disbarment.</p> <p>4. Same — Grounds for Disbarment.</p> <p>The law does not demand that every \ technical infraction of, the law by an attorney shall require his disbarment, although nil attorney should endeavor to observe literally the law, but it is those infractions of duty that involve moral turpitude and evince a depraved character, that render such attorney untrustworthy and are a reflection upon the bar and -the court, as an officer thereof, that demand his disbarment.</p> <p>5. Same — Sufficiency of Evidence.</p> <p>Evidence examined, and held, not sufficient to warrant disbarment of respondent.</p>

Error from District Court, Muskogee County; Benjamin B. Wheeler, Judge. Action by Carrie Saulsbury and Fred Saulsbury against the Conservative Loan Company. From ai order vacating and setting aside a verdict for defendant and granting a new trial, defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Wills — Exclusion of Wife — Invalid Trust.</p> <p>Under section 8341, Rev. Laws Okla. 1910, husband and wife while married become each the forced heir of the other to the extent of one-third of the property owned by each respectively, which interest cannot be bequeathed by the owner from said heir, and where the property is real estate the estate of the owner therein is meant whether it be the fee or a lesser estate. Further held that where the will, of the husband bequeathed to his wife one-third of his real estate, and the remaining two-thirds to certain of his children, naming them, and all of such real estate to H. “To have and to hold the same, upon trust, for the wife and children, one-third to the wife and one-ninth to each of said children, in the proportions aforesaid, and to take possession, management and control of said real estate, and to rent the same, on any terms and in any manner as he in his discretion shall deem for the best interest of my estate, and to execute and deliver good and sufficient contracts therefor, during the term until my youngest child then living shall become of age, and as soon as practical after that event, to be conveyed in fee. an undivided one-third interest to my said wife and one-ninth interest to each of my said nr mod children and each of their heirs and assigns forever,” and during the trust period receive the rents, issues and profits therefrom and to apply the net income to the use of the wife and children in the proportions aforesaid, further huid, that the trust provision was an infringement of the rights of the wife, and in contravention of the statute in relation to her as forced heir, and therefore void as to her.</p> <p>2. Same — Contest — Issues — Construction of Will.</p> <p>In proceedings to probate a will under Kev. Laws 1910, secs. 6210, .6211, the only issue triable is the factum of the will, or the question of devisavit vel non. Under this issue the court had no jurisdiction to construe the will or try the validity of any devise therein.</p> <p>3. Judgment — Res Ad judicata.</p> <p>In order to make a matter res adjudicata, there must he a concurrence of the four conditions following, namely: d) Identity in the thing sued for Cor subject-matter of the suit! : (21 Identity of the cause of action; (31 Identity of persons or parties to the action; (4) Identity of the quality in the persons for or against whom the claim is made.</p> <p>4. Wills — Ejectment—Sufficiency of Petition.</p> <p>Petition of the plaintiff examined and held: that the same stated a cause of action in favor of the plaintiff and it was error to have sustained a demurrer thereto.</p>

<p>(Syllabus by the Court)</p> <p>1. Carriers — Interstate Shipment — Law Governing.</p> <p>The rights and liabilities of the parties io an interstate railroad shipment are determined by federal legislation, by the bill of lading which is required to be issued, and by the common law rules, as accepted and applied in federal tribunals.</p> <p>2. Same.</p> <p>In cases arising in the state courts involving the rights and liabilities of the parties to an interstate railroad shipment, the decisions of the Supreme Court of the United States, construing and applying the federal laws, are controlling on the .state courts.</p> <p>3. Same — Contractual Limitation of Action.</p> <p>Under the Carmack Amendment of June 29, 1906 (34. Stat. 595, e. 3591, U. S. Comp. St. Supp. 1911, p. 1307), sec. 7, pars. 11 and 12, to act of Feb. 4, 1887 (24 Stat. 386, c. 104), sec. 20 (U. S. Comp. Stat. 1916, secs. 8604a, 8604aa), a stipulation in a contract for an interstate shipment of live stock, providing that no suit or action against the carrier for loss damage or delay to the shipment shall be sustained “unless such suit or action is commenced within six months after the cause of action shall occur” is a reasonable provision, and binding upon ’the parties to such contract.</p> <p>4. Same — Waiver.</p> <p>Where a shipper enters into a valid contract with the carrier, for an interstate shipment of livestock, by the terms of which he agrees that no suit or action against the carrier for loss, damage, or delay to the shipment shall be sustained unless such suit or action is commenced within six months after the cause of action shall occur, the carrier cannot waive the terms of the contract, nor ignore those terms applicable to the conduct of the shipper; a different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed.</p>

Error from District Court, Murray County; F. B. gwank, Judge. Action by Anna Haley against James W. Lusk and others, receivers. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by the Gentry-Bowers Lumber Company against James H. Hamill and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by Charles E. Hoke against the city of Oklahoma City. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, McIntosh County; R. W. Higgins, Judge.</p> <p>Action by Cassie Hamilton and others against John E. Bahnsen and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal by the Board of County Commissioners of Kingfisher County from an award of compensation to Bishop Early Grimes, by State Industrial Commission.</p>

Error from District Court, Kay County: W. 31. Bowles, Judge. Action by .Maggie Hennessy and another against the Junction Oil & Gas Company and another. From judgment for defendants, plaintiffs bring error.

<p>1. Banks and Banking — Deposit Slip as Evidence — Conclusiveness.</p> <p>A deposit slip issued by a bank is but prima facie evidence that the bank received the amount of the deposit on the date shown by the deposit slip. It has the same force and effect as that of any other form of receipt, and is open to explanation as to the conditions surrounding the deposit, and the circumstances under which it was given may be inquired into.</p> <p>2. Appeal and Error — Continuance — Review.</p> <p>An assignment of error that the court erred in refusing to grant plaintiff a continuance of the cause will not be considered, when an examination of the record discloses that no motion for a continuance was filed, and that the plaintiff announced ready and proceeded to the trial of the cause without objection.</p> <p>3. Trial — Requested Instructions.</p> <p>Where the courts instruct the jury clearly, fairly, and fully upon all phases of the case, it is not error to refuse to give any and all requested instructions.</p>

Error from District Court, Atoka County; Robt. M. Rainey, Judge. Action by the City of Lehigh against the O’Neil Engineering Company and the Southern Surety Company. Erom judgment for plaintiff, the defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Principal and Surety — Bond—Extent of Liability.</p> <p>A surety on a bond in a judicial proceeding cannot be held liable beyond the terms of the bond.</p> <p>2. Appeal and Error — Supersedeas—Power of Supreme Court.</p> <p>This court has the inherent power in all cases to require1 such a bond as will adequately protect the interest of the parties and secure enforcement of, and obedience to, any order which it has the inherent power to make.</p> <p>3. Principal and Surety — Bonds—Construction.</p> <p>Where,the liability of a surety cannot be' clearly determined from the language of the bond, resort may be had to the pui*pose of the-bond, and to surrounding circumstances, in order to ascertain the intention of the parties.</p> <p>4. Appeal and Error — Supersedeas—Ejxtent of Liability.</p> <p>Where the judgment of a trial court is affirmed by this court, and the aggrieved party procures a stay of mandate pending an application to the Supreme Court of the United States for a writ of error, and files a bond conditioned that it will prosecute its writ of error to effect and pay all damages and costs that may be adjudged against it, and it appears from the conditions of the order for stay of mandate and from the terms of the bond that it was intended only to secure the parties against damages and costs resulting from the stay of mandate, the surety on such bond will be held liable only for the costs and damages resulting from the stay of mandate, and not for the judgment and costs secured by the supersedeas bond on appeal from the district court; ithe same being .beyond the purpose and terms of the bond given for stay of mandate.</p>

Error from District Court, Oklahoma County; Geo. W. Clark. Judge. Action by Colonel Parker against Ella M. Parker and another, cross-petition by defendant Jennie L. Parker. Prom judgment for cross-petitioner, the plaintiff appeals.

<p>Error from District Court, Garvin County; F. B. Swank. Judge.</p> <p>Action by E. H. Scrivner against J. H. McClelland. From judgment on demurrer, for defendant, plaintiff brings error.</p>

Error from District Court, Beckham County ; T. P. Clay, Judge. Action by W. E. Whitaker against Jacob M. Dickinson, as receiver of the Chicago, Bock Island & Pacific Bailway Company, and against the railway company itself. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Harmless Error— * Demurrer to Evidence — Judgment.</p> <p>In the trial'of a law action, all of the issues, both of fact and law, were submitted to the court without the intervention of a jury. At the conclusion of the plaintiff’s testimony, and after he had rested his case, defendants demurred to the evidence, and at the same time requested the court to render judgment, in their favor as prayed for in their answers. The court sustained the demurrer, made special findings of fact, and rendered a decree in favor of the defendants. Held, that while the judgment of the court sustained the demurrer, yet, having made special findings of fact, it was obvious that the court weighed the plaintiff’s testimony for the purpose of determining the rights of the respective párties, and the whole case being before the court, and there being evidence reasonably tending to support the court’s findings, no reversible error was committed.</p> <p>2. Trial — Judgment—Time of Rendition.</p> <p>When a trial is had before the court without a jury, the court must eventually weigh the testimony for the purpose of determining where the preponderance is, and there is no reason why it should not do so at the earliest possible time, when the rights of the plaintiff will not be cut off or impaired by its so doing, and when the plaintiff bias introduced all his proof and rested, no right of his will be impaired. if the court then determines what has been proven.</p> <p>3.Appeal and Error — Harmless Error.</p> <p>This court is .required by statute to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.</p>

<p>(Syllabus by the Court.)</p> <p>1. Action — Joinder of Causes — Same Transaction.</p> <p>The plaintiff may unite several causes of action in the same petition, where they all arise out of the same transaction.</p> <p>2. ' Contracts — Merger of Oral Negotiations.</p> <p>The execution of a contract in writing supersedes all oral negotiations or stipulations concerning its matter, which precede or accompany the execution of the instrument.</p> <p>3. Trial — Directed Verdict.</p> <p>Where the court properly excludes the evidence offered by defendant, and the evidence offered by plaintiff is sufficient to entitle him to judgment, it is not error to direct a verdict in favor of the plaintiff.</p>

<p>Error from District Court, Lincoln County ; Chas. B. Wilson. Jr., Judge,</p> <p>Action by Abe Levy against W. K. Jackson and others. From judgment for plaintiff, defendant Jackson brings error.</p>

Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by Francis J. Cushing against S. C. Newbern and others, with intervention by Lucy Harjo. From judgment for defendants and intervener, plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Indians — Homestead — Exemption.</p> <p>In construing the second proviso of section 7 of the Act of Congress of April 18, 1912, c. 83, 37 Stat. pt. 1, p. 86, the same must be construed tantamount to an independent enactment, and it has the effect of removing the exemption from taxation on the homestead allotment of an Osage Indian, at the death of the allottee.</p> <p>2. Statutes — Effect of Proviso.</p> <p>The natural and appropriate office of a proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter.</p> <p>3. Same — Construction.</p> <p>A proviso to a section of the statute should be construed with the section of which it forms a part, and, if the context requires it, may be considered tantamount to an independent enactment.</p> <p>4. Indians — Federal Statutes — Construction.</p> <p>The acts of Congress and agreements between the various Indians have always been construed liberally in favor of the Indians.</p> <p>5. Constitutional Law — Statutes—Construction — Intent—Subsequent Enactments.</p> <p>It is a cardinal rule in the construction of constitutions and statutes that the intention of the lawmakers, when ascertained, must govern, and that to ascertain the intent all the various portions of the legislative enactments upon the particular subject, including subsequent enactments, should be construed together and given effect as a whole.</p> <p>6. Taxation — Indian Allotments — Exemptions.</p> <p>But for the act of Congress of April 18, 1912, the plaintiffs in error could not have purchased the land in question. They took the land subject to the conditions of that act, which provides, “Nothing herein shall be construed to exempt any of said property from taxation.” Having purchased the land by virtue of said act containing said proviso, they cannot now claim the benefits of the exemption from taxation granted to the al-lottees in the Osage allotment act.</p>

<p>1. Master and Servant — Federal Employers’ Liability — Interstate Employment — Jury Question.</p> <p>In the trial of a cause arising under the federal Employers’ Liability and Safety Appliance Acts (ü. S. Comp. St., secs. 8657-8665, and sections 8605-8615, 8617-8619, 8621-8623), when there is testimony raising an issue of fact on the question as to whether or not the defendant railway company was at the time engaged in interstate commerce and whether or not the plaintiff at the time/ of the injury was so engaged in interstate commerce, it becomes a question to be submitted to the jury for their determination.</p> <p>2. Same — Evidence—Sufficiency.</p> <p>The record shows that there was sufficient testimony tending to show that the plaintiff, as well as the defendant, at the time of the injury, was engaged in interstate commerce, to authorize the submission of this issue for the determination of the jury. Held, the court committed no error in overruling the motion for a directed verdict.</p> <p>3. Same — Instructions.</p> <p>Instructions submitted to the jury by the court examined, and found to fairly state the law as applicable to the facts; hence the court committed no prejudicial error in its instructions to the jury.</p> <p>4. Trial — Requested Instructions.</p> <p>The court having fairly covered the issues involved in its general instructions to the jury, held, did. not err in refusing to submit to the jury special requested instructions of the defendant.</p> <p>5. Jury — Majority Verdict — Action Under Federal Employers’ Act.</p> <p>The court did not err in instructing the jury that nine or more of their number concurring could return a verdict; neither did the court err in refusing to instruct the jury that, because the cause of action arose under the federal Employers’ Liability and Safety Appliance Acts (U. S. Comp. St. secs. 8657-8665, and sections 8605 8615, 8617-8619, 8621-8623), it would require a concurrence of the entire panel to render a verdict.</p> <p>(Syllabus by Linn, C.)</p>

<p>(Syllabus by the Court.)</p> <p>1.Indians — Allotment — Descent — Illegiti-mates. •</p> <p>Under Act Cong. Peb. 28, 1891, 26 Stat. 794, c. 383, sec. 5 (U. S. Comp. St. sec. 4222), providing that, for determination of descent of allotted lands, whenever a male and female Indian shall have cohabited as husband and wife, their issue for such purpose shall be regarded as legitimate, and that every other Indian child, otherwise illegitimate, shall- for that purpose be taken to be the legitimate issue of the father, the illegitimate child of an allottee by an Indian woman, whether born as the result of cohabitation in accordance with Indian customs or not, is entitled to inherit rights in his father’s allotment as his heir.</p> <p>2. Same — Allotment — Descent — Estate of Heirs.</p> <p>John Nestell, a white man, by the provisions of the Kiowa, Comanche, and Apache Agreement (31 Stat. 676, c. 813) was awarded all the benefits of land and money conferred by the agreement the same as members by blood of one of said tribes. Under the agreement, after an allotment was selected and approved by the Secretary of the Interior, the title thereto was to be held in trust for the allottee- for a period of 25 years in the time and manner' provided by Act Peb. 8, 1887, c. 119, 24 Stat. 388, and the act amendatory thereof approved February 28, 1891 (26 Stat. 794, c. 383), and at the expiration of said period the title was to be conveyed in fee simple to the allottee, or his heirs, free from all incumbrances. The said John Nestell died in August, 1902, prior to the issuance of final patent, but subsequent to the issuance of the trust patent. The Indian Appropriation Act approved March 3, 1903 (32 Stat. 1008, e. 994), authorized and directed the Secretary of the Interior to issue a patent in fee to several designated persons, including John Nestell, and further provided that “all restrictions as to the sale, incum-brance, or taxation of said lands are hereby removed.” On June 17, 1903, the Secretary of the Interior issued a patent to the heirs of John Nestell without naming them. Held, that said heirs took the estate by inheritance, and not by direct grant from the United States.</p> <p>3. Same — Determination of Heirship> — Power of County Court.</p> <p>County courts of this state, in the exercise of their probate jurisdiction, are authorized to determine who, in fact, are the heirs of a deceased person for the purpose of distributing the estate of the decedent, except in those cases involving Indian allotments where Congress has not relinquished its supervisory control over the same or delegated such authority to said courts, and after the death of an allottee in the Kiowa, Comanche, and Apache reservation under a trust patent, and during the trust period, county courts are without' jurisdiction to determine who in fact are the heirs of said decedent; but after , the issuance of patent, and the removal of restrictions, and the withdrawal of federal supervision, and where the question of heir-ship has not been determined by the Secretary of the Interior during the trust period, the county court having jurisdiction of the administration of the estate of the deceased allottee is authorized to determine, under the state law, who in fact are the heirs of the decedent, and to distribute his estate accordingly.</p> <p>4. Executors and Administrators — Distribution Decree — Collateral Attack.</p> <p>A decree of distribution of a county court cannot be successfully attacked in a collateral proceeding for mere irregularities in the proceedings in the county court.</p> <p>5. Same — Final Distribution.</p> <p>Under section 6463, Rev. Laws 1910, upon the final settlement of an account of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must proceed to distribute the residue of the estate of the decedent over which it is exercising jurisdiction.</p> <p>6. Judgment — Validity — Fraud — Perjured Testimony.</p> <p>It is not every kind of fraud that will vitiate a judgment in an independent proceeding, for to investigate the character of the testimony upon which a judgment was obtained would be to retry the issues submitted in the trial at which the judgment was obtained, and the result would be that there would be no end to the litigation. The fraud which will vitiate a judgment in an independent proceeding must be extraneous to the issues and such as would deprive the party of a fair opportunity to present his case. Brown et al. v. Trent et al., 36 Okla. 239, 128 Pae. 895.</p> <p>7. Appeal and Error — Ejectment—Review of Evidence.</p> <p>In an action for the recovery of real property tried to the court without a jury, the findings of the court upon disputed questions of fact will be given the same weight and effect as the verdict of a jury, and, where reasonably supported by the evidence, will not be disturbed on appeal.</p>

<p>(Syllabus by the Court.)</p> <p>1. Guardian and Ward — Sale Bond — Liability of Sureties — Real Estate — Misappropriation.</p> <p>Sureties on a guardian’s bond for the sale of real estate, executed pursuant to section 6564,. Rev. Laws of 1910, are not 'liable for misappropriations by the guardian of funds not arising from the sale of real estate in relation to which the bond was executed.</p> <p>2. Same — Burden of Proof.</p> <p>In a joint action against the sureties on several general guardian’s bonds and the surety on the guardian’s bond for the sale of real estate, executed pursuant to section 0504, where the record shows that the county court, on settlement of the final account of the guardian, found the amount misappropriated and due by the guardian to the ward, and the surety on the sale bond seeks to avoid liability, on the ground that the guardian did not misappropriate any of the funds of his ward while the bond on which it was surety was in force, the burden is on the said surety to establish such defense.</p> <p>3. Appeal and Error — Ruling on Demurrer —Cure of Error.</p> <p>Where defendant’s demurrer to plaintiff’s petition is overruled, and thereafter, during the progress of the trial, the court permits the plaintiff to amend his petition, and the defendant does not demur to the petition as amended, and where evidence is introduced without objection, proving the matter which defendant contends should have been alleged in the original petition, this court will not consider the alleged error of the trial court in overruling defendant’s demurrer to the original petition.</p>

<p>(Syllabus by tbe Court.)</p> <p>1. Indians — Allotment—Descent.</p> <p>A full-blooded Choctaw Indian woman died in 1906 possessed of an allotment of land. Her nearest relatives on her father’s side were an uncle and cousin, and on her mother’s side were cousins, all being Indians by bl ood. The paternal heirs claimed that section 2532 of Mansfield’s Digest of tbe Laws of Arkansas controlled the devolution of her estate, and that they were the sole owners thereof. The maternal heirs claimed that section' 2531, Id., controlled, and that they take an undivided one-half of her estate. Held, that section 2531 controls, and that an undivided one-half of the allotment possessed by the deceased at the time of her death goes to the maternal heirs, o and the other half goes to the paternal heirs.</p> <p>2. Statutes — Construction — General and Specific Terms.</p> <p>Where general terms or expressions in one part of the statute are inconsistent with more specific or particular provisions in another part, the particular provision will he given effect, as a clearer and more definite expression of. the legislative will.</p>

<p>Error from District Court, Creek County; N. A.-Gibson, Special Judge.</p> <p>Action by John H. Winemiller against Charles Page and others. From judgment for defendants plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Covenants — Limitation of Actions.</p> <p>Covenants of “seisin” and “good right to convey” are synonymous, and, if broken at all, are broken when made, yet where the grantee takes and remains in the undisturbed possession of land conveyed by a general warranty deed, which is afterwards cancelled by the final judgment of a court of competent jurisdiction, the statute of limitations does not begin to run in favor of the grantor on the warranty of the title until after the date of such judgment.</p> <p>2. Same — Warranty Deed — Judgment — Conclusiveness.</p> <p>In an action where there is a recovery of land, or any interest therein, adverse to any warranty deed thereto, and where the grant- or was a party to the action, the record of such judgment is conclusive evidence of the paramount title of the adverse Claimant.</p> <p>3. Same — Breach of Warranty — Notice to Grantor.</p> <p>Under section 1160, Rev. Laws 1910, where an action is brought against a grantee to recover real estate conveyed to him by a warranty deed, and the grantor is made a party to the action, and is duly served with' summons therein, the grantee is relieved of the necessity of giving the grantor written notice that such action has been brought.</p> <p>4. 'Costs — Allowance to Plaintiff.</p> <p>Where it is not otherwise provided by statute, costs shall be allowed, of course, to the plaintiff upon a judgment in his favor in actions for the recovery of money only, or for the recovery of specific real or personal property.</p> <p>5. Covenants — Breach of Warranty — Costs.</p> <p>The grantee in an action for breach of a covenant of warranty contained in a deed executed and delivered in 1905 for certain lands in that part of Oklahoma then known as Indian Territory can recover costs and necessary expenses, including reasonable attorney’s, fees incurred.in a bona fide defense, or assertion of his title, though there was no express agreement by grantor in addition to his covenant to pay such expenses.</p>

<p>(Syllabus by the Court.)</p> <p>1. Bills and Notes — Bona Fide Purchaser— Title of.</p> <p>The purchaser of a negotiable note before its maturity, in due course of business, in good faith, without notice of imperfections, or defects, takes the same freed of the outstanding equities and defenses that might have been asserted against the original payee by the maker.</p> <p>2. Same — Action by Bona Fide Purchaser —Evidence—Defenses.</p> <p>In an action upon four negotiable promissory notes ,by a holder in due course, the maker of the notes was permitted by the court to offer in evidence the terms and conditions of the contract between the maker and the payee, and that the payee had violated the contract and that the consideration of the notes had failed after their negotiations. Held, that such evidence was improperly admitted, and constituted no defense to the action, in the absence of any showing that the holder in due course had notice • of such contract, and of the failure of the consideration, at or before the time the notes were so purchased.</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Castella Webb, a minor, by Stalie Webb, her guardian, against E. W. Vaden and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Pawnee County ; W. M. Bowles, Judge.</p> <p>Action by May Wheeler and others against James Widener and others. Erom judgment for defendants, plaintiffs bring error.</p>

Error from District Court. McOurtain County; C. E. Dudley, Judge. Action to recover taxes by Leon A. White, County Treasurer of McOurtain County, against the Home Builders Lumber Company. From judgment for plaintiff, the defendant brings error.

<p>Error from County Oourt, Bryan County; J. L. Rapp olee, Judge.</p> <p>Action by Bagwell Bros, against the American Express Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Noble County; W. M. Bowles. Judge. Action on note by S. T. Alcorn against C. W. Wallingford and another. From judgment for plaintiff, ,the defendants bring error.

<p>Error from District Court, Logan County; R. C. Bassett, 'Special Judge.</p> <p>Action to foreclose a mortgage by the Mortgage & Debenture Company against Florence Rhodes, Laura McNeil, Adele Hamilton, and Ella Doss. From judgment in part for defendant Florence Rhodes, as devisee, and in part for Ella Doss, and for Laura McNeill conditionally, as heirs, plaintiff brings error. Laura McNeil having died, Henry McNeil, as her sole heir and administrator, was substituted defendant in error.</p>