Volume 84 — Oklahoma Reports

<p>(Syllabus.)</p> <p>1. Guardian and Ward — Liability of Estate for Necessities — Payment of Claims —Power of County Court.</p> <p>The estates of wards of the court are ultimately liable for necessities for the support and care of wards of the court, and the county courts, being courts of general probate jurisdiction, as provided in section 16, art. 7, of the Constitution of the state, and the powers granted to them by sections 6535, 6542. 6544, and 6545, Rev. Laws of 1910. have power to pass upon and allow or disallow such claims when presented either by the claimant or by the guardian, and the power to direct the payment of said claims out of the estates of said minors, and also have the power to order reimbursement to the guardian in the event the guardian pays said claims.</p> <p>2. Appeal and Error — Review—Conclusiveness of Findings — Guardianship Proceedings — Allowance of Claims.</p> <p>Where a claimant presents his claim for allowance in a guardianship proceeding in the county court against the estates of wards for necessities furnished for the wards, and the court finds the goods furnished were necessities for the wards and were used by the wards, and such fact is not even questioned in the court, and the court further finds that the parents had not the means to support said wards, and this is not questioned at the hearing on said claim, and there is no showing of fraud or collusion, this court on appeal will not disturb such findings of the lower court.</p> <p>3. Guardian and Ward — Claim Against Estate for Necessities — Defenses—Election of Remedies — Prior Suit Against Parents.</p> <p>Where a claim for necessities for wards of the court was presented to the court and there was pleaded in bar of said claim a plea in the nature of an election upon inconsistent remedies, in this, to wit. that the claimant had previously sued and procured judgment against the parents of the wards in a civil action, and at ■ the hearing on the claim the county court, found that there had been no satisfaction of said claim, and it is not even contended that it has been satisfied, held, that said proceeding did not involve a question of inconsistent remedies, but merely involved a question of joint liability of the parents and the estates of said wards, and the claimant had the right to pursue one or both to secure satisfaction of said claim.</p>

<p>(Syllabus.)</p> <p>1. Evidence — Parol Evidence Affecting Writings — Merger of Prior or Contemporaneous Oral Negotiations.</p> <p>The execution of a contract in writing supersedes all the oral negotiations or stipu-latieras concerning its terms and subject-matter -which preceded or accompanied the execution ,of the instrument, in the absence of accident, fraud, or mistake of fact in its procurement; and any representation made prior to or contemporaneous with the execution of the written contract is inadmissible to contradict, change,- or add to the terms plainly incorporated into and made a part of the written contract.</p> <p>2. Same — Written Contract as Sole Evidence.</p> <p>Where a contract in writing was not procured by any sufficient artifice, trick, or fraud as will avoid it, and such contract is complete within itself, is unambiguous in its terms, the same is the only admissible proof of such contract.</p> <p>3. Same — Carelessness of One Signing — Inducement by Misrepresentations.</p> <p>When a person who can read and write, executes a contract, and when he is confronted with it, admits he signed the same after he had read it and knew its contents, but seeks to avoid the same by reason of the representation of the one who procured his signature that it was a general form used in getting subscriptions of stock and that it would not -bar him from showing what the real contract was, held, that the one signing was the victim of his own carelessness and unbusi-nesslike conduct, and this is not a sufficient showing to • avoid the same for fraud and deceit in its procurement, and he is bound by its terms.</p>

Error from District Court, Comanche County; Cham Jones, Judge. . Action by the firm of Elrod & Stine against James W. Lusk et al., receivers of the St. Louis & San Francisco Railway Company, for damages to shipment of stock. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Beckham County; T. P. Clay, Judge. Action by Huida Ludlum against Kathrina Bollenbach, executrix of the estate of Jacob Bollenbach, on note and mortgage. Judgment for plaintiff, and defendant brings error.

Error from District Court, Rogers County; W. J. Campbell, Judge. Action by C. H. Brown against Columbus H. DeFord and others to foreclose mortgage; cross-petitions by James Granville Thompson, a minor, and P. G. Utley, administrator. From judgment quieting title in in-tervener Thompson, plaintiff and Utley bring error.

Error from District Court, Canadian County; Edward D. Oldfield, Judge. Proceedings by Oklahoma City to condemn land of Joseph Eichman for city reservoir purposes. From judgment upon appeal from award of commissioners, Eichman brings error.

<p>(Syllabus.)</p> <p>1. Insurance — Indemnity Insurance — Construction of Contract.</p> <p>When the terms of a bond clearly indicate the intention of the obligor and obligee that there shall be an indemnity to the latter on account of tibe dofaul'r of an employe, doubtful terms will be so construed as to effectuate rather than to defeat the intention.</p> <p>2. Same.</p> <p>On June 1, 1904, the Bankers Surety Company executed to the Citizens Savings & Trust Company a bond to protect the latter against defalcations of a certain employe. This bond was kept in force by renewal certificates to March 1, 1912. On June 1, 1912, the Equitable Surety Company executed its bond to the Citizens Savings & Trust Company, and to this bond was attached a rider providing that, after the time had expired for making claim against the Bankers Surety Company nude]' its bond, and if no claim had arisen or been made thereon, to make the bond of the Equitable Surety Company commence on the original date of the bond of the Bankers Surety Company, subject to all the terms and conditions of said bond. On April 10. 1913, to be effective from and covering a period from March 1, 1913, to March 1, 1914, the Southern Surety Company executed its 'bond to the Citizens Savings & Trust Company in a like sum, to which was attached a rider, providing that, after the time had expired for making claim against the Bankers Surety Company under its certain bond expiring March 1, 1912, and after the time had expired for making claim against the Equitable Surety Company under-its bond expiring March 1. 1913. and if no claim had arisen or been made thereon, to make its obligation under the annexed bond commence on the original date of the bond of the Bankers Surety Company. On the. 7th day of May, 1913, the Equitable Surety Company executed to the Southern Surety Company a reinsurance agreement covering the period of one year from the first of March, 1913, for the sum of $7,500, or one-half of any sum or sums the Southern Surety Company would become liable for and pay under or toy virtue of its bond. The bond of the Southern Surety Company and the reinsurance agreement of the Equitable Surety Company, by renewal certificates, were kept in force to the time of (he death of the employe. Held, that the several bonds, the riders attached thereto, to1 gether with the renewal certificates, constituted one continuous contract in determining ttie liability of the Southern Surety Company under its bond.</p> <p>3.Same — Contract of Reinsurance.</p> <p>The liability of the reinsurer depends upon the terms of the policy of reinsurance, and not upon the question of whether or not the insured strictly complied with the provisions of the original policy as to notice of loss, unless the reinsurance _ policy contains a proviso making the giving of such notice a condition precedent to liability.</p>

Error from District Court. Oklahoma County; Edward Dewes Oldfield, Judge. Action by Emma Spears against D. D. Mc-Henry and others for use and occupancy of land, etc. Judgment for plaintiff, and defendants McHenry bring error.

Error from District Court, Muskogee County; Chas. G. Watts, Judge. Action by W. O. Nelson and another against Julius Golden to rescind contract for sale of real estate. Judgment for defendant, and plaintiffs bring error. Statement of the Case. Mrs. Ella Nelson was the owner of 96.35 acres of land situated in Muskogee county, approximately 53 acres situated in section 18, and approximately 37 acres situated across the road in section 19, all in township 15, range 19 east.

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by the Oil Field Supply Company against the Equitable Surety Company and another. Judgment for plaintiff, and defendant named brings error.

Error from. County Court, Lincoln County; Ira E. Billingslea, Judge. Action by S. J. Thompson against Mrs. B. J. Cassidy for broker’s commission; First State Bank of Chandler, garnishee. Judgment for plaintiff, and adverse parties bring error.

<p>(Syllabus.)</p> <p>1. Pleading — Petition—Sufficiency on Demurrer.</p> <p>■ On a demurrer to a petition as defective, in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed, and all its allegations taken as true for the purpose of the demurrer.</p> <p>2. Same.</p> <p>Where a pleading states any facts upon which a pleader is entitled to any relief under the law a general demurrer to the same should be overruled.</p>

Error from District Court, Major C.ounty; James B. Cullison, Judge. Action by R. L. Cannon against T. B. Unruh to enforce oral contract for sale of land. Judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Tulsa County; N. E. McNeill, Judge.</p> <p>Action by Pearl Talley against Elton S. Long and another to cancel contract for sale of homestead and for otther relief. Judgment for the plaintiff. Defendant Elton S. Long appeals.</p>

<p>Original proceeding from Creek County, State of Oklahoma. Proceeding by John D. Boxley et al. to disqualify Lueien B. Wright, Judge of the 22d Judicial District, and the District Court of Creek County.</p>

Error from Superior Court, Muskogee County; Guy E. Nelson, Judge. Action by the R. B. Herndon Real Estate Company against Joe Depew and another for broker’s commission. Judgment for defendants in city court, and from superior court’s judgment dismissing plaintiff’s nppeal, it brings error.

• Error from Superior Court, Okmulgee County; R. E. Simpson, Judge. Action upon open account by M. Sanditen, doing business under the style and firm name of the Oklahoma Salvage & Supply Company, against the Allied Refining Company. Judgment for defendant, and plaintiff brings error.

<p>(Syllabus.)</p> <p>1. Animals — Pasture of Cattle — Liability ■of Bailee.</p> <p>One with whom cattle has been left to pasture does not assume liability as insurer in the absence of a contract to that effect, and is not liable for loss of the cattle if he has exercised ordinary care for the safe-keepinK of the cattle while under his control.</p> <p>2. Same — Cattle Strayed or Stolen.</p> <p>One with whom cattle has been left to pasture is not relieved from liability to return tbe cattle because they have been lost by straying from the pasture or stolen unless the bailee exercised ordinary care for their safe-keeping.</p> <p>3. Same — Action—Burden of Proof.'</p> <p>In an action by the bailor against a bailee for hire to recover the value of cattle, which the bailee has failed to deliver to the bailor, where the cattle have been in the exclusive possession of the bailee, the burden of establishing negligence rests upon the bailor, but this burden is satisfied when the bailor has shown a delivery of the property in good condition to the bailee, and a failure or refusal by the bailee to make delivery of the cattle upon demand, and such evidence on the part of the bailor is prima facie evidence of negligence and is sufficient to cast upon" the bailee the burden of explaining his failure to return the cattle.</p> <p>4. Same — Evidence—Prima Facie Case.</p> <p>Where the owner of cattle left in the exclusive possession of another to pasture shows that he left the cattle with such person in good condition and that such bailee has failed to return part of the cattle, such evidence makes a prima facie case for the owner of the cattle, and in such a situation it is incumbent upon the bailee to satify the jury by the evidence that the loss of the cattle was consistent with the absence of fault on his part.</p> <p>5. Trial — Instructions—Requested Instructions — Theory of Case.</p> <p>It is the duty of the court to ,submit to the jury under proper instructions any theory of recovery or defense which the evidence tends to support, and in an action where the plaintiff has by special instruction requested tbe court to submit a theory of recovery and there is evidence tending to support the theory and the general instructions of the court fail to submit such theory, the refusal of the court to give the requested instruction constitutes a reversible error.</p>

<p>(Syllabus.)</p> <p>1. Agriculture — Johnson Grass — Statutory Provisions — Presence on Premises.</p> <p>Sections 98, aa, and 100, inclusive, ox Revised Laws of 1910, prohibit the introduction into this state, or the sale of any Johnson grass seed, except a person selling or giving away oats, bay, straw, seed or grain containing or intermixed with the seed or roots of Johnson grass, must disclose such fact to the purchaser, and make it unlawful for any person, firm or corporation to permit Johnson grass to mature seed upon, any land, grounds, or right of way owned or controlled by such persons, but under the provisions of said statutes tibe presence of Johnson grass upon the premises of such parties is not made unlawful.</p> <p>2. Railroads — Johnson Grass — Killing Stock — Dangerous Premises.</p> <p>In an action by the plaintiff against the defendant railway company for damages alleged to have resulted because the plaintiff’s cow escaped from his pasture and entered upon the right 'of way of the .defendant railway company and ate some second-growth Johnson grass causing death, where it appears from the evidence that the only negligence complained of by the plaintiff is the presence of the Johnson grass upon the right of way of the defendant company, such evidence is insufficient to establish a cause of action in favor of the plaintiff against the defendant, and the .judgment of the trial court in favor of the defendant should be affirmed.</p>

Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by J. W. Cook and John H. West, partners, doing business under the name of Cook-West Lumber Company, plaintiffs, for the recovery of $2,664.45 against Sam Le-vin. Judgment for plaintiffs, and defendí-ant appeals.

<p>(■Syllabus.)</p> <p>Appeal iand Error — (Review—Failure of Defendant in Error to File Brief.</p> <p>In an action appealed to this court where the plaintiff in error filed brief showing service upon the defendant in error and no brief is filed by the defendant in error and no reason given showing why the defendant in error has not filed brief, and the brief of the plaintiff in error reasonably supports his assignments of error, this court is not required to search the record to find some theory upon which the judgment of (he trial court may be sustained; but this court will reverse the judgment in accordance with the prayer of the petition in error.</p>

Error from District Court, Ottawa County ; Preston S. Davis, Judge. Action by Lulu A. Oakey against John H.West to recover damages for breach of promise of marriage. Judgment for plaintiff, and defendant appeals.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Questions of Fact— Judgment.</p> <p>When the court tries both questions of law and fact in an action wherein the parties are entitled to a trial by jury, the judgment of the court stands in lieu of the verdict of the jury; on appeal .this court will not weigh the evidence, but if there is any evidence reasonably tending to support the judgment of the trial court, its judgment will not be disturbed.</p> <p>2. Mortgages — Conveyance of Property — Liiabiility of Vendee — Judgment — Evidence.</p> <p>On an examination of the evidence we find there is evidence reasonably tending to support the judgment of the trial court.</p> <p>3. Same.</p> <p>The record examined, and held, that the judgment of the trial court is not excessive.</p>

Error from District Court. Okmulgee County; Mark L. Bozarth, Judge. Action by George W. Strawn and another, against A. C. Brady and others, for possession of lands and to quiet title. Judgment in favor of defendant A. C. Brady, and plaintiff George W. Strawn appeals, and defendant Annie Francis, now Harris, files cross-petition in error. Judgment modified and affirmed in part.

<p>.Error from District Court, Woods County ; W. O. Crow, Judge.</p> <p>Action by Harley G. Wares, a minor, by guardian, J. B. Wares, and others against William Knabe and Gilbert Knabe to partition homestead. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Garfield County; James B. Oullison, Judge. Action by the Enid National Bank against the Golden Goose Oil Company to recovei-on two promissory notes and foreclose two chattel mortgages, and to determine the right of certain mechanic’s lien holders-who were made defendants. Judgment for plaintiff and certain defendants against defendant Golden Goose' Oil Company. The Golden Goose Oil Company appeals.

<p>(Syllabus.)</p> <p>1.Intoxicating Liquors — Searches and Seizures — Forfeiture of Property — Statutory Provision — Jurisdiction of Courts.</p> <p>Section 3617 of Bevised Laws of 1910, does not authorize an officer having power to serve criminal process to search premises without a search warrant, but only authorizes such officer, when a violation of any provision of the prohibitory • laws occurs in hii-s presence, to arrest the offender without a warrant and seize any liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging unlawfully used in the commission of the offense committed in his presence, and when a seizure of such property is so made, such seizing officer must immediately take the seized property before the court or judge having jurisdiction of the offense for which the offender was arrested, and there make complaint, under oath, charging the offense so committed. and make a return setting forth a particular description of the liquor and property seized. Thereupon.the court or judge must issue a warrant commanding and directing the officer to hold the property so seized Hu his possession until discharged by dne process of law, and such action on the part of the seizing- -officer and court is necessary to vest the court with jurisdiction to entertain a proceeding for the forfeiture of sueli property.</p> <p>2.Same — Search and Seizure Without Search Warrant — Rooming Houses — Constitutional Rights.</p> <p>The entry by an officer upon the premises of an individual occupied and -used as a rooming house without a search warrant and the searching of the premises and the seizure rf furniture, bedding, and fixtures in the rooming house without the process of any court authorizing such search and seizure was unauthorized, and such officer was a trespasser and the seizure 'of the property under such circumstances was an invasion of the constitutional rights of the person occupying the premises guaranteed by article 2, section 30 of the.Bill of Bights of the Constitution, relating to unreasonable searches and seizures, and the property so seized under such circumstances should have been ordered returned to the occupant of the premises by (he court in • which forfeiture proceedings were instituted pursuant to such unlawful acts.</p> <p>3.Same — Seizure and Forfeiture of Property — Statutory Proceedings — Jurisdiction.</p> <p>The forfeiture of property alleged to have been used in violation of the prohibitory laws of the state is a statutory proceeding, and a court cannot acquire jurisdiction of property sought to be forfeited except in the manner prescribed by tlie statute.</p>

Error from District Court, Roger Mills County; T. P. Clay, Judge. Petition by Rhoda E. Wilson and another to vacate judgment in favor of Silas W. Ferguson. Demurrer to petition sustained, and petitioners bring error.

Error from District Court. Grady County: Will Dinn. Judge. Mandamus by R. B. Human against F. F. Meads and others, constituting the State Board of Veterinary Medlctal- Examiners. Judgment for plaintiff, and defendants, bring error.

<p>(Syllabus.)</p> <p>1. Homestead — Death of Widow Leaving Minor Children — Administration Proceedings.</p> <p>Under and by virtue of section 6328. Rev. Laws 1910, tlie homestead, upon the death of the widow leaving unmarried min- or children, is not subject to administration proceedings.</p> <p>2. Same — Liability of Homestead for Debts.</p> <p>By virtue of seetiou 2, article 12, of the Constitution, and section 6330, Rev. Daws 3910, upon the death of the widow, leaving surviving unmarried minor children, the homestead is not subject to the payment of any debt or liability existing against tbe widow previous to or at the time of her death, except such as are secured by lien thereon, or as provided in the laws relating to the homestead.</p> <p>3. Same — Subjection of Homestead to Administration.</p> <p>; The phrase “until it is otherwise disposed of according to law” in section 6328,. Rev. Laws 1910, means: “It may be sold for taxes, or upon foreclosure of any mortgage thereon executed by both husband and wife, or upon execution to enforce judgment for tbe purchase price, or any part thereof, or the enforcement of mechanic’s lien.”</p> <p>4. Same — Mortgage by Administrator — Validity.</p> <p>An administrator filed a petition to mortgage certain land, alleging the deceased died seized of the same; notice was published of the hearing on said petition, and the court, made an order authorizing the administrator to mortgage the same, and a mortgage was executed and approved by tbe county judge; thereafter the mortgagee commenced an action to foreclose said mortgage, and the minor children were made parties, and defended on the theory the land was their homestead, and the administrator nor county court had any jurisdiction of the homestead. Held, where the probate record does not affirmatively show an adjudication that the land was not the homestead, the minors may plead and prove said fact, and where the evidence is uncontradicted that the land was the homestead, the mortgage as to said minors is void.</p> <p>5. Same.</p> <p>Tbe administrator or county court acquires no jurisdiction to mortgage the homestead of intestate, where she leaves surviving no husband, hut unmarried minor children residing upon said homestead, and if said mortgage is executed, a court of equity has the power to set the same aside at the instance of the minor children.</p>

<p>(Syllabus.)</p> <p>1. Homestead — Conveyance — Husband and Wife.</p> <p>Under the provisions of section 2, art. 12, of the Constitution, and section 11'43, Revised Laws of Oklahoma 1910, the homestead exempt by law cannot be alienated' except by a written instrument subscribed by -both husband and wife.</p> <p>2. Same — Separate Deeds by Spouses -- Validity.</p> <p>Where the wife executed lier separate deed attempting to convey the homestead on September 24, 1913, and the husband executed his separate deed thereto on October S, 1913, held, this was not' a sufficient compliance with the statute to operate as a conveyance of the homestead.</p>

<p>Error from District Court., Tillman County; Prank Matliews, Judge.</p> <p>Action by J. A. Cardwell and others against the St. Paul Fire & Marine Insurance Company on fire insurance policy. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Creek County; Mark Bozarth, Judge. Action by Wm. A. Sapulpa, administrator of the estate of Charles E. ■ O’Shields, against the Sapulpa Refining Company for damages for negligent death. Judgment for plaintiff, and defendant brings error.

<p>(■Syllabus.)</p> <p>Judgment — Grounds flor Vacation — Want of Service of Process.</p> <p>Belief based on extrinsic evidence may be had against a judgment rendered without service of process under the third subdivision of section 5267, Bev. Laws 1910, empowering the court to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made on account of “irregularity in obtaining the judgment or order,” but if the judgment or order sought to be vacated is valid on its face, and it be necessary to resort to extrinsic evidence to show the invalidity thereof for want of service of process, the motion to vacate must be presented within three years following the rendition of the judgment or order, as provided for in section 5274, Rev. Laws 1910.</p>

<p>(Syllabus.)</p> <p>1. Partnership — Enforcement of Contract— Accounting — Prematurity of Action.</p> <p>In the month of August, 1917. R. and W. entered into an agreement, whereby W. was to finance the deal, and R. was to go among the farmers of Jackson county and buy for future delivery 200 bales of cotton of the 1917 crop. One dollar per bale was to be paid in cash at the time of entering into the contract of purchase with the farmer; the balance was to be paid when delivered to AY. After the delivery of the cotton, W. was to sell the same on the market, and the proceeds were to be shared equally between R. and W. R. performed his part of the agreement and, after approximately 60 bales had been delivered, AY. repudiated the agreement claiming that R. had no further interest in the cotton received ■ or to be received, whereupon R. instituted an action praying for an accounting, alleging the insolvency of W. and praying for the appointment of a receiver, etc. Held, action not premature.</p> <p>2. Evidence — Private Documents — Proof of Execution.</p> <p>In order to render a private document admissible in evidence its execution must be proved. Proof may be made by tbe evidence of those who can testify to the fact of its execution.</p> <p>3. Same — Report of Sale on Cotton Exchange.</p> <p>Where it is sought to introduce in evidence a report of the sale of cotton on the New York Cotton Exchange, the genuineness of such report must he proved and in addition thereto, under section 2, ch. 97. of the Session Laws of Oklahoma, 1917, p. 146. it must be shown: First, that the sale was made in accordance with the rules of the New York Exchange; second, that the sale was actually executed on the floor of such exchange and performed or discharged according to the rules thereof; and third, that the sale was made through a regular member in good standing of such exchange.</p>

Error from District Court, Lincoln County; Chas B. Wilson, Judge. Action by W. R. Burford and wife against the Territorial Land Company and Joseph M. Bryson, Trustee, in ejectment and ,to quiet title. Demurrer to petition sustained, and plaintiffs bring error.

Error from Superior Court, Muskogee County; Guy F. Nelson, Judge. * Action by Sam J. Smith, doing business as Central Texas Crain Company, against Bonier-Venus Crain Company, ia partner*ship composed of J. W. S. Bowér and H. J. Venus, for damages for nondelivery of hay sold. Judgment for irfaintiff, and defendants bring error.

Error from District Court, Pottawatomie County; James I. Phelps, Assigned Judge. Action by S'arah F. Van Zant, adminis-tratrix of the estate of R. E. L. Van Zant, deceased, against the Shawnee National Bank to recover for alleged illegal disposition of certain property of the estate. Judgment for plaintiff, and defendant brings error.

Error from District Court, Murray, County; T. P. Clay, Assigned Judge. Action by Thomas P. Wall against A. D. Chapman to restrain breach of contract of sale of business good will. Judgment for defendant, and plaintiff brings error.

Error from District Court, Ottawa County ; Preston S. Davis, Judge. Action by Henryetta 'Wilson against the Oklahoma, K. & M. Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>' Error from District Court, Ottawa County; Preston S. Davis, Judge.</p> <p>Action by Ila McGhee against the Oklahoma, Kansas & Missouri Railway Company for damages for pefsonal injuries.</p>

Error from District Court, Ottawa County; Preston iS. Davis, Judge. Action by Roy McGhee against the Oklahoma,. K. & M. Railway Company for damages for personal injuries. Judgment for plaintiff and defendant brings error.

Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by A. P. Wilsou against the Oklahoma, Kansas & Missouri Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. • Action in ejectment by Isabel Kenoly and another against Sam. L. Hawley and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Pontotoc County ; J. W,, Bolen, Judge. Action by Annie Istincheyou against Rosa Clark and others to cancel deed and quiet title. Judgment for defendants, and plaintiff brings error.

Error from District Court, Ottawa County : George C. Crump, Assigned Judge. Action by W. L. Vanderford against J. E. Allen and others for settlement of partnership affairs. Judgment for plaintiff, and defendants bring error.

Error from District Court, Ottawa County ; Preston S. Davis, Judge. Action by Ollie Ramsey against the Never-sweat Mining Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; Edward Dcwes Oldfield. Judge. Action by Maggie Reuek against H. A. Green, to declare a deed to be a mortgage, etc. Judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Jefferson County ; Cham Jones, Judge.</p> <p>Action by Willie Ned and others against H. D. Countiss and D. A. Cathey to recover land. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Pontotoc County; J. W. Bolen, Judge Action by R. A. Herndon against J. W. Beard, assignee, to recover certain specific property based on a plea of special ownership under a mortgage made by owner to Herndon. From a judgment for plaintiff, defendant appeals.

Error from District Court, Okmulgee County; John L. Norman, Judge. Action by Harvey Newman against the City of Okmulgee land others to enjoin the making of certain public improvements and the levy of special assessments. Judgment for defendants, and plaintiff brings error.

<p>Error from County Court, Tulsa County; W. B. Williams, Judge.</p> <p>Action by Ella Cochran against Asa Hose for conversion. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Garfield County; J. C. Robberts, Judge.</p> <p>Action by L. E. Messman against Wood Lower and others to recover certain items of expense incurred by plaintiff incident to the purchase of land from certain of defendants. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Wagoner County ; Chas. G. Watts. Judge. Action by Oelia Soldofsky against Caroline Barlow for possession of Jantl; cross-petition by defendant to cancel deeds. Judgment for plaintiff, and defendant brings •error.

Error from District Court, Haskell County; W. H. Brown, Judge. Action by Ada T. Cushing, executrix of the estate of Francis J. Cushing, deceased, against J. B. Holleman and others on note and mortgáge. Judgment for plaintiff, and defendant Holleman brings error.

<p>(Syllabus)</p> <p>1. Appeal and Error — Accepting Benefits of Judgment — Right to Appeal.</p> <p>A party to an action who voluntarily accepts from his adversary the benefits accruing to him under a judgment cannot question the validity of such judgment in this court op appeal, and thus deny the rights flowing to such adversary under said judgment.</p> <p>2. Same.</p> <p>When a party to an action voluntarily accepts the benefits accruing to him under a judgment, he thereby recognizes the validity of such judgment as against him. Such act. on his part operates as a waiver of his right ro prosecute an appeal therefrom or to bring error to reverse it.</p> <p>3. Same — Moot Question.</p> <p>Where a party to an action by any voluntary act on his part recognizes the validity of a judgment, all questions he could have raised in an appellate court affecting its validity have become moot.</p> <p>4. Same — Dismissal of Appeal.</p> <p>When it appears that the questions presented in an action or proceeding pending before this court have become moot, the action or proceeding will be dismissed. 'State ex rel. Freeling, Atty. Gen., v. Taylor et al., Excise Board of Oklahoma Oounty, 82 Okla. 220, 200 Pac. 149.</p>

<p>(Syllabus.)</p> <p>1. Master and Servant — Workmen’s Compensation-Continuing Jurisdiction of Industrial Commission — Modification of Orders and Awards.</p> <p>The power and jurisdiction of the State Industrial Commission under the Workmen’s Compensation Law (chapter 240, Sess. Laws 1915) over each case submitted to it is continuing, and the commission may, from time to time, make such modification or change of its former findings or orders relating thereto as, in its opinion, may be just, and under section 12, art. 2, of said act, the commission may at any time, upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the act.</p> <p>2. Same — Appeals from Industrial Commission — Review—Question of Fact.</p> <p>The decision of the commission is final as to all questions of fact, and the court is not ruthorized to weigh the evidence upon wine’’ any finding of fact is based.</p>

<p>.Error from Superior Court, Creek County, G. R. Wilcox, Judge.</p> <p>Action between W. A. Brummett and Wosey John et al. From the judgment, the former brings error.</p>

<p>(Syllabus.)</p> <p>1. Limitation of Actions — Tolling Statute by Payment or Acknowledgment of Debt.</p> <p>Section 4663, Rev. Laws 1910, provides: “In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability,, debt or, claim.,' or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed 'by the party to toe charged thereby.”</p> <p>2. Same.</p> <p>The above provision of the Code provides three ways by which an action on the contract after it has become barred as well as before may be taken out of the operation of the statute: First, toy payment of a part of the principal or interest; second, by an acknowledgment in writing of an existing liability, debt, or claim signed by the party to be charged; third, by a promise of payment in writing signed toy the party to be charged — and it is sufficient that one of these conditions shall exist.</p> <p>3. . Same — Sufficiency of “Acknowledgment.”</p> <p>A mere reference to the indebtedness, although consistent with its validity and implying no disposition to question such validity, or a mere suggestion of some action concerning it, is not such an acknowledgment as is contemplated as sufficient to suspend the running of the statute of limitation. There must be an unqualified and direct admission of a present subsisting debt on which the party is liable, and which he is willing to pay.</p> <p>4. Same.</p> <p>Record examined, and held, that the letter of the defendant addressed to plaintiff was not sufficient to toll the statute of limitation under the provision of the statute, supra, and the trial courj properly so held. The judgment of the trial court is therefore affirmed.</p>

<p>Error from District Court, Jackson County; Jílrank MátheWte, Judge.</p> <p>Action by Merring, Martin & Boise Company against H. Lieberman to recover for breach of sale contract. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Osage County; R. B. Boone, Judge. Action by F. B. McOomb against T. H. McHenry to recover on two certain promissory notes amounting to approximately $600. Yerdict and judgment in favor of plaintiff for $30, and plaintiff appeals.

Error from County Court, Ottawa County; N. O. Barry, Judge. Action by Hirsch Distilling Company against John -Comba to recover on an account. On motion of plaintiff the court rendered judgment on the pleadings against the defendant, -and defendant appeals.

Error from District Court, Kay County; Wm. M. Bowles, Judge. Action by William George and another against the Connecticut Eire Insurance Company, of Hartford, Conn., on fire insurance policy. Judgment for defendant, and plaintiffs bring error.

<p>('Syllabus.)</p> <p>1. Oil and Gas —■ Lease — Forfeiture for Failure to Develop —■ Equity Jurisdiction.</p> <p>Although a court of equity will decree a forfeiture of an oil and gas lease on account of a breach of an implied covenant to diligently operate and develop the property, when such forfeiture will effectuate justice, the granting of such relief depends upon the facts and circumstances surrounding the particular case.</p> <p>2. Same —■ Equity — “Coming into Court with Clean Hands.”</p> <p>A landowner, or the owner of a subsequent lease, with notice of a former lease,' invoking the jurisdiction of a court of equity to cancel and rescind a lease for breach of an implied covenant must come into court with clean hands.</p> <p>3. Same — Failure of Lessee to Drill Offset Wells.</p> <p>The general rule is that a court of equity will not cancel an oil and gas lease for failure to comply with an implied covenant to drill offset wells, unless notice has been served upo-n lessee that a failure to protect ■the line within a certain time will be considered grounds for forfeiture.</p> <p>4. Vendor and Purchaser'— “Bona Fide Purchaser.”</p> <p>The essential elements) which constitute a bona fide purchaser are (1) a purchase in good faith (2) for value and (3) without notice.</p> <p>5. Same — “Notice.”</p> <p>Whatever is “notice” enough to excite attention and put a reasonably prudent person on his guard and calls for inquiry, is notice of everything to which such inquiry might have led. When a person has sufficient information -to lead him to a fact, he shall be deemed conversant with it.</p>

Error from District Court, Osage County; Preston A. Shinn, Judge. Action in ejectment by Florence H. Stumpff against W. J. E. Harper et al. Verdict and judgment for plaintiff. Defendants denmnded a jury trial on their right to recover under the occupying claimants acts Verdict and judgment for plaintiff. Defendants appeal from both judgments.

Error from District Court, Muskogee County; R. P. deGraffenried, Judge. Action by James A. Harris against Harry L. Stevens for rents and profits on land bought at judicial sale. From a judgment in favor of the plaintiff, both plaintiff and defendant bring error.

<p>(Syllabus.)</p> <p>1. Master and Servant — Award of Workman’s Compensation — Review—Questions of Faet.</p> <p>In a suit instituted in this court to review an award of the State Industrial Commission, the suit must be to review an error of law, and not an error of fact. The decision as to all matters. of fact is final.</p> <p>2. Same.</p> <p>The opinion of the Industrial Commission examined, and held that the appeal herein involves a question of fact, and not an error of law.</p> <p>3. Appeal and Error — Briefs—Citation of Authorities.</p> <p>A plausible, but not convincing, argument in the brief, unsupported by citation of authority, is not sufficient to overcome the presumption indulged by the Supreme Court in favor of the correctness of the judgment of the trial court.</p>

Error from District Court, Ottawa County; Preston S. Davis, Judge. ' Action by Ray Thompson against John IP. Pliler ito recover real estate broker’s commission. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Bills and Notes — Actions—Burden of Proof.</p> <p>When it is shown that the title of any person who has negotiated a negotiable instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the: title as a holder in due course, except as otherwise provided in section 4109, Revised Laws 1910.</p> <p>2. Same — Holder in Due Course.</p> <p>The purchaser of a negotiable instrument, in order to be a holder in due course, must come within the requirements of section 4102. Revised Laws 1910, defining such holder.</p> <p>3.Same — Trial—Directing Verdict.</p> <p>Even though the defendant offers no evidence on rebuttal to disclose that the plaintiff was not a bona fide holder of the note in due course, nut where defendant has denied said fact, and the evidence introduced on the part of the plaintiff to prove such fact is of such nature that men of ordinary intelligence might draw different conclusions therefrom, it is not error for the court to refuse to instruct a verdict for the plaintiff.</p>

<p>Epror from District Court, Cleveland County; F. B. Swank, Judge.</p> <p>Mlandamus by Charles Lauer against W. R. Clark, Superintendent of Public Instruction of Cleveland County. Judgment for defendant, and plaintiff brings error.</p>

Error from-' District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by' W. W. Edwards against R. T. Stuart and another on promissory note. Judgment for plaintiff against defendant 'named, and he brings .error.

<p>Error from Supreme Court, Tulsa County; M. A. Breckenridge, Judge.</p> <p>Action by Roy Smith against the Sand ■Springs Railway Company for damages impersonal injuries. Judgment for plaintiff, .and defendant brings error.</p>

Error from District Court, Tulsa County; Redmond S. Cole, Judge. Action by the Zelma Oil Company and others, against the Nemo Oil Company and others against the Nemo Oil Company and tion. Judgment for plaintiffs, from which they appeal, and cross-appeal by the Sinclair Oil & Gas Company from the judgment igninst it.

Error from District Court, Oklahoma County; Edward D. Oldfield, Judge. ■ Action by Copiah County, Mississippi, against A. J. McMahan for breach of contract-to-buy bonds. Judgment for • plaintiff, and defendant brings error.

<p>('Syllabus.)</p> <p>1. Marriage — Comnfotn-Law Marriage — Validity.</p> <p>Where the facts show that the mutual 'intention of a man and woman was to consummate marriage, and that they cohabited as man and wife, holding themselves out to the public and to neighbors as such at all times, a common-law marriage is established. Thomas v. James et al., 69 Oklahoma. 171 Pac. 855.</p> <p>2. Tenancy in Common — Action in Ejectment — Recovery by Oine Cotenant Against Party With No Title.</p> <p>A tenant in common may sue separately in ejectment, and if defendants show no title, may recover possession of the entire estate in subordination to the rights of co-tenants.</p> <p>3. Same.</p> <p>In an action by the plaintiff in ejectment where the evidence shows that the plaintiff owns an interest in ¡the land, the exact extent of the plaintiff’s 'interest not appearing from the evidence, but that the plaintiff owns an interest in the lands in common with other parties not parties to tlie action and that the defendants have no title whatsoever' to the lands, the plaintiff may recover possession of the entire estate in subordination to the rights of her co-tenants.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Interstate Building & Loan Company and others against the City of Oklahoma City and others to enjoin assessments for certain paving. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Hazel Thayer, as beneficiary in a life insurance policy issued on the life of George D. Thayer, insured, by the Reliance Life Insurance Company. Judgment for plaintiffs. Defendant appeals.

<p>(Syllabus.)</p> <p>L Lis Pendens — Title of Pendente Lite Purchaser.</p> <p>The theory of lis pendens is to keep the subject-matter of controversy within the power of the court until the final judgment is rendered, so that the judgment, when rendered, may be effective. A party to the litigation cannot transfer the property in is^ sue so as to prejudice the rights of the plaintiff therein. The title of a pendente lite purchaser is not necessarily void. As between the parties to the transfer, the title is valid, but, as to the pendente lite purchaser, its validity depends entirely on the result or outcome of the pending litigation. While the purchaser must take notice of the facts contained in the record, he is only affected to the extent to. which the judgment in the suit goes.</p> <p>2. Parent and Child — Contracts Between— Scrutiny of Equity.</p> <p>The jealousy with which courts of chancery watch contracts made by parents with children, is laid down with terseness and much accuracy by Mr. Justice Story in his lecture on Constructive Prauds. He says: “The natural anu just influence which a parent has over a child, renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances, whereby benefits are secured by children to their parents, are objects of jealousy; and if they are not reasonable under the circumstances, they will be set aside.”</p> <p>3. Appeal and Error — Review—Sufficiency of Evidence.</p> <p>In an action at law, the judgment of the trial court should be sustained if there is competent evidence which reasonably tends to support it, though based on conflicting testimony; and, in an action of equitable nature, the findings and judgment of the trial court will not be disturbed if the evidence reasonably tends to support the same, and they are not against the clear weight of evidence.</p>

Error from District Court, Okfuskee County; Geo. C. Crump, Judge. Action by Robert Holloway against • A. W. Ward and others to quiet title and for possession. From the judgment, the plaintiff brings error.

<p>(Syllabus.)</p> <p>1. Marriage — Validity — Presumptions — Burden of Proof.</p> <p>Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or by lawful separation. (Hale v. Hale, 40 .Okla. 101, 135 Pae. 1143.)</p> <p>2. Same — Rebuttable Presumptions — Sufficiency of Evidence.</p> <p>The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is known as a rebuttable presumption, and the one contending against the legality of the second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary.</p> <p>3. Same.</p> <p>The evidence of the plaintiff in error In this case, who attacks the validity of the marriage of'one of the defendants in error on the ground that the deceased at the time of his second marriage was incompetent to enter into the marriage relation because of his former marriage to the plaintiff in error, examined, and held sufficient to meet the above requirements.</p> <p>4. Bastards — Legitimacy—Inheritance.</p> <p>Under section 8420, Rev. Laws of 1910, which provides: “The issue of all marriages null in law, or dissolved by divorce, are legitimate” — a child born of a marriage contracted and consummated in accordance with the form of the law, which for any reason (such as one of the parties having a living spouse undivoreed) is invalid, is legitimate, and inherits and transmits by descent as though born in lawful wedlock. (Copeland v. Copeland, 78 Oklahoma, 175 Pac. 764.)</p> <p>On Petition for Rehearing.</p> <p>5. Marriage — Presumption of Validity.</p> <p>The presumption of removal of prior obstacles in support of a marriage does not prevail where it is attacked and evidence introduced on either side, but the question then becomes one of fact, to be decided in the light of all the circumstances and the reasonable inferences from them. (Turner v. Williams [Mass.] 24 L. R. A. [N. S.] 1199. Also Editor’s Note, 16 L. R. A. TN. ®.] 98, 99.)</p> <p>6. Sarnie — Estoppel to Deny Validity.</p> <p>The rule as to estoppel arising from the marriage relation is that where a marriage is shown to be illegal and void ab initio, neither of the parties by any acts become as. against the other estopped to deny its existence, but if one of the parties to such marriage has, by false representations as to the existence of a legal impediment, induced ¡the other to enter into the marriage relation, such party so representing will, where the other has continued to act upon such representation, after the impediment has been removed, be estopped to denv their truth. (26 Cyc. 867-8)</p> <p>7. SVune— Attack by Wife Upon Validity of Second Marriage.</p> <p>Held, that the facts in the record in this case are not such as to constitute an es-toppel denying the right of a wife to a first marriage to attack the validity of the second marriage.</p> <p>8. Same — Sufficiency of Evidence.</p> <p>In determining which of the two women is the legal, surviving widow of a deceased husband, where it is not denied that a legal marriage was consummated between the deceased husband and the first wife, and that the deceased husband had lived with the first wife four years, by whom he had one child, and then abandoned the wife and child and moved to another state, in which state, and in less than two years after so abandoning his wife and child, he marries another women, and the first wife continuing to reside -in the county jn which she and -the deceased husband had lived, and she so continued to reside up to the time and after the consummation of the second marriage by the deceased husband, and she not having remarried up to the time of the second marriage of 'the deceased husband, and the records in the counties in which he and she resided up to the time the deceased husband contracted the second marriage show no divorce by either, the presumption as to the legality of said second marriage of the deceased husband is rebutted thereby, -and said second marriage must be held invalid.</p> <p>9.Same — Burden, of Proof — Presumptions.</p> <p>If a prior marriage is shown to have existed at the time of the second marriage, the burden of proving the removal of the impediment by death or divorce and of the creation of a legal marriage after the removal of the impediment, rests upon the party asserting the validity of the second marriage. This is so since a relation illicit in its inception is presumed -to continue in the absence of countervailing evidence.</p>

<p>Error from District Court, Greer County; T. P. Clay, Judge.</p> <p>Action between D. A. Hudgens and the State, on the relation of M. H. Mills, county attorney of Greer county. From the judgment, the former brings error.</p>

<p>(■Syllabus.)</p> <p>1. Sales — Breach by Purchaser — Remedies of Seller — Damages—Resale.</p> <p>A commodity which one has refused to accept and pay for, according to contract, may be resold by the seller, for the purpose of fixing the amount of his damages caused by the breach of the contract by the' purchaser to recéive and pay for, with the costs of delivery to him:</p> <p>2. Same — Manner of Resale — Discretion of ' Seller.</p> <p>A resale of property is but the mere means of determining the precise amount of damages by the breach, while the incidental effect is to satisfy the Ipss suffered by the vendor to .the extent of ¡the proceeds from the resale. The resale may be made at public auction or privately, and it often happens that the goods can best be sold at private sale; but whether on the one mode or the other, in the absence of any instructions from the buyer, the vendor has the ■ right to exercise his discretion within reasonable bounds, and1 whether this discretion is exercised properly and in good faith is a question of fact for the jury.</p> <p>3. Appeal and Error — Questions of Fact— Bindings — Evidence.'</p> <p>. Where a jury is waived, the findings’ of the court are entitled to the same weight and consideration that would be given to a verdict by the jury, and if there is any evidence, indtading -any reasonable inference, tending to support the findings, the- Supreme Court will not reverse for insufficient evidence.</p> <p>4. Same — Sales — Damages for Breach by Buyer.</p> <p>Record examined, and held, that the judgment of the trial court should be affirmed, and it is so ordered.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Action by Vogel Bros. & Company against Joe Bastin, Dave Daube. and J. H. Akers for purchase price of goods secured by bond. From judgment in favor of plaintiff against Joe Bastin and in favor of Dave Daube and J. I-I. Akers, sureties, plaintiff appeals.

<p>(Syllabus.)</p> <p>1. Principal and Agent — Authority of Agent to Delegate Powers — Acts of Sub-agent.</p> <p>It is a general rule that an agent is not authorized to delegate his powers, where personal trust or confidence is reposed in him, or where his duties require - experience and the exercise of judgment or discretion, unless there is a special power of substitution, either, express or necessarily implied. .He may, however, as a general thing, employ others to assist him in the purely ministerial and unimportant details of his duty, and their acts, when done in his name and recognized by him, are regarded as his acts, and as such binding on his principal.</p> <p>3. Same — Sales — Inspection of Lumber by Subagent.</p> <p>Where a lumber dealer employed an agent to inspect and accept lumber purchased by such dealer, and such agent failed to make inspection of such lumber, but the same was inspected by his clerk or subagent, without the knowledge or consent of the principal, and the lumber was rejected by the principal because of its un-merchantable condition, held, duty of inspecting and accepting such lumber was not purely a ministerial or unimportant detail of the duties of the agent, but such duty required experience and involved the exercise of judgment, and could not be delegated by the agent so as- to bind the principal by the acts of such clerk or subagent.</p>

<p>Error from District Court, Tulsa County; A. 0. Brewster, Judge.</p> <p>Action by Julia E. .Asbridge against Dot-tie Boling- for damages for negligent death of her husband. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Schools and School Districts — Validity of Special Election — Statutory Notice.</p> <p>Where a special election is ssailed on the ground of lack of compliance with ail the statutory requirements’ in reference to notice, tout there is no averment or showing that the electors did not have actual notice or knowledge of the election, and failed to participate therein by reason thereof, the same will not be held void on this account.</p> <p>2. Quo Warranto — Right to Remedy — Legality of Consolidation of School Districts.</p> <p>Article 7, eh. 219, Session Laws 1913, an-rnorizes the county superintendent to call a meeting of the voters of two or more adjacent districts to determine whether such districts shall consolidate, when Petitioned by one-half of the legal voters residing in each district. Held, the filing of petitions signed by the number of qualified persons as prescribed by statute is a condition precedent to the calling of the meeting. Held, further, after the sufficiency of the petition has be.en determined by the county superintendent and the call issued for such meeting, and a majority of those present vote in favor o,f consolidation and the consolidated district is organized, in all other respects according to law, in the absence of frauds, the question of whether the petitions were signed by the proper number of qualified persons cannot be inquired into in quo warranto proceeding.</p> <p>3. Schools and School Districts — Consolidation of Districts — Appeal—Statute.</p> <p>'Section 8, art. 7, eh. 219, ‘Session Daws 1918, and section 7781, Rev. Laws 1919. authorize an appeal from the action of the county superintendent in calling an election for a consolidation of certain districts, and provide for an appeal from the order of the county superintendent organizing sa-id district.</p>

Error from District Court, Stephens Co., Cham Jones, Judge. Action to quiet title by Araminta Dolen against Edwin M. Freeland and others. Judgment for plaintiff, and certain defendants bring error.

<p>(Syllabus.)</p> <p>1. Guardian and Ward — Suit by Guardian —Representative Capacity — Petition.</p> <p>A person who describes himself as guardian of another will1 be taken to sue in his representative, and not in his personal, capacity, where the allegations of the petition taken as a whole show clearly that it was his intent to sue as guardian.</p> <p>2. Same — Action by Guardian Alone to Recover Assets of Estate.</p> <p>Under the authority of section 4683, Rev. Laws 1910, authorizing an executor, administrator, guardian, etc., to bring an action without joining the person for whose benefit it is prosecuted, the guardian, has authority to commence and' prosecute in his own name as such, without joining his ward, an action to recover assets of and debts .and liabilities due to the estate of his ward.</p> <p>3. Guardian and Ward — Guardian’s Bond— Release of Sureties — Authority of Court.</p> <p>In the absence of statutory authority, the county .courts have no jurisdiction to release or consent to the release of -the sureties on the guardian’s bond. Section 6580, Rev. Laws 1910, in authorizing the county court to release the existing sureties on a guardian’s bond from further liabilities, conditions the release and discharge of the existing sureties upon the execution of a new bond to be given by the guardian as a substitute for the discharged bond.</p> <p>4: Same — Proceeding for Release of Sureties — Judgment—Conclusiveness.</p> <p>Where the county court’s jurisdiction is properly invoked on a petition to discharge sureties on a guardian’s bond, the amount of the substituted bond and sufficiency of the sureties are questions for the county court, and the judgment of the county court rendered in such matter in. the exercise of its jurisdiction is, in the absence of fraud, binding and conclusive unless reversed oil appeal.</p> <p>5. Same — Substitution of Bond — Validity.</p> <p>The order of the county court releasing sureties on the $35,000 guardian bond and accepting in lieu thereof & $1,000 bond, coupled with the order that the guardian shall not use or in anywise control any of the moneys, funds, or other property 'belonging to the ward, except upon the authority of. the court expressly given, and ordering all funds of the estate to be deposited in a certain bank, with directions that none of the funds so deposited shall be paid out except upon express order of the court, is void, because the court has no jurisdiction to substitute the bank and itself for the guardian bond required by the statute.</p> <p>£. Guardian and Ward — Depository of Funds — Right of Court to Designate.</p> <p>If the county court is advised that the guardian has the ward’s funds in a failing or insolvent institution, it may direct him to withdraw them and deposit them in some solvent bank, but the county court has no authority to designate the particular bank as the depository. The guardian and his sureties are financially responsible for the ward’s funds and have a right to select the depository at their risk.</p> <p>7- Judgment — Collateral Attack — Jurisdictional Elements.</p> <p>While a judgment rendered in the' exercise of jurisdiction cannot be impeached collaterally, the three jurisdictional elements necessary to sustain a judgment may be inquired into by an inspection of the judgment roll on a collateral attack. The three jurisdictional elements entering into-the validity of every judgment are: (1) jurisdiction of the parties, (2) jurisdiction of the subject-matter, and (3) judicial power to render the .particular judgment, which means jurisdiction of the particular matter which the judgment professes to decide. If either of these three elements is shown by the judgment roll to be missing, the judgment is void and may be successfully attacked collaterally.</p> <p>S. Guardian and Ward — Validity of Guardian’s Bond for Benefit of More Than One Ward.</p> <p>'The fact that a guardian makes a single bond for the benefit of more than one ward does not vitiate it, even though it expresses a joint obligation as to the wards, while the statute requires it to be several.</p> <p>9. Same — Action on Joint Bond — Parties.</p> <p>If the obligees of a guardian’s bond are joint, they must all be parties to the action on • the bond, either as plaintiffs or defendants, as required by section 4692, Rev. Laws 3910.</p> <p>30. Same.</p> <p>. The reason of. the rule requiring joint ob-ligees to be parties is that the cause of action is one and entire.</p> <p>11. Bonds — Rule of Construction.</p> <p>In case of ambiguity or doubtful construction, a bond should be construed in the light of the circumstances surrounding the execution thereof, the object to be accomplished, the situation of the parties, and the relations existing between them. The nature of the duty of the obligor and the character of the obligee must also be regarded as explanatory of the intent.</p> <p>12. Guardian and Ward — Action on Guardian’s Bond Naming Five Wards— Amount of Recovery.</p> <p>The guardian executed a general guardian bon'd with sureties, naming therein five wards as obligees; the penalty named in the bond is $3,300; there is no provision in the bond reciting that the maximum penalty may be recovered by each of the wards. Held, that $3,300 is the maximum penalty, and that no more than that amount ás penalty can be recovered against the sureties by the obligees, either separately or jointly.</p> <p>13. Same — Joint and Several Obligation — - Parties.</p> <p>The guardian of five minors executed with a surety one bond reciting therein the five minors as obligees.' Held, the obligees are several, and not joint, and the bond is, in effect, the joint and several obligation of the principal and surety to each of the obli-gees in the sum of one-fifth of the penalty named in the bond. Held, that one of the obligees can maintain an action against the principal and surety on the bond without making the other obligees parties.</p> <p>14. Bonds — Bond to Two or More Obligees —Joint or Several Obligation.</p> <p>‘A bond given to two or more obligees may be 'given to them jointly or severally, but not jointly and severally, unless clearly and unmistakably so expressed in the bond. The general rule is that if the interest of the obligees is joint, the bond will be deemed to have been given to them jointly; if their interests are several, then severally.</p> <p>15. Guardian and Ward — Action on Guardian’s General and Special Bonds— Burden of Proof — Liability on Special Bond.</p> <p>A general guardian executed a bond with surety conditioned to be void if the guardian leased the land of his ward with fidelity and well and faithfully accounted for all moneys, rents, profits, and other things of value received by him under such lease. The guardian also had a general guardian bond. In an action against the guardian and his sureties on his general guardian bbnd and his surety on the lease bond, the burden of proof was on the surety in the lease bond to prove that no.part of the money received by -the guardian under the lease constituted a part of the guardian’s misappropriation and shortage in his accounts.</p> <p>lfi. Appeal and Error — Cross-Petition in Error — Sufficiency of Proceedings.</p> <p>The filing of a cross-petition in error attached to a transcript or case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court, is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the cross-petition in error. Such constitutes a cross-appeal, and such cross-appeal will not be dismissed because the cross-plaintiff in error did not prepare, serve, and have settled a case-made •and file same with his cross-petition in error, it appearing that the cross-petitioner filed a motion for a new trial and gave notice of appeal, as provided by section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917.</p> <p>17. Guardian and Ward — Waiver by Guardian of Infant’s Legal Rights — Validity.</p> <p>An infant is not bound by a stipulation of bis guardian waiving a -substantial legal right, it appearing that the guardian’s stipulation was evidently founded on a mistake of law.</p>